A Seat at the Sitting - February 2022

[Music]

 

Evelyn Hildebrand:  Hello, everyone, and welcome to The Federalist Society’s virtual event, “A Seat at the Sitting.” This afternoon, February 17, we are convening for the fifth edition of “A Seat at the Sitting,” which discusses the Supreme Court’s upcoming docket one sitting at a time. My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

We’re joined by an excellent panel this afternoon, moderated by Mr. Adam Liptak. This is Adam’s second time moderating “A Seat at the Sitting.” He is well known to you as the Supreme Court’s correspondent for The New York Times. After our speakers give opening remarks, we will turn to audience questions towards the end of the program. If you have a question, please enter it into the Q&A feature at the bottom of your screen, or you can raise your hand. Use the Raise Hand function, and you’ll be able to ask a question live so, again, towards the end of the program, the Q&A feature or the Raise Hand function.

 

With that, thank you for being with us today. Adam, the floor is yours.

 

Adam Liptak:  Thank you so much, Evelyn. I’ve really come to like this setup, this program of trying to look ahead at the Court’s two-week argument sitting, in part, because it’s an easy way for me to get up to speed, particularly when we have a panel of such distinguished experts to help us have a look at the cases. And it’s a pretty good sitting. There’s one blockbuster case, for sure, but a handful of other quite interesting cases.

 

And I’m going to briefly introduce the panelists, very briefly. And I apologize to them because they’re all so accomplished. We could spend a long time on bios, but I know we want to get to the cases. I’m going to introduce them in the order they’ll be speaking. A.J. Ferate is at the Spencer Fane firm. He’s been active in Oklahoma government affairs, which is fitting because Oklahoma has become ground zero for Native American affairs.

 

And he’ll talk about a couple of cases involving Native Americans. But his practice is quite varied. I noticed that he’s involved in the Kennedy against the Bremerton School District case, which will be argued in April. That’s the -- this is gift to journalists because it’s easy for readers to understand and people have opinions about it. This is the case of the praying football coach.

 

Liz Murrill is Solicitor General of Louisiana and a familiar face at the Supreme Court. She has argued the June Medical and Ramos against Louisiana cases, for instance. Bob Percival is the Robert F. Stanton Professor of Law at the University of Maryland Carey School of Law and is one of the nation's leading scholars on environmental law. Jeff Beelaert is at the Stein Mitchell firm, and he’s held several high-ranking positions in the Justice Department, including — and this strikes me as quite interesting — as nominations counsel in the Office of Legal Policy, where he assisted scores of nominees with the judicial nomination and confirmation process, including two Supreme Court justices. Kenji Price is with McDermott Will & Emery, and he had a job that sounds quite appealing or -- I don’t know what the day-to-day of it would be like, but he was United States Attorney for the District of Hawaii, which I guess has the same kind of criminal profile, or largely, as the rest of the nation, but it’s maybe much better situated.

 

So let’s start with those Native American cases. A.J., give us an overview. And then, let me just say that I’ve encouraged our panelists to not make this a series of mini lectures but to have a little bit of commentary and back and forth to try to keep it more lively. We’ll see how successful we are at that.

 

Anthony J. Ferate:  Well, thank you, Adam. And it’s great to be on, and it’s great to be a part of this group. If I go long, feel free to interject and chime in. But I want to go down to Texas, not far from here, but we’re going to talk about the El Paso area, where there’s a reservation and a tribe known as the Ysleta del Sur Pueblo. The case begins back in 1968, when the federal government actually recognized -- issued federal recognition to a tribe. There are other ways that you can gain recognition, but for all intents and purposes, that federal recognition is what you’re working to achieve as a tribe for funding purposes, for other purposes of recognition as well.

 

But the Pueblo and the Alabama Cusseta, who reside in Texas as well, those were the two that received their federal recognition in 1968. Very differently than other states, however, and other issues is that the authority was given to the state of Texas, the trust lands. Usually, the Bureau of Indian Affairs will hold that land in trust, but it was given to Texas in this situation until 1981, when through an opinion letter of the Attorney General’s Office, the state of Texas said, “We no longer have trust authority over this.” That began a years’-long process for the tribes. That -- the federal government actually did, in 1987, enter the Tribes of Texas Restoration Act. And really what this case at the Supreme Court is going to be focusing on is really Section 107 of that act. Section 105(f) is actually important too. Without getting too far in the weeds, it grants it civil and criminal jurisdiction on the reservation to the tribes, similar to just a handful of states around the country.

 

But I want to just quickly read into the presentation a couple of very important, pertinent parts of the case out of Section 107. Section 107(a) says, “All gaming activities, which are prohibited by the laws of the state of Texas, are hereby prohibited on the reservation and on lands of the tribe.” It goes on more, but if I go down to Subsection (b), it says, “Nothing in this section shall be construed as a grant of civil or criminal regulatory authority through the state of Texas.” So we have this tension between if the state bans it, it’s banned on the reservation. However, if the state allows it, then we start to go in Subsection (b) to looking at the regulatory authority and who actually holds that. This is kind of where the case is going to have that tension, and it was hard when you were trying to read the briefs -- the original briefs on cert. It made it a little bit difficult, and it was a little bit clear.

 

But really what we’re talking about is Class II bingo here. Now, Texas allows, by state law, bingo. You can go to a bingo hall in Texas. You can go to the Knights of Columbus Hall and play bingo, I presume, and many Catholic parishes, but by allowing bingo, according to the Pueblo, they also have the ability to do bingo. Bingo on reservations is sometimes a little bit different. Under the Indian Gaming Regulatory Act, Class II bingo, you can go into a casino, a bingo hall, but these machines look exactly like what’s considered Class III gaming, which would actually require a very specific compact with the state in order to do that. Machines look the same; they act, in many ways, the same. It’s the underlying technology that makes it bingo as opposed to gaming.

 

And so, that’s what -- where this fight is really about. And in 1994, the Ysleta I case was argued before the Fifth Circuit. And this is where the current fight exists. There’s been decades-long fight, but it’s centered around this 1994 Fifth Circuit decision where the court said the Indian Gaming Regulatory Act is inapplicable under the Restoration Act. I agree with the Fifth Circuit there but for different reasons than the Fifth Circuit did it. The Restoration Act, 107(a), governs, but what they did not do on the Fifth Circuit was address in any way 107(b), which is where this fight is probably going to come down to what is regulatory in the gaming world, particularly under Texas’s bingo laws.

 

Additional lawsuits have been filed, like I said, but I find this to be a very interesting case of what is regulatory. Texas has a number of state laws that can make the argument that maybe they do have authority as a criminal authority. But at the end of the day, and based on a couple of precedents that have occurred at the Supreme Court prior, it’s pretty possible that the tribe could say that they have the regulatory authority, under the Indian Gaming Regulatory Act, to actually proceed with what they’re doing. So if you are a gaming enthusiast or you are a tribal law enthusiast, this is one to listen to on the 22^nd.

 

Also on the 22^nd, if you’re a tribal law enthusiast, you’re going to want to watch Denezpi v. United States. The Ute Mountain Ute, which are the Weeminuche Band of the Ute tribe, they’re located in the southwest corner of Colorado and a portion of New Mexico. If you’ve ever traveled through Colorado to visit the Four Corners Monument, you have probably traveled -- well, you have traveled on a Ute reservation -- the Ute Mountain Reservation. And if you haven’t been to the Four Corners Monument, make that something to do on your next family trip because it’s a great experience. Really, if you get out there and if you have seen it before, you know that this is vast expanses, numerous reservations.

