A Seat at the Sitting - December 2022

The December Docket in 90 minutes or less.

Event Video

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Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases that will be covered are included below.

  • Percoco v. United States (Nov. 28) - Criminal Law; whether a private citizen who can influence government decision-making owes a duty to the public, so that he can be convicted of bribery.
  • Ciminelli v. United States (Nov. 28) - Criminal Law; whether a defendant can be convicted under the federal wire-fraud statute based on a “right to control” theory.
  • United States v. Texas (Nov. 29) - Immigration; a challenge to the Biden administration’s policy of prioritizing certain groups of unauthorized immigrants for arrest and detention.
  • Wilkins v. United States (Nov. 30) - Property Rights, whether the 12-year statute of limitations to bring a lawsuit under the Quiet Title Act is jurisdictional and cannot be waived.
  • 303 Creative v. Elenis (Dec. 5) - Civil Rights; whether applying Colorado’s public-accommodation law to require an artist to speak or stay silent violates the Constitution’s free speech clause.
  • MOAC Mall Holdings LLC v. Transform Holdco LLC (Dec. 5) - Bankruptcy; whether a provision of federal bankruptcy law limits the power of the courts of appeals over an order approving the sale of a debtor’s assets.
  • Bartenwerfer v. Buckley (Dec. 6) - Bankruptcy; whether a bankruptcy debtor can be held liable for another person’s fraud.
  • Moore v. Harper (Dec. 7) - Election Law; whether a state supreme court’s order invalidating a state’s congressional map and ordering the state to draw a new one violates the Constitution’s elections clause.

Featuring: 

  • Andrew Grossman, Partner, Baker & Hostetler LLP; Adjunct Scholar, The Cato Institute
  • Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity Network
  • Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University 
  • Moderator: Samuel D. Adkisson, Associate Attorney, Gibson Dunn

 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

[Music]

 

Nathan Kaczmarek:  Hello and welcome to “A Seat at the Sitting.” This webinar is presented by The Federalist Society’s Practice Groups and is designed to preview the December Supreme Court docket in 90 minutes or less. This afternoon, we are pleased to have with us a great panel, and we are delighted to learn from them what is up next for SCOTUS.

 

My name is Nate Kaczmarek. I am Vice President and Director of the Practice Groups. As always, please note that expressions of opinion on our program belong to our guests. We have a real treat this afternoon in our moderator because we’ve asked Sam Adkisson to guide our conversation. Sam, how are you today?

 

Samuel D. Adkisson:  I’m doing well, Nate. How are you?

 

Nathan Kaczmarek:  All the better for your presence. Good to see you. Sam is a litigation associate in the Houston office of Gibson, Dunn & Crutcher. Before joining the firm, Sam served as a law clerk to Chief Justice John Roberts on the Supreme Court, Honorable Amul Thapar of the Unites States Court of Appeals for the Sixth Circuit, and Honorable Greg Katsas on the United States Court of Appeals for the D.C. Circuit. He is a graduate of Yale Law School and Vanderbilt University. Full bios for Sam and our panel are available on our website and the promotional emails we sent out today’s -- for today’s program.

 

In a moment, I will turn it over to Sam. Once our panel has thoroughly covered the upcoming cases, we’ll go to audience Q&A, so please think about the questions that you’d like to have them answer. Audience questions can be submitted by the Zoom Q&A function. We will endeavor to answer as many of them as time will allow. With that, thank you, everyone, for being with us this afternoon. Sam, the floor is yours.

 

Samuel D. Adkisson:  Well, thank you very much, Nate, and thank you, everyone, for being here today. It’s a real treat to be able to talk about the December sitting, and it’s a real treat to have the panelists we have with us today. Now -- and as you know, the December sitting, it’s a -- I think it’s a very important and interesting in a very important and interesting term. And so, I’m looking forward to hearing more about each of the cases from our distinguished guests today.

 

The event is titled, of course, “A Seat at the Sitting, December 2022.” The caption is the December docket in 90 minutes or less. I promise we’ll keep it to 90 minutes or less. I’m hopeful with the Thanksgiving holiday fast approaching we can make good on the “or less” portion that, but with lawyers involved, I can make no promises as to brevity but only to the good learning of our colleagues. And so, we look forward to that.

 

And I’m going to kick things off with some brief bios of our participants. I think it’s always nice to hear a little more about who’s speaking to us, even though our three speakers today really do need no introduction, if you’re -- been around the Society or around the conservative or libertarian legal movement. And after that, I’ll turn things off to them, and they’ll talk about one or two of the cases in succession. And then, I’ll follow up with a little clean-up work, previewing very briefly the remaining cases that perhaps aren’t quite as exciting or just that aren’t getting spotlighted quite as much today.

 

So with that, let’s start with our introductions. And the first speaker we’re going to hear from today is Casey Mattox. Now, Casey is vice president for legal and judicial strategies at Americans for Prosperity. For over 15 years before joining Americans for Prosperity, Casey’s legal career focused on defending the First Amendment rights: students, faculties, family, healthcare workers, religious organizations. You name it. If they’re trying to speak, Casey is trying to defend them. And for that, we are grateful.

 

He’s also litigated in more than 35 states. He’s testified before Congress. He really has done it all. He got his J.D. from Boston College of Law, his B.A. from University of Virginia. And since Casey has spent his career litigating in the First Amendment space, I thought it would be appropriate to look at Casey’s speech a little bit. I saw Casey on Twitter yesterday.

 

You seemed to have quite a few thoughts about the World Cup game. And so, I just -- I understand why you’re a vigorous defender of the First Amendment there. It’s important, and I look forward to your thoughts on 303 Creative today.

 

And after Casey speaks, we’re going to hear from Professor Ilya Somin. He’s a Professor of Law at George Mason University. His research focuses on constitutional law, property law, democratic theory, federalism, and migration rights. He’s the author of multiple books. He’s co-authored and co-edited many others. And before joining George Mason, Professor Somin was the Olin Fellow in Law at Northwestern University.

 

He clerked for Jerry Smith, got his J.D. from Yale Law School, M.A. in Political Science from Harvard, B.A. Summa Cum Laude from Amherst. And I know pretty much all of you out there probably heard Professor Somin’s work, heard him speak. He’s a good friend of the Society. He’s frequently published in popular outlets as well as academic ones. And Professor Somin, I did a quick Google search of your recent works on just to see what would pop up. We got everything from how to fix the dark side of the World Cup to articles about President Biden’s student loan moratorium to who was the biggest mass murderer in history to NIMBYism and economic ignorance, so a man of learning as well as diverse interests and pursuits.

 

We’re excited to have you today to talk about United States v. Texas and Wilkins v. United States, a case about immigration policy. One’s about jurisdiction and the Quiet Title Act. And I will not give any hints on which I find more interesting. Joking aside, we look forward to your thoughts on both cases, Ilya.

 

And last but certainly not least, we have Andrew Grossman. He is a Partner at Baker Hostetler. He’s served as an Adjunct Scholar at the Cato Institute among other places. As most folks out there know, Andrew is a veteran of the policymaking space, of the litigation space in D.C. He has brought and been involved in dozens, I think, of the most interesting constitutional and other legal cases of our time. Just to give a couple of examples, he led the national litigation strategy to protect workers’ First Amendment rights in the aftermath of Janus v. AFSCME.

 

He’s been involved in some really interesting class action cy pres suits, including the successful petition for cert in Frank v. Gaos. He also served as counsel with others in a challenge to the EPA’s Clean Power Plan rule that the Supreme Court ultimately decided last term, and he has extensive experience in the election and campaign finance space. And so, we’re really grateful to have his knowledge today. I tried to look for some interesting facts about you, Andrew, but you have covered your tracks much better than some of your co-panelists, so I don’t have quite as much there. But nonetheless, we do look forward to hearing what you have to say about Moore v. Harper, one of the more hotly watched cases of this term.

