Justice Alito's concern during the mifepristone argument that courts might not be able to hear challenges to every unlawful federal government action rings more than a little hollow
The correct response to Alito would have been, “Sometimes your only remedy is Congressional action. Kind of like the 14th Amendment’s insurrection clause, but for real.”
Wouldn’t a logical “person with standing” in the mifepristone case be a woman who actually suffered an adverse medical outcome from taking mifepristone? It doesn’t seem to me to be a case where there is no one with logical standing.
Excellent commentary, as always. One thing that strikes me is, it seems clear that a potential plaintiff would have had standing to challenge the FDA's actions - either it's original approval of mifepristone or its subsequent changes to conditions for its use (no in person visit, up to 11 weeks instead of 7, etc.) Isn't the FDA subject to the Administrative Procedure Act? So, wouldn't its actions be reviewable in the Court of Appeals (ordinarily the DC Circuit but I think potentially in another circuit)? Of course, even the APA has deadlines - you don't get to bring a challenge 20 years later. And while someone might have had standing to bring a challenge to the FDA's actions in the DC Circuit, it seems unlikely that the hypocritical doctors would have, either in 2003(?) or in 2016. For the simple reason that they have no cognizable injury. But someone might conceivably have had standing. Back then.
Interesting that it was Alito (see Mutual Pharmaceutical Co. v. Bartlett [2013]) who grounded preemption by the FDA on the deference warranted by FDA’s “unique role in balancing the benefits and risks of all drugs," but now has apparently changed what's left of his mind. Could it be his questioning the FDA authority this time around has anything to do with reproductive rights, and not actually this authority to which he and his fellow conservatives deferred in several previous cases ? Think this is what's called a "no brainer." IMO, of course.
Spoiler Alert: This is going to be a tacky comment of an ad hominem nature, so feel free to delete it. You tell us that today, April 1st, is Justice A’s birthday. That explains everything!
Seems like Alito’s distress over the lack of a party with standing reveals a troubling view (which we’ve seen in other contexts) about the roles of administrative agencies and the courts. Unless I’m missing something, the FDA seemingly has no incentive to allow a drug that has proven to be unsafe to remain on the market. I’m no expert on the FDA’s procedures, but I assume the agency gets regular reports on side effects and other concerns arising from approved drugs, and I also assume it’s free to act on its own initiative to revisit its decisions as new data becomes available. Simply stated, there doesn’t seem to be a significant likelihood that a given FDA action was taken with nefarious motives, and the agency has no stake in standing by its decisions no matter what new developments might arise. But of course, Alito and his ilk believe they should have a freestanding right to review any and all agency decisions that they don’t agree with, so of course they think there should be a party out there somewhere that triggers this expansive notion of judicial review.
Since Article III's standing requirements are broad and it gives every consideration to enforcement, even anticipating international courts, "government conduct beyond review" is not an insoluble problem but a myth. I see this myth as the result of three very soluble problems.
a. the illusion of sole interpretive power with its subsequent illusion of finality
b. unexpressed immunities made without fully honoring judicial duties
c. rejection of the We the People clause's guarantee of qui tam
d. abridgment of the people's right to criminal enforcement of the text
a. The first power we vest is the legislative power. This necessarily includes power to interpret the Constitution. Since the text is already enforceable law we don't need a congress to enact it. Congress implements implied textual details. This obliges their review the Supreme Court's interpretations, to reject them with new law when the Court is wrong. The new law's findings section must explain what was wrong so the courts can enforce it. Congress has largely abdicated this duty. The latest example I know of, RFRA II, is a bad example as it violates Article V, amending text by legislation (it grants one liberty an unexpressed primacy above other personhood liberties, rights, and powers), but that's no excuse for giving up.
The "as-applied" doctrine was created for review of administrative agency action but how much more can it benefit the people when used to check judicial interpretation against textual reality? We vest in the courts no exception to Article V. No interpretation may amend.
Amendments IX and X establish the structure within which the text operates. By expressing some twenty government immunities the text strongly implies that government immunities are expressed, not implied.
However, even doctrines are only implied. The text does imply things, creating the possibility of an exception to the implied doctrine, but seeking exceptions is perilous. Jurists have duties to the text and to the people's interest. Are you fully honoring the interpreter's duty to the text? Where is the people's interest? Here's a sample process.