 

There’s also, unfortunately, very little policing. You may have one officer patrolling a 200-mile range out there. And so, emergency responses could take hours, if you even get a response at all, unfortunately. This is a very remote area. Unlike the Southern Ute or the Uintah and Ouray Reservation Ute tribes, the Ute Mountain Ute do not have their own tribal system -- or their own court system. I apologize.

 

But really what they rely on is what is anecdotally known as a CFR court. CFR courts’ official name are the Court of Indian Offenses, and the first one was created in Oklahoma Territory, here, actually in 1886. Perhaps the most famous case involving CFR courts is Oliphant v. Suquamish Tribe. The Suquamish don’t have a CFR court anymore, but in that case, what the court said was that a noncitizen could not be prosecuted in a CFR court.

 

Specifically, what are these things? You go before a magistrate judge that’s hired by the tribe. These operate where the tribes retain jurisdiction over Indians, exclusively of state jurisdiction, but where the tribal courts have not established -- fully exercised that jurisdiction. Jennifer Weddle of Greenberg Traurig wrote an amicus brief in here that was actually fairly helpful to me. The tribe in this instance actually runs the CFR court. They have a contract with the federal government to actually run the court.

 

But all of this brings us to Merle Denezpi. And Merle Denezpi is a Navajo member, and he committed a rape of a victim, also a Navajo, but this was on the Ute Mountain Ute Reservation’s land. It was at his girlfriend’s home, and this was after going to the casino in Towaoc, the capital of the Ute Mountain Ute. Denezpi pled guilty to one count of assault and battery under the tribal code and was sentenced to 140 days in jail for the crime. The prosecutor dropped the federal violations for terroristic threats and false imprison.

 

After the completely the sentence, Denezpi was then charged six months later in the District Court of Colorado with aggravated sexual abuse by force or threat in Indian Country. In that one, he was sentenced to 360 months in federal prison, and the defense that he brought forward that we’re now dealing with at the U.S. Supreme Court was, “Is this double jeopardy?” There’s a fairly good argument to be made either way, to be honest. But if the Supreme Court is taking this case the way that they are, I think that they’re very curious as to how this is not double jeopardy, I think, is the way to put it. The CFR court, it’s set up by the federal code. Conversely, as I mentioned earlier, in this instance, the tribe actually runs it. All of the prosecution that occurred in the tribal court actually was tribal violations, and then, the other issues were actually brought before the federal court at a later date.

 

Just a couple of thoughts that would have made this a whole lot easier, honestly. If this had been actually filed as a major crime and just dealt with by the U.S. Attorney as the major crime for rape, we wouldn’t be dealing with this double jeopardy issue. This would have just simply been required to have jurisdiction in the federal court, and we wouldn’t be in this situation. My good friend Trent Shores, former U.S. Attorney in the Northern District of Oklahoma, made some really good points that I want to raise, and he said, “We need to look at this double jeopardy issue on the law, not on the jurisdiction per se, and these prosecutions were each brought up under the appropriate criminal codes.” So this is going to be an interesting one to watch. It’s a single-issue case, but on the 22^nd, I’m going to be tuned into C-SPAN listening to the case.

 

Adam Liptak:  Well, thank you for that excellent presentation. I hadn’t quite focused on the fact that the Supreme Court is going to address bingo law. That’s good to hear. I know some of the justices play poker. I don’t know which the bingo aficionados might be.

 

But let me ask you, A.J., a big picture question. I have — and I’m not a student of this area — but I had the impression that before the arrival of Justice Gorsuch, Native Americans were not likely to succeed at the Supreme Court, and the trajectory may have changed a little bit. Is that correct, and what do you see going on at a high level of generality in this area of the law?

 

Anthony J. Ferate:  I would say that definitely among the tribal community that there has been beliefs that the Supreme Court has given them short shrift in the past. Solem, obviously, was an example of a case that, I think, tribal community felt was a wrong approach. The Seventh Circuit actually issued an opinion that I agree with that what occurred as a result of McGirt was an example of the disestablishment test to determine whether or not land was taken out of reservation. That had a significant effect and change on the Solem analysis. It really made it, as Justice Gorsuch said, “Show me the magic words. Show me the words of disestablishment, specifically.” And that had never been required before.

 

So between that and Justice Gorsuch’s views in Herrera a few terms ago, the Wyoming case on hunting, the Cougar Den case, out of the state of Washington, about transportation and taxation of fuels across lands, those are a couple examples where Justice Gorsuch has been on the side of the tribes, and it’s been a determining factor. I don’t know that I necessarily put specifically that the Court is necessarily more tribe friendly. In my analysis of some of the cases over the past several years, I just think they’re answering them correctly at this point.

 

Adam Liptak:  Well, let’s turn to Liz Murrill, and she’s going to tell us about an area, which I thought was done. I must have written half a dozen stories on the Trump administration and the public charge rule, and it seemed when the Biden administration came in, they took a different approach. But apparently, the case is not over. So Liz, please educate us.

 

Elizabeth Murrill:  Okay. So Arizona v. San Francisco is a case where the Court granted cert on the first question that was posed by Arizona and a number of states in which Louisiana -- of which Louisiana is one. The question that the Court granted cert on is whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend that rule. So it’s kind of about the public charge rule, but it’s predominantly about intervention. And I think there are also some questions lurking behind the primary question about mootness, about what constitutes interests that states have that might be adequate to permit intervention. And it also, just big picture, involves these multi-jurisdictional challenges in administrative law -- in the administrative law area, and this didn’t start with the public charge rule.

 

It started -- it’s been going on now for a number of years, and I think the problem that we see evolving -- and in this case, it’s about what the states argue is collusive settlement, where the government has been defending the rule and defending the rule, even to the point where cert was granted and -- to review some prior preliminary injunctions. And the government decides, across the board, to stop defending the rule but doesn’t permit anybody else to come in and defend the rule. So that’s -- I mean, I think that’s -- it’s a way to block -- in our view, it’s a way to block a challenge to a vacatur of that rule by insulating it, basically, with abandoning defense of the rule and leaving in place a vacatur that was put in place by a prior court. It is a procedural spaghetti bowl. It’s got -- we have multiple -- you know, it’s like this could be a law school exam of federal civil procedure because it’s got -- we’ve got 60 B motions pending in the Northern District of Illinois litigation, where the vacatur occurred. And Rule 60(b) is about relief from judgment.

 

We’ve got the intervention question, and all of this is about trying to get to the underlying question that was addressed through all of these preliminary injunctions in four or five different cases, which is whether, under the Immigration and Nationality Act -- what the standards are basically for the public charge rule under the INS rule in the U.S. Code. So we can -- the interveners in this case are 13 states. The respondents who were the plaintiffs and appellees below are the city and county of San Francisco and the county of Santa Clara and a long list of states. Almost all the states that aren’t trying to be interveners are -- were plaintiffs in the original litigation. That litigation was initially brought in two cases in the Northern District of California, one case in the Eastern District of Washington, and another case in the Northern District of Illinois. The case that’s before the Court is a Ninth Circuit opinion that had a lengthy dissent on the motion to intervene.

 

The dissent was written by Judge VanDyke, and he talks a good bit about how, absent intervention, the states -- the parties’ strategic cooperative dismissals preclude those who have interests that are no longer represented by the federal government from pursuing arguments. Then, in this case, the Ninth Circuit had already found to be meritorious argument. So he -- it does pose, I think, some very interesting questions about what happens when the -- the states have not been permitted to intervene early on, or they didn’t intervene early on because they felt their interests were adequately represented by the federal government. And I think that it potentially puts states into the position of having to intervene initially early. If the states can’t rely on the federal government at -- taking the position that it’s going to defend the rule and doing an adequate job of doing that and saying, “We’re out. We don’t need to do this for now because you’re doing it well, and we might be denied intervention on that ground anyway because the federal government is adequately defending the rule.”

