A Seat at the Sitting - January 2024

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Nate Kaczmarek:  Happy New Year.  And welcome to "A Seat at the Sitting." Today, the Practice Groups begin our 2024 programming with a large and excellent panel of legal experts to preview the January Supreme Court docket in 90 minutes or less. I'm Nate Kaczmarek, Vice President and Director of Practice Groups for The Federalist Society. As always, please note that all opinions expressed on this program belong to our guests and not the Society. 

 

      We are pleased to welcome Eli Nachmany to the program as our moderator this afternoon. Eli, first question, how are you? And the second question is do you have any New Year's resolutions that you'd like to share with our audience?

 

Eli Nachmany:  Oh, man. Well, Nate, I'm doing great. It’s wonderful to see you and great to be here. In terms of New Year's resolutions, I'd like to learn to cook a few more dishes. I think cooking is a wonderful art. And if you can learn it, it's a good thing. So, I'm going to be experimenting with some salmon rubs, probably in the next few weeks here, and see how it goes. How are you doing?

 

Nate Kaczmarek:  Very good, hoping to get an invitation to that. Eli is an Associate at Covington & Burling here in D.C. He previously clerked for Judge Steven Menashi of the U.S. Court of Appeals for the Second Circuit. Eli is a graduate of Harvard Law School where he was Editor-in-Chief of the Harvard Journal of Law and Public Policy. Prior to law school, he served as a speech writer to the U.S. Secretary of the Interior and as a domestic policy aid in the White House Office of American Innovation. His undergraduate is from NYU.

 

      A more complete bio for Eli and the distinguished backgrounds of all of our guests are available for your review at our website, FedSoc.org. Once our panel has covered the upcoming cases, we'll go to audience Q&A. So please do prepare questions that you'd like to stump our panel on. Questions can be submitted via the Zoom Q&A function. We will do our best to answer as many of the questions as we can. Eli, thank you very much. And, with that, the floor is yours.

 

Eli Nachmany:  Thank you so much, Nate. I am so excited to talk about the upcoming January sitting with this all-star lineup of panelists that we have today. In terms of the run of show, I'm going to introduce all of our panelists right now. I'm going to give brief bios. As Nate mentioned, you can find their full bios online at the FedSoc website. And then we'll get right into their discussion of the cases. At the end, we will have time for audience Q&A, so make sure to submit your questions through that Q&A function.

 

      Our distinguished panelists today, we'll start with Eric Boettcher, who is a partner at Wright Close & Barger LLP. He focuses his practice on appeals and civil litigation, served as a law clerk to Judge Colloton on the Eighth Circuit, and is a graduate of the University of Michigan Law School. After that, it'll be Allison Ho, who is Co-Chair of Gibson Dunn's Appellate and Constitutional Law Practice Group. She will present her fifth argument at the Supreme Court later this spring.

 

      Our next panelist, Grover Joseph Rees, a retired ambassador who is also a former judge and law professor, and he served as general counsel of the United States Immigration and Naturalization Service from 1991 to 1993. After that, we'll hear from Professor Mark Rienzi. Professor Rienzi is a professor of law at the Catholic University of America, where he teaches constitutional law and co-directs the Center for Religious Liberty. He is also President and CEO of the Becket Fund for Religious Liberty and a frequent litigator at the Supreme Court.

 

      After that, Professor Ilya Somin is Professor of Law at George Mason University and Simon Chair in Constitutional Studies at the Cato Institute. He is the author of Free to Move: Foot Voting, Migration, and Political Freedom and Democracy and Political Ignorance: Why a Smaller Government is Smarter, and a contributor to the Volokh Conspiracy blog, affiliated with Reason magazine.

 

      Finally, we'll hear from Chris Walker. Professor Walker is a law professor at the University of Michigan. He has written extensively on Chevron deference over the years. You can imagine which cases he's going to be talking about. He and his co-author, Kent Barnett, filed an amicus brief in Loper Bright Enterprises in support of neither party and in defense of Chevron deference, as a matter of stare decisis.

 

      So, now that we've heard about everybody's bios, let's get into the case. Let's talk about what's on tap for the January sitting. Eric, I'll go your way first.

 

Eric B. Boettcher:  Thanks Eli. And, once again, my name is Eric Boettcher. And I'm a partner at Wright Close & Barger in Houston. I want to disclose at the outset that I co-authored an amicus brief in this case for the Atlantic Legal Foundation in support of Macquarie and other petitioners. But I'll do my best to give an even-handed discussion of the case and the issues.

 

      So, Macquarie Infrastructure Corp v. Moab Partners is a securities fraud case about whether a company's failure to disclose information required under SEC regulation may be enforced only by the SEC or whether, instead, private plaintiffs may also bring a securities fraud suit under Section 10(b) of the Exchange Act premised on the company's failure to disclose the information required by the regulation. So, the main issue here is not directly whether the company, Macquarie, violated the SEC regulation but, rather, whether its violation through non-disclosure could even support a private Section 10(b) claim in the first place.

 

In deciding this issue, the Supreme Court will have the opportunity to answer important questions about whether a company's failure to disclose information required by an SEC regulation is actionable under Section 10(b) as a half-truth or is non-actionable as a pure omission, and whether, as a general matter, only the SEC may enforce companies' failures to disclose information required by any of the SEC disclosure regulations.

 

      So, I'm going to start by giving some quick background information about the federal securities laws before diving into the facts of this case and circling back to these issues. So, Exchange Act Section 10(b) prohibits fraud or deception in connection with the purchase or sale of a security. And SEC Rule 10b-5 implements Section 10(b) and provides an implied right of action for private plaintiffs. Now, under this framework, if an investor was defrauded by a company's material misstatement or omission, [no audio 00:07:29-00:07:34] company.

 

And the other important piece of background information you hear is that the SEC requires companies to file annual and quarterly reports that contain certain information. And that includes the information required by SEC regulation S-K (Item 303) which requires the company to describe any known trends or uncertainties the company reasonably expects will have a material impact on its business. And Item 303 is intended to get companies to provide their managements qualitative discussion and analysis of the company's business prospects.

 

      So, with that background, I'm going to turn to the facts of the case here. Macquarie Infrastructure Corp was a publicly traded company that, through a subsidiary, provides storage services for bulk liquids, including a high-sulfur fuel oil called "No. 6 oil." And in 2008, a United Nations agency promulgated a proposed regulation that would ban No. 6 oil from being used as fuel for ships, beginning in 2020. And in 2016, the U.N. regulation was formally fixed to go into effect. And late 2017 and early 2018, a number of Macquarie's customers declined to renew their contracts for storing No. 6 oil.