 

And so with -- I just want to emphasize how grateful we are to the three of you and to everyone for joining us today. And with that, Casey, I’d like to turn things over to you.

 

Casey Mattox:  Well, thank you, Sam, and thank you to The Federalist Society for putting this together and for allowing me to participate. I will note for Andrew that I think he -- in terms of interesting things about Andrew, I want to hear more about those chairs when your time comes up, so you have a lot of time to prepare for that, but hopefully, we’ll hear more about that.

 

So on December 5th, the Court will hear argument in 303 Creative v. Elenis, and that’s, I think, perhaps the most important First Amendment case currently on the Court’s docket for this term because it might finally resolve the question raised — but not actually squarely answered in Masterpiece Cakeshop, Arlene’s Flowers, and many other cases over the last couple of decades — whether applying a public-accommodations law to compel a creative professional to speak or to stay silent violates the Free Speech Clause of the First Amendment is how the question presented is raised. So the basic facts of the case -- this is a pre-enforcement challenge, so the facts are a little less than you might have in other cases. That’ll be important. Lorie Smith is a graphic artist and website designer. She’s the sole owner of 303 Creative, through which she offers those skills to the public.

 

She had previously worked for larger companies, decided that she wanted to create 303 Creative, step away from the larger corporate world and focus on projects that aligned more with her values and the things that she wanted to be connected to. So she’s worked on websites and graphic design for veterans’ causes, for animal welfare, different projects like that, church missions, and other things that align with her values. She’s also a Christian and believes that marriage is between one man and one woman, so her contract for services includes a note that she reserves the right to only create content consistent with her beliefs. According to the stipulated facts, Smith decides which commissions to accept based on what the message is, not based on who is requesting the message. So Colorado agrees that Smith will work with clients regardless of race, creed, sexual orientation, or gender, and that she -- well, and Smith obviously says that she strives to serve those people with honesty and transparency. She’s designed graphics and created websites for various religious and nonreligious groups, advocating for a variety of causes.

 

The websites she designs also include a statement that they are created by 303creative.com, your common watermark-type statement that would be on a website that she’s -- she has created. Colorado agrees that all of Smith’s graphic and website designs are “expressive in nature as they contain images, words, symbols, or other modes of expression,” and that Smith uses those “to communicate a particular message.” Colorado’s Anti-Discrimination Act is now well known, likely, to everybody listening, certainly to most Supreme Court watchers. The act prohibits any public accommodation, including 303 Creative, from directly or indirectly refusing because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry the full and equal enjoyment of its services. That is -- so that’s the accommodation clause.

 

The CADA also has a -- what’s called a publication clause that separately makes it unlawful to publish any communication “that indicates that services will be declined or that an individual’s patronage or presence is unwelcome, objectionable, unacceptable, or undesirable because of someone’s protected status.” So under Colorado’s interpretation and application of the CADA, 303 Creative — and this is at least according to what they have argued in the case — 303 Creative cannot create websites for opposite sex marriages but decline to create them for same sex marriages. She has created but cannot post, because of a publications clause, a separate website that offers to create wedding services -- or wedding websites but explaining why she will not create same sex wedding websites and why she doesn’t believe this to be discrimination on the basis of sexual orientation under the CADA. Although Smith has not been able to advertise the availability of those wedding websites, she has received one request to create a same sex wedding website.

 

So Smith and 303 Creative filed a pre-enforcement challenge to the CADA about six years ago. So she sued, sought a preliminary injunction, trial court held, held the PI Motion, and instructed her to file a summary judgment motion with stipulated facts, which she and Colorado stipulated. Court then held that she lacked standing for the pre-enforcement challenge to the accommodation clause, the broad provision of the CADA that prohibits discrimination, and then, after Masterpiece Cakeshop, granted summary judgment to Colorado on the publication clause claim as well. On appeal, in an opinion by Judge Briscoe and joined by Judge Murphy, the Tenth Circuit concluded that Smith had standing to challenge both clauses under SBA List v. Driehaus, the Supreme Court decision from several years ago on this question of when you -- when it’s appropriate to -- for a federal court to hear a challenge, pre-enforcement challenge, to a law of this kind. It next held that Smith’s wedding websites are “pure speech,” and the result of the accommodations clause is that Smith is forced to create custom websites she otherwise would not. That’s from the Tenth Circuit.

 

And because the accommodation clause compels speech in this case, it also works as a content-based restriction that creates “a substantial risk of excising certain ideas or viewpoints from the public dialogue.” Indeed, the Tenth Circuit said eliminating such ideas is CADA’s very purpose. Because CADA compels speech and restricts speech based on content and viewpoint, the Tenth Circuit held that strict scrutiny would apply. Normally, of course, strict scrutiny is fatal, in fact, but the Tenth Circuit concluded that the CADA met that test because Colorado had a compelling interest in ensuring access to Smith’s “unique services, which are, by definition, unavailable elsewhere.” To be clear, the Tenth Circuit acknowledged that there was no shortage of website design services for same sex weddings with hundreds of other companies that they’ve found were actually operating in Denver alone and for a service that’s not geographically limited anyway. You could have website design services coming from anywhere in the world for someone, for example.

 

But the majority held that for the same reason that Smith’s custom websites are speech, they are “inherently not fungible.” So her speech is unique, but the uniqueness of her creative design means that Colorado’s compelling interests can only be satisfied by requiring Smith and 303 Creative to provide the services, essentially, that she has a monopoly over her own talents, and Colorado’s compelling interests can only be satisfied if those specific talents are made available for same sex weddings as well. So the court also rejected her publication clause challenge, holding that her statement of beliefs expressed an intent to do what the accommodation clause forbids and what the First Amendment does not protect. In dissent, Judge Tymkovich agreed that strict scrutiny applied but argued that ensuring access to a particular person’s unique, artistic product is not a compelling state interest. And he then said, “Taken to its logical end, the government could regulate the messages communicated by all artists."

 

303 Creative sought cert on both its free speech and free exercise claims. The Court only granted as to free speech. So only the free speech question is in front of the Court this term. Kristen Waggoner from Alliance Defending Freedom will argue the case for 303 Creative. Eric Olson, the Solicitor General of Colorado, will be arguing for the state. Solicitor General Prelogar also requested and was granted time to argue in support of Colorado. So just a few issues raised and implications, I think, potentially of this case.

 

There’s obviously the standing question, maybe first and foremost. Must 303 Creative await application of the law to it and Colorado’s specific review of website requests and content in order to challenge its constitutionality as applied to 303 Creative? That’s the question the Tenth Circuit didn’t have difficulty saying after the SBA List case that it would not have to wait, but that question, of course, would be in front of the Court as well. Is Colorado bound by its stipulations from six years ago, now — or almost six years — that Smith is engaged in speech and choses clients based on content, not status, and to what degree do those stipulations control? At least in the briefing, Colorado seems to be wanting to try to pull back a little bit from those stipulations, so that’s kind of an open question. What is the application of the compelled speech doctrine, where the speaker creates messages but in commerce, where public-accommodations cases involving non-expressive commercial activity — the BBQ-hotel — those cases run into the public-accommodations cases dealing with expressive activity — Hurley, Boy Scouts v. Dale, and those cases — does the expressive nature of the activity control even where commerce is involved? And is there a compelling interest in prohibiting sexual orientation discrimination broadly?

