Constitutional Law Prof Blog

SCOTUS Says Docs, Orgs Lack Standing to Challenge Mifepristone

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

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

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

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

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

SCOTUS to Hear Challenge to Mifepristone on Tuesday

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

Abortion Access

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

Case at a Glance

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

Food and Drug Administration v. Alliance for Hippocratic Medicine

Docket No. 23-235

From: The Fifth Circuit

Argument Date: March 26, 2024

 

INTRODUCTION

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

ISSUES

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

FACTS

Background on Mifepristone

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

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

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

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

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

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

Challenges to Mifepristone

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

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

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

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

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

CASE ANALYSIS

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

Standing

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

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

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

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

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

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

FDA’s Actions

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

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

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

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

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

Preliminary Relief

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

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

SIGNIFICANCE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sixth Circuit Says Plaintiff Has Standing for Preenforcement Challenge to State Ballot Self Ban

The Sixth Circuit ruled that a plaintiff had standing to lodge a pre-enforcement challenge to Ohio's criminal ban on ballot selfies. The ruling sends the case back to the district court for proceedings on the merits--whether the ban violates the First Amendment.

The court ruled that a plaintiff who took a ballot selfie and wished to publicize it, but didn't, had standing to challenge Ohio's law, because, among other things, she demonstrated a "credible threat of enforcement." The court explained:

On this record, an individual deciding whether to display a photograph of his or her marked ballot must do so in light of the following: a law that punishes revealing one's marked ballot with imprisonment, repeated statements by Defendants that posting photographs of a marked ballot is illegal, no evidence that Defendants have publicly disavowed these statements, and at least one past instance in which the Board has ordered an individual to remove a ballot from display. Under these circumstances, [the plaintiff] demonstrates more than a "subjective apprehension and a personal (self-imposed) unwillingness" to post a ballot photograph. Therefore, she has alleged an injury in fact at the summary judgment stage.

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

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

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

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

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

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

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

Court to Consider ADA Tester Standing

The Supreme Court will hear oral arguments on Wednesday in a case testing whether a civil-rights tester has standing to sue a hotel for violating the ADA. Here's my preview, from the Preview of United States Supreme Court Cases (with permission):

ISSUE

Does an ADA tester have standing to sue a hotel for failing to provide information about the accessibility of its rooms on its online reservation system and on third-party hotel-reservation websites?

FACTS

Deborah Laufer is a disabled person under the ADA: she is visually impaired; she has limited use of her hands; and she uses a wheelchair or cane to get around. In order to stay in a hotel, she requires certain accommodations. As a result, in order to plan travel, she needs to know whether hotels offer certain accommodations.

Laufer is also an ADA “tester.” This means that she researches and tests whether covered entities are complying with the ADA. In particular, Laufer tests whether hotels comply with the ADA’s requirement that places of “public accommodation” provide “reasonable modifications” to their facilities in order to accommodate individuals with disabilities. More particularly, Laufer tests whether hotels comply with the ADA’s Reservation Rule. That Rule, promulgated by the Attorney General pursuant to authority under the ADA, requires hotels to “[i]dentify and describe [their] accessible features . . . in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.” 28 C.F.R. § 36.302(e)(1). As relevant here, the Rule requires hotels to identify and describe these features on their own online reservation systems and on third-party online reservation websites.

Laufer discovered that Acheson Hotels, which operated the Coast Village Inn and Cottages in Maine, did not identify whether it offered accessible rooms or the option of booking an accessible room. Laufer found this information lacking on Acheson Hotels’ reservation website “[o]n multiple occasions before filing suit.” She also found it lacking on third-party reservation websites that Acheson used.

Laufer sued Acheson for injunctive relief. (The ADA authorizes individuals to sue for violations of the Reservation Rule for injunctive and declaratory relief (which apply to alleged future harms), but not for monetary damages (which are backward-looking harms, or harms that already occurred).) She asked the court to order Acheson to modify its online reservation services to comply with the Reservation Rule. She also asked for attorney’s fees. She later amended her complaint to allege that she viewed Acheson’s reservation systems not only as a tester, but also because she “had plans to drive from Florida to Maine” to meet her sister and take her granddaughter to “tourist attractions, points of interest, [and] educational and historical sites.” She alleged that Acheson’s online reservation system “infringe[d] [her] right to travel free of discrimination,” “deprive[d] her of the information required to make meaningful choices for travel,” caused her to suffer “frustration and humiliation,” contributed to her “sense of isolation and segregation,” and deprived her of “the full and equal enjoyment” of Acheson’s services. She also alleged that she intended to view Acheson’s online reservation system again in the future to test its compliance with the Reservation Rule.

The district court dismissed the case. The court ruled that Laufer lacked standing, because, as a tester, it was “implausible” that she planned to visit Maine and that she could not “allege concrete harm” without “a genuine plan to make a reservation.” Laufer appealed; she also disclaimed any intent to travel to Maine. The United States Court of Appeals for the First Circuit reversed, and this appeal followed.

After the Court agreed to hear the case, Laufer moved to voluntarily dismiss it. Laufer argued that her attorney in different ADA cases was disciplined in those cases, and she didn’t want the allegations of misconduct against that attorney to distract from her claims in this case. (That attorney had (and has) no involvement in Laufer’s case before the Court; and her current attorneys in this case have not represented her in other cases.) Laufer voluntarily dismissed her complaint in the district court, and she filed a Suggestion of Mootness in this Court. As of this writing, the case is still on the docket and set for oral argument.

CASE ANALYSIS

Under Article III of the Constitution, a plaintiff, in order to have standing to sue in federal court, must demonstrate (1) that they suffered a concrete and personal injury (2) that was caused by the defendant’s challenged conduct and (3) that is likely to be redressed by a favorable court ruling. This case focuses on the first part, injury, and, in particular, whether a tester can assert a sufficient injury for standing.

The Supreme Court held in 1982, in Havens Realty Corp. v. Coleman, that testers had standing to challenge a landlord’s racial discrimination in violation of the Fair Housing Act. 455 U.S. 363 (1982). In that case, Havens Realty told a Black tester that they had no apartments available. But they told a White tester that they did. Despite the fact that the testers never intended to rent a unit, the Court specifically ruled that the Black tester had standing. The Court said that it didn’t matter that the tester didn’t intend to rent, so long as the tester asserted an “injury within the meaning of [the Act].”