 

      And, in February 2018, Macquarie reduced its quarterly dividend guidance, and its stock price dropped as a result. And Moab and other investors sued Macquarie for securities fraud under Section 10(b) and other statutory provisions. And Macquarie moved to dismiss the claims. And a company's motion to dismiss is an important inflection point in a Section 10(b) securities fraud case because if the plaintiff's claims survive the motion, the plaintiffs will frequently move to certified class and the potential for enormous liability against the company comes into play.

 

      So, companies, therefore, often feel pressured to settle even unmeritorious claims if the claims survive the motion to dismiss phase. And, here, the district court granted Macquarie's motion to dismiss, but the Second Circuit reversed. And the Second Circuit held, among other things, that Moab adequately pleaded a Section 10(b) claim, based on its allegation that Macquarie omitted information required by Item 303 by not disclosing in its annual and quarterly reports that the effect of the U. N. regulation was a known trend or uncertainty that was reasonably likely to have a negative impact on Macquarie's business. 

 

      And that ruling is now what's at issue in the Supreme Court. So, there are a number of interesting points of dispute in this case, but I'm going to focus on two here. And, also, the United States submitted an amicus brief supporting Moab, has moved for leave to participate in oral argument. So, I'm also going to discuss the United States' views on these topics as well.

 

      So, first, the Court dispute here deals with the parties' disagreement about whether this case involves non-actionable pure omissions because Macquarie simply failed to disclose the information regarding the U.N. regulation allegedly required by Item 303, or, instead, involves actionable half-truths because Macquarie made statements that were rendered misleading by its failure to mention the risk the U.N. regulation posed to its business. 

 

      And Macquarie has taken a textualist approach to Rule 10b-5 and pointed out that subsection (b) of the rule only prohibits affirmative misstatements and omissions of material fact necessary to make other statements not misleading. So, the second part of that refers to half-truths where a company makes a statement that's factually true but leaves out other important information such that the statement creates a misleading impression.

 

And Macquarie frames its appeal as only involving pure omissions and not involving affirmative misstatements or half-truths, because Macquarie's annual and quarterly reports really failed to disclose the information regarding the U.N. regulation allegedly required by Item 303 and did not make any misstatements or half-truths about the U.N. regulation. And Macquarie, therefore, contends that, because pure omissions are not actionable under the text of Rule 10b-5, its alleged violation of Item 303 cannot support Moab's Rule 10b-5 claim. 

 

So, Moab and the United reject this view that the case involves pure omissions, instead contend that Macquarie made statements that were rendered misleading by Macquarie's failure to disclose the risk presented by the U.N. regulation. And Moab and the government make the more general argument that when a company's annual or quarterly report makes some of the disclosures required by Item 303, but not all of them, the disclosures the company does make are misleading statements because a reasonable investor would be aware of Item 303's requirements and would conclude that the statements the company included in the report were a complete list of the disclosures required and that no others existed.

 

And Moab and the government also make the more specific argument that Macquarie's Item 303 disclosures included statements about the demand and utilization rates for Macquarie's petroleum storage services, and that these statements were rendered misleading by Macquarie's failure to also disclose the negative impact the U.N. regulation would have on this business. 

 

So, under the parties' differing framings of this central issue in the case, I think an interesting question presented to the Court is the line between pure omissions and half-truths, and whether the half-truth omissions that are prohibited by Rule 10b-5 have to be related to a substantive aspect of the business discussed in a company's affirmative statement or whether, instead, an omission barred by Rule 10b-5 can be linked to an affirmative statement, not by substantive subject matter, but by the statement and the omission both having the status of being required by a particular SEC regulation, and a reasonable investor interpreting the company's affirmative statements in a report as impliedly representing that no other disclosures exist.

 

The second point I wanted to mention about this case is that although Item 303 is the particular regulation at issue in the case, the parties' arguments about pure omissions and half-truth would also apply in the context of companies' failures to disclose information required by many of the other SEC disclosure regulations. So, a broader question implicated here, and addressing the parties' briefs, is whether the failure to make disclosures required by SEC regulations in general, and not just Item 303, can be enforced by private plaintiffs in a Rule 10b-5 action, or whether only the SEC can enforce them using different statutory sections available only to it.

 

And Macquarie says the Exchange Act entrusts enforcement of disclosure requirements to the SEC and gives it a number of enforcement tools other than Section 10(b) to prosecute omissions of information required under the regulations. Moab and the United States counter that meritorious private securities fraud actions are an essential supplement to the SEC's enforcement actions, and the SEC has long maintained the position that a violation of Item 303 or other SEC disclosure regulations could support a Rule 10b-5 claim. 

 

So, it will be interesting to see how the Supreme Court sees these competing views, and who may enforce companies' failure to disclose information required under SEC disclosure regulations, and whether the Court chooses to make a broader ruling on the issue or, instead, makes an effort to limit its ruling to the enforcement of omissions under Item 303. And oral argument in this case will be held on January 16. And I'm excited to see how the Court addresses these issues.

 

Eli Nachmany:  Thank you so much, Eric. Excellent summary. We're going to turn it over now to Allyson Ho, who's going to tell us about U.S. Trustee v. John Q. Hammons Fall 2006 LLC. Allyson. 

 

Allyson Newton Ho:  Thank you, Eli. And, as always, it is such a pleasure to participate in today's Federalist Society discussion, especially with such a fabulous moderator and co-panelists. Now, I'm tempted, since I'm talking about a bankruptcy case, to start with a wisecrack like bankruptcy is the new ERISA. Sort of like eating your vegetables, you know it's important. You know it's necessary, but perhaps not the most exciting thing in the world. Except I really do find both ERISA and bankruptcy law quite interesting and important. 

 

      So, I'm actually really pleased to get to talk about U.S. Trustee v. John Q Hammons, which is both a prequel and a sequel to a really important bankruptcy case that the Court decided last year, Siegel v. Fitzgerald. So, let me start by setting the table with a brief recap of that case. In Siegel v. Fitzgerald, the Court held that a 2017 law permitting debtors in bankruptcy proceedings in North Carolina and Alabama to pay lower administrative fees than those paid by debtors in other states violated the constitutional require that Congress provide uniform bankruptcy laws nationwide.

 

      That decision left open, however, the question of what, if anything, to do about the debtors who had paid the unconstitutionally higher fees. Is the remedy just to make the fees uniform, going forward? Or is it to give a refund to debtors who paid unconstitutionally higher fees in the past? Now, to give you just a little bit more background, without getting too much in the weeds of the bankruptcy system, the United States has 94 districts for bankruptcy proceedings in federal court. Most of them operate under the U.S. Trustee Program, which is an arm of the Justice Department.

