Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.
- Food and Drug Administration v. Wages and White Lion Investments, LLC (December 2) - Federalism & Separation of Powers; Issue(s): Whether the court of appeals erred in setting aside the Food and Drug Administration’s orders denying respondents’ applications for authorization to market new e-cigarette products as arbitrary and capricious.
- U.S. v. Miller (December 2) - Bankruptcy; Issue(s): Whether a bankruptcy trustee may avoid a debtor’s tax payment to the United States under 11 U.S.C. § 544(b) when no actual creditor could have obtained relief under the applicable state fraudulent-transfer law outside of bankruptcy.
- Republic of Hungary v. Simon (December 3) - International Law & Financial Services; Issue(s): (1) Whether historical commingling of assets suffices to establish that proceeds of seized property have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act; (2) whether a plaintiff must make out a valid claim that an exception to the FSIA applies at the pleading stage, rather than merely raising a plausible inference; and (3) whether a sovereign defendant bears the burden of producing evidence to affirmatively disprove that the proceeds of property taken in violation of international law have a commercial nexus with the United States under the expropriation exception to the FSIA.
- U.S. v. Skrmetti (December 4) - Federalism & Separation of Powers& SOGI; Issue(s): Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment.
- Kousisis v. U.S. (December 9) - Environmental Law & Financial Services; Issue(s): (1) Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme; (2) whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services; and (3) whether all contract rights are “property.”
- Feliciano v. Department of Transportation (December 9) - Federal Employment Law; Issue(s): Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.
- Seven County Infrastructure Coalition v. Eagle County, Colorado (December 10) - Environmental Law & Financial Services; Issue(s): Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.
- Dewberry Group v. Dewberry Engineers (December 11) - Civil Procedure; Issue(s): Whether an award of the “defendant’s profits” under the Lanham Act can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates.
Featuring:
- Boyd Garriott, Associate, Wiley Rein LLP
- Eric N. Kniffin, Attorney, Kniffin Law PLLC, Fellow, Ethics and Public Policy Center
- Michael Pepson, Regulatory Counsel, Americans for Prosperity Foundation
- Alexandra Shapiro, Partner, Shapiro Arato Bach LLP
- Jeff Stier, Senior Fellow, Consumer Choice Center
- (Moderator) Tessa Shurr, Committee Staff, U.S. House of Representatives
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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.