Moreover, the Court has said that a plaintiff’s informational injury—a denial of information to which they have a legal right by federal statute—can, in some cases, suffice as a concrete injury to establish standing. For example, a plaintiff suffers a sufficient informational injury to sue to enforce government sunshine laws, like the Freedom of Information Act (FOIA). This holds without regard to how the plaintiff intends to use the information.

But more recently, the Court held that a defendant’s failure to comply with statutory procedures alone is insufficient by itself to establish standing. The court held in TransUnion LLC v. Ramirez, that courts must still “independently decide whether a plaintiff has suffered a concrete harm under Article III”—a harm resulting from the intangible or procedural injury—even if federal law authorizes a plaintiff to sue to enforce statutory procedures. 141 S. Ct. 2190 (2021).

This case tests how TransUnion and like cases square with Havens Realty and cases recognizing standing based on a plaintiff’s informational harm.

Acheson argues first that Laufer lacks standing based on an informational harm. Acheson says that TransUnion requires a plaintiff to show concrete harm as a result of failing to receive information, and that Laufer did not show such a harm. It claims that Laufer doesn’t plan to visit Acheson hotels, and therefore information on accessibility is useless to her. And it contends that Laufer’s interest in protecting the rights of other individuals with disabilities is insufficiently personal to her to establish her standing.

Acheson argues next that Havens Realty does not support Laufer’s standing. It claims that the FHA at the center of Havens Realty granted the plaintiffs in that case a private cause of action to vindicate an informational right that was personal to them. In contrast, it says that the ADA “does not personally entitle [Laufer] to information” or “grant her a private cause of action to vindicate an informational right.”

Acheson argues further that Laufer lacks standing based on cases where plaintiffs have standing to enforce government sunshine laws. Acheson says that unlike those plaintiffs, Laufer is suing a private business (not the government) for a generalized harm (not a particularized harm to her) and under a statute that does not guarantee access to information (instead, it only requires hotels to provide that information).

Moreover, Acheson argues that Laufer lacks standing based on future stigmatic injuries. It claims that Laufer’s intended future views of Acheson’s website (the basis of her future stigmatic injury) is self-inflicted. And it says that her anticipated emotional harm is insufficient to establish Article III standing.

In short, Acheson claims that Laufer, as a tester, is seeking simply to enforce the ADA. But Acheson says that this is the job of the executive branch, not private testers.

Finally, Acheson argues that Laufer’s claim is moot, because she now has the information she sought. (The Coast Village Inn now provides this information on its online reservation system. It says, “We are not equipped at this time to provide ADA compliant lodging,” but that it “tak[es] ADA compliance seriously and will be quick to respond to any accessibility questions . . . .”) It urges the Court to dismiss Laufer’s case and rule for Acheson.

Laufer counters that the Court should dismiss the case as moot pursuant to her Suggestion of Mootness. But if it doesn’t, Laufer argues that she has standing under Havens Realty. She contends that the ADA applies not only to hotels, but also to the services they provide, including their online reservation systems. And she says that she suffered sufficiently concrete harm based on “Acheson’s failure to provide equal access” to its system, even if she did not rent a room from Acheson.

Laufer argues next that she doesn’t have to intend to reserve a room to establish a concrete harm, as the government would have it. She maintains that her views of Acheson’s reservation system alone are enough, because she “personally encounter[ed] the discriminatory informational barrier to full and equal enjoyment of Acheson’s reservation services.” She says that there is no “functional difference between Ms. Laufer clicking through and reviewing Acheson’s online reservation system and a would-be reservation maker doing the same thing.”

Laufer argues that her harm was every bit as personal as the harm in Havens Realty. She illustrates the point with this suggestion: “if the plaintiff in Havens Realty had encountered a sign on the realtor’s door (or, these days, its website) stating, ‘We have no apartments available for rent if you are Black,’” the plaintiff would have “‘personally’ experienced discriminatory treatment [even though] the realtor ‘had no idea who she was.’”

Laufer argues that the Court has recognized “many times over the last four decades [that] Havens Realty was correctly decided.” In particular, she says that the Court has recognized the “core tenant” of Havens Realty that “discriminatory treatment” is a cognizable harm, because it “perpetuat[es] archaic and stereotypic notions” or “stigmatiz[es] members of the disfavored group as inherently inferior” and therefore “can cause serious non-economic injuries to those personally denied equal treatment solely because of their membership in the disfavored group.” Laufer claims that Acheson inflicted these harms on disabled persons who wished to use its online reservation service just as “if Acheson had a practice of ignoring the existence of wheelchair users who approach the reservation desk in its lobby.” She says that history and tradition reflect these dignitary harms, and that they were recognized under the common law.

Laufer argues that tester plaintiffs don’t “abuse” the ADA. She says that because the ADA does not provide for money damages, disabled individuals cannot afford to challenge access barriers. Moreover, she claims that injunctive relief against violators of the Reservation Rule is ineffectual for most travelers, because by the time a court enters an injunction, the travel is complete. Laufer contends that Acheson and its amici would not have to worry about the volume of litigation if they simply complied with the Reservation Rule. And she says that Acheson and its amici’s concerns about unethical litigation practices “are irrelevant to the constitutional standing question” and readily addressed through court sanctions and other disciplinary action.

Finally, Laufer argues that her case is not moot on the basis that The Coast Village Inn updated its website, as Acheson contends, and now provides the information that she seeks. Laufer says that this point goes to the merits (whether the Inn’s website complies with the Reservation Rule) and not mootness. In any event, she claims that the Inn could remove the required information as soon as the Court rules the case moot, and that the case therefore falls within the “voluntary cessation” exception to mootness. She also says that third-party hotel-reservation websites still do not include the required information.

The government weighs in to offer a middle position. On the one hand, the government contends that “[t]his Court has long held that an individual who suffers a violation of a statutory right to be free from discrimination has standing to sue.” But on the other hand, the government claims that Laufer is not such a person. The government says that the ADA, unlike the FHA in Havens Realty, does not “provide a freestanding right to information.” Instead, under the ADA, “an individual . . . who merely views a hotel’s online reservation services without intending to use the service to make or consider making a reservation lacks standing . . . .” The government asserts that Laufer merely viewed Acheson’s site—and that she didn’t intend to use it—and that she therefore lacks standing.