 

The Court has never actually said that directly, and that’s a question that’s in front of the Court potentially in this case. And then, I guess, more broadly, is discrimination itself a compelling interest or combatting discrimination more broadly? You have places like D.C., ADF points out in its briefing, that have political discrimination in the nondiscrimination factors. So do we have to go factor by factor under a nondiscrimination statute or a public-accommodations law, or is it the mere act of discriminating, regardless of what the factors are or the statuses are, that are a compelling interest? Is Smith or 303 Creative engaged in sexual orientation discrimination when she serves those couples -- serves LGBT couples, for example, who want animal rights websites or other kinds of websites but does not provide them with websites for a same sex wedding? At least in dicta in Christian Legal Society v. Martinez, the Court had completed a religious view about sex outside of marriage, for example, with sexual orientation discrimination generally.

 

Will it reconsider that question here or actually consider it directly here, and is it truly in front of the Court for the Court to be questioning Colorado’s interpretation of its own state law in the first place? Does the First Amendment claim rise and fall on the perception of third parties? If others would believe that the expression on a website that Smith creates is that of the couple, not Smith, celebrating their wedding, does that defeat Smith’s own First Amendment claim? And as I argue in a piece that will hopefully be up later today — you’ll have to follow me on Twitter so you can get the link — there are implications, I think, potentially of 303 Creative for a wide range of speakers. This is not a case that’s actually truly limited to the -- what are often thought of as the LGBT versus religious speaker sort of conflicts. For example, among the people, I think, that are potentially implicated -- these free speech rights are potentially implicated by this are people like Mark Zuckerburg and Elon Musk.

 

While this case is about one web content creator facing a Colorado nondiscrimination law, Florida and Texas have also created nondiscrimination laws targeting somewhat larger website operators, and the key case decided by the First Amendment claimants in 303 Creative and in the NetChoice cases in Florida and Texas, now in the Fifth and Eleventh Circuits, rely -- all rely heavily upon the Hurley decision, for example. Texas and Florida, like Colorado, argue that the expression in those cases isn’t really that of the websites but of those people contracting with them, just as Colorado does here. And like Colorado, Texas and Florida argue that this isn’t really about speech.

 

Colorado argues it’s about sales or about discrimination and take the expressive activity from 303 Creative and label it something different in order to make an argument against it. And then, Texas and Florida argue it’s not about content moderation but censorship, for example, that is -- in all of those cases, it’s basically the state arguing that your exclusion of speech -- the website operators’ exclusion of speech is not truly its own speech; it’s something else. And so, that attempt, I think, to redefine the speech as something else in order to regulate it is common to all three cases, so those are just a few of the examples I think of ways that this case could have implications well beyond the actual parties involved.

 

Samuel D. Adkisson:  That’s terrific, Casey. And I -- that’s a -- it’s a very interesting case, and I would be remiss if I didn’t note that if anyone has any questions, there’ll be a time at the end of the speakers’ remarks for questions. We look forward to those. We rely on those, so you should feel free to drop those in the Chat box now if you’d like so you kind of remember what those are. You should feel free to put them in later, and you should also feel free to use the Raise Hand function when it is time for the questions at the end. And so, with our thanks to Casey, we’ll turn things over to Professor Somin, who’s going to address two cases.

 

Ilya Somin:  Thank you so much. I apologize in advance if I’m slightly incoherent because I’m recovering from a cold, but I hope I’ll still be able to get through these two cases. And we’ll start out with Wilkins v. the United States, which is a highly technical case involving the rights of property owners who bought federal land, and the federal government has an easement to go through them. The property owners are in the state of Montana, which, like many other western states, there’s a lot of federal land there, and therefore, a lot of situations where private landowners’ interests may conflict or be in tension with those of the federal government.

 

I do have to start with a disclaimer related to this case, or a disclosure, which is that the property owners in the case are represented by the Pacific Legal Foundation, which is also my wife’s employer. She herself is not one of the lawyers arguing the case, doesn’t have any involvement in it, but nonetheless, I wanted to note that particularly for members of the media who may be watching.

 

So this is a situation where there are two Montana landowners, and the federal government has an easement over their land that dates back to the 1960s. And at first, the easement was simply used for purposes of timber harvesting to get to another federally owned property where there was timber that would be cut down and taken away. But over time, the U.S. Forest Service has changed things such that it’s not just used for timber harvesting anymore. They’ve created, essentially, general public access to this area. The property owners, therefore, get much more disturbance of their land than when it was just the timber harvesting going on. And they’ve filed a lawsuit under the federal Quiet Title Act, arguing that the Forest Service has exceeded its easement and seeking a court decision requiring the Forest Service to scale back its activities.

 

However, the Quiet Title Act sets a 12-year time limit for claims measured from a time when they accrue. And the key question in this case, at least the part that is -- of the case that has come up to the Supreme Court, is whether this is a jurisdictional limitation, in which case, the property owners are out of luck — the Court would have to dismiss their case because more than 12 years have passed, most likely, since the Forest Service first started to expand the easement — or whether this is just a claim processing rule. And if it’s a claim processing rule, then there’s more room for -- that there to be exceptions and also for the property owners to argue that they couldn’t really know at first when the Forest Service first started moving in this direction. And the Ninth Circuit in the lower court decision ruled in favor of the government, saying that it’s jurisdictional. But in the Supreme Court, there’s tension between two lines of precedent. On the one hand, there are cases which have referred to this Quiet Title time limit as jurisdictional, but they haven’t actually confronted that issue directly and analyzed it.

 

Moreover, those cases predate more recent decisions, which say that time limits generally are claim processing rules rather than jurisdictional rules, unless the statute specifically says that they’re jurisdictional, so they’re kind of a clear statement. So the Supreme Court will have to decide this question, which seems highly technical and of interest only to people who have a real interest in procedural issues or in this particular set of cases. However, the issue does important implications for many property owners in various western states where, like in Montana, Utah, Wyoming, and others, 30, 40 percent or sometimes even more of a state -- sorry -- is owned by the federal government, and therefore, there are a lot of private property owners who are in the same position as the plaintiffs in this case where the federal government might potentially abuse an easement or engage in other sorts of disruptive activities, and then, they might want to use the Quiet Title Act to prevent that. So this has important implications.

 

I tentatively lean to the view that this should be considered just claim processing and not jurisdictional, but that’s dependent on the idea that you accept the clear statement rule that presumptions should be in -- against it being jurisdictional. And like other clear statement rules, you can certainly have arguments the other way. This is one of many situations where we have to make inferences about what’s in a statute about things that aren’t said explicitly, which makes it a hard case in some ways.

 

The second and more high-profile case I’m going to cover is United States v. Texas, which involves a challenge, yes, by the state of Texas, and also by several other red states, to the Biden administration’s memo outlining enforcement priorities for deportation of undocumented immigrants. We have over 11 million undocumented immigrants in the United States, maybe even more than that. And everyone admits that it’s virtually impossible to find and support them all. Not even the Trump administration came even -- even came close to doing that. So the Biden administration put out a memo in Department of Homeland Security, outlining what their priorities would be. Specifically, they said they were going to prioritize removing people who are terrorists, those convicted of serious crimes, and those caught at the border, rather than in the interior of the United States.

 

This was a narrower set of priorities than the Trump administration had. And the -- Texas and the other states, they argue that this is illegal on various grounds, but the most significant is they say it violates two federal statutes: 8 U.S.C. §1226 and 1231, which say the federal government “shall detain aliens convicted of certain crimes or under removal.” So they say, well, the administration has to detain them. They cannot exercise any discretion. But even the plaintiff states admit that case-by-case discretion can be exercised, in part, because there’s so many more people out there than any administration could possibly detain. Their complaint is that it’s somehow illegal if the discretion is exercised, not by the old rank-and-file officials on a case-by-case basis but by higher ups in the DHS on a systematic basis.