 

      Six districts, however, in Alabama and North Carolina, are grandfathered into a different system called the Bankruptcy Administrator Program that is overseen directly by the courts. Now, because bankruptcy proceedings can often be lengthy, they can also be really expensive to administer. And the Trustee Program is funded by fees, most of which are paid by companies that file for bankruptcy under Chapter 11. And the law that the Supreme Court held unconstitutional in Siegel required a significant increase in those fees to make up for a shortfall in funding for the Trustee Program.

 

      But the federal judiciary, which sets the fees for the Administrator Program, didn't raise fees at the same time. So that led to some quite substantial disparities in fees between the two programs. Now, in 2016, a group of companies affiliated with John Q. Hammons Hotels and Resorts filed for bankruptcy. And because the proceeding took place in Kansas, where the U.S. Trustee Program operates, the companies paid the higher administrative fees for the Trustee Program.

 

      In 2020, the companies asked the bankruptcy court for a partial refund of those fees on the theory that the discrepancy between the fees for the Trustee Program and for the Administrator Program violated the Constitution's bankruptcy uniformity guarantee. The bankruptcy court rejected that request. But the Tenth Circuit reversed, agreeing with the companies that charging debtors higher fees in Trustee districts was unconstitutional, and then going on and holding that the remedy was refund of the difference between the fees that the companies paid and what they would have paid under the Administrator Program.

 

      The government appealed that ruling to the Supreme Court in early 2022, asking the justices to hold that petition for the Court's decision in Siegel and then send the case back to the Tenth Circuit. And the Supreme Court did exactly that last June. In response, the Tenth Circuit simply issued its prior ruling without elaboration. Although the Supreme Court's decision in Siegel had endorsed the Tenth Circuit's reasoning on uniformity and on the constitutional violation at issue, Seigel said nothing about a remedy for the constitutional violation because the court of appeals in the case had not reached that issue. 

 

      And, as you've often heard it said, the Supreme Court is a court of review, not first view. So, given that silence, the Tenth Circuit simply reinstated its decision ordering a refund. So, the government petitioned the Supreme Court for review of that decision, presenting the Court with a rather speedy opportunity to resolve the remedial question that it had left open in Siegel. And though every circuit that has considered the question to date has, like the Tenth Circuit, held that a refund is the appropriate remedy, the Supreme Court agreed to review the case and set it for argument next week on January 9.

 

      The question before the Court is a relatively straightforward one. What is the proper remedy for the past violation of the unconstitutional fee? The respondent companies, supported by an array of amici, including former bankruptcy judges and the chamber of commerce, argued that the only sound, workable, and constitutionally appropriate remedy is the one that every court of appeals that considered the question has embraced, and that's a refund of the unconstitutional fees.

 

      On the view, respondents should have been charged fees under the statute in place before the invalidated law. So, for parties like respondents who have already paid the unconstitutional fees, the government should simply issue a refund for the difference between what was actually paid and what was constitutionally owed. Unsurprisingly, the government disagrees, and it advances two potential remedies. Its primary argument is that the remedy should be purely prospective. And, also unsurprisingly, respondents argue that that purported remedy is really no remedy at all.

 

But the government maintains that retrospective relief is disfavored, that prospective relief is more faithful to Congressional intent, and that, in awarding the refund, the Tenth Circuit misapplied some of the court's important precedents on remedy. Alternatively, the government argues that if backward-looking relief is needed, the remedy isn't a refund for respondents and others like them who paid the unconstitutionally higher fee, but a fee increase imposed retrospectively on non-parties in the non-trustee districts. Respondents, in their amici, assail that position as unworkable, if not flat-out impossible, given that many of those cases are now permanently closed. 

 

Notably, I think the government's petition wasn't supported by any amici. And the only amici at the merit stage not supporting respondents is a group of state and local tax professionals who filed an amicus brief in support of neither party just to urge the Court not to cast any doubt on the due process protections afforded by some of the state and local taxation precedents that are being used somewhat out of context in this federal bankruptcy case.

 

In argument next week, I would expect practical questions about the workability of the government's proposed alternative remedy and more doctrinal questions from both sides about the proper interpretation and application of the Court's remedial precedents that both sides rely on in the case. 

 

Eli Nachmany:  Excellent. Thank you so much, Allyson. We are going to turn now to Ambassador Rees, who's going to talk to us about an immigration and also statutory interpretation case, Campos-Chaves v. Garland.  Ambassador Rees.

 

Hon. Grover Joseph Rees III:  Yes, thank you. Campos-Chaves v. Garland was a Fifth Circuit case consolidated with two Ninth Circuit cases, Garland v. Singh and Garland v. Mendez-Colin. And they all involved probably the most disfavored litigants that you can imagine. All three of them were illegal immigrants. Two of them entered without inspection. The third, Mendez-Colin, actually presented himself and claimed to be an American citizen, which he was not, and was said also to be trying to smuggle a couple of other non-citizens in. 

 

      So, disfavored plaintiffs, favored, perhaps by the side of politics that's said to be progressive. And yet, these three cases are part of a series of cases in which substantial majorities of the Supreme Court, including judges identified as conservative, have held for the non-citizens and against the government. It sort of reminds me of two things.

 

One, 20, 30 years ago, when there would be amazement when Justice Scalia, or, in a couple of cases, Justice Thomas, would reach a result in favor of a criminal defendant or somebody else perceived not as a conservative litigant because the statutory text, or, more often, the constitutional text, seemed to say that that person ought to win. 

 

      And the reactions ranged from praise, saying, "Hey, he really means it. He really is a textualist, really is an original meaning scholar or advocate," to "Thomas or Scalia must be up to something. Maybe deciding in favor of the progressive litigant in this case is the ticket of admission that he has to pay in order to proceed with the agenda that he really wants."

 

      The second thing it reminds me of is when I was involved in immigration litigation, again, many years ago, there was something in immigration litigation that I called, "nesting overreaching," which is that the immigration judge and the board of immigration appeals would reach a result that just didn't meet the "he didn't" test. They would reach a result that was perhaps defensible, as a matter of statutory constitutional interpretation, but was just such an unsympathetic result that it was hard to believe they'd actually decided that.

 

      And then, the case would typically be appealed to the Ninth Circuit, which would go way over in the other direction and basically say "every illegal immigrant has every right there is." And then it would go to the Supreme Court, who would be appalled by the Ninth Circuit decision and would say, "No immigrants have any rights ever." So there were a bunch of cases like that. And the government is basically arguing that the Ninth Circuit's result, which was favorable to the non-citizens, is that kind of a case.

 

      So, the facts of the case, it turns on statutory interpretation, specifically Section 1229(a)(1) of the Immigration and Nationality Act which, since 1996, has defined something called a Notice to Appear. And there are 10 requirements for a Notice to Appear. And one of them is that it must state the time and place of the hearing at which the non-citizen is supposed to appear. Since the beginning, the immigration courts and the DOH, the USCIS, the Customs and Immigration Enforcement have not honored that provision. They have given notices to appear that don't say a time and place because they don't know the time and place yet. So, it says, "time and place to be determined."