SIGNIFICANCE

This case tests the practical effectiveness of ADA testers of the Reservation Rule. That’s important, because, as Laufer’s amici point out, testers are critical to effective enforcement of the ADA. Laufer herself “has found and challenged” “hundreds of violations . . . over the last five years.” If testers like Laufer lack standing to challenge hotels’ online reservation systems for violating the Reservation Rule, enforcement of the Rule will suffer, and hotels will lack a key incentive to comply. (As Laufer points out, the ADA only allows injunctive relief, not monetary damages. And as she argues, as a practical matter injunctive relief under the Reservation Rule cannot provide actual relief for most travelers.)

On the other hand, Acheson and its amici argue that tester standing for the Reservation Rule will lead to voluminous and vexatious litigation and attorney misbehavior, as evidenced by some of Laufer’s other ADA cases. (Remember: Laufer’s attorney in some of her other ADA cases was disciplined for his conduct in those cases. Laufer herself moved to dismiss her complaint in this case so that this behavior would not distract from it.) Laufer has an easy answer: hotels should simply comply. But Acheson’s concerns could still tip the balance for this Court.

While the case does not obviously implicate tester standing in other contexts, and while Havens Realty does not appear to be under direct attack, the case could nevertheless impact future tester standing outside the narrow context here. That’s because the Court could write an opinion on Reservation Rule tester standing, one way or the other, that may spill over into other tester standing questions.

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

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

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

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

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

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

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

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

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.

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."

Court to Hear Arguments in Texas Abortion Cases

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

The Supreme Court will hear oral arguments tomorrow in the Texas abortion cases. Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Abortion Rights

Can federal courts hear challenges by private plaintiffs or the federal government to halt the enforcement of a law that authorizes private citizens to sue doctors for providing an abortion after six weeks of pregnancy?

Case at a Glance

Texas’s S.B. 8 prohibits a doctor from performing an abortion after about six weeks of pregnancy, in plain violation of settled Supreme Court precedents. At the same time, the law is designed to foreclose traditional channels of judicial review and effectively prevent federal courts from hearing challenges to it. S.B. 8 does this by authorizing private plaintiffs (and not state officials) to enforce its ban by suing doctors who provide an abortion after six weeks of pregnancy for civil damages. Taken together, S.B. 8’s abortion ban and its outsourced enforcement have achieved their objective: abortions have effectively stopped in Texas. And the federal appeals courts, citing procedural hurdles, have so far declined to intervene.

INTRODUCTION

S.B. 8 is a flat violation of a woman’s fundamental right to an abortion under Roe v. Wade and Planned Parenthood v. Casey. Ordinarily, such a law would be subject to federal judicial review. But S.B. 8’s enforcement mechanism—private lawsuits against abortion providers—is specifically designed to thwart federal judicial review. These cases test whether abortion-rights advocates and doctors or the federal government can nevertheless sue in federal court to stop the law.

ISSUE

Can abortion-rights advocates and abortion doctors or the federal government sue in federal court to halt enforcement of Texas’s S.B. 8?

FACTS

Texas’s S.B. 8 is an unusual, even unprecedented, act. On its face, S.B. 8 prohibits a physician from knowingly performing an abortion after the detection of a fetal heartbeat, usually around six weeks into a pregnancy, before most women even know that they are pregnant. It contains no exceptions for rape or incest. And it provides only a limited and ill-defined exception for a “medical emergency.”

On its face, that’s a flat violation of a woman’s fundamental right to an abortion. Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), establish that government can regulate abortion before a fetus is viable (that is, before it is able to survive outside the womb), usually around 22 to 24 weeks into the pregnancy, so long as the regulation does not create an “undue burden” on a woman’s access to abortion. S.B. 8’s ban on abortions after six weeks of pregnancy plainly constitutes an undue burden on a woman’s access to abortion before viability. In other words, S.B. 8 plainly violates Roe and Casey.

But that’s not why S.B. 8 is unusual. Indeed, a host of states have enacted abortion bans that plainly constitute an undue burden on a woman’s access to abortion before viability. They have enacted such laws for the stated purpose of challenging Roe v. Wade itself, and persuading the Court to overturn the case. In fact, the Court will consider such a law next month, when it hears oral arguments in Dobbs v. Jackson Woman’s Health Organization, a case testing Mississippi’s ban on abortions after 15 weeks of pregnancy. S.B. 8’s plain violation of Roe and Casey doesn’t make the law unusual; it makes it a sign of our times.

So here’s why S.B. 8 is unusual, even unprecedented: it outsources enforcement. In particular, S.B. 8 specifically prohibits state officials from enforcing the ban, which is the usual way that states enforce their laws, and instead authorizes “any person” to sue an abortion provider who provides an abortion after six weeks of pregnancy. It also authorizes “any person” to sue anyone who “aids or abets” an abortion, or even intends to aid or abet an abortion, after six weeks of pregnancy. (S.B. 8 prohibits a plaintiff from suing the woman herself, however.) A plaintiff in these suits need not have any connection to the abortion, or even any connection to Texas. They can get injunctive relief, stopping the defendant from further violating S.B. 8. They can also recover a minimum of $10,000 for each abortion, plus costs and attorney’s fees. That alone creates a strong financial incentive for doctors to stop performing abortions after six weeks of pregnancy.

But there’s more. S.B. 8 prohibits a defendant in these actions from claiming that they believed that S.B. 8 was unconstitutional. (In other words, S.B. 8 purports to stop potential defendants from raising this argument as a defense in an S.B. 8 lawsuit.) And it restricts (although it apparently does not fully prohibit) a defendant from arguing that S.B. 8 creates an undue burden on a woman’s right to abortion. S.B. 8 also prohibits a court from awarding attorney’s fees or court costs to a defendant, even if the defendant prevails. As a result, a prevailing defendant—even against an obviously spurious lawsuit—must cover all costs and attorney’s fees to defend the action. That creates a strong financial incentive for doctors to stop performing all abortions.

Finally, yet more. S.B. 8’s venue rules allow plaintiffs to strategically file their cases in Texas courts that are most amendable to their claims, and to block a defendant’s attempt to transfer to another court. Moreover, S.B. 8’s issue- and claims-preclusion provisions seemingly allow an endless line of plaintiffs to sue an abortion provider, or anyone who aids or abets an abortion, even for the same abortion. (At the same time, another provision of the act says that “a court may not award relief . . . if a defendant demonstrates that the defendant previously paid the full amount of statutory damages . . . in a previous action for that particular abortion . . . .” Taken together, the provisions seem to allow a variety of plaintiffs to sue a defendant for the same abortion, but restrict the court in awarding relief if a defendant has already paid in an earlier case.)