1. Review the complete text as an answer is often found where least expected.
2. Review the state interest. Does it honorably reflect the people's interest? If not reframe the question. That may be all that is needed.
3. If not, review the complete text in terms of the corrected question, as an answer is often found where least expected.
Can't find it?
4. Review the entire text again, this time with reference to all text of the Declaration of Independence not expressly repealed by the Constitution. Some, even most, confusion about the Constitution comes from assuming its repeal of selected text repeals the entire Declaration. It can't, as it nowhere incorporates a nation, a federation of states, or any states as governmental entities (nor did the Articles of Confederation); moreover, as a document it incorporates the Declaration by reference when signing "in the twelfth year of the independence of America," dating that independence not to 1781 but to 1776.
5. Only now should a jurist check caselaw for an opinion that might clarify relevant text. But be careful not to conflate opinion with text. Text is legal reality. Opinion is so named for good reason.
6. A jurist convinced the text and the people's interests require a new implied exception to an implied rule should observe the strictest definitions. They are:
What constitutes expression? If something must be true for an expression to be true AND violates no other text, it is expressed.
What constitutes implication? If something must be true for two or more expressions read together to be true AND violates no other text, it is implied.
An interpretation invalidly amends if it reduces our ability to rely on any clause, or to read any two or more clauses together and rely on any unavoidable effect.
b. There is a shortcut for this particular question. Courts violate Article V when they grant government or officers any unexpressed immunity against Amendment I's Petition clause because
1. it expresses no exceptions, and
2. Amendment I's primary purpose is to enable the people to guard our rights, liberties, powers, privileges, and immunities against government abridgment or denial. The We the People clause bars any interpretation that violates this purpose by asserting self-governance, by this expressing that we'd found the Declaration's mere "consent" insufficient.
Review the immunities the text grants government and officers. They are narrow, and each is necessary to serve the people's interest in functioning government. Though they can set priorities among public interests they are never "as versus the people." Stripping accountability to the people cannot be the purpose of an expressed immunity. It violates Amendment I's service of our Preambular sovereignty.
c. If neither the above nor any practices I've missed demonstrates where standing rests, qui tam might.
d. If not even qui tam applies, it's probably a criminal matter. The Preamble vests sovereignty in the Constitution to govern the United States of America. A sovereign's commands are enforceable both civilly and criminally. Failure to apply it criminally violates the Preamble.
1. No court may abridge the text's legal force.
2. Congress has no power to subject the text to statutes made under it and by its vestiture of their own authority.
3. Nor can our mere habit of enforcing it civilly. Tradition is not legal reality because each generation has a unique and limited set of problems. There are clauses never yet litigated. To limit the text's use to existing caselaw violates the relevant clause and the Posterity clause.
Failing to exercise the full power of the text defeats the rule of law.
Wishing the family a smooth move to DC this year. As Nelson Mandela said, it only seems impossible until it's done.
Without BushvGore's mistreatment of minority ballots, discarded at more than ten times the rate of Caucasian ballots, Sepsis Sam and John "Jim Crow" Roberts, who supervised BvG from inside the Tallahassee governor's mansion, wouldn't be sitting where they are. Not unlike the African American ballot, Alito now has full control over who does and does not receive standing. (Hint: TX is more equal than blue states.) As Trump proves daily, the law and fair play is for little people only. Gorsuch and ACB, also procedurally fraudulent. The other two are moral reprobates. Naturally, Harvard&Yale Law will never condemn or impeach one of their own. I'd rather be governed by the first 100 names in the Boston phonebook than by a Harvard lawyer.
There’s no surprise here. Alito is one of the 5 hacks. His judgements are driven by the policy and social results he wants and those are driven by his partisan political views. Here he has a dilemma: his policy preferences suggest he find a reason for standing. His political preferences - to make life as easy as possible for Trump and the MAGA party - suggest he will,’discover’’no basis for standing. And yes the Court can drive results by doing nothing. That’s exactly what it is doing in the immunity case. Is there any real question that the intention is to keep the case from being tried?
I’m in awe of your thorough understanding of the Supreme Court’s machinations and your ability to share your knowledge succinctly with us lay people. I have become fascinated with listening to the actual Court deliberations while knitting way too many scarves and dishrags. Glad to read that you believe the Court will decline the mifepristone case based on lack of standing but agree that it should never have gone this far.