 

And then, we get to the point where now the government’s abandoned defending the rule, and we’re like, “Wait a minute. We were covered. We had significant interests that were protected by this rule. We were allowed to participate in Notice-and-Comment at the time the rule was promulgated, and now, this judicial vacatur is the only basis for no longer enforcing the rule or for withdrawing the rule.” And the government has abandoned defending that in any litigation, so it’s an interesting way to kind of wrap up -- to insulate an administrative takedown of a rule when a new administration comes in by pointing to ongoing litigation. And we’re seeing this all over the place, and we -- it probably was -- it was also occurring, I think, when the Trump administration came in, so it’s a repeat -- we’re going to be in a perpetual process of administrative litigation where we’re starting to actually lose track of what rule takes effect when there’s a vacatur, and -- or if there’s not a vacatur and -- it leaves, I think, a lot of disarray with regard to -- and at the end of the day, it leaves a lot of confusion, I think, about what rules are effect in almost any regulatory area -- any area that’s heavily regulated.

 

And I know we’re going to be talking about the environmental cases, and those are really important. But I think that presents -- that all of the litigation on greenhouse emissions and climate change find themselves in the same situation here where we’re going to be going back and forth and back and forth and back and forth. So I think this is a really important case about whether some -- in this case, states, and I do think states -- I suspect that the ruling will likely be more narrowly tailored to the interests of states in intervening and defending a rule that the government has abandoned. It does have some interesting mootness questions. The vacatur occurred in the case in the Northern District of Illinois, and that is not the case that is before the Court.

 

So there’re going to be some questions about whether there’s any ultimate relief that this Court can grant, that this case would grant. And I think the arguments that the states are making is that the decision in this case about intervention and defending the rule is going to have some effect on all of the cases because they were all adjudicating the same rule.

 

Adam Liptak:  What do you think, Liz, from your perspective, the better practice would have been for the Biden administration? There is some version of this where they allow the case to go forward. They say, “We’ve changed our policy position.” But as a nominal matter — and I think DOMA was an example of this, where the Obama administration disavowed defending DOMA but continued to appeal it to make sure there’d be a judicial ruling on it. Is there some version of that that could have applied here?

 

Elizabeth Murrill:  I think that’s the most common practice. That’s been discussed in some of the briefs and in the dissent, I think, by Judge VanDyke. The government can ask to hold the cases in advance while the United States follows the APA process. That’s probably the most orderly way to do this because it results -- because the backstop is the Administrative Procedures Act process, which requires the government to notice a proposed rule, go through the whole process of Notice-and-Comment, and it allows everybody to participate in that process. And it ultimately results in a decision that can be challenged in its -- on its own.

 

The Court -- the -- another mechanism that’s discussed in the briefs is that the Court could -- that the government can notify the Court of their change in position and suggest an appointment of counsel to act in an amicus capacity. And that’s another way that this could occur. I think both of those are better alternatives than trying to insulate the rule or the change in the rule from review.

 

Adam Liptak:  Right. Well, before we turn to the big environmental cases, let me ask the panelists if they have any thoughts on this case or the Indian cases. And hearing no response, the consolidated EPA cases are big enough that we have assigned two experts to them, and they’ll deal with it in tag team fashion, starting with Bob and then moving to Jeff.

 

Robert V. Percival:  Thanks. Now, Adam, in the introduction, said that the case in April involving the football coach praying on the field was a gift to journalists. This is not a gift to journalists because it has a very lengthy and complex history, and I think it’s really important to understand the history in order to know what’s at issue in this case. The Supreme Court in 2007, in Massachusetts v. EPA, decided that the Clean Air Act can be used to regulate emissions of greenhouse gases, and it rejected the excuses that had been offered by the George W. Bush administration for failing to consider regulating greenhouse gas emissions. That was a very narrow, close 5-4 decision with Justice Kennedy voting with the traditional liberal justices to say that there was this obligation to consider regulating greenhouse gas emissions. Now, the Bush administration just sort of ignored that until the Obama administration took over in January 2009. And initially, President Obama tried to get Congress to pass a whole new set of legislative measures that would deal comprehensively with climate change.

 

One bill passed the house. It failed to get through to the Senate, so Obama said, “If you’re not going to give me legislation, we’ll use the Clean Air Act, which the Supreme Court has litigated we can do”. And the centerpiece of the Obama administration efforts to regulate emissions of greenhouse gases from power plants was the Clean Power Plan. It was proposed by EPA in June 2014. They conducted a rulemaking, heard more than 2 million comments. But before the rule was even finalized, right after it was proposed, West Virginia and 11 other states sued, as did some coal companies.

 

And they brought several lawsuits. They were all tossed out immediately because you cannot challenge a rule until it’s final. But in the D.C. Circuit, they drew the three-judge panel that had the three judges most skeptical of environmental regulation, including Judge Kavanaugh. They, at least, decided to hold oral argument. So they held oral argument.

 

At the time, I was teaching administrative law. I asked my class, “How’s this case going to come out?” And unanimously, the students said, “Well, it’s a fundamental principle of administrative law: you can’t challenge a rule in court until it’s final.” And sure enough, after holding oral argument in April 2015, in June of 2015, the panel voted unanimously to dismiss these as premature. Then, finally, in October of 2015, EPA finalized the Clean Power Plan.

 

Now, they actually listened to the comments, and the plan they finalized was considerably different from what they had originally proposed. Justice Scalia, in another case, had said that he didn’t think that the Clean Air Act allowed as the best available control technology demand-side measures where a utility would offer free, more efficient light bulbs to customers, something that had been mentioned in the proposal. So EPA cut the demand-side measures out entirely. The case, then, was challenged in the D.C. Circuit. One of the other things EPA did when it adopted the final rule was it added an additional two years for states to be able to comply with the rule. And the ultimate compliance deadline was not until 2030, so the panel had no problem saying, “We’re not going to stay this rule. We can complete judicial review in a timely fashion.”

 

But in a really, totally unprecedented manner, the Supreme Court, on February 9, 2016, four days before Justice Scalia’s untimely death, issued an emergency order, saying that they were going to, despite the fact that the D.C. Circuit had agreed not to stay the Clean Power Plan unanimously, they were going to stay it because they were hearing from various groups that -- and states that this was going to be unbelievably costly and would require coal-fired power plants to be shutting down all over the place. That was Justice Scalia’s last vote as a justice. The D.C. Circuit, then, decided -- it originally had scheduled oral argument for June of 2016, but they decided instead — and this is pretty important — “So let’s hold an en banc oral argument.”

 

And on September 27, 2016, 10 judges of the D.C. Circuit, all but Merrick Garland, who had been nominated to the Supreme Court, heard oral argument on the legality of the Clean Power Plan. Most observers thought, based on the questions and the colloquies at the oral argument, that the Plan’s legality was going to be upheld in a 7-3 vote with Judge Kavanaugh being one of the three dissenters. But that case -- no decision was ever released. Why? Because President Trump was elected president in November of 2016, just less than two months after the oral argument, and one of the first things he did is to issue an executive order directing EPA to reconsider the Clean Power Plan. And so, EPA and the Trump administration immediately went to the D.C. Circuit and said, “Please hold your decision in abeyance because we’re going to consider repealing the Clean Power Plan and replacing it with someone else.”

 

Now, it’s very interesting that some of the parties to the case currently before the Supreme Court actually said to the D.C. Circuit, “Yes, a new administration should be allowed to reconsider. No need to issue an opinion. It would just be an advisory opinion that would accomplish nothing. So in the interest of judicial economy, don’t issue an opinion.” So that opinion was never released. The D.C. Circuit agreed to it.