In short, Texas designed S.B. 8 to violate a woman’s fundamental right to abortion under Roe and Casey; effectively to halt abortions in the state; and specifically, to thwart judicial review. That’s not commentary; it’s exactly what Texas legislators said when they enacted the law.

Anticipating these results, Whole Woman’s Health, along with Texas abortion providers and individuals and organizations that support abortion patients, sued to stop S.B. 8 before it went into effect, on September 1, 2021. The plaintiffs sued several state officials, including state court clerks and judges, and a private person, on the ground that they would enforce S.B. 8.

The district court denied a motion to dismiss the case. The Fifth Circuit stayed the district court proceedings and rejected the plaintiffs’ motion for an injunction pending appeal. On emergency appeal, the Supreme Court then declined to grant an injunction against S.B. 8 or to vacate the Fifth Circuit’s stay pending appeal. The Court said that federal courts have the power to enjoin individuals, not laws. It also suggested that the plaintiffs sued the wrong defendants, because “it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law . . . .” (Four justices sharply dissented.) The ruling meant that S.B. 8 went into effect on September 1.

Soon after the Court declined to intervene, the federal government sued Texas itself (and not individuals), arguing that S.B. 8 was unconstitutional. The district court granted the government’s motion for a preliminary injunction, but the Fifth Circuit stayed the injunction pending appeal.

The Supreme Court then agreed to hear both cases and expedited the briefing and arguments. Each case raises the questions whether the federal courts can hear the plaintiffs’ challenges to S.B. 8, and whether they can halt enforcement by the defendants.

CASE ANALYSIS

At their most fundamental level, both cases test whether the federal courts can hear the plaintiffs’ challenges and enjoin the enforcement of S.B. 8. That’s a contested question, because Texas, by outsourcing S.B. 8’s enforcement to private plaintiffs, diluted and dispersed the enforcement responsibility, making it hard to identify actual defendants before anybody files an S.B. 8 lawsuit. And because S.B. 8’s financial incentives all but prohibit doctors from performing any abortion in the first place, S.B. 8 ensures that there will be few, if any, S.B. 8 lawsuits where a doctor could challenge S.B. 8 after enforcement. (In any event, S.B. 8 limits how doctors can raise challenges in those lawsuits.)

Despite S.B. 8’s design to thwart federal judicial review, the plaintiffs in both cases contend that the federal courts can hear their cases; and because of S.B. 8’s design to thwart judicial review, the plaintiffs argue that the federal courts must hear their cases. Texas, for its part, contends that S.B. 8 technically allows judicial review through S.B. 8 cases themselves—and not in through these federal court cases—even though S.B. 8 itself limits or effectively eliminates that option.

The two cases raise separate but overlapping arguments. (Texas filed a single brief covering both cases.) Because there are some differences, however, we summarize the arguments in the cases separately. Let’s start with Whole Woman’s Health, then we’ll examine United States v. Texas.

Whole Woman’s Health v. Jackson

The plaintiffs argue first that their claim “fit[s] neatly” with 42 U.S.C. § 1983, the federal statute that authorizes a civil lawsuit against individuals acting under the authority of state law for violating constitutional rights. They argue that Section 1983 specifically authorizes suits against “judicial officers” acting in their “judicial capacity.” They contend that the “text and purpose” of Section 1983 allows their suit to go forward against the state officials, including the judges, and the private defendant.

The plaintiffs argue next that their suit for injunctive relief against state officers is valid under Ex Parte Young, 209 U.S. 123 (1908). The Court in that case held that a plaintiff can sue a state official for prospective injunctive relief, notwithstanding the state’s general immunity from suits for monetary damages under state sovereign immunity and the Eleventh Amendment. The plaintiffs assert that the court clerks, judges, and state officials who are defendants in this action all play roles, to one degree or another, in S.B. 8’s enforcement, and therefore fall within the Ex Parte Young doctrine. Moreover, the plaintiffs write that “where, as here, a law hamstrings state courts’ ability to provide defendants a fair opportunity to vindicate their rights—all while deputizing millions of private citizens to sue—equity requires that federal courts step in and prevent irreparable constitutional injury.”

Third, the plaintiffs argue that they have standing to sue. They contend that the threat of enforcement of S.B. 8 creates an injury (the lack of access to abortion, as illustrated by the actual injury women suffered after the Court declined to halt S.B. 8’s implementation, and the resumption of abortions during the period of injunction in United States v. Texas); that the defendants, to one degree or another, caused that injury; and that an injunction against the defendants would redress the injury, because it would ensure that women again have access to abortion in Texas. The plaintiffs also say that the defendants’ vigorous defense of S.B. 8 in the courts ensures a “sharp presentation” of the “complex and novel” questions.

Finally, the plaintiffs argue that the Court should uphold the district court injunction in order to “protect federal supremacy from the imminent threat posed by S.B. 8 and copycat bills already under consideration by States seeing what Texas has achieved thus far—enactment of a law that baldly defies this Court’s precedent yet is insulated from effective judicial review.” The plaintiffs contend that if S.B. 8 stands, nothing prohibits states from similarly insulating other state laws that blatantly violate constitutional rights from judicial review simply by outsourcing enforcement, exactly as Texas did here.

In response, Texas argues that the plaintiffs lack standing, and that state sovereign immunity bars their suit. Texas says that state executive officials do not have authority to enforce S.B. 8. As a result, the state says that the plaintiffs lack standing to sue those officials, because their actions cannot cause the plaintiffs any injuries, and any judicial relief would not redress the plaintiffs’ injuries. For the same reason, Texas argues that those officials simply do not fall within Ex Parte Young’s exception to Eleventh Amendment immunity. Texas claims that state judges are neutral adjudicators, not adverse parties (or “judicial enforcers” of S.B. 8), and that they are bound to apply both S.B. 8 and Casey. Given this, Texas concludes that the plaintiffs lack standing, because the plaintiffs’ requested relief—an injunction instructing them to apply Casey—would not redress their alleged harm.

Penny Clarkston, the district clerk of Smith County, Texas, filed her own brief. Mark Lee Dickson, “a pastor and anti-abortion activist,” filed his own brief. They made substantially similar arguments.