 

To my mind, there’s no principal distinction between these two kinds of discretion, even case-by-case discretion at the lower level. Unless that discretion be completely arbitrary or completely unpredictable, it has to involve some sort of general principles about the severity of the offense, how dangerous the person is, or whatever other considerations you think might be relevant. And if these general principles can be taken account of by lower-level officials, surely higher-level officials, like the Secretary of Homeland Secretary or the President, can do that as well.

 

Indeed, if you’re a believer in the unitary executive — which I only partially am, but many Federal Society members are more believers than I am — then you would be of the conclusion that if anybody can exercise discretion in the executive branch, it would be the highest-level officials rather than the lower-level ones. Nonetheless, this issue is before the Supreme Court, and the district court decision did enjoin or -- I’m sorry -- did block the Biden administration’s measures. And both the Fifth Circuit and the Supreme Court refuse to temporarily stop the district court decision and allow the enforcement guidelines to go into effect.

 

There are also some other important issues in this case. One is whether it violates the Administrative Procedure Act on the ground that maybe the guidelines are arbitrary and capricious. I think this is potentially [inaudible 00:31:29], though I don’t have time to go into it in detail. Also, whether it violates a statute numbered as 8 U.S.C. §1252, which says that no court, other than the Supreme Court, shall have jurisdiction or authority to enjoin or restrain the operation of various immigration policies, except as applied to an individual alien. So the argument here brought by the Biden administration is that, even if the lower courts, even a district judge was completely correct in his legal analysis. Otherwise, he couldn’t issue a general order blocking implementation of the policy.

 

He could only do it with respect to certain particular individuals. However, the issue here is whether this applies, not just to an injunction but also to an order of vacatur, which is technically, legally different but has much the same practical effect as an injunction. Finally, there is the issue of standing, which is crucial — and is one of the cases on which -- or one of the issues on which the Supreme Court granted cert — that is the Biden administration argues that Texas and the other states did not have standing to bring this case because, among other things, they didn’t suffer a real injury or the injury wasn’t caused by the Biden policy.

 

The district court granted standing on the grounds that Texas and the other states, if fewer of these people were deported or not deported quickly, then Texas might have various expenses for additional public services or, in the case of people detained in state prisons or jails, they might be there longer, and therefore, there’d be more expenses for Texas. And it’s possible that you can get standing on this sort of basis. I actually agree that you should be able to, but it’s highly contestable for a couple reasons.

 

The biggest one is that the causation here is very indirect. The state itself could potentially choose not to provide the public services or not keep these people in prison and the like, so it’s not solely the federal policy which causes this; it’s the interaction between that and what the states are doing. And this is actually one of a number of recent cases where we have a reversal of the traditional stance of conservatives arguing for narrow standing rules and liberals arguing for broad ones. Obviously, the Biden administration — both here and also in the loan forgiveness litigation currently going on, a number of other cases — is arguing for pretty narrow standing rules. Various conservatives are arguing for broad ones. Also, tied in here is the general issue of -- sorry -- of whether states should have “special solicitude” in getting standing.

 

The Supreme Court said they should back in Massachusetts v. EPA in 2007. That’s never been overruled. However, in a whole bunch of recent cases involving both conservative and liberal claims, the Supreme Court has essentially ignored Massachusetts v. EPA and been relatively tough on states when they claim standing. That happened in the third Obamacare case. It happened in the election case. It happened in the case of liberal states trying to challenge the Trump administration’s changes to the way the census operates and some other examples I don’t have time to fully get into.

 

So this case, again, raises the issue of when states should be able to get standing and when they should not. And it may be that the Supreme Court, at least in recent years, has been sort of cracking the whip a little bit and does not want to see the states come before it as often as the states themselves might like, so we’ll see if that trend continues. So I would lastly like to mention that, to my mind, a lot of the issues in this case are similar to those in the recent Remain in Mexico decision, which is labeled Biden v. Texas opposed to this one being Texas v. the United States.

 

And in Remain in Mexico case, the Supreme Court turned away a challenge by Texas and some of the same other states to the Biden administration’s decision to terminate the Remain in Mexico policy, which would enforce various categories of migrants to stay there -- asylum seekers. And there, they specifically said that the executive could exercise systematic discretion with respect to parole and letting people stay in the country. And also, they said that you cannot have mandatory detention when it is impossible to do so.

 

And in that case, also, there was systematic discretion, not just case by case. So while this case, you could argue it’s distinguishable with slightly different statutory provisions. The issues, nonetheless, overlap a lot, so I’m actually a little bit surprised for that reason that this case got to the Supreme Court, and we’ll see what the justices do with it. My own view, as I’ve suggested, is I believe the state should prevail on standing, but the federal government should prevail on the merits. But I can easily see it going a different way. It’s possible they’ll just lose on standing, or it’s possible they’ll win on both. We’ll have to see what happens. Thank you.

 

Samuel D. Adkisson:  Thank you very much, Professor Somin. And thank you for powering through. Illness and all, we’re grateful to have your insights in that interesting discussion. And we’ll continue that as this goes on.

 

And so, up next will be Andrew Grossman. We look forward to hearing from you about what’s been framed, at least, as one of the bigger election law cases in quite some time. I’ll be interested to hear whether you think that’s a correct framing, a fair framing, or not. And so, with that, I’ll turn the floor over to you.

 

Andrew Grossman:  Thanks, Sam. Moore v. Harper, I think, is probably the most misunderstood case of this term. If you read The Washington Post, you might have seen that it claimed in a headline that the case “imperils American democracy.” Vox called it “the biggest threat to U.S. democracy since January 6”. And Slate, not to be outdone, claimed that it would “decimate voting rights in every state.”

 

I think that all of those views are overblown. But that said, this is an important case. It does have serious stakes, and the legal issue that’s presented is very interesting. So let’s get into it.

 

At issue in the case is a congressional district map enacted by the North Carolina legislature. The plaintiffs contend that the map is a partisan gerrymander in violation of the state constitution. And the North Carolina Supreme Court agreed. But that’s not the issue that’s before the Supreme Court. Instead, the case presents a seemingly obscure and arcane question of federal constitutional law. When a state legislature enacts laws governing federal elections pursuant to the U.S. Constitution’s Elections Clause, are those laws subject to review under both the federal Constitution and the state constitution, or are they only subject to review for compliance with the federal Constitution? Now, that’s sort of an obtuse way of putting it, and it’s definitely possible to ask the question in a more pointed fashion.

 

The petitioners in this case who represent the state legislature, they might put the question this way: can a state court wield open-ended provisions of a state constitution to override the legislature’s federal election regulations, including congressional maps? And respondents, which includes the plaintiffs who challenged the map in this case, they might put the question this way: do state legislatures have the power to enact election regulations that violate their own state constitutions? So I think what I’d like to do is go through a couple questions about this case.

 

First, what brought the case to the Court? Second, what are the arguments on both sides? Third, how might the Court decide the case? And then, fourth, which I think will be paramount for a lot of listeners, why does it matter? In other words, what’s really going on here?

 

So how we got here is pretty straight forward. North Carolina gained a seat in the 2020 Census and so to comply with, among other things, the federal Constitution’s Equal Protection Clause, it had to redistrict. Litigation ensued as so frequently happens. In the trial court, the court ruled against the legislature on the facts. In other words, it held that, yes, the map was a partisan gerrymander. But it ruled for the legislature on the law, holding that partisan gerrymandering claims were nonjusticiable political questions because there’s no clear and neutral standard that a court could use to decide them.