 

And then, on June 19, 2019, the Trump EPA repealed the Clean Power Plan and replaced it with the Affordable Clean Energy rule. And in doing so, they said this is not going to harm the environment. Why? Because in the intervening years, there already had been such a dramatic reduction in greenhouse gas emissions from the power plant sector that all the goals of the Clean Power Plan are being achieved, even though it never went into effect. So now, the Trump administration’s repeal of the Clean Power Plan and replacement with the Affordable Clean Energy Act is being challenged in court. It was challenged in the D.C. Circuit.

 

They made kind of a strategic error, though, in that they decided they were going to put all their eggs in one basket, and they took the position that it’s absolutely, unambiguously clear that the Clean Air Act bars the EPA from doing what it wanted to do in the Clean Power Plan. They didn’t ask for any deference. They didn’t say, “We’re exercising discretion.” They’re saying, “The Clean Air Act compels us to do this repeal.” Oral argument was held in the D.C. Circuit last October -- or October 8 -- well, anyway, on January 19^th, the very last day of the Trump administration, the D.C. Circuit, in a decision entitled American Lung Association v. EPA, held that the Trump EPA had acted illegally in repealing the Clean Power Plan and replacing it with the Affordable Clean Energy Act. It was kind of a narrow decision at 2-1.

 

It said that they’re wrong when they say the Clean Air Act unambiguously makes it illegal to do what EPA sought to do in the Clean Power Plan. Now, the Biden administration takes office the very next day, and just like the Trump administration did, they say, “We’re going to reconsider all of this. We have no plan at all to revive the Clean Power Plan.” And so, that -- they asked the D.C. Circuit, “Don’t issue your mandate, and we’re -- give us time to come up with our own new rule.” And then, the -- West Virginia, North Dakota, coal companies, they petitioned for cert.

 

And the question is what is there to review on cert? The Clean Power Plan, it never went into effect. It was two administrations ago. The Biden administration doesn’t plan to review it. But because we now have a new conservative super majority on the Supreme Court that includes many justices that aren’t real friendly to environmental regulation, including Justice Kavanaugh, who actually sat on this case — although no decision was issued — sat on the Clean Power Plan case — and some have argued should have to recuse himself. After all, that’s what Justice Sotomayor did in the American Electric Power case when the Supreme Court decided that in 2011.

 

So -- now, in the Supreme Court, the Solicitor General and EPA are saying, “There’s no standing. The states aren’t being regulated. There’s no rule in effect. How do they have any standing?” The NGOs are saying, “It’s not justiciable. You’re just asking for that advisory opinion that you said years ago you couldn’t give.”

 

And meanwhile, the petitioners see this as let’s ask for everything we ever wanted to get for Christmas. Cut back on EPA power. Invoke the major questions doctrine, which really isn’t very applicable here because it’s not a question where Congress did not give EPA authority to do something of vast significance. In fact, in 2001, the Supreme Court unanimously -- had actually rejected a nondelegation challenge to the Clean Air Act because it’s absolutely clear. They said there are enough intelligible principles to guide the EPA rules and National Ambient Air Quality Standards, which are different from Section 111(d), of course, but if you’re going to have national air pollution controls — and they’ve been incredibly successful — you’re going to have to do things that have vast economic and political significance. So Congress has been cool with that all along.

 

So who knows what will happen? The Justice Department said, “Well, you could just revoke the D.C. Circuit; vacate it, if you want, if you don’t like that.” When I clerked for Justice White, he used to always say, “We don’t review opinions; we review judgments.” And so, no telling how this case is going to come out. It’s kind of an invitation to radical judicial activism. All we know so far is that at least four justices thought the case should be heard. My hope would be they’ll say, “Wait until there’s a new rule.” But we’ll see.

 

Adam Liptak:  Well, that really sets up the case so nicely. Thank you very much. Let’s now spin forward and ask Jeff to describe what’s going to go on at the Supreme Court.

 

Jeff Beelaert:  Sure. Thank you, Adam. So I disagree a little bit with Professor Percival. The Court had all these arguments at the cert stage. It was, “There’s no standing. There’s no reason for you to take this case.” All the sorts of things were raised early on, and the Court granted. Right?

 

And the Court granted on a question that specifically as under this what’s -- what was referred to as an ancillary provision of the Clean Air Act, this 111(d), whether Congress can act -- whether Congress authorized the EPA to issue significant rules. So in the question that was granted, you actually are setting up this major questions doctrine argument. And I think that the EPA does not want to deal with this. The petitioners, it’s in their briefs. It’s in the opening briefs. It’s front and center to what the Court granted on, and when you look at the EPA’s brief, they don’t even talk about the major questions doctrine until page 44 of the brief.

 

And so, the EPA goes through all the standing arguments. It says, “You don’t need to take this case. You -- the challengers here are totally wrong. They’re not going to be injured.” And they’re right that this Clean Power Plan is not going to be in effect, and they’re right that the Biden administration is reconsidering what it wants to do here. But I think that the Court saw an issue, and it saw an issue with the fact that the Clean Air Act, the way that it’s written, what the EPA did here is it found a provision that it did not use in the past in this context, and it wanted to do something that it couldn’t do -- that the Obama administration couldn’t do in Congress.

 

Congress rejected all the plans that the Obama administration put forward. And what they said was, “Okay, Congress won’t do. Let’s go to the EPA, and we’ll do it through rulemaking.” And I think that this is real problem. And I think if you look at some of the recent cases, just give an example, the OSHA case that the Supreme Court heard recently. During that argument, there were the same sorts of arguments made on major questions.

 

And major questions doctrine was a part of the oral argument. Justice Gorsuch wrote a concurring decision in the OSHA case, and he said that the OSHA’s mandate on vaccines and testing failed this major questions doctrine. And he was joined by Justice Thomas and Justice Alito, so I think there is some evidence to suggest that this is what the justices want to talk about right now. They do see this as a problem that when an administration can’t seem to get something done at Congress, that it goes to an agency and says, “Find me a provision of a statute that we can use to do what Congress didn’t allow us to do.” And they struck down the OSHA mandate, and I think that there’s a high likelihood that the Court does the same thing here. And if they’re going to address the merits of this, I think that the EPA has got a real challenge to prevail here.

 

So that’s my take on it. If you look at the actual language of the statute, it says you -- creates the best -- it allows EPA to have the best system. In the EPA’s brief, it goes through this whole long thing about, well, is that inside the fence line? Is it outside the fence line? They’re trying to explain one reading of this that would allow them to prevail. I think that the EPA -- the SG’s brief, there’s a line in there where they’re talking about outside the line measures, and their view is that the Clean Air Act allows them to do this. And they say something like, well, if we were to enact these sorts of rules, it could sometimes have large practical consequences.

 

And this is a heck of an understatement for the EPA and the government to be making because I think the petitioners have flagged this that this rule specifically was designed to get rid of coal-powered power plants. And so, that’s exactly what the administration sought out to do, so to say that it would sometimes have large practical consequences. I mean, this is a rule that was designed to specifically to put them out of business, so I think the petitioners have pretty strong arguments as to why Congress needs to speak clearly when it wants agencies like the EPA to be doing this for rulemaking. So I think the major questions doctrine is going to be something that the Court considers.

 

The big boogie man in the news, you know, is the Court going to go to nondelegation doctrine? Has it been invoked to strike down a statute since 1935? This is the conservatives wanting to radicalize judicial activism -- I don’t know that the Court’s going to there. I think that they can end this on major questions doctrine. And the D.C. Circuit’s decision on that -- I think Judge Walker’s dissent is very powerful. I think that a lot of the justices are going to be reading that, and they’re going to be paying close attention to his arguments.

 

Adam Liptak:  Bob, I suspect you have a couple responses.