United States v. Texas

The government argues first that it has authority to sue Texas in equity to protect its interests. The government says that it can sue in equity to prevent Texas from thwarting judicial review under federal law. It claims that it does not sue merely to enforce its citizens’ constitutional rights, but also to prevent Texas’s “unprecedented attack on the supremacy of the Constitution as interpreted by this Court”—a “distinct sovereign interest” that forms the basis of its suit in equity. The government contends that it also has an interest in preventing S.B. 8 from interfering with its own programs that “require federal employees and contractors to arrange, facilitate, or pay for abortions in some circumstances,” and holding federal employees and contractors liable “for carrying out their federal duties.”

The government argues next that the federal courts have the power to grant relief in favor of the government and against Texas. The government claims that under the Federal Rules of Civil Procedure, an injunction against Texas can also bind state officers and agents and “other persons who are in active concert or participation” with the state or its officers. According to the government, this means that an injunction can bind plaintiffs who bring S.B. 8 suits, court clerks who accept those suits, judges who hear the cases, and other state officials who would enforce any judgments. The government acknowledges that some of this relief may be unusual. But so is S.B. 8. “And having chosen an unprecedented scheme in a deliberate effort to thwart ordinary judicial review, Texas should not be heard to complain when the federal courts exercise remedial authorities that are usually unnecessary.”

Finally, the government argues that the federal courts can grant declaratory relief (declaring that S.B. 8 is invalid), because the government’s power to bring this case in equity “also allows it to seek a declaratory judgment.” The government asserts that declaratory relief would arm abortion providers with a defense in S.B. 8 suits against them, providing “another reason why those suits must be dismissed.” But in any event, the government claims that declaratory relief is no substitute for injunctive relief. That’s the only way “[t]o halt the irreparable injury arising from Texas’s defiance of this Court’s precedent and systematic denial of constitutional rights within the State’s borders . . . .”

Texas counters that the government lacks standing for the same reasons why the Whole Woman’s Health plaintiffs lack standing, but more. Texas says that it does not cause the government harm “by the mere existence of an allegedly unconstitutional state law that may affect private parties.” The state says that the government’s suit amounts to a request for an “advisory opinion” from the Court, and that Court lacks authority under Article III of the Constitution to issue such an opinion. Texas claims that the district court was wrong to hold that the government could “skirt its obligation to show its own cognizable injury” by drawing on the government’s interest in protecting U.S. citizens under federal supremacy principles. The state says that the Supreme Clause does not grant the government a right to sue to protect U.S. citizens; instead, the government, like private parties, must allege that it suffered a harm to itself.

Texas argues next that the government lacks a statutory or equitable basis for requesting an injunction. The state says that the “numerous statutory mechanism” for enforcing constitutional rights do not authorize the government to sue to vindicate U.S. citizens’ substantive-due-process rights. And it says that equitable principles do not authorize the government to sue to vindicate U.S. citizens’ rights just because the state denied those citizens the ability to enforce their own rights. Texas asserts that if the plaintiffs in Whole Woman’s Health want to protect their rights, they can do so as state-court defendants in S.B. 8 civil actions. The government lacks authority to bring this action to enforce their rights for them.

Third, Texas argues that S.B. 8 does not violate the Constitution. The state claims that it has incorporated Casey’s “undue burden” test into S.B. 8 by allowing an abortion doctor to use “undue burden” as a defense in an S.B. 8 action. The state writes that under S.B. 8, “Texas may not impose liability in cases where doing so would cause an undue burden on a woman seeking an abortion—but neither private parties nor the Department of Justice can compel Texas to support abortion beyond that obligatory floor.” Texas says that this comports with Casey, and does not conflict with federal programs in violation of federal supremacy. “Far from discriminating against the federal government, SB 8 is subject to a state-law presumption that it will not apply to the federal government.”

Finally, Texas argues that the district court’s injunction against “the State” amounts to an impermissible injunction against a law, not a person. That’s because none of the state executive defendants can enforce S.B. 8; federal courts cannot enjoin state courts to apply state and federal law (state courts already do that); and private actors are not “state actors” just because they bring an S.B. 8 suit against other private parties.

Three private citizens—Jeff Tuley, Erick Graham, and Mistie Sharp—filed a separate brief as intervenors, making substantially similar arguments. They claim that they intended to bring S.B. 8 suits only against abortion providers for abortions not covered by Casey, and so also argue that the government cannot sue to halt their S.B. 8 suits “over conduct that is unprotected by the Constitution.”

SIGNIFICANCE

Everybody agrees that S.B. 8 is singular and unprecedented. It plainly violates a woman’s fundamental right to abortion, and, by outsourcing enforcement to private plaintiffs, it thwarts traditional channels of judicial review. For Whole Woman’s Health and the government (and a host of others), this is the problem. For Texas (and a host of others), this is the point.

Whether problem or point, S.B. 8 had its predictable and intended results: It effectively halted abortions in Texas. Texas women who seek an abortion today must travel to neighboring states or other locations where they can still get an abortion. (And they have, flooding abortion providers in neighboring states.) Or, if they cannot afford the time away from work or family or the expense of travel (as is so often the case), or if their health prevents travel, they must go without a doctor-provided abortion.

Time is obviously of the essence, in two ways. On the front end, many or most women don’t even discover their pregnancy until after the sixth week, when S.B. 8 bans abortion. As a result, by the time they know they’re pregnant, many or most women effectively cannot now obtain an abortion in Texas. On the back end, even under Roe and Casey, states can ban abortion entirely after viability, when a fetus can survive outside the womb. As a result, Texas women who seek a doctor-provided abortion must find an out-of-state alternative before about 22 or 24 weeks of pregnancy. All this leaves a narrow window for pregnant women in Texas to exercise their fundamental right to abortion. And, again, that window is only available to Texas women who can travel out of state.  

All this is at issue in the case. If the Court rules that federal courts cannot hear the plaintiffs’ cases and halt enforcement of H.B. 8, abortion will remain effectively unavailable in Texas. (There’s a chance that the Court could also decide whether Roe and Casey remain good law. But given that the Court is slated to hear a direct challenge to Roe this Term (oral arguments come just next month), this seems unlikely.)

That’s not a remote possibility. The Court already declined to halt S.B. 8 in Whole Woman’s Health, over the sharp dissents of four justices. (Chief Justice John Roberts joined Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in various dissents.) One or more of the justices who voted with the majority in that ruling would have to change sides, or find a distinction that persuades them that the courts can hear the government’s case, even if not Whole Woman’s Health’s case.