 

Now, when it held that, it relied extensively on a 2015 decision by the North Carolina Supreme Court that literally held as much. But this -- earlier this year, the North Carolina Supreme Court reversed course, and it held that partisan gerrymandering claims under the state constitution are justiciable, and it struck down the legislature’s map. It relied on four provisions of the state constitution. The first is that all elections shall be free. The second confers to the right of the people to assemble together to consult for their common good. The third protects the freedom of speech. And the fourth states that no person shall be denied the equal protection of the laws.

 

So nothing in there about gerrymandering specifically or really any type of specificity regarding political rights. Nonetheless, from those provisions, the North Carolina court derived a -- what it called a “principle of political equality.” In its view, a map must not diminish or dilute on the basis of partisan affiliation any individual’s vote, and that, in turn, requires that a district map must give “political parties substantially equal opportunity to translate votes into seats.” And on that basis, it struck down the map, and it ordered the parties to propose new ones. Ultimately, the legislature did pass a new map. The trial court then rejected it and imposed its own map.

 

The legislature sought a stay from the United States Supreme Court, arguing that the North Carolina Supreme Court lacked the authority to enforce the state constitution against what was, in effect, federal law enacted by the state legislature under the Elections Clause. The Court denied it, but there was a dissent by Justice Alito, joined by Justices Thomas and Gorsuch. Justice Kavanaugh wrote a separate concurrence, noting that the case did raise an important issue but that it -- but argued that it was too close to the primary election to afford relief on an expedited basis. He did agree that the Court should take a case raising the issue, and ultimately, the Court did grant the case and set it for argument in December.

 

Let’s turn now to the parties’ arguments. The petitioners focused in a very straightforward way on text and structure. And the focus of the case, of course, is the Elections Clause. The Elections Clauses states that the times, places, and manner upholding elections for senators and representatives shall be prescribed in each state by the legislature thereof, but that Congress may, at any time by law, make or alter such regulations, except as to the place of choosing senators. So from the text, the petitioners draw out the point that the provision refers specifically to the legislature and assigns to the legislature the duty to enact laws setting forth the times, places, and manner upholding those elections, those federal elections. So it is a significant textual cue, the petitioners argue, because in so many other instances, including in the Elections Clause itself, the framers assigned particular duties to the states, or the States, as opposed to specific body of the state, the legislature, and that, of course, has to be given meaning.

 

They also make a structural argument. The clause’s description of Congress’s power makes clear that Congress can make or alter the same regulations that the state legislature can enact. And Congress is obviously not beholden in doing so to state constitutions. And so, the implication is that neither are state legislatures, which, after all, are exercising the same power as Congress. And of course, it would be an unusual thing for a law enacted, pursuant to the federal Constitution — in other words, what we would normally call federal law — to be subject for review under state law.

 

Under the Supremacy Clause, the order of precedence is generally the other way around. Federal law is supreme to state law that it preempts, in other words, state law that is in conflict with it. The petitioners do rely on some historical evidence as well as a smattering of precedence dating as far back as the Civil War, but their main point is that the original meaning of the text is clear, and it would, therefore, take an exceedingly strong showing to overcome that.

 

Respondents, by contrast, tend to focus a little -- a lot more on history and practice, more so than text and structure. They do argue on the text that the word “legislature” refers to a law-making body that is constrained by the constitution that created it. Still, the legislature has to have, in their view, some kind of central or significant role in regulating elections. Frankly, I found this to be somewhat of a confusing part of their argument. They do have this view of the legislature as constrained in some respects by, say, constitutions, but they seem to argue not in all respects, and we’re never really quite clear in teasing out what the dividing line might be or, ultimately, if there truly is one. As I said, their arguments tend to rest more on history, less so case law, and more state constitutional provisions, from around the time shortly after the framing and thereafter, that broadly regulated elections, albeit without distinguishing between state elections and federal elections.

 

Nobody argues, of course, that the federal Elections Clause has anything to do with state regulation of state elections, for example, for state legislatures or for the governor or other officer positions under state law. And so, it is an open question: what were these provisions really addressed to? The respondents also rely on precedence holding the state legislatures exercise legislative power pursuant to the law-making procedures of state constitutions, and that can include, for example, a governor’s veto power or the state referendum process. The Court has confronted that sort of issue on a number of occasions in the past and has generally recognized that the federal Constitution effectively takes the state’s law-making apparatus as it finds it. And so, for a law to be proper under the Elections Clause or under the Electors Clause or other provisions that assign authority directly to state legislatures -- that the state’s law-making apparatus, the method of enacting laws, does remain in force and does set the method by which the legislature exercises its power under those federal constitutional provisions.

 

A central component of the respondents’ argument is that the petitioners’ position would lead to a parade of horribles: chaos and confusion in election administration, potential diminution of voting rights, all kinds of untoward consequences. They focus on this a bit, but their amici — and there were dozens of amicus briefs filed in this case — really do flesh out these arguments about the unpleasant consequences that could follow, I think, trying to amp the stakes of the case in a way that might make the Court wary to decide in a fulsome fashion for the petitioners.

 

So how could the Court decide the case? As I see it, there are four possible outcomes. The first is simply that the Court holds that the Elections Clause -- that Elections Clause regulation is not subject to review under state constitutions. That, of course, would be a complete victory for the petitioners and their view of original meaning. The second possibility is a fallback position asserted by the petitioners. They’ve argued that, as a lesser measure, the Court could simply hold that state courts can’t enforce vague and unmanageable standards to strike down congressional maps as excessively partisan because that would entail the inherently legislative task of exercising political judgment in much the same way that Chief Justice Roberts described in his opinion concerning partisan gerrymandering, Rucho v. Common Case.

 

A third possibility is that the Court holds that the Elections -- that Elections Clause legislation is subject to review for compliance with state constitutions. Interestingly enough, as I noted, the respondents do basically assert that position, but throughout their briefs, they do sort of seem to recognize that there’s some kind of first mover or central role for state legislators. And so, I think that makes it a little bit challenging to the Court to just roll -- rule in a wholesale fashion that the Elections Clause doesn’t really have any negative implication with respect to state constitutional provisions. Nonetheless, that is the position that they’ve asked the Court to endorse. Finally, there is a possibility, and the respondents do ask for this, that the Court could sidestep the Elections Clause issue altogether. They argue that North Carolina statutes, by generally authorizing state courts to adjudicate redistricting challenges, do, in fact, authorize the application of state constitutional provisions.

 

It seems to me that’s an unlikely ground because that’s the kind of issue that was, in fact, pressed at the petition stage, and the Court, nonetheless, agreed to hear the case and to address the constitutional issue. So it seems likely that that issue is off the table, but it does remain out there as a wild card.

 

Now, what’s likely? Those are the possibilities. What can we expect to see? Well, to varying extents, five justices to date have expressed some degree of agreement with the petitioners’ position in this case. Justice Alito, joined by Justices Thomas and Gorsuch, as I mentioned, dissented from the stay in this case and would have -- denial of the stay in this case and would have granted a stay. The same three also dissented from denial of the stay in another 2020 case, Republican Party of Pennsylvania v. Boockvar. That’s a case where the Pennsylvania Supreme Court effectively rewrote the receipt deadline for mail-in ballots as applied to federal elections.