 

Robert V. Percival:  Yeah. Yeah. I -- but Jeff’s whole argument ignores the fact that there’s no rule in effect. What is it that the Court’s reviewing? They’re just saying, “Court, please tell us how much you hate the Clean Air Act and make some advisory pronouncement that, in the future, whatever program Biden adopts has to be really narrow.” Now, it’s true that a better way would have been to get the climate legislation through Congress that Obama wanted in 2009. He was proposing a nationwide cap-and-trade program, which the Clean Air Act doesn’t give him authority, so what he’s used the Clean Air Act for, in the Clean Power Plan, was a completely different type of program where EPA said how much they wanted reductions and then left it up to the states, primarily, as to how to get there.

 

The fact of the matter is it wasn’t necessary because coal is losing so badly in the marketplace that we’ve already had 10 years before that 2030 compliance day a 32 percent reduction in greenhouse gas emissions from the electric power sector. And that may be one reason why the power companies are all supporting EPA -- that have filed in this case -- are all supporting EPA in this case. They’re saying, “We may, in the future, need some national rules. Don’t hamstring EPA with some advisory opinion now because there’s simply nothing to review.”

 

And the major questions doctrine was just sort of invented out of whole cloth as a way of interpreting a statute. Did Congress intend to give an agency like EPA the power to do something really big? Well, the entire Clean Air Act is really big. That’s why it’s been so successful because we can have nationwide regulation.

 

Adam Liptak:  Say a little more about the major questions doctrine because I have the same feeling about it, that it’s a judge-created amorphous rule and that, in tandem with the nondelegation doctrine, it sort of puts the agency in a no-win position, that is if Congress doesn’t speak clearly enough, the agency can’t do anything. And if Congress does speak clearly enough, there’s been an unlawful delegation. Or am I missing something?

 

Robert V. Percival:  Yeah, well, if you look at the American Trucking case in 2001, a D.C. Circuit panel had struck down a revised National Ambient Air Quality Standard on grounds that it violated the nondelegation doctrine. And the question then was how can you cure that, if at all, without amending the Constitution? Supreme Court, ultimately — even though the industry group said, “Hey, why don’t you just rewrite the statute, Supreme Court, so that it requires cost-benefit analysis” — they said, “There’s no problem with the nondelegation doctrine.”

 

Now, one interesting feature of that case, Justice Thomas wrote a concurrence where he said, “Today, we say there is an intelligible principle written into the instructions to EPA as to how to set National Ambient Air Quality Standards. That means there’s no nondelegation problem. But in the future,” he said, “if there was something with really vast economic and political significance, even if there was an intelligible principle, I might vote to strike it down as an unconstitutional delegation.” And so, that’s, in part, maybe part of the seed that was planted that later sprung into what’s a very different doctrine because major questions is a principle of statutory interpretation. What was intended when the statute was written?

 

Jeff Beelaert:  Yeah, and I’ll just add I think that the Court -- they have applied this doctrine -- I think it’s -- people are saying, “so-called.” I think that the -- Judge Millett and Judge Pillard were very skeptical of the application of the major questions doctrine, and I think that, if you look at the Supreme Court’s cases going back 10, 15 years where this starts to appear, sometimes you get the language where it’s like, “Congress doesn’t hide elephants in mouse holes.” Right? So the idea is, yes, the Clean Air Act gives the EPA all sorts of authority to do all sorts of things, and it’s got a whole bunch of provisions and allows programs -- it actually allows the agency to set air quality standards, and it allows it to do a whole bunch of things. But when you’re talking about -- this was the idea of generation shifting. So that the idea that you shift where electricity is generated from -- away from coal to cleaner sources. And the EPA designed this rule specifically to accomplish that goal.

 

And so, I think, on the front end of this, what the argument is is, okay, if that’s really what Congress meant when it passed this 111(d), when it talks about the best system of -- for an air quality standard, that -- was that really what they were thinking of is -- did they give the agency this sweeping authority to come in and say, okay, the best system is actually that we get rid of coal entirely. And I think that that’s really the problem here is that, when you look at this, it’s not -- this really is a dense statutory provision, and when you read it, you read it a couple times. It’s hard to say that you look at that, and that’s what Congress was intending to give the agency authority to do. And when you look at this major questions doctrine, what the Court has said is, “You have to have a clear authorization from Congress when you’re going to have a program like this that could be billions of dollars and actually is targeted at having this outcome.”

 

So I think that the petitioners have made this argument. There’s amicus briefs filed on both sides of this, addressing the issues. I think the Court is going to talk about this, and I think that you probably are going to see five justices who agree with petitioners on these arguments.

 

Adam Liptak:  Let me -- I’m looking at the chat, and there are some nice points in the chat. And I think I might ask Liz to join the conversation. There’s a question from Matt Bowman (sp), and I think Liz has a kind of response to it. The question is “Does the delay caused by agency rulemaking and judicial review give the Court a justification to issue a ruling interpreting a statute, like the Clean Air Act, even if there’s an argument that the new administration mooted the particular case when the rulemaking and litigation process necessarily takes so long that the executive branch essentially cannot implement its policy in a single presidential term of four years?” And I think Liz has a response, and it’s based, in a way, in the case she described, Arizona against San Francisco.

 

Elizabeth Murrill:  So, yeah, I think my answer to that really is grounded more in the statutory interpretation realm because it -- I suggested that the “capable of repetition, but evading review” standard would help avoid a mootness claim, but I think that -- that’s much harder if it’s an arbitrary-or-capricious claim because that’s grounded on the actual rule and not as -- not grounded on the statute that’s being interpreted. And when you have a question like we have in West Virginia v. EPA, there’s a significant statutory interpretation question. It’s going to affect -- no matter what administration is in office, no matter what they try to do, it’s going to affect that rulemaking. And so, until you resolve the statutory interpretation question, you’re going to have challenges by both sides every time somebody tries to revise the rule. So I think that either Congress can fix it, or the Court can address the statutory -- the scope of statutory authority, and we can get out of -- we can find a way out of perpetual statutory questions -- statutory interpretation issues. And then, it’s going to be more grounded on a challenge based on whether it’s arbitrary and capricious.

 

Jeff Beelaert:  And I’ll just add one thing. The Supreme Court also granted in the WOTUS rule -- I mean, the Waters of the United States, so the Rapanos decision that has caused so much trouble for several administrations trying to define the Waters of the United States. And so, I think the Biden administration is also looking at how they’re going to redo this. And, you know, the -- I don’t know which -- who the petitioners were, but they took a shot at getting this before the Court beforehand, and they specifically said, you need to intervene here because this is what -- this is taking -- this is causing such a mess for everyone as successive administrations take a shot at this, and they can’t possibly get it through because of litigation. So the Court’s now going to say, “What does the Clean Water Act actually mean in this context, and how is Rapanos -- what was meant in that case?” So I think that the Court is taking a more active role, and it sees what’s going on. And I think it’s going to, hopefully, provide guidance so that future administrations can, in fact, get their policies and rulemaking through.

 

Elizabeth Murrill:  Well, and there’s more litigation coming that’s ongoing. On the Methane rule, that’s another big one that I think is going to -- that will continue to be litigated. And these -- this litigation -- these rules have enormous impact on states and on industry that’s -- that are seeking permits, so there’s a lot of economic consequences for the instability in this rulemaking. I think, from a government and an economic standpoint, we -- you got to have more stability in the system so that we can see the investments that come and where are they going to be and how are they going to be made. Otherwise, industry just says, “I’m not doing it at all until I figure out what the rules are.”

 

Adam Liptak:  Let me ask one more question, taking us back to the Clean Air Act, before we more on. And let me remind the audience, we love to have your questions, whether by chat or by raising your hand. So I think probably there’s little dispute, Bob and Jeff, that EPA’s likely to lose this case. Maybe it goes off on standing. But if they lose, how big can that loss be? Is Massachusetts against EPA in play?