 

      And then, Section 1229(a)(2) provides for a subsequent notice to be provided in the event that the time and place are changed. And so, it's in that notice. And, typically, the first notice is given in person because the non-citizen is in custody at that point. They give them that notice. The second one is mailed, typically, to an address that the person is required to give. And that one is the first notice that he or she actually receives of what the time and place of the hearing is.

 

      Well, 2018, Pereira v. Sessions involved a somewhat different question because there are a couple of consequences of getting a Notice to Appear. One of them is that if you don't appear at a hearing at which either the original notice or a subsequent notice changing the time and place tell you to appear, you can be ordered deported in absentia. The second consequence, and the consequence involved in Pereira v. Sessions, is that it stops the time. The Notice to Appear stops the time that you'd have to be in the United States in order to get certain relief from deportation, in this case, specifically, something called "cancellation of removal," which requires 10 years.

 

      So, Pereira involved somebody who wanted to apply for cancellation of removal. And the government said "No. We served him with a Notice to Appear, and that stopped the 10 years that he would have to be in the United States." The Court, in an 8-1 Sotomayor decision, held that the Notice to Appear was not valid because it did not include the time and place, and therefore it didn't operate to stop the time.

 

      2021, in a case called Niz-Chavez, by now, v. Garland, the Court held in a 6-3 opinion that that rule applied even where the applicant had subsequently received a notice of a change which did include the time and place, and that not even the second notice stopped the time because it had to be done, that the statute says the Notice to Appear is the one that stops the time. And it didn't include the time and place. It's one of the 10 requirements.

 

      So, the government argues mainly that they don't know the time and place. And that, although the statute says, "a written notice," a written notice can be given in different parts. The Ninth Circuit held that the second notice, the Notice of the Change, the Notice of Hearing, could not operate to change the original time and place because there was no original time and place. The government spends a lot of space arguing that a change can be a change from an indeterminate time and place to a definite time and place.

 

      The government also tries to make its own textualist argument, and thereby to distinguish the stop-time cases. They say that the particular provision that allows in absentia deportation then says that the order can be vacated if the non-citizen shows that he or she was not given notice under Section 1229(a)(1), which is the Notice to Appear, or Section 1229(a)(2), which is the Notice of Hearing.  And the government says, "Look, disjunction means disjunctive. And if we gave him one or the other of those notices, then the order is valid and cannot be rescinded."

 

I think the government misreads the text because that provision is a text giving a right or privilege to the non-citizen, to the alien. And that right is that he can go to immigration court and get the order vacated, if he can show that he wasn't given either the original notice, the Notice to Appear, or that he wasn't given notice of a subsequent change. So, the disjunctive doesn't operate in favor of the government. The straightest reading of the text is that the disjunctive operates in favor of the alien.

 

Interestingly, although Pereira was an 8-1 case, the dissent was Justice Alito, who felt that Chevron deference should have been accorded to the government's interpretation. Justice Kennedy filed a separate concurrence basically saying that the Court had gone way too far in Chevron deference of immigration cases, and this was one of the reasons he was concurring.

 

But, the subsequent case, Niz-Chavez, was 6-3. And Kavanaugh filed a strong dissent, joined by the Chief Justice and joined by Justice Alito, basically saying what the government says now, which is that the statute is disjunctive. And, not only that, the government doesn't know when the hearing is going to be at the time they serve the Notice to Appear. And it makes sense to notify that as soon as it can be done, which is going to be later.

 

I think, notwithstanding that I think that was a brief, and, as the government points out, Kavanaugh pointed out that that case, the stop-time cases, do not dispose of the question whether an alien, a non-citizen who gets his information in two notices instead of one, can actually be ordered deported. It's a different question. Nevertheless, I think the Court is likely to decide, once again, in favor of the non-citizens here, because the statutory text defining a Notice to Appear is pretty clear. And it's pretty clear the government is not complying with it.

 

And in answer to the government's claims of administrative inconvenience, I think the Gorsuch opinion in Niz-Chavez, the stop-time case, applies just as well to deportation. As the summary of that case said, the government claims that not knowing a hearing officer's availability when it initiates removal proceedings makes it difficult to produce compliant notices. It also claims that it makes little sense to require time and place information in a Notice to Appear when that information may be later changed. Besides, the government stresses, its own administrative regulations have always authorized its current practice.

 

But, on the government's account, it would be free to send a person who is not from this country, someone who may be unfamiliar with English and the habits of American bureaucracies, a series of letters over the course of weeks, months, maybe years, each containing a new morsel of vital information. Congress could reasonably have wished to foreclose that possibility. And, ultimately, pleas of administrative inconvenience never "justified departing from the statute's clear text. The modest threshold Congress provided to invoke the stop-time rule is clear from the text and must be complied with here." I think that's going to apply to orders of deportation as well. 

 

Eli Nachmany:  Excellent. Ambassador Rees, thank you so much for your summary. The next case we're going to hear about is FBI v. Fikre and that's Professor Rienzi, if you'd like to get into it.

 

Mark L. Rienzi:  Great. Happy to do it, Eli. And thanks very much for having me here. Ambassador Rees started by talking about parties who are not American citizens and who may have entered the country illegally. Here we've got one who is a U.S. citizen but was legally barred from coming back to the country. So, as we get off our holiday travel, we can think about the troubles in airports.

 

      Jonas Fikre is an American citizen, and while he was away on business travel in 2010, in Sudan, was met by some FBI agents who told him he was on the no-fly list, and he couldn't fly back to the United States. They questioned him about his affiliation with a particular mosque in Portland. And they told him that he'd be taken off the no-fly list if he'd agree to be an informant against that mosque. That's, at least, Mr. Fikre's statement of what happened.

 

      What's clear is that he was on the no-fly list in 2010. So he was not allowed to fly back to the United States. He eventually went to the United Arab Emirates where he was then taken into custody by the government. And he alleges he was tortured while he was there. He eventually gets to Sweden, where he has some relatives. He doesn't get back to the United States until 2015, when Sweden charters a private plan to send him back to the United States, because he can't fly commercially to get back here.

 

      So, Jonas Fikre has a lousy five years from 2010 to 2015. During that time, in 2013, Fikre files papers to challenge the fact that he was put on the no-fly list. And he challenges it on a lot of different grounds. But the relevant ones here are procedural and substantive due process. He argues both that he didn't get any notice about being put on the no-fly list, no chance to hear the allegations against him, or complain about it, or argue that they were wrong, and, also, substantive due process interference with his right to travel and his freedom and so forth.