 

So for Justice Alito as well as Justices Thomas and Gorsuch, they seem to have embraced, to some extent, the position of the petitioners in this case. Justice Kavanaugh, meanwhile, wrote a separate opinion in 2020, arguing that — and I will quote — “a state court may not depart from the state election code enacted by the legislature.” And he cited for that, among other things, a famous opinion by Chief Justice Rehnquist forcibly expositing that principle of law. So Kavanaugh -- Justice Kavanaugh does seem to be inclined or at least has some sympathy for the petitioners’ view in this case. And finally, the Chief Justice wrote a very forceful dissent in 2015’s -- in the 2015 case, Arizona State Legislature, arguing that the term, “legislature,” in the Elections Clause means, in fact, legislature, that is the body, and that the legislature is subject only to the ordinary lawmaking processes described by the Constitution. Furthermore, the Chief Justice, in his Rucho decision that I mentioned earlier, did take a very -- did express a very strong view that things like partisan gerrymandering are -- and partisan gerrymandering claims are inherently political and are not readily susceptible to adjudication by courts. And it’s certainly possible that that line of thinking could influence the way that he views Moore v. Harper.

 

So now, we’ll get to what I think is the question looming over all of this. Why does this case matter? And also, why doesn’t it matter? As I noted, there’s been a lot of heated rhetoric by supporters of the respondents in this case to the effect that the case, like so many other things we’ve heard in recent years, threatens our democracy, jeopardizes voting rights, so on and so forth. Now, I do think this is an important case. But those sorts of claims are unsupportable.

 

No matter how the Court rules in this case, election regulations will still have to comply with federal law, and that includes the Equal Protection Clause. It includes the Fifteenth Amendment. It includes the Voting Rights Act. It includes all the other federal laws that guarantee voting rights and that regulate different aspects of federal elections and do so in a way that is relatively comprehensive with respect to what we typically think about when we talk about voting rights and the franchise. It also has nothing to do with voter qualifications because those are subject to a different provision of the Constitution, the Qualifications Clause.

 

But recent history does illuminate, I think, why this question is important, why it matters, but also, at the same time, why it has only reached the Supreme Court now. When you think about it, it is a little bit strange. This is a fundamental question about the functioning of our democracy and who’s responsible for setting the rules for federal elections. How is it possible that after so many years, that that question hasn’t yet reached and been decided by the Supreme Court? Well, in the early years, there wasn’t really all that much election litigation over election rules and things like that. The real movement in this field came during the 20th century, particularly in the latter half of the 20th century, with the Voting Rights Act and the voting rights movement.

 

And in all of -- in that arena, federal courts were really the central form for litigation over regulations, governing, in many cases, state elections but, specifically, federal elections as well. And federal courts, of course, were often very accommodating to challengers in these cases, striking down long-standing state laws and really just entirely revising the scope of voting in America. But gradually, that’s changed. It’s particularly changed over the past decade as several courts began turning back cases, particularly ones that were targeting long-standing voting procedures, things like voting identification requirements, requirements that voters vote in their particular precincts, other things that most people, I think, regard as not uncommon and, in some cases, part and parcel of voting. And then, of course, there was the Supreme Court’s decision in 2015 in Rucho, which held that partisan gerrymandering claims were nonjusticiable, at least for federal courts. So those seeking to change the law outside of the democratic process, typically for partisan ends, for electoral advantage, have in recent years increasingly turned to state courts.

 

And indeed, we have seen a blitz of litigation over the past ten years and, even more so over the past five or six years, in state courts, relying on novel claims under state constitutions to strike down both congressional maps, which has been successful in some cases, as in this one, and also long-standing election regulations, particularly involving things like vote by mail, other types of balloting and ballot collection, and other types of just general election regulations. And state courts have proven, or at least some of them, have proven very receptive to this type of litigation.

 

And so, I think, at the end of the day, that’s what this case is really about, and that’s why it matters. If the petitioners, the legislature, if they win in this case, the result will be to cut down on what has really become the chief avenue for partisan litigation seeking to influence elections by changing election rules and congressional maps that they believe favor the other side. Contrariwise, if the respondents in this case win, it means that trend will continue unabated. And I want to say I think that is a very significant stake of this election, and it does, in many respects, go to the heart of our democracy. Will our democratic legislatures be the ones setting the rules for the elections, or will they -- those rules be set by state courts applying broad and open-ended state constitutional provisions? None of this, I think, at the end of the day, threatens our democracy or threatens the catastrophic consequences that some have -- prophecy, but it is an important issue, and it does affect how we elect. So thank you.

 

Samuel D. Adkisson:  Thank you very much for that, Andrew. That was a good and thoughtful discussion of a complex case, and I think everyone is trying to get their arms around it with all the controversy and everything else.

 

And so, with that, I will very briefly touch on the remaining cases that are outstanding. So there’s a couple of criminal law cases, a couple of bankruptcy cases, and a False Claims Act case. Now, when these came to me, I was sort of asked to do some cleanup work, and as all of you know, there’s sort of two kinds of cleanup work in life. There’s a kind that a waiter does, and there’s the kind that a hitter does in baseball when he's up fourth. And I assure you this will be the former kind and decidedly not the latter kind. And so, as I’m giving you a brief preview of this -- of these remaining cases, feel free to drop your questions in, and we will get to them. And I’m excited to hear what the panelists have to say about that.

 

Now, in a shocker of all shocker, the two criminal law cases that the Court has this December both involve upstate New York and corruption. I know that’s something that we’re not used to seeing -- or allegations of we’re not used to seeing. But so they do, but they actually are both quite interesting. The first is Percoco v. United States. And that’s a case that asks whether a private citizen, who holds no elected office or government employment but has informal political or other influence over a government decision-maker, owes a fiduciary duty to the general public.

 

And so, I love the cert petition in this case -- or actually, I’m sorry -- the merits brief, the opening line. It’s a brief by Yaakov—or Jacob—Roth and others. But it says “when a public official accepts money to convince the government to do something, we call him a crook. But when a private citizen accepts money to convince the government to do something, we call him a lobbyist.” Now, I question whether or not the public might not just call both of them crooks. I don’t know. But it’s a terrific line.

 

And so, anyways, the facts in this case, they arise when Mr. Percoco -- he was serving as then-Governor Andrew Cuomo’s executive deputy secretary. He takes leave from that job -- or he leaves that job to go run Governor Cuomo’s campaign. While he’s off the government payroll, someone comes up to him and says, hey, I need help getting out of this sort of requirement that I file a Labor Peace Agreement. Here’s a $35,000, call it lobbying payment, call it retainer payment, whatever, whatever you want to do. And so then, Percoco reaches out to other folks in the state government. They get this thing waived eventually. They change their position.

 

He was still working out of the governor’s office on occasion, using his old office. So anyways, he gets prosecuted. Okay. He argues in the district court, “Now, wait a minute. This is not an honest services wire fraud violation. I had no duty to the people of New York when I was out running a campaign. I’m not a government official.”

 

District court says, “Nope. We can still go forward with this.” Jury convicts. It goes up to the Second Circuit. The Second Circuit affirms, and in doing so, they rely on this opinion, Margiotta, which affirmed a similar theory. Now, that’s -- it’s this great opinion from 1982 where there’s a dissent by a very good friend of The Federalist Society, Judge Ralph Winter.

 

And so, this was when Judge Winter had been on the bench for less than a year. And in his dissent — if you’re interested in this issue, I encourage you to take a look. It’s fiery, and it says, “The majority’s use of mail fraud is a catch-all prohibition of political disingenuousness expands that legislation beyond any colorable claim of Congressional intent.” He says “[juries are left to apply legal standards], which amount to little more than the rhetoric of a sixth grade civics class.”