Such a ruling could have a profound impact on the right to abortion, even if the Court declines to overturn Roe and Casey. Several other states are already considering laws like Texas’s and will quickly enact those copycat laws if the Court rules against the plaintiffs. This could effectively eliminate abortions in those states, just as S.B. 8 effectively eliminated abortions in Texas.

More, such a ruling could have profound impacts well outside the area of abortion rights. As the plaintiffs and several amici point out, if Texas can engineer a law to ban abortion and effectively evade judicial review, then any state can engineer a law to ban any fundamental right and effectively evade judicial review. And there’s no daylight between a woman’s fundamental right to an abortion and any other fundamental right favored by folks with different political stripes. If you have any doubt, check out the amicus curiae brief of the Firearms Policy Coalition in the Whole Woman’s Health case, for example.

Finally, the Court’s rulings in these cases, and in Dobbs, the Mississippi case up next month, could have significant effects on the 2022 mid-term elections. If the Court strikes these state laws, its ruling could mobilize abortion opponents at the polls. If it upholds them, the rulings could mobilize abortion-rights advocates.

All this is to say that these cases are easily among the most important on the Court’s 2021-22 docket so far.

Fifth Circuit Tosses Case Challenging Removal of Confederate Monument

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

The Fifth Circuit dismissed a case challenging San Antonio's removal of a monument of a confederate soldier for lack of standing. The ruling ends the challenge. (The statue is already gone.)

The case, Albert Sidney Johnston v. San Antonio, arose when the city removed a confederate monument in a public park. ASJ sued, arguing that the removal violated the First and Fourteenth Amendments.

The court held that ASJ lacked standing. It recognized that ASJ is the successor organization to the Barnard E. Bee chapter of the United Daughters of the Confederacy, which erected the monument in the first place. But it said that ASJ had no property interest in the public park (because "the land was generally inaliable and unassignable") and no right to use the land; and therefore the organization couldn't allege a harm under the First or Fourteenth Amendments.

Second Circuit Tosses Suit Challenging Connecticut Magnet School Racial Quota

Steven D. Schwinn, University of Illinois School of Law

The Second Circuit ruled yesterday that a nonprofit lacked standing to challenge a Connecticut Department of Education rule that interdistrict magnet schools enroll at least 25 percent non-Black and non-Latinx students. The ruling leaves the rule on the books.

The case, CTPU v. Russell-Tucker, arose when the Commissioner of the Connecticut State Department of Education issued a memo that required all interdistrict magnet schools to enroll at least 25 percent non-Black and non-Latinx students. The Connecticut Parents Union, a non-profit founded "to protect . . . children's educational rights thus ensuring that neither race, zip-code, nor socio-economic status is a predictor of a child's success," sued, arguing that the memo violated equal protection.

The defendants moved to dismiss, arguing that CTPU lacked standing. The court agreed.

The court held that CTPU failed to allege a sufficient harm to its operations. (CTPU did not allege standing on behalf of its members.) The court acknowledged that an organization can establish standing when it "diverts its resources away from its [other] current activities," or otherwise incurs "some perceptible opportunity cost." But it held that CTPU failed to meet that standard here. The court said that CTPU

fail[ed] to identify any restrictions on its ability to perform the core activities--such as meetings, lectures, and general organizing--by which it pursued its mission prior to the [memo]. To the extent CTPU claims that [the memo] triggered an increased demand for parent counseling, CTPU fails to sufficiently plead that any resulting costs were material. Further, even construing the record in CT{U's favor, as we must, it is clear that CTPU incurred costs because it decided to initiate a campaign against [the memo] to advance its own "abstract social interests," thus any costs CPTU incurred from this campaign were not involuntary.

The ruling obviously doesn't prevent another person or organization who has been injured by the memo from suing. But since CTPU's lawsuit, the schools revised the memo to remove any penalties for noncompliance, likely raising other standing challenges for potential plaintiffs.

Court Kicks Obamacare Challenge for Lack of Standing

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

The Supreme Court ruled today that plaintiffs lacked standing to challenge the Affordable Care Act's zeroed-out minimum coverage provision (or "individual mandate"), and the rest of the Act, too. The ruling deals a sharp blow to opponents of the ACA. It means that the ACA--all of it--stays on the books.

The case, Texas v. California, started when Congress zeroed-out the ACA's minimum coverage provision. Remember that Congress couldn't muster the votes to overturn the ACA, so instead it set the tax-penalty for the minimum coverage provision at $0. The move invited opponents of the Act to challenge the provision as unconstitutional--exceeding congressional authority under its taxing power, because, well, the provision couldn't raise any revenue, and therefore couldn't be a "tax." (Recall that the Court in NFIB upheld the minimum coverage provision under Congress's taxing power.) The move also invited opponents to claim that the entire ACA was unconstitutional, because the rest of the well-integrated, closely-knit Act couldn't be severed from the minimum coverage provision. (Recall that the government originally argued that the minimum coverage provision was a necessary part of the larger ACA in order to provide universal access to health insurance while at the same time keeping costs affordable. Opponents picked up on this and argued that the minimum coverage provision couldn't be severed from the community-rating provision, the non-discrimination provision, and the rest of the Act (including things like the requirement that insurers allow young adults to stay on their parents' insurance until age 26).

More than a dozen states, led by Texas, and two individuals accepted the invitation and sued. They won big in the district court (which held the minimum coverage provision unconstitutional and inseverable from the rest of the Act). The Fifth Circuit agreed that the minimum coverage provision was unconstitutional, but remanded for further consideration of severability.

The Court today didn't touch the merits issues and instead ruled that the plaintiffs lacked standing to sue. The Court said that the two individual plaintiffs lacked standing, because the zeroed-out minimum coverage provision didn't, and couldn't, harm them, because the government had no way to enforce it. The Court wrote that "there is no possible Government action that is causally connected to the plaintiffs' injury--the costs of purchasing health insurance." Without connecting the minimum coverage provision to their harm, the plaintiffs lacked standing.

The Court said that the states lacked standing, too, but for different reasons. First, the Court held that the minimum coverage provision didn't cause the states to incur costs for increased enrollment in state-operated medical insurance programs (like CHIP). The Court said that the states "failed to show how this injury is directly traceable to any actual or possible unlawful Government conduct in enforcing [the minimum coverage provision]," and that in any event the states failed to show that individuals actually enrolled in state medical insurance programs because of the zeroed-out provision. Next, the Court held that the provision didn't cause them to incur costs directly, as insurers of their own employees, because other portions of the Act (not the minimum coverage provision) required them to provide insurance to their own employees.