 

Robert V. Percival:  That’s an interesting question. There’s only one of the five justices who was in the majority in Massachusetts v. EPA still on the Court, and he won’t be there for long because that’s Justice Breyer. There are three of the four dissenters in Massachusetts v. EPA, who are still on the Court. Now, Chief Justice Roberts has come to accept that as binding precedent. Justices Alito and Thomas have said, “We don’t accept it.” But the consequence of reversing Massachusetts v. EPA would be that the American Electric Power decision from 2011, where they said states can’t bring federal common law nuisance actions premised on climate change because the Clean Air Act delegates to EPA the task of controlling emissions of greenhouse gases -- if you said we going to reverse Massachusetts v. EPA saying you can’t use the Clean Air Act at all, then the federal common law of nuisance would no longer be displaced, and there could be all kinds of litigation.

 

So I think the Court has refused invitations to reconsider Massachusetts v. EPA. But what you see going on here is, now that there’s this super majority of fierce conservatives, they are willing to accept invitations, not just to rewrite the Clean Air Act but also the Clean Water Act, which is why they took the Sackett case probably, even though there were other cases out there that would actually involve rules that -- whose legality was being challenged.

 

Adam Liptak:  Jeff, what’s your view? How big a loss can EPA sustain here?

 

Jeff Beelaert:  How big? Good question. It’s hard to say because it could be narrow. You’re right. I don’t think that the Supreme Court is going to say that the Petitioners lack standing. I don’t think that the Supreme Court is going to say that it shouldn’t have granted this case. I think the time for that was at the cert stage.

 

You didn’t see the EPA or any other parties get any traction with that argument, so now, we’re left on the merits. And it’s possible that the Court issues a relatively narrow ruling and only talks about the Clean Air Act and the scope of authority in this -- what’s being described as an ancillary provision, this one 111(d). So it’s possible you end up with a very narrow decision, but again, it’s also possible -- and I think that Professor Percival’s right, that, in some of the petitioners’ briefs, they really are swinging for the fences. And so, I personally don’t think that you’re going to end up with a nondelegation doctrine decision. I would be shocked if that’s the way the Court ends up, but it could be in there. You certainly could have Justice Gorsuch writing separately, talking about that, maybe Justice Thomas.

 

It’s possible, but I think -- my personal opinion is -- and an EPA loss on 111(d), major questions doctrine, I think the EPA can survive this. As we already pointed out, you don’t really need this rule at the moment. The coal industry’s already suffering, and they’ve already met most of the emissions standards that would have been in effect. So it’s not like the Biden administration’s looking to put coal out of business. It sounds like they’re -- that’s happening regardless.

 

Adam Liptak:  They’re taking care of that themselves. Let’s move on to Kenji. We’ve got two more interesting cases to go over.

 

Kenji Marcel Price:  Thank you, Adam. So I’m going to round the session out with a -- talking about the Controlled Substances Act with two cases called Kahn v. United States and Ruan v. United States. And then, we have a case of Boule v. Egbert, which is essentially a case that involves Bivens, a well-known doctrine.

 

But I’ll start out with the Controlled Substances Act case because this is a matter near and dear to my heart, which is essentially the drug overdose epidemic in our country right now. Basically, we know that a lot of attention is paid to the COVID-19 pandemic, appropriately, but this case really, in my view, underscores what still looms large over many of us, which is the drug overdose crisis that continues in the country. Just yesterday, the Centers for Disease Control and Prevention released provisional drug overdose death data, and for the 12-month period ending on September of last year, the agency reported 104,288 predicted drug overdose deaths and 99,543 reported drug overdose deaths. Now, just to put those figures in context and not just talk in the abstract here, when I was appointed U.S. Attorney back in January of 2018, which wasn’t all that long ago, the number of predicted drug overdose deaths for the 12-month period ending that month, in January of 2018, was 71,000 and reported overdose deaths were 70,100 -- or roughly 70,100.

 

So I don’t provide this data to tip the scale in favor of either party in these appeals. I just provide it because I think it’s an important context for what’s going on here and why these cases are important; that’s Kahn and Ruan. And also, I want to underscore the importance of clarity in interpretation of a Controlled Substances Act, particularly as it’s applied against a licensed physician. The other thing I’ll share is that, unfortunately, during the COVID-19 pandemic, what the data has shown is really just a stark uptick in overdose deaths. If you look at provisional deaths from the, perhaps, late 2017 until January of 2020, the numbers were rather constant. They sort of hovered right around 68,000 to 73,000 per year.

 

The pandemic then hit, and the numbers essentially skyrocketed to what they were reported as of last September. So all that context, I hope, gives you a flavor of what, I think, is a very important issue. Now, of course, one of the strategies of the government -- the Department of Justice has used to fight the drug overdose epidemic is, of course, criminal prosecutions against physicians who prescribe controlled substances without a legitimate medical purpose or outside the scope of the usual course of professional practice. So the precise question presented by the cases that I’ll describe today a little bit is whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C § 841(a)(1) without regard to whether, in good faith, he reasonably believed or subjectively intended that his prescriptions fall within that course of professional practice.

 

Now, a little bit of legal background may be helpful for those of you all who don’t operate frequently in the industry as medical practitioners or, I suppose, in the criminal justice system enforcing drug law. We all know, essentially, that the Controlled Substances Act prohibits the distribution, knowingly and intentionally, of controlled substances, except as authorized by the statute, by the Controlled Substances Act. The act allows physicians registered with the DEA, to the extent authorized by their registration and in conformity with the CSA, essentially to issue these prescriptions so folks can get pain medications and other drugs. The statute also allows registered practitioners to dispense controlled substances with a prescription. Now, critically, the CFR -- 21 CFR 1306(4)(a) basically articulates what it means or what’s necessary for a prescription to be legal. For a prescription to be legal, it essentially has to be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.

 

Now, what’s important is a little bit of case law, so I’ll bring you all back to 1975 to a case called United States v. Moore because it’s also pertinent here because it speaks to the mental state requirements here. Now, first, basically, in U.S. v. Moore, the Supreme Court held that a physician could be criminally liable under the Controlled Substances Act when their activities fall outside the usual course of professional practice. The Supreme Court upheld the defendant convicted in that case because the evidence presented at trial, the Court found, was sufficient for the jury to find that the physician’s conduct exceeded the bounds of professional practice. Now, in that case, the Supreme Court didn’t describe what jury instructions were specifically required but implicitly deemed sufficient the instructions that were provided in the case, which essentially said that the defendant could be convicted if he dispensed controlled substances, other than in good faith, in the usual course of a professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States. The instructions also said the defendant couldn’t be found guilty if he made an honest effort to prescribe in compliance with an accepted standard of medical practice.

 

So essentially, the fight going on in these cases is, essentially, under what circumstances can a physician be convicted for unlawfully distributing drugs under the CSA. And what’s at issue is, if the physician acts in good faith, based on his or her subjective belief that they’re acting in the course of professional medical practice, can they be convicted for violating the CSA? So essentially, the fight here hinges on whether, in light of Moore and given what the CSA provides, basically, if a physician acts in good faith and subjectively believes themself that they are acting in the usual course of professional practice, can they be convicted under the Controlled Substances Act? The petitioners essentially worry that, without a subjective good faith standard, the government could essentially obtain a criminal conviction for what’s tantamount to professional malpractice for a doctor’s negligence or a doctor’s -- what would be civilly problematic in a civil lawsuit for doctors’ prescribing practices. In other words, by taking subjective good faith out of the equation, are we essentially allowing the government to impose some sort of strict liability standard and obtain criminal convictions?