 

      In the trial court, he initially survives a federal government motion to dismiss. And then something happens in his case that has happened in what looks like at least a dozen other cases about the no-fly list, which is if the plaintiff can survive the motion to dismiss, the government often eventually takes the person off the no-fly list and says the case is now moot. And so, the FBI v. Fikre case that the Supreme Court will hear next week on January 8 is really an Article III mootness question. It's about whether the government taking Fikre off the no-fly list after he survived the motion to dismiss and during his case, is enough to moot the case.

 

      And that's an issue on which the lower courts reached divergent views two different times. So, what first happens in the lower courts is the federal government says, "I'm taking you off the list. Now it's moot." And the district court agrees. And they say, "Look, you're not on the list anymore. You have nothing to fight about, in terms of your prospective relief or your complaints about how you got on, because it's done." And there's no waiver of sovereign immunity and so forth. So, the court says, "Your case is over."

 

      Fikre takes that up to the Ninth Circuit. And the Ninth Circuit disagrees. The Ninth Circuit cites the typical mootness standard, which is that the party claiming mootness bears a heavy burden to show that it's absolutely clear that the allegedly wrongful conduct could not reasonably be expected to recur. And Fikre argues, and the Ninth Circuit agrees the first time around, that the government hasn't met that standard. The government said they'd taken him off the list, but they haven't said that he was wrongfully put on the list. They haven't walked away from their reasoning. They haven't made any promises about what will happen in the future.

 

So, the Ninth Circuit says, "This is not enough to moot a case. He had a live case when he filed it. You've voluntarily ceased the, allegedly, wrongful conduct during the case. But that's not enough to moot the case." So, the court says the case is live. It goes back down to the district court. In the district court, round two, the federal government says, "Well, I can make it better." In addition to taking you off the no-fly list, I will now provide an affidavit from an FBI agent, who is involved with the no-fly list, that says you won't be put back on the no-fly list, based on the currently available information.

 

So now, the new facts are he's off the no-fly list, and the FBI agent has said that, based on currently available information, we won't put you back on. The district court, again, says, "Okay.  That's enough to moot a case. You're done, Mr. Fikre. You're out." Fikre goes to the Ninth Circuit. And the Ninth Circuit again disagrees and says, "This is not enough." And the Ninth Circuit says it's not enough for two reasons. 

 

One, they say, "Look, the federal government hasn't actually disclaimed their reasoning for putting Mr. Fikre on the no-fly list. And they haven't actually bound themselves not to do it again in the future. So, there's no change of policy. There's no binding commitment not to do it again in the future. And the declaration from the FBI agent that you won't be put back on is limited by 'based on our current information.'"

 

One of the things Fikre's lawyers argued, both below and to the Supreme Court, is Fikre had moved. He didn't live in Portland anymore. And he didn't go to that mosque anymore. And so, one of the things that's possible is, well, maybe if he goes back to that mosque, he ends up back on the no-fly list. He doesn't know, because the government's never actually been forced to give an explanation.

 

So, the Ninth Circuit looks at all this and says, again, "This is not enough to moot a case. You haven't proven that it's absolutely clear this could not reasonably be expected to recur." The Solicitor General asked the Supreme Court to grant cert, pointed out a split between cases in the Fourth and Sixth Circuits, which had found that this type of government disclaimer was enough to moot a case. And the Supreme Court granted cert and again will hear argument later next week. A few interesting arguments that the Court will be thinking about.

 

And, actually, Eric gave a disclaimer at the outset. I should give my disclaimer too. The Becket Fund, my law firm, filed an amicus brief in support of neither party here, but making some arguments about limitations that there ought to be on trusting the government's good faith. And I'll explain that again in a few minutes. But just so folks know, we filed a neither party brief in the Fikre case.

 

The government's argument at the Supreme Court is that they have done all that is necessary to satisfy the typical mootness requirements. They said, "We took him off the list. He is not on the list. And he has not been on the list for more than seven years now. Second," they say, "we have said that he won't be put back on, based on the currently available evidence." The government says, "That shows that the original complaint, which is about being placed on the no-fly list with whatever the originally available evidence was, that can't recur. If he gets placed on the no-fly list, it will be because of new, different information that we get."

 

And the government leans heavily on what I call sort of the presumption of good order or presumption of regularity. They say to the Court, "Look, when the government has promised that we're not going to put somebody on the no-fly list again, courts ought to accept that promise and ought to accept that we are behaving in good faith, that we're not going to take somebody off the list who would actually be a threat to national security just because we're trying to win a lawsuit," and that, "unless there's some evidence of bad faith, courts should accept the government's statements that they won't do something again."

 

The Solicitor General also makes a special argument based on the national security context. She says, "Especially in the national security context, the courts ought to be willing to trust the government's claim that we're not going to do this again, that we're not doing it for litigation-driven reasons." Mr. Fikre argues the opposite of all that. Fikre argues that the government simply hasn't provided enough that anyone could say it's absolutely clear this won't recur again.

 

Fikre supports the Ninth Circuit's decision and also relies on decisions from other courts and says, "Look, sometimes courts consider that government has disclaimed the past action." In other words, if it says, "You know what, we did that before. But we admit that was wrong. That was a mistake." Sometimes there's an actual real bar to reinstituting the old policy. And the now-best example of that that I can think of is the New York State Pistol and Rifle case from a couple years ago where New York City changed its gun law. And then New York State passed a law that made it illegal for cities to have such laws in the future, so that New York couldn't go back because they were barred.

 

Fikre's lawyers say neither one of those things is present here. It's both. The government hasn't disclaimed it. The government actually says Fikre was put on the no-fly list in accordance with the applicable rules at the time. They don't say it was a mistake. They have not given any explanation, either in court or in camera, as to why Fikre was put on the list. They just say he was there. But they don't disclaim it. And they don't actually bind themselves going forward. Fikre's lawyers say the FBI agent's declaration is nice, but it doesn't actually bind the government. The government could actually come up with a different viewpoint later.

 

The government could simply be thinking, "Well, the currently available stuff is Fikre doesn't go to that mosque anymore. Therefore, he's off the list. And if he goes to that mosque, maybe we'll put him back on the list." So, Fikre says this isn't really any comfort to my client that this is not going to happen again. This is what's happened in many, many other cases. And Fikre's lawyers provide a long list of cases where, when there's a challenge to being on the no-fly list and you can survive the motion to dismiss, what often happens is the government says, "Okay, we'll take you off the list," rather than litigate the case.

 

As I said before, the Becket Fund, the law firm I work at, filed an amicus brief in support of neither party, but making the point that governments actually should not get any special treatment under mootness doctrine. They shouldn't get any special thumb on the scale or presumption of good faith and regularity. Because, actually, governments are the parties who are most likely to be repeat players and, therefore, most likely to be interested in strategically mooting out certain cases in order to pick and choose who they want to litigate against and where. 