 

As you can see, this has been a controversial issue for 40 years, and the Court, it appears, will resolve it this term. The arguments on Percoco’s behalf are basically, one, in Skilling, the Court set forth what should count as relevant kinds of corruption for honest services fraud. This isn’t that. This will chill First Amendment speech. It’s vague. It’s overbroad.

 

And the government, as you might expect, thinks that what happened in the district court was fine. There’s a lot more going on there, but that’s the cliff notes version. And they say that, in reality, he was a public official. He had special influence over then-Governor Cuomo. Okay.

 

The next criminal law case is Ciminelli v. United States. It starts with a “c,” so I hope that’s how we pronounce it. It also arises out of the same sort of web of alleged corruption in New York and involves, particularly, a program called the Buffalo Billions Project, which, again, this sort of seems like you’re asking for corruption when you name it Buffalo Billions. But nonetheless, the question presented in the case is whether the Second Circuit’s right to control theory of fraud, which treats the deprivation of complete and accurate information bearing on a person’s economic decision-making is a species of property fraud that states a valid basis for liability under the federal wire fraud statute. So in other words, when the statute talks about fraud, it’s sort of withholding information, giving inaccurate information, the kind of fraud that qualifies for purposes of a federal law violation. And so, that’s an important issue as well. So those are the two criminal law cases.

 

I’ll go through the bankruptcy cases even quicker, which may take some -- give some insights into my understanding of bankruptcy law or, perhaps, reader interest because I know you guys are -- have questions for the co-panelists, and we look forward to getting with those. But the first is MOAC Mall Holdings LLC v. Transform Holdco LLC, stems from the Sears bankruptcy so venerable roots. But it asks whether a provision of federal bankruptcy law limits the power of courts of appeals over an order approving the sale of a debtor’s asset. So that’s that one. And then, there’s also Bartenwerfer v. Buckley, which asks whether a bankruptcy debtor can be held liable for another person’s fraud by imputation without any sort of affirmative act or omission. And so, it arose from a couple that sold their house, and allegedly one of the spouses, but not the other, had engaged in wrongdoing. So two interesting bankruptcy cases you should look at if you’re interested in.

 

And then, the final one that’s going to be heard this December is United States, ex rel. Polansky v. Executive Health Resources, Inc. The question concerns the proper standards for dismissing a claim under the federal -- or under the False Claims Act, when the government has sort of originally declined to move forward with a claim and then comes in later and tries to dismiss it as opposed to the sort of whistleblower who’s come forward trying to prosecute the claim. So those there are the remaining cases for the December sitting. I know that it’s a big sitting, a lot of meaty cases. And so, we look forward to your questions at this point. And so, if the panelists are ready, I do see that we have at least one question here.

 

And so, I’m going to pose that to you, Casey. But again, I encourage others to use the Raise Hand feature or to type questions in, and we will get to that. So with that, Casey, I’ll turn it over to you. And the question, so that everyone knows what it is, is do you believe the Supreme Court will decide 303 Creative v. Elenis narrowly within the bounds of the question presented, or presumably, do you think they might sort of come up with some other interesting way out of the thickets there or some sort of compromise position? Casey.

 

Casey Mattox:  Yeah, I think it’s a good question. I think I’ll fight it just a little bit in the sense that I think the question presented is a pretty large question presented. And so, if the Court addresses within the confines of the question presented, I think it’s actually a pretty big decision. The QP in 303 Creative is, again, whether applying a public accommodation law to compel a creative professional to speak or stay silent violates the Free Speech Clause of the First Amendment. So it really raises this fundamental question of the conflict between nondiscrimination laws or public accommodations laws and free speech climates. And I think if the -- so if the Court decides the case on that ground and answers that question affirmatively, yes, it does violate the First Amendment, I think that’s a pretty monumental holding.

 

I think there are basically four ways the Court — and there are probably more — but four ways in my limited mind I can think of the Court can resolve 303 Creative. One is on standing grounds. I think that’s highly unlikely that the Court would say that the pre-enforcement challenge here was insufficient. I think when you’ve had Masterpiece Cakeshop and several of these cases coming to the Court, the idea that, well, we just don’t know if Colorado would actually enforce the law in the way that 303 Creative is concerned it will enforce it, I think, will not ring very true. And so, I think it would be -- and that would be, I think, a very damaging decision for First Amendment claimants generally, First Amendment law generally, if you -- if the courthouse doors were closed in that way, the First Amendment claimants, unless the government directly came after you, then you couldn’t sue. So I think that’s highly unlikely.

 

It could uphold, obviously. The Tenth Circuit made its decision. The Court could uphold the decision from the Tenth Circuit, either on strict scrutiny grounds or apply a lesser standard of scrutiny, intermediate scrutiny, for example, saying that this is sort of speech incidental to conduct. And it’s the conduct -- it’s the discrimination that is being prohibited. That’s basically the argument from the states. I don’t think the Court is likely to decide the case in that way, but that’s certainly possible.

 

I think the two more likely results are basically this possibility that the Court answers the question directly on the QP and says that this -- in this conflict, basically, between -- when you have a direct conflict between a public accommodation law and First Amendment rights, when the government is trying to compel someone through a public accommodation law to speak or not to speak, that that violates the First Amendment. The Court could also cabin that a little bit and basically rely upon the stipulated facts in this case. That gives them a little bit of an out to open the door to maybe, in some future case, you won’t have something that’s so obviously expressive as the case here. Part of the challenge, obviously, in cases like Masterpiece Cakeshop was this question about when exactly -- is the cake expressive? Whose expression is it? There’s at least a little bit more of an open question in some of those cases.

 

When you get to a case like the website design case, I think that’s largely been taken out of the picture and of the -- both because of the parties’ stipulations on those points as well as the Tenth Circuit decision on that point, so I think it really does set the Court up to say where there’s -- in a case like this where it’s clear that’s it’s expression or the parties have stipulated to that fact that the First Amendment would prohibit the application of the public accommodations law in this context. So that’s -- if I had to guess, that fourth context is basically the one that I would expect. There’ll be some decision along those lines that’ll rely upon -- heavily upon the facts of this case. But obviously, it will have implications for a lot of these cases going forward.

 

Samuel D. Adkisson:  Yeah. And Casey, we’ve got another quick follow-up question, and it was the issue of involuntary servitude raised in 303 Creative. And I can -- and I have two initial reactions to that. One, I think there’s sort of an amicus brief that raises that so could be floating on the ether, although that would raise a lot of issues for virtually all nondiscrimination provisions. And two -- I mean, maybe, in this sort of posture in which the case arises, you could have a First Amendment challenge earlier than you could have other challenges. But, Casey, do you have any insights on that?

 

Casey Mattox:  Yeah. I do believe that that has been -- at least it was raised by amici. I don’t think it’s been raised by the petitioners in the case. It’s obviously certainly not a QP, but I think it’s been -- has been raised by people before. Quite honestly, I think there are challenges to making that argument in this context. I think the Court is much more likely to take an expansive interpretation of the Free Speech Clause than it is to want to interpret a provision like that to start having a lot of meaning beyond how it was originally intended. And so, I would be surprised if the Court went there. I think it would be much more likely, and the Court can resolve this with the application of the free speech precedents without having to get at that point.

 

Samuel D. Adkisson:  Right. If anyone else has any questions, please submit them. If not, I’ve got a question for you, Professor Somin. One issue that you raise when you’re talking about United States v. Texas was this notion that if the president of the executive branch can do something on a small scale, then -- under the statute, then he or she -- he could also do something on a larger scale. But then, you also have, say, President Biden’s student loan forgiveness program, and you’ve got -- I mean, maybe the president can forgive small scale debts, but then, you’ve got a larger scale student loan forgiveness. I was wondering if you could sort of talk about that. That was an issue that came to mind when I was thinking of your position, and I would just love to talk about that.