Justice Alito wrote a sharp dissent, joined by Justice Gorsuch. Justice Alito argued that the states had standing, because "[t]he ACA saddles them with expensive and burdensome obligations, and those obligations are enforced by the Federal Government." He said that states incur costs for complying with ACA reporting requirements, for providing health insurance to their employees, and for complying with other portions of the ACA--all of which are connected to, and inseverable from, the challenged minimum coverage provision. Justice Alito went on to argue that the minimum coverage provision was unconstitutional, and other ACA obligations that harmed the states were inseverable from the minimum coverage provision, and therefore must go, too.

Circuit Judge Takes on Standing Doctrine

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

The Eleventh Circuit ruled that a plaintiff had standing to sue for monetary damages for a "stigmatic injury" after a municipality failed to add captions to its online videos in violation of the ADA.

One of the panel judges, Judge Newsom, used the routine standing case to write a very un-routine concurrence (starting on page 11), lodging a frontal assault on the injury-in-fact requirement for standing and arguing for an "Article II approach." Here's the gist:

First, in my view, a "Case" exists within the meaning of Article III, and a plaintiff thus has what we have come to call "standing," whenever he has a legally cognizable cause of action, regardless of whether he can show a separate, stand-alone factual injury. Second, however--and it's a considerable "however"--Article II's vesting of the "executive Power" in the President and his subordinates prevents Congress from empowering private plaintiffs to sue for wrongs done to society in general or to seek remedies that accrue to the public at large.

Second Circuit Recognizes Standing for Increased Risk of Identity Theft for Unauthorized Data Disclosure

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

The Second Circuit recognized that plaintiffs in an unauthorized-disclosure-of-data case may have standing based on an increased risk of identity theft. In so ruling, the Second Circuit joins several other circuits in recognizing standing based on an imminent risk of identity theft in data breach cases. (At least three circuits have suggested that there's a split on the issue, but the Second Circuit denied that, saying that "in actuality, no court of appeals has explicitly foreclosed plaintiffs from establishing standing based on a risk of future identity theft--even those courts that have declined to find standing on the facts of particular cases.")

At the same time, the court held that the particular plaintiffs in the case failed sufficiently to establish such an injury.

The case, McMorris v. Carlos Lopez & Associates, LLC, arose when an employee at CLA accidentally sent out an e-mail to all employees that included Social Security Numbers, dates of birth, and other personal information of current and former employees. Three individuals filed a class-action against CLA. As the parties moved toward settlement, the district court ruled that the plaintiffs lacked standing.

The Second Circuit recognized that plaintiffs in a case like this could have standing. The court looked to three non-exhaustive factors in sorting this out: "(1) whether the plaintiffs' data has been exposed as the result of a targeted attempt to obtain that data; (2) whether any portion of the dataset has already been misused, even if the plaintiffs themselves have not yet experienced identity theft or fraud; and (3) whether the type of data that has been exposed is sensitive such that there is a high risk of identity theft or fraud."

The court ruled that the plaintiffs in this case, however, failed to establish imminent harm of identity theft.

The court also rejected the plaintiffs' theory that the data breach caused them to take action to protect themselves against identity theft. The court said that the plaintiffs had to allege a substantial risk of future identity theft in order to use their protective actions as a basis for standing. If it were otherwise, the court said, plaintiffs could harm themselves into standing based only on fears of hypothetical future injuries.

Court Says Request for Nominal Damages is Enough for Standing

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court ruled last week that a plaintiff's request for nominal damages is sufficient to satisfy standing requirements and keep the case moving forward. The ruling is a significant win for the plaintiffs in the case, and for civil-rights plaintiffs generally; but it says nothing on the merits of the plaintiffs' claim. Instead, the Court remanded the case for further proceedings.

The case, Uzuegbunam v. Presczewski, arose when a couple of students at Georgia Gwinnett College tried to engage fellow students and distribute religious literature in the school's free-speech zone. Campus officers stopped them, however, citing campus policy that prohibits speech that "disturbs the peace and/or comfort of person(s)." The plaintiffs sued College officials for injunctive relief and nominal damages. (Civil-rights plaintiffs often request nominal damages, $1.00, when their harm can't be quantified.) Rather than defending the policy on the merits, the College changed it, and moved to dismiss the case, arguing that the students' claim for injunctive relief was now moot, and that the students lacked standing based on their sole remaining claim for nominal damages.

The Court disagreed. Justice Thomas wrote for the 8-1 Court that a plaintiff continues to have standing to sue even when the plaintiff seeks only nominal damages. Justice Thomas said that courts at common law recognized suits for nominal damages, and that the common law did not require a plaintiff to seek compensatory damages in order to claim nominal damages.

Chief Justice Roberts was the lone dissenter. He argued that the plaintiffs lacked standing because "an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to." More, "If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar."

The case now goes back to the district court for further consideration. The Court said that one plaintiff--the one who actually spoke--stated a cognizable injury that could be redressed with nominal damages. If that plaintiff meets other all other requirements, his case will go to the merits. But the Court instructed the district court to consider whether the other plaintiff--the one who didn't speak, and only alleged that he was deterred from speaking--suffered a constitutional violation.

Court Kicks Gohmert's Election Case Against Pence

Steven D. Schwinn, University of Illinois Chicago Law School

Judge Jeremy D. Kernodle (E.D. Tx.) dismissed the lawsuit headed by Representative Louie Gohmert against Vice President Mike Pence to throw the 2020 presidential election.

The ruling in the frivolous case was not unexpected. 

The case arose when Gohmert and self-appointed Trump electors from Arizona sued VP Pence, arguing that the Electoral Count Act violates the Electors Clause and the Twelfth Amendment, and that Pence has authority to determine which slate of electors to accept when he presides over the congressional count of electoral votes on January 6. The, er, novel argument turns on the plaintiffs', um, creative reading of the Electors Clause, the Twelfth Amendment, and the Electoral Count Act.

Start with the Electors Clause. It says that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ." 

Next, the Twelfth Amendment. It says that each state's electors meet in their respective states and vote for President and VP. The electors then transmit their votes to the President of the Senate, the VP. "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted." The candidate winning the majority of electoral votes wins. But if no candidate gets a majority, the House selects the President, with each state delegation receiving one vote. 