 

And we're religious liberty lawyers. That's how we focus on this issue. And so, what we do is we detail a lot of places where we've seen governments strategically moot a case. They do this with prisoner litigation a lot, for example. But the basic gist of the idea is that the Solicitor General is incorrect, to the extent that they're asking for any special treatment for the government. Governments are repeat players. Governments know the courts. They have a wide array of cases that they're choosing among, when they're thinking about how and when they want to litigate things.

 

It's actually a rational thing for a government actor to look at the world that way. And many, many governments do it. And the national security context actually, arguably, cuts the other way in that it may make it more likely that the government would be very carefully picking and choosing when and where and how it wants to fight about defending its processes and who it wants to have those fights against. So, ultimately, it's a case that's about Article III mootness. It might be a case about whether the government gets a special mootness standard.

 

I should say, our brief doesn't take any position on whether the government actually meets the mootness standard. We simply make the argument that they should get the same mootness standard as everybody else. There were no amicus briefs supporting the government. There were seven or eight or so supporting Mr. Fikre, making a variety of arguments about the government's no-fly list and the use of strategic mootness. I'll stop there.

 

Eli Nachmany:  Excellent. Thank you so much, Professor. And I should also just remind audience members, if you do have questions, please submit them in that Q&A function. We'll try to get to as many as we can. Our next panelist, we are grateful for, Professor Somin, because he is going to take the laboring oar and talk to us about two cases today. So, Professor, take these in whatever order you'd like to take them in. But I believe you're going to be telling us about Sheetz v. County of Eldorado and Devillier v. Texas.

 

Prof. Ilya Somin:  Thank you. I'm actually going to start with Devillier v. Texas and then go on to Sheetz v. El Dorado. Both of these are important takings cases under the Takings Clause of the Fifth Amendment. But I think, although they both raise important issues, I think the correct resolution of both of these cases is fairly clear. And I would be somewhat surprised if the Supreme Court doesn't manage to reach it one way or another.

 

      So, I'll start off with Devillier. And I do have disclosures to make about my connection to these cases, as well as to the other case as well. This case was litigated on behalf of the property owners by the Institute for Justice, with which I have a longstanding association, though I have not done anything with them in this case. In addition, I, myself, have filed an amicus brief in this case, actually two of them, together with the Cato Institute. We filed only one of two briefs urging the Court to take this case at the cert stage. And, when the Court did take it, we have filed another brief at the merits stage, urging the Court to rule for the property owners here.

 

      I should note, furthermore, that I clerked for Judge Jerry E. Smith of the Fifth Circuit, who is one of five Fifth Circuit judges who urged the Fifth Circuit to take this case en banc. But they were outvoted. However, it is also important to note I have not communicated with Justice Smith about this case. And my clerkship was many years before the case happened. So now that these disclosures are out of the way, we can actually talk about the case, which is a situation where the State of Texas flooded Mr. Devillier's land.

 

He's a farmer. And they did so in the process of elevating a state highway, which led them to build a dam in the process. That dam led to the flooding of Mr. Devillier's land and inflicted a lot of damage during various storms. He filed a lawsuit, arguing that this is a taking. And I think there is a very strong substantive takings case here. And that's what the district court ruled. But the Fifth Circuit, in an extremely brief and cursory opinion they said that you can't even bring this takings claim. 

 

Why? Because there's no federal statute specifically authorizing bringing takings claims in federal court against state governments. You can do it against the federal government. You can do it, arguably, against local governments, but not, they say, against states. And, furthermore, the court ruled that you can't do that just under the Fifth Amendment directly. The Fifth Circuit opinion has to be seen to be believed. It's not just wrong, I think. But it's only a few sentences long. And it doesn't just get Supreme Court precedent wrong. It completely ignores the relevant Supreme Court precedent. I've been a takings scholar for over 20 years. This is the worst takings opinion that I can remember in any major case. It's just really bad.

 

I would have thought, before reading this case, that the issue in the case had been resolved by the Supreme Court's 2019 decision in Knick v. Township of Scott, which reversed the 1985 Williamson County case. Williamson County said that before you could bring a takings case against a state or a local government in federal court, you first had to exhaust all possible state court remedies. And then, at the end of that, it would turn out that you generally could not bring your takings case in federal court, even after that, because there were various procedural rules which prevented that.

 

And the Supreme Court, in a decision written by Chief Justice Roberts, ruled that you cannot have this kind of catch-22 that essentially prevents you from bringing a case for a federal constitutional right in federal court from the front end. And then you're also prevented from doing so at the back end. And it specifically said that just as you can't do this with other federal constitutional rights in the Bill of Rights, you can't do it with the Takings Clause either.

 

What happens in this case is that same kind of catch-22 that you cannot, in the first instance, under the Fifth Circuit's logic, bring this case in federal court, and there would be procedural barriers at the back end if you went all the way to the state supreme court or whatever the highest available state is. You would have the same kind of procedural problems as then existed under Williamson County. But actually, this is even worse than the Williamson County regime was because when this case was brought in the first place it actually was initially brought in Texas State Court. And the State of Texas then removed the case to federal court under Statute 28 U.S.C. Section 1441.

 

And then, having removed the case to federal court, they then moved to have it dismissed on the basis that you can't actually bring a cause of action in federal court against a state government. So, if you buy the logic of this decision, it's worse than Williamson County because you can't bring your takings case against a state government in federal court. But you also can't bring it in state court because, if you do, the state will remove it to federal court and then get it dismissed. So, this is even a step beyond what the Supreme Court overturned when it reversed Williamson County.

 

Some of the defenders of the Fifth Circuit ruling, they have also said that maybe the issue is that, while the Fifth Amendment, itself, or in the Takings Clause, generally, you can bring a claim, you can't bring a claim for monetary damages or compensation. They somehow create a division between the Fifth Amendment and the Takings Clause, generally, and the specific claim for monetary compensation.

 

 However, the whole point of the Takings Clause is, in fact, to get people just compensation, which usually takes the form of monetary compensation when the government has taken — or, in this case, destroyed — their property or damaged it. So, this is a distinction without a difference. It just doesn't ultimately make any sense. And I would add that it's deeply at odds with the way that other parts of the Bill of Rights are treated.

 

Generally speaking, there is an assumption you can bring cases directly under them, including against state governments. If you could not, with respect to the Takings Clause, then the State of Texas and other states with similar legal regimes, could, in effect, take property with impunity and not pay compensation because they could use the same shenanigans that Texas used in this case to block the cases from being brought in either federal court or state court.

 

So, my expectation is it is very likely the Supreme Court will reverse this case. The only interesting question is what the vote count will be. Maybe it will be split along ideological lines, just like the Knick case was. It was split 5-4 with the four liberal justices wanting to maintain the existing precedent. But alternatively, it may be that some or all of the liberal justices may say, "We accept the logic of Knick," or at least, "We don't think Knick can be reversed at this time and, therefore, you have to accept the plaintiff's position in this case."