 

Ilya Somin:  Yeah. The issue is not about scale. It’s about the difference between case-by-case discretion on the one hand and systematic discretion on the other. Even case-by-case discretion, when exercised on millions upon millions of people, can have a large-scale impact. By contrast, systematic discretion exercised from on high, depending on how it’s used, might only have a small effect. So in the loan forgiveness case, which I’ve written about a lot, my complaint is not about whether it’s case by case or whether it’s systematic. My complaint is simply that what they’re doing is not authorized.

 

And where it -- but it might that a smaller scale action is authorized, so that really is an issue of scale, though it’s not so much about scale. It’s about the particular characteristics of who gets their loans forgiven. Maybe if he really did focus it on the much smaller number of people whose ability to repay really was seriously damaged by the COVID pandemic, it would be a different story.

 

In the Texas case, by contrast, the issue is not scale. It’s the nature of discretion -- sorry -- and Texas is trying to draw distinction between exercising discretion case by case, which could still affect vast numbers of people, and exercising it systematically from on top. And to my mind, that distinction doesn’t hold up to scrutiny because, unless case-by-case discretion is going to be completely arbitrary or unpredictable, it has to rely on some kind of general principles. And if a low-ranking official can do that on a case-by-case basis or -- then a high-ranking official can do it systematically, relying on the same kind of general principles in each situation. If anything, it seemed to me higher level of executive officials actually can exercise more discretion than lower-level ones.

 

Samuel D. Adkisson:  Thanks. And again, questions, keep them coming, especially questions about the Quiet Title Act would be very much of interest to me and -- I mean, look. Marbury was about jurisdiction, and so Wilkins may be right up there in the canon by the end of the term. So no. But anything else --

 

Andrew Grossman:  Sam, I have a question on one of your bankruptcy cases.

 

Samuel D. Adkisson:  Yes.

 

Andrew Grossman:  Only kidding. But I do have a question for Professor Somin. One of the interesting things -- so you -- United States v. Texas potentially stands to be one of the most significant administrative law cases in years, if the Court reaches the remedial question, in other words, the question as to whether vacatur is a permissible remedy under the APA. That’s something, of course, that lower courts, particularly the D.C. Circuit, have assumed at this point for -- I forget if it’s 40 or 50 years. And from the government’s position — and there are several positions that the government took in its briefing — vacatur is either not available at all or is potentially limited simply to the party before the Court and then, reading between the lines, is maybe, in an affected sense, only a remedy that could be provided by the Supreme Court. They don’t exactly come out and say that, but I took that to be the thrust of it. My question for you is what’s your thought on the significance of this issue, and what do you think the likelihood is that the Court reaches it, and if so, how might it decide it?

 

Ilya Somin:  It’s an interesting question. So if they rule for the states on standing and they conclude that what the Biden administration did is illegal, which are both significant ifs, then there will be this issue of whether vacatur is a permissible remedy because in the Remain in Mexico case, all nine justices seemed to accept the idea that injunctions are severely limited by the Statute 8 U.S.C. §1252. So vacatur is a different way, perhaps, of doing the same thing. And I honestly don’t know what the Supreme Court would do with that. I’m pretty sure Justice Barrett would want to say that it’s not permissible, at least not in this instance where Section 1252 governs, but the other justices would be in a -- perhaps in a difficult dilemma to pose a challenge for both liberals and conservatives in various ways.

 

So I think there’s a decent chance this issue will be avoided if the states don’t have standing, or the Court rules they don’t, or alternatively, the Court simply rules this policy is legal, which I think should happen. But if they don’t do that, then they could decide it under 1252, or they could decide it even more broadly and say vacatur is not a permissible remedy in administrative law generally, which would be a really sweeping decision. And I think a wrong-headed one, but I think it’s more likely that if they reach that and wanted to rule against the plaintiff states, that they would rely on Section 1252, which is specific to this area of law, rather than try to make a general sweeping decision about vacatur. But I admit I could be wrong about that, and I’m not really a remedies expert. This is a potentially significant part of the case, but it’s also the part least related to my areas of expertise.

 

Samuel D. Adkisson:  And Andrew, the chairs behind you, which are quite colorful, I’m wondering if you have waivers in order to sit in them, but that they -- that just -- so if you have any comments on the chairs, welcome that. My question, for you, something I was wondering about, I mean, I saw -- like many folks on the call, I was watching election night. I saw the North Carolina Supreme Court races called, and it appeared like that court was going to sort of flip in terms of the, say, ideological composition of the bench. Does that open up any options on remand or anything that maybe folks wouldn’t have been thinking of going into the case, but if the Court wanted to punt on things or send things back for a second look, would there be options there? I don’t -- I’m not sure that there would be, but I just wondered about that.

 

Andrew Grossman:  So first, the chairs are guest torture devices. That’s what we use them for. On North Carolina, I’m not an expert, of course, on North Carolina politics, but I have been told that, yes, the composition of the court is changing and that some of the more extreme decisions that that bench has issued over the last year are now potentially going to be up for grabs going forward once the new justices are seated. I don’t think that that’s likely to influence the Supreme Court’s consideration of this case one bit because this has been a recurring issue, this -- the question of legislative power under the Elections Clause and under the analogous Electors Clause, which applies to presidential electors.

 

This question has just been coming up again and again in recent years as state courts have taken a more adventuresome and aggressive role in reviewing election regulations. And you’ve seen already so many dissents and concurrences, typically from stay orders or stay denial orders, where various justices have said, “We need to decide this question and provide some certainty on this area of law before there really is a blow up where nobody knows whose votes count properly, and it throws an election in disarray.” And that really is the doomsday scenario. So there’s every reason for the Court, I think, to want to decide the question that’s presented now so that it can avoid the possibility of emergency litigation that decides a very important race up to and potentially including the -- a presidential election.

 

Samuel D. Adkisson:  Yeah. That’s interesting. And we just got another question across the wire too. “If the Democratic Party’s H.R. 1 to eliminate any state’s ability to pass a Voter ID law and a federal election were enacted, could a state legislature’s law requiring an otherwise constitutional voter identification in such elections be enforced?” The questioner says it’s only indirectly related, and Casey, as a First Amendment expert, you may have thoughts on that, too, or Ilya. But so, I open that up to any of the three of you who wants to opine or is able to opine.

 

Andrew Grossman:  Sure. If you meant that -- if the question is how does that apply as a -- under the Elections Clause with respect to federal elections, Congress, to the extent that it’s regulating the manner of conducting federal elections, which voter ID generally would be, yeah, Congress has preemptive power there and can certainly preempt what states are doing with respect to federal elections. I don’t think that’s a serious question.

 

Samuel D. Adkisson:  Okay. Any other questions? And if -- anything else from our panelists? If not, sort of like the turkeys at the White House, you will be pardoned from the remainder of this call and from our further analysis. And we’ll flip things over to Nate, but if there are anything last minute from any panelists or anyone in the audience, we’re, of course, happy to do that. If not, I’ll turn things over to you, Nate.  Going once, going twice.

 

Nathan Kaczmarek:  Oh, very good. I think, as we’ve come to expect, this was an interesting and very helpful preview. Our thanks to the panel. Sam, thanks for guiding the conversation. Great to see you as always. Casey, as directed, I will follow you on Twitter. Ilya, please feel better. Andrew, rather than settle things, I think you’ve only opened yourself up to more questions about the chairs. We certainly look forward to having each of you on again soon. We welcome audience feedback by email at info@fedsoc.org. Thanks, everyone. Have a great day.

 

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