Finally, the Electoral Count Act. It says that Congress must count the votes in a joint session on January 6, with the VP presiding. It says that the executive in each state shall certify the electors to the Archivist of the United States, who then transmits the certificates to Congress. It says that a state's determination of their electors is "conclusive" if the state resolved all disputes over the election pursuant to state law at least 6 days before the electors meet. (This is called the "safe harbor" date.) Under the Act, if at least one Member of the House of Representatives and one Senator objects to a state's elector votes, the House and Senate meet in separate sessions and vote on the objection--by members, not state delegations.

Arizona, Georgia, Pennsylvania, Michigan, and Wisconsin all certified their electors to President-Elect Biden and VP-Elect Harris, pursuant to state law and the Electoral Count Act. The governors certified the electors to the Archivist. 

But then Trump electors in those states met and, without any legal authority, self-certified their votes to President Trump and VP Pence. 

The plaintiffs contend that the self-appointed Trump electors created a competing slate of electors in each of these states. (They did not. The "Trump electors" named themselves electors without any legal authority and contrary to state law in each state.) They argue that "provisions . . . of the Electoral Count Act are unconstitutional insofar as they establish procedures for determining which of two or more competing slates of Presidential Electors for a given State are to be counted in the Electoral College, or how objections to a proffered slate are adjudicated, that violate the Twelfth Amendment."

In particular, they argue that the states appointed Biden electors in violation of the Electors Clause, because the state governors and secretaries of state certified those electors, even though the Electors Clause specifies that this is a function for the legislature. (In fact, the legislatures in each of those states already determined the manner of appointing electors by enacting state law that awards electors to the majority winner of the popular vote in those states.) 

Moreover, they argue that the dispute-resolution procedure in the Electoral Count Act "limits or eliminates [the VP's] exclusive authority and sole discretion under the Twelfth Amendment to determine which slates of electors for a State, or neither, may be counted." (In fact, the Twelfth Amendment does not give this authority to the VP. The VP's role is ceremonial, simply to read and count the certified results from each state.)

Finally, they argue that the dispute-resolution procedure in the Electoral Count Act "replaces the Twelfth Amendment's dispute resolution procedure--under which the House of Representatives has sole authority to choose the President." (In fact, the Twelfth Amendment dispute resolution procedure only applies when no candidate won a majority of electoral votes. The Electoral Count Act procedure applies when a member of both Houses objects to a state's slate of electors. Those are different dispute resolution processes, to be sure, but for very different kinds of dispute.) 

The plaintiffs asked the court to hold that the VP has "exclusive authority and sole discretion in determining which electoral votes to count for a given State." 

But the court ruled that the plaintiffs lacked standing. It said that Gohmert lacked standing, because he asserted only an institutional harm (to the House), and not a personal harm. "Congressman Gohmert's alleged injury is 'a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress.'" It said that the Trump "electors" lacked standing, because any alleged injury that they suffered was not created by VP Pence, the defendant. Moreover, it said that both Gohmert and the Trump "electors" failed to show that their requested relief (an order that VP Pence has exclusive discretion to determine which electoral votes to count) would redress their injuries, because VP Pence might not determine the electoral votes in their favor. 

The plaintiffs vowed to appeal. But don't expect this case to go anywhere . . . on standing, or on the merits.

Court Rebuffs Census Challenge

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court ruled today that the case challenging President Trump's plan to report reapportionment numbers to Congress without accounting for unauthorized aliens was not ripe for judicial review and that the plaintiffs lacked standing to challenge the plan. The Court said nothing about the merits of the case, although its practical effect allows the President to move forward.

The ruling means that the Commerce Secretary can go ahead and report the numbers of unauthorized aliens along with a total head-count to the President, and that the President can go ahead and report apportionment numbers to Congress based on total numbers minus unauthorized aliens.

This is unprecedented. Apportionment has never discounted for unauthorized aliens.

At the same time, it's not at all clear as a practical matter if or how the President will be able to implement this. And even if he does, the plaintiffs can come back and sue later, when they may meet a more friendly Court. (Justices Kavanaugh and Barrett seemed sympathetic to the plaintiffs' arguments during oral argument on the case. They could join Justices Breyer, Sotomayor, and Kagan to rule against the President.)

The case arose when President Trump issued a memo this summer directing the Secretary of Commerce to report two sets of numbers to the President: (1) a raw census total head count; and (2) the number of unauthorized aliens in the country. President Trump wrote that he'd certify apportionment numbers to Congress based on the total head count minus the number of unauthorized aliens in the country. 

This would cause some states (with large populations of unauthorized aliens) to lose representation in Congress. It could also allow some states and local jurisdictions to lose vast amounts of federal funds, which are tied to census numbers. 

Some of those states sued, arguing that President Trump's memo violated the Constitution and federal law, both of which mandate apportionment based on "the whole number of persons in each State, excluding Indians not taxed." 

The Court ruled that the plaintiffs lacked standing, and that the case wasn't ripe for judicial review. In an unsigned opinion, six justices ruled that the plaintiffs' claimed harms--loss of representation and federal funds--weren't certain enough to justify judicial intervention. "At present, this case is riddled with contingencies and speculation that impede judicial review." The Court noted that the President's memo was contingent ("to the extent practicable," for example), and that it's not even clear that the Secretary can compile the data by the statutory deadline. Moreover, it noted that federal funds may not even be affected: "According to the Government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum."

Justice Breyer wrote a sharp and lengthy dissent, joined by Justices Sotomayor and Kagan. He argued that the plaintiffs had standing and that the case was ripe for review under settled Court precedent, and that the President's memo violated the Constitution and federal law.

SCOTUS Rebuffs Texas's Challenge to Battleground State Election Results

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court on Friday dismissed Texas's challenge to election results in Georgia, Pennsylvania, Michigan, and Wisconsin for lack of standing. The brief order simply read,

The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Texas argued that it asserted two harms sufficient to satisfy standing: (1) its citizens were harmed in their votes for president by other states' failures to comply with the Elections Clause; and (2) Texas itself was harmed in its role (as a state) in the Senate, where the vice president could break a tie.

The Court's ruling rejects those theories. It did not say anything about the Elections Clause, however. 

Justice Alito filed a statement, joined by Justice Thomas, reiterating their view that the Court lacked "discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction."

The ruling ends this challenge. But Trump supporters have already indicated that they'll seek to file similar challenges on behalf of individual voters in these states.

The Court's full docket, with the parties' filings and the many amicus filings, is here.