 

I'll move on now to Sheetz v. El Dorado. This is a case that comes from the Ninth Circuit. And here, too, I have a disclosure, albeit a less extensive one. This case is being litigated on behalf of the property owner by the Pacific Legal Foundation, which, it so happens, is also my wife's employer. She, herself, is not involved in this case. She's not part of the litigation team. And anybody familiar with my writings on property rights, I think, will see that my view on this case is not dictated by the fact that my wife happens to be employed by PLF. However, members of the media and others alert for conflicts of interest, you should know that this connection exists.

 

So, this is the case where Mr. Sheetz wanted to build a single-family home on a property he owns. And the local government slapped him with a $23,000 traffic mitigation fee, which they said he has to pay if he wants to build the home that he wants to construct. Unlike in Devillier, I think, as a substantive Takings Claim, there are serious arguments both ways here. But the reason why this case is before the Supreme Court is not because of the underlying substantive dispute about whether this would be a taking under normal takings standards or not.

 

Rather, it's because the California Court of Appeals ruled that this falls into a so-called legislative exception to takings liability for government exactions. What is the legislative exception? This is the idea: that certain kinds of impositions on property rights, they might be takings, or are takings by assumption, if an executive branch official did it or a government bureaucrat did it. But, if it's authorized by the legislature, then it's okay. And it's not a taking, even if, otherwise, it clearly would be.

 

So, the question before the Supreme Court is, is there really such a thing as this legislation exception to exactions takings, which are situations where the government says that before you can use your property in a particular way, or build something, you must give some resource or pay money or make some other concession to the government. And I think this, too, should be clear. There is simply no justification for a legislative exception to takings liability because the whole point of the Takings Clause and the Bill of Rights, generally, is to constrain the legislature, as well as other branches of government.

 

As the Supreme Court said in West Virginia v. Barnett, a famous First Amendment case, "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials." And that logic applies to the legislature no less than it applies to executive branch bureaucrats or other kinds of government officials. Now, some might argue, well, the legislative exception makes sense here because the legislature can be counted on to protect property owners. I think this is true in some cases. But it's not true in others.

 

Some property owners definitely have a lot of political power. Others definitely do not. And, obviously, the ones who do not are more likely to be victimized by these kinds of exactions. In addition, many of the victims of development restrictions are not the property owners directly, but, rather, people who could potentially move to the area, purchase or rent housing there, but they cannot because development restrictions or fees or the like have made it difficult or impossible to build new housing in response to demand.

 

And, almost by definition, people who don't already live under the jurisdiction of a particular local government, in most cases, they have little or no political leverage over the local government legislature, sometimes even the state legislature. And, therefore, their interests are not likely to be well-represented there. So, just as with Devillier, I think it is highly likely that the Supreme Court will reverse this.

 

I think it will be an interesting question whether they simply say, "There's no legislative exception at all," which is what I would argue should be done, or whether they might say, "Maybe there is one, but it's very narrowly construed," or something like that. And I think here, too, it will be an interesting question as to what the goal will be or whether or not it will be split along ideological lines.

 

I do believe there is a difficult issue here about, let's say, if there is no legislative exception, then was there a taking or not? But that question is not before the Supreme Court. If the Supreme Court reverses on the legislative exception issue, that question will be remanded, I believe, back to the California state courts and they will have to address that. So, on that note, I conclude. And I very much look forward to discussion and questions. Thank you.

 

Eli Nachmany:  Thank you so much, Professor. Our final panelist, Professor Chris Walker, you're going to talk to us about a couple of cases that have garnered a significant amount of attention. And those are Loper Bright Enterprises v. Raimondo, and Relentless Incorporated v. the Department of Commerce, the Chevron cases. I'll let you go.

 

Prof. Christoper J. Walker:  Great. So, in the Reagan administration, about 40 years ago, the Environmental Protection Agency decided that it wanted to make certain regulations under the Clean Air Act more business friendly. And so, they reversed a decision made in the Carter administration about how to regulate stationary sources at coal and power plants. And it eventually made its way all the way up to the Supreme Court in a case called Chevron v. NRDC, in which a unanimous, but not full court — there were some recusals — adopted what we know today as the Chevron deference doctrine, which is that courts that are reviewing agency statutory interpretations should defer to an agency's reasonable interpretation of an ambiguous statutory provision.

 

      Justice Stephens, writing for the Court in Chevron, said, "The reason we do this is because agencies have more expertise than we do, and because they're more politically accountable, and, thus, that's why Congress delegates to them, and not to us, the primary role in implementing and interpreting statutes that agencies administer." And that was the law of the land for the last four decades. In the last decade or so, or a little bit longer, there's been a conservative turn against Chevron, for a number of different reasons that maybe we'll get into in the Q&A, but I won't in my introductory case primer.

 

      And, eventually, a number of different justices — Justice Gorsuch, Justice Thomas, Justice Kennedy — in the Pereira case that Ambassador Rees mentioned, all expressed skepticism of Chevron, either that it's unconstitutional, it's unlawful, it's unwise, or we should otherwise get rid of it. And we have these two cases Eli mentioned this term. Loper Bright Enterprises v. Raimondo, and Relentless Incorporated v. Department of Commerce.  They actually deal with the exact same agency statute interpretation.

 

We originally had Loper Bright. That came out of the D.C. Circuit, so Justice Jackson was recused. And the Court added to its docket Relentless, I think, a few months later, after the briefing was almost complete in Loper Bright, coming out of the First Circuit, so that Justice Jackson could participate. The statutory interpretation there is actually pretty fun. It's about fishing and whether fishing boats have to pay for monitors on the boat. But it really also doesn't really matter much to the case, because the case is squarely presenting the question of should the Court overrule Chevron deference? Or should it at least accept some new limitation that silence in a statute does not mean that Chevron deference is available?

 

And so, you have before the Court a number of different arguments. I'd mentioned Loper Bright is a Paul Clement case. Relentless is a Phil Hamburger case. And they make constitutional arguments, statutory arguments, and policy arguments about why Chevron should be eliminated. On the constitutional front, you have two main arguments. The first is that this violates Article I of the Constitution or at least frustrates Article I values in that it encourages Congress to over-delegate. And the second is that this violates Article III values, that the Court, under Article III, has a duty to say what the law is and deferring to agency frustrates that value.

 

There's a variant of that argument in the Hamburger briefing and in his own scholarship, which is more of a due process argument that Chevron biases judges to rule in favor of individuals. In other words, it kind of loads the die in litigation in a way, so the government is more likely to win than not. As an empirical matter, he's right about that. That's why we have deference, so that government agencies have uniform interpretations of law. I don't think the Court's going to buy either constitutional argument, although Justice Gorsuch and Justice Thomas have gestured to them here and there.