The correct response to Alito would have been, “Sometimes your only remedy is Congressional action. Kind of like the 14th Amendment’s insurrection clause, but for real.”
Wouldn’t a logical “person with standing” in the mifepristone case be a woman who actually suffered an adverse medical outcome from taking mifepristone? It doesn’t seem to me to be a case where there is no one with logical standing.
Isn’t your conclusion of “selective adherence” just a polite euphemism for “partisan politics,” or “unreasoned judicial fiat?”
Excellent commentary, as always. One thing that strikes me is, it seems clear that a potential plaintiff would have had standing to challenge the FDA's actions - either it's original approval of mifepristone or its subsequent changes to conditions for its use (no in person visit, up to 11 weeks instead of 7, etc.) Isn't the FDA subject to the Administrative Procedure Act? So, wouldn't its actions be reviewable in the Court of Appeals (ordinarily the DC Circuit but I think potentially in another circuit)? Of course, even the APA has deadlines - you don't get to bring a challenge 20 years later. And while someone might have had standing to bring a challenge to the FDA's actions in the DC Circuit, it seems unlikely that the hypocritical doctors would have, either in 2003(?) or in 2016. For the simple reason that they have no cognizable injury. But someone might conceivably have had standing. Back then.
Interesting that it was Alito (see Mutual Pharmaceutical Co. v. Bartlett [2013]) who grounded preemption by the FDA on the deference warranted by FDA’s “unique role in balancing the benefits and risks of all drugs," but now has apparently changed what's left of his mind. Could it be his questioning the FDA authority this time around has anything to do with reproductive rights, and not actually this authority to which he and his fellow conservatives deferred in several previous cases ? Think this is what's called a "no brainer." IMO, of course.
Spoiler Alert: This is going to be a tacky comment of an ad hominem nature, so feel free to delete it. You tell us that today, April 1st, is Justice A’s birthday. That explains everything!
Seems like Alito’s distress over the lack of a party with standing reveals a troubling view (which we’ve seen in other contexts) about the roles of administrative agencies and the courts. Unless I’m missing something, the FDA seemingly has no incentive to allow a drug that has proven to be unsafe to remain on the market. I’m no expert on the FDA’s procedures, but I assume the agency gets regular reports on side effects and other concerns arising from approved drugs, and I also assume it’s free to act on its own initiative to revisit its decisions as new data becomes available. Simply stated, there doesn’t seem to be a significant likelihood that a given FDA action was taken with nefarious motives, and the agency has no stake in standing by its decisions no matter what new developments might arise. But of course, Alito and his ilk believe they should have a freestanding right to review any and all agency decisions that they don’t agree with, so of course they think there should be a party out there somewhere that triggers this expansive notion of judicial review.
Since Article III's standing requirements are broad and it gives every consideration to enforcement, even anticipating international courts, "government conduct beyond review" is not an insoluble problem but a myth. I see this myth as the result of three very soluble problems.
a. the illusion of sole interpretive power with its subsequent illusion of finality
b. unexpressed immunities made without fully honoring judicial duties
c. rejection of the We the People clause's guarantee of qui tam
d. abridgment of the people's right to criminal enforcement of the text
a. The first power we vest is the legislative power. This necessarily includes power to interpret the Constitution. Since the text is already enforceable law we don't need a congress to enact it. Congress implements implied textual details. This obliges their review the Supreme Court's interpretations, to reject them with new law when the Court is wrong. The new law's findings section must explain what was wrong so the courts can enforce it. Congress has largely abdicated this duty. The latest example I know of, RFRA II, is a bad example as it violates Article V, amending text by legislation (it grants one liberty an unexpressed primacy above other personhood liberties, rights, and powers), but that's no excuse for giving up.
The "as-applied" doctrine was created for review of administrative agency action but how much more can it benefit the people when used to check judicial interpretation against textual reality? We vest in the courts no exception to Article V. No interpretation may amend.
Amendments IX and X establish the structure within which the text operates. By expressing some twenty government immunities the text strongly implies that government immunities are expressed, not implied.
However, even doctrines are only implied. The text does imply things, creating the possibility of an exception to the implied doctrine, but seeking exceptions is perilous. Jurists have duties to the text and to the people's interest. Are you fully honoring the interpreter's duty to the text? Where is the people's interest? Here's a sample process.