 

In the Eleventh Circuit -- one appeal was in the Eleventh Circuit. That was the appeal of the Ruan decision. And then, in the Tenth Circuit, it was the Kahn decision, K-a-h-n. Basically, the Eleventh Circuit tells — and I quote — “whether a defendant acts in the usual course of his professional practice must be evaluated based on an objective standard, not a subjective standard.” In other words, the Court would effectively say that there is an objective sense of what is the usual course of professional medical practice, and a physician cannot just say, hey, I subjectively believe that what I was doing was appropriate under the time. And the Eleventh Circuit flagged the concern that under the appellant’s proposed instruction, which obviously was the physician’s proposed instructions, as long as the physician subjectively believed that he was meeting a patient’s medical needs by prescribing a controlled substance, he couldn’t be convicted of violating the Controlled Substances Act, no matter how far outside the bounds of professional medical practice his or her conduct falls.

 

Now, the court in the Eleventh Circuit case in Ruan also upheld the District Court's instructions that good faith was a defense to a CSA violation as long as the appellant’s conduct was also in accordance with the standards of medical practice generally recognized and accepted in the United States. So basically, the petitioner in Ruan, they’re effectively arguing that the Eleventh Circuit’s view allows for no room for good faith mistakes, reasonably or otherwise. Essentially, the Eleventh Circuit rule, as the petitioner would argue, is fairly cut and dry. Either the physician’s belief that he or she was operating in the bounds of medical practice was objectively reasonably or wasn’t. If it wasn’t, then the physician can be convicted of violating the Controlled Substances Act. Kahn, somewhat similar.

 

In Kahn, the Tenth Circuit said — and I quote — “The only relevant inquiry under the second prong” -- and by second prong, the court is referring to there’s a legitimate medical purpose for a prescription, and then, there’s the usual professional practice prong. “The” -- so let me quote, again, the Tenth Circuit saying, “The only relevant inquiry under the second prong is whether a defendant practitioner objectively acted within that scope, regardless of whether he believed he was doing so.” However, the Eleventh -- the Tenth Circuit also said, “A jury could only convict the defendant in that case if it found beyond a reasonable doubt that he failed to even attempt or make some honest effort to apply the appropriate standard of care.” So I just -- that’s a summary of essentially the dispute in these cases, Kahn -- the Kahn case and the Ruan case.

 

I’ll just articulate a few takeaways before moving on to the next case. Obviously, this is an important case. It’s important from an enforcement standpoint for the Department of Justice. It’s also important for the medical industry so physicians have a clear understanding of what kind of behavior would land them on the wrong side of the law or perhaps get them out of a situation where the government’s alleging criminal conduct. So there’s -- there are important interests here and much needed clarity about what the law prohibits. The parties essentially go back and forth in these cases about highlighting different cases where there appears to be a circuit split about this mental state requirement.

 

And I also think it’s important to note here that this case is pretty -- or these cases are pretty critical because I am unaware of any sense that DOJ is slowing down on its enforcement effort to fight the drug overdose epidemic. Now, of course, it remains to be seen what a new administration will do on that front, but enforcement activity was prevalent while I was with the Department as the federal government tries to find different tools for fighting the opioid epidemic or, I should say, drug overdose epidemic. And then, of course, another critical issue that emerges from these cases, I think, if folks could think about on the broader level is -- it’s essentially whether the government will, over the long term, strike the right balance between deterrence and encouraging law-abiding physicians to continue prescribing appropriate drugs. Obviously, there’s been a critical policy consideration here that folks should be thinking about, which is government using its power to enforce the law but also not doing so to the detriment of good medical practice that’s important for a lot of folks, whether it’s pain medication or other drugs necessary for patients. So that’s an overview of the Controlled Substances Act --

 

Adam Liptak:  Can I interrupt you, Kenji, with a quick question before you move on?

 

Kenji Marcel Price:  Absolutely. Yeah.

 

Adam Liptak:  Is subjective good faith a standard known in other areas of the criminal law? I mean, it’s a little reminiscent of the libel standard of actual malice. And it’s very hard to overcome because someone’s subjective good faith is information, really, within that person’s brain. I just don’t know whether the criminal law recognizes that standard elsewhere.

 

Kenji Marcel Price:  Well, I can tell you in other contexts, generally knowledge of the law, for example, is not a defense. Whether you knew what the law required or not, the statutes are on the books. You can say you did not know what the law required, but that’s generally not going to get you off the hook. I agree with you that there is a challenge there with subjective good faith in the sense of -- although, let me take a step back. I will say that this context is a little bit unique and interesting, the medical context, obviously, because of the discretion that the physicians have to exercise in these cases. And as you know, from when I read the CFR, there seems to be, of course -- the law provides for, essentially, some back and forth about what’s the generally accepted practice, what’s the usual course of professional practice.

 

So I do think that makes this area a little bit different than many others. So I would say that this is somewhat of a unique problem, although off the top of my head, I don’t have another area where I would say, absolutely, the same dynamic exists. But I do think that the way the statute and the regulation are crafted, they -- it allows for some room -- and of course, the case law in U.S. v. Moore. Obviously, it lends itself to a battle in terms of you’ve got experts, obviously, determining what’s acceptable under the circumstances.

 

All right. I’m now going to pivot to Egbert v. Boule. This is a very important case, again, under the circumstances. And the reason I say that is this case speaks to the Bivens case, and essentially, it calls into question or gives the Supreme Court the opportunity to expand Bivens into what some -- one party would argue is a new context. What the Court did in this case was take off the table whether it would reconsider Bivens entirely.

 

And for those of you who don’t follow Bivens jurisprudence, I’ll just give you sort of the one-sentence version of what Bivens is. Bivens was a 1971 Supreme Court case. It’s called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. Essentially, in Bivens, the Supreme Court held that an individual could sue a federal agent for damages for violating his Fourth Amendment rights, despite the fact that there was no federal law on the books that actually authorized a claim for damages against a federal agent. As you all are probably aware, there’s a statute — I believe it’s 42 U.S.C. § 1983 — that allows for private litigants to sue state officers or state actors for violating their constitutional rights. You don’t have a federal 1983 equivalent. So that’s a little bit of background on what Bivens is itself.

 

A little other background I think will be helpful with walking through the facts here is, essentially, Bivens -- that -- there’s a two-step inquiry that’s used whenever there’s a challenge to, basically, a Bivens decision or whenever a Bivens case is on review. One question in the Bivens context is does the claim arise in a new context? In other words, a different context in the context within which other Bivens claims have arisen and been recognized by the Supreme Court. And then, two, are there special factors that counsel hesitation about extending Bivens to the claim outside of the context that Bivens claims have already been recognized.

 

Now, in this case, in Egbert, Boule case, the two questions presented are, one, whether a cause of action exists under Bivens for First Amendment retaliation claims, and the second question is whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff's Fourth Amendment rights. Those are the questions presented. Notably, here, a little bit of background is that the Supreme Court did not grant cert on the question of whether it could reconsider Bivens. Now, one could probably speculate as to why that is. I don’t know the answer, so I, in no way, am suggesting what it is. However, I will say that obviously these claims against federal officers, or certainly review of these cases, comes in the context of, obviously, discussions about police reform, discussions about liability for, oftentimes, state officers, I would say, or local officers for alleged violations of constitutional rights.

 

Again, I’m not saying that goes to the Supreme Court’s decision, but certainly, some could look at these cases and maybe speculate or make assumptions about institutional credibility and granting cert on reconsidering Bivens entirely. But I’ll just put those issues aside. I just raise them because it’s sort of stating the obvious about the context here. Now, the two claims in these cases, two plaintiffs’ claims, number one, the retaliation First Amendment claim effectively involves a -- basically, the retaliation claim is that an agent, in this context, Egbert, retaliated against the plaintiff for exercising his First Amendment right to complain about that agent’s conduct. The Fourth Amendment claim was that the agent violated Boule’s Fourth Amendment rights by entering his property without permission and using excessive force.