 

I think the real action in this case is going to be more about statutory interpretation. In other words, is this precedent good law? The Chevron decision itself didn't cite the Administrative Procedure Act. But this case really is going to come down to whether Chevron deference is consistent with Section 706 to the Administrative Procedure Act. Pure textualists would read that statute and say, "That says that courts shall decide all questions of law and 'shall decide' means de novo review."

 

So that's like Professor Aditya Bamzai and Professor Duffy's approach from the University of Virginia. Other scholars, like Cass Sunstein and Ron Levin have taken a look at the same evidence and said, "Actually, no. What that means is that Congress, in 1946, when it enacted the Administrative Procedure Act, was codifying the backdrop principles of common law and deference that existed at the time, and some version of deference. Maybe not the Chevron two-step. But something existed at the time in 1946.

 

And I think that's really where the Court's going to have to spend a lot of its time, is figuring out, is this consistent with the Administrative Procedure Act, and the like. Now, as Eli mentioned at the beginning, Kent Burnett and I filed an amicus brief. We've done a lot of empirical work on Chevron deference over the year, showing the impact it has on the lower courts. And it does, really, at least ten years ago. And our data said it mattered a lot in the lower courts.

 

And our main argument is that this case should be easy, as a matter of stare decisis. It's relied on in thousands of decisions by the lower courts, by government agencies, by Congress, when it drafts statutes, and by the regulated public when it structures its affairs. And so, this isn't a time or place to kind of overrule the bedrock principle of administrative law today. And I realize not everyone loves stare decisis as much as I do, including some other of my fellow panelists. And that's fine.

 

But I do think that's really going to be where the Court has to really grapple with, "Are we going to get rid of this, as a matter of stare decisis?" And I don't think they will. Although I might just be drinking the Kool-Aid on this, since I've written a lot on Chevron over the years. But I do think it's quite possible that you might see something similar to what the Court did in Kisor v. Wilkie a couple of terms ago. 

 

Kisor dealt with a sister deference doctrine called Auer deference. That deference doctrine I think is even more lawless than Chevron deference. This is the idea that agencies get deference from interpretations of their own regulations. And the Court sidestepped it all, Justice Kagan writing for the Court what we say is kind of Kisor-ized Auer. It added additional steps, and it preserved the precedent, but added steps to it to make it more complicated and less deferential. And if I were to guess what the Court's going to do, it's going to do something similar. It's going to recognize some additional steps, otherwise add some additional guardrails or clarify what the guardrails are for when the agencies get deference.

 

And that's where the Court will go. At least, that's my prediction. We'll have to see how things play out in oral argument. I'm really interested to see what are the justices doing, with respect to stare decisis? And what are they focusing on there? And, also, what are the guardrails that they really discuss at oral argument that could rein in arbitrary agency interpretations while still preserving the agency's role to implement the statute that Congress has charged them to implement. So, I think I'll stop there. Thanks, Eli.

 

Eli Nachmany:  Excellent. Thank you so much, Professor Walker. There is one other case that we did not have a panelist for. So, I will briefly summarize it. That final case is Smith v. Arizona. It's a Confrontation Clause case. The Sixth Amendment provides that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him. This case concerns the applicability of that confrontation clause in a certain kind of forensic evidence cases.

 

In a case called Bullcoming v. New Mexico, a little over a decade ago now, the Supreme Court held that the Confrontation Clause gives criminal defendants the right to cross-examine forensic analysts who certify forensic lab results, unless that analyst is unavailable at trial and the accused had an opportunity, pre-trial, to cross examine that particular scientist. The issue in this case is about an offshoot of that fact pattern. And it's this: whether the Confrontation Clause permits the prosecution, in a criminal trial, to present testimony by a substitute expert.

 

So, somebody else, now, has come in. Not the original expert, but a substitute expert conveying the testimonial statements of a non-testifying forensic analyst, on the grounds that, A, the testifying expert offers some independent opinion and the analysts' statements are offered, not for the truth, but to explain the expert's opinion, and, B, the defendant did not independently seek to subpoena the analyst. So, kind of a Confrontation Clause case. Also, kind of a just general laws of evidence case.

 

It's a follow-on from a 2012 Supreme Court case called Williams v. Illinois. As the petitioners in this case see it, that case attempted to address a factual scenario left open by the Court's 2011 decision in Bullcoming, where an expert witness is asked for his independent opinion about underlying testimonial reports that were not, themselves, admitted into evidence. Williams yielded no majority opinion. It was a plurality opinion. Multiple justices have suggested that Williams has sown confusion across the country. So, we'll see if the Court will be able to clarify some of the Confrontation Clause issues before it in the case.

 

We can now get to the audience Q&A. So, I encourage folks to submit questions. And we only have a few. But the first question actually comes from somebody who was a panelist, but was an audience member, I guess, for a discussion of one of the other cases. Professor Somin, you wanted to ask a question of one of our other panelists. I'll let you go ahead.

 

Prof. Ilya Somin:  This is a question for Professor Rienzi about the no-fly list. I wonder if it could be the case, as I think it likely is, that the no-fly list is generally unconstitutional because it takes away an important liberty, in this case of the right to be transported on a plane, which is a major mechanism of travel in our society, and it does so without anything like sufficient due process, given that often the process is cursory. And there are many horror stories about people being put onto no-fly lists for extremely dubious reasons.

 

So, I understand that particular issue is not currently before the Supreme Court. But could and should the question of no-fly lists ultimately be resolved on that basis, that just the whole thing is unconstitutional, even aside from particular cases where somebody might be put on a list for reasons that threatened their religious freedom or the like? Thank you.

 

Mark L. Rienzi:  Yeah, it's certainly a fair argument. And it's one that I think Fikre is trying to advance, if you look at Fikre's brief at the Supreme Court. So, Fikre can't advance that claim. If his case his moot, Fikre can't advance that claim and say, "Your process for putting people on here is insufficient." There's no doubt, if you're put on the no-fly list, you are deprived of one of your liberties. And then, the Fifth Amendment question is simply, well, have you gotten whatever process is due? And you can imagine fighting about what the right level of process is for something like this.

 

      But Fikre's point is, "If you kick my case out at the front door, I can't even get to that." And Fikre provides, in the brief, a long list of cases where, once you get past the motion to dismiss stage where you might be able to present that, the federal government just takes particular people off the no-fly list and then doesn't have to answer that question. I don't know if there are any cases that have broken through and gotten to it in the lower courts. But I know it's something Fikre himself is trying to get to in this case.

 

Eli Nachmany:  Excellent. The next question, we do have a question from the audience. Professor Walker, this one