1. Review the complete text as an answer is often found where least expected.
2. Review the state interest. Does it honorably reflect the people's interest? If not reframe the question. That may be all that is needed.
3. If not, review the complete text in terms of the corrected question, as an answer is often found where least expected.
Can't find it?
4. Review the entire text again, this time with reference to all text of the Declaration of Independence not expressly repealed by the Constitution. Some, even most, confusion about the Constitution comes from assuming its repeal of selected text repeals the entire Declaration. It can't, as it nowhere incorporates a nation, a federation of states, or any states as governmental entities (nor did the Articles of Confederation); moreover, as a document it incorporates the Declaration by reference when signing "in the twelfth year of the independence of America," dating that independence not to 1781 but to 1776.
5. Only now should a jurist check caselaw for an opinion that might clarify relevant text. But be careful not to conflate opinion with text. Text is legal reality. Opinion is so named for good reason.
6. A jurist convinced the text and the people's interests require a new implied exception to an implied rule should observe the strictest definitions. They are:
What constitutes expression? If something must be true for an expression to be true AND violates no other text, it is expressed.
What constitutes implication? If something must be true for two or more expressions read together to be true AND violates no other text, it is implied.
An interpretation invalidly amends if it reduces our ability to rely on any clause, or to read any two or more clauses together and rely on any unavoidable effect.
b. There is a shortcut for this particular question. Courts violate Article V when they grant government or officers any unexpressed immunity against Amendment I's Petition clause because
1. it expresses no exceptions, and
2. Amendment I's primary purpose is to enable the people to guard our rights, liberties, powers, privileges, and immunities against government abridgment or denial. The We the People clause bars any interpretation that violates this purpose by asserting self-governance, by this expressing that we'd found the Declaration's mere "consent" insufficient.
Review the immunities the text grants government and officers. They are narrow, and each is necessary to serve the people's interest in functioning government. Though they can set priorities among public interests they are never "as versus the people." Stripping accountability to the people cannot be the purpose of an expressed immunity. It violates Amendment I's service of our Preambular sovereignty.
c. If neither the above nor any practices I've missed demonstrates where standing rests, qui tam might.
d. If not even qui tam applies, it's probably a criminal matter. The Preamble vests sovereignty in the Constitution to govern the United States of America. A sovereign's commands are enforceable both civilly and criminally. Failure to apply it criminally violates the Preamble.
1. No court may abridge the text's legal force.
2. Congress has no power to subject the text to statutes made under it and by its vestiture of their own authority.
3. Nor can our mere habit of enforcing it civilly. Tradition is not legal reality because each generation has a unique and limited set of problems. There are clauses never yet litigated. To limit the text's use to existing caselaw violates the relevant clause and the Posterity clause.
Failing to exercise the full power of the text defeats the rule of law.
Wishing the family a smooth move to DC this year. As Nelson Mandela said, it only seems impossible until it's done.
Without BushvGore's mistreatment of minority ballots, discarded at more than ten times the rate of Caucasian ballots, Sepsis Sam and John "Jim Crow" Roberts, who supervised BvG from inside the Tallahassee governor's mansion, wouldn't be sitting where they are. Not unlike the African American ballot, Alito now has full control over who does and does not receive standing. (Hint: TX is more equal than blue states.) As Trump proves daily, the law and fair play is for little people only. Gorsuch and ACB, also procedurally fraudulent. The other two are moral reprobates. Naturally, Harvard&Yale Law will never condemn or impeach one of their own. I'd rather be governed by the first 100 names in the Boston phonebook than by a Harvard lawyer.
"I thought Brett was going to kill me."
--Christine Ford
There’s no surprise here. Alito is one of the 5 hacks. His judgements are driven by the policy and social results he wants and those are driven by his partisan political views. Here he has a dilemma: his policy preferences suggest he find a reason for standing. His political preferences - to make life as easy as possible for Trump and the MAGA party - suggest he will,’discover’’no basis for standing. And yes the Court can drive results by doing nothing. That’s exactly what it is doing in the immunity case. Is there any real question that the intention is to keep the case from being tried?
I’m in awe of your thorough understanding of the Supreme Court’s machinations and your ability to share your knowledge succinctly with us lay people. I have become fascinated with listening to the actual Court deliberations while knitting way too many scarves and dishrags. Glad to read that you believe the Court will decline the mifepristone case based on lack of standing but agree that it should never have gone this far.