 

Now, I’m going to walk through the facts because, in these situations, the facts -- in this case, the facts are critical. And I also think they tell somewhat of an interesting, at times, colorful story about this unfortunate set of events. So here, Boule was a U.S. citizen who owned and operated a bed and breakfast in Washington State. Now, this bed and breakfast, apparently, the back property line of the land where the bed and breakfast is situated was right on the U.S./Canada border. Back in 2014, a customs agent confronted Boule — the customs agent is Egbert — confronted Boule while he was out running errands and asked him about guests staying at the bed and breakfast. During the conversation, Boule said he had a guest arriving from New York who had flown in from Turkey the day before.

 

Boule also said that his employees were picking the guests up at Seattle-Tacoma Airport. The agent then went to the vicinity of the inn that Boule operated and waited there. Eventually, the guest arrived in a car. The agent, Agent Egbert, followed the car into Boule’s driveway, got out, and approached the car. At the time, Boule, who was at the front porch of this inn that he owned, asked the agent to leave. The agent refused, and then Boule stepped in front of him.

 

Boule claims that Egbert then shoved him against the car and then pushed him to the ground when he refused to move away from the car. Egbert then opened the door and asked the guest about his immigration status. After concluding the guest was lawfully in the country, Egbert took off. Boule then complained to Egbert’s supervisors about the altercation. And Egbert, then, at least it's alleged, retaliated by contacting the IRS and asking it to look into Boule’s tax debt. In this case, the District Court granted Egbert summary judgment on the First and Fourth Amendment claims, holding that they were impermissible extensions of Bivens. The Court of Appeals reversed and basically would have allowed the First and Fourth Amendment Bivens claims to proceed.

 

Now, I’ll very briefly throw a few colorful facts at you and then go -- then very briefly summarize some of the key arguments in this case that have played out in other cases, essentially. The first is that the name of the -- Boule’s property was apparently “Smuggler’s Inn,” which is sort of a catchy title, and according to the record, it was a notorious site of illegal border crossing, where the smuggling of people, drugs, illicit money, and other criminal objects frequently occurred. It also sat directly adjacent to Canada, as I mentioned earlier, and if it were any closer, the property would be straddling the border. Apparently, Boule was subsequently arrested by Canadian authorities in charge of human trafficking. He also pled guilty to aiding persons in unlawfully crossing the border to Canada.

 

It’s also very interesting the facts here about a referral for tax crimes that Boule -- that Egbert made. I don’t know why he made it. I can only speculate. I suppose maybe he thought that reporting -- that -- if what he thought was true was going on, maybe taxes weren’t being reported — I don’t know — or being reported inaccurately, but there was tax crimes referral that added more color and lead ultimately, obviously, to the retaliation claim.

 

Now, I’ll just very briefly articulate the argument. Egbert -- essentially, Egbert’s position is don’t extend Bivens to any new context. And Egbert argues this is a new context. It’s a new context for the First Amendment, outside of the three recognized by the Supreme Court, same thing for the Fourth Amendment. What I’ll flag with special factors because I think it’s sort of applies to both the First and Fourth Amendment claims --

 

The special factors here that is front and center is separation of powers concern. Of course, the notion that, by creating remedies — they’re not created by statutes — you effectively have the judicial branch creating or usurping some of the powers appropriately given to Congress in this context. So that’s obviously -- and then, you also have the powers of the executive with respect to the Fourth Amendment claim as to immigration and national security. So that’s a theme that you see in this case that litigated. And then, there are also more pragmatic arguments that the petitioner would make just about the implications of creating a damages remedy here because some of the policy considerations and the pragmatic considerations about extending damages claims to agents in these contexts.

 

And then, there’s also a real battle between the parties here and with this -- there’s a real battle about whether this immigration enforcement action -- or I should -- excuse me -- I shouldn’t say it that way, but whether this is an issue or whether this was a case that implicated national security. Basically, you have -- this is being framed two different ways. You have Boule who really says, “Look. This is a run-of-the-mill set of facts. This is not some big national security case. This is just about an agent gone bad. Basically, an agent engaging in unconstitutional behavior, especially in the Fourth Amendment context.”

 

I think the petitioner would say, “Look. This is” -- excuse me -- the respondent would say, “This isn’t very different than a lot of instances where officers violate someone’s Fourth Amendment rights outside of this precise context.” On the other hand, certainly, Egbert would say, “No. This is -- this was an immigration enforcement action. Immigration inherently involves components of national security.” And that is a real fight that sort of plays out in the briefs. There’s more that I could get to here, but I’ll go ahead and pause just because of my sensitivity to the time and give you some time to ask questions, Adam.

 

Adam Liptak:  Well, thank you for that excellent summary. I’m not sure I have a question. I have an observation, which is the Bivens claims in the Supreme Court, this Supreme Court, are a real uphill fight. And maybe, I’ll note, that my employer, The New York Times Company, joined an amicus brief on the side of the First Amendment retaliation claimant. But I don’t think we have much reason to think our views will prevail. Let me ask the panelists if they have any comments or questions on either the Controlled Substances or the Bivens case.

 

Kenji Marcel Price:  And may I add, Adam, I completely agree with you. One way I would characterize this is it’s an interesting question of whether this Bivens is a dead man walking, essentially, in light of recent precedent. And the last time a Bivens claim was recognized by the Supreme Court as allowing for damages against the individual officer, I believe, was around when I was born, which was 1980 that I’m comfortable with stating to everybody. So it's been a while, even though I’m still a pretty young guy. So I think some would probably characterize -- or could fairly characterize it as somewhat of a dead man walking, but you never know, and -- but I agree with you on that point.

 

Adam Liptak:  Right. And any questions from the panel, any questions from the audience? You can either raise your hand or put it into the chat. We’ve covered a lot of ground, a lot of interesting stuff. And I’ll be a tiny bit surprised and disappointed if nobody wants to contribute. But it wouldn’t be the first time I’ve been disappointed. Well, I guess -- I mean, maybe we’ve covered what we’re going to cover. I think Evelyn may have some concluding remarks.

 

Evelyn Hildebrand:  Yes. Thank you very much, Adam. Getting my tech back in place. Thank you very much for such a fascinating conversation this afternoon. We’re very grateful to our experts and our moderator for taking the time to discuss. This is the fifth in a continuing series, and this is the first year that The Federalist Society has run this program.

 

So I think it’s been a success so far. It seems like people enjoy learning about the Supreme Court’s docket, sitting by sitting. If anyone has a final comment they would like to make, please go ahead. Otherwise, I will wrap us up for the afternoon.

 

Anthony J. Ferate:  I only want to say I’ve enjoyed the conversation and being on here with such an esteemed group. I’m kind of humbled that I was included, so thank you.

 

Evelyn Hildebrand:  We’re very happy to have you.

 

Robert V. Percival:  I just wanted to say that I really learned a lot about these other cases that aren’t in my field of expertise, and -- so I like this idea of doing it sitting by sitting. You learn a lot.

 

Evelyn Hildebrand:  Great. Yes. That’s the feedback we’re getting too. It takes some of the attention away from maybe the hot button cases and puts us in the position of looking at the docket maybe more like the way the justices do, that every case gets equal attention. Wonderful. Okay. Well, thank you very much, everyone.

 

We welcome listener feedback by email at [email protected], so please send your questions and comments to [email protected]. Thank you very much for your time and participation. Thank you to our audience for tuning in. And with that, we are adjourned. Thank you.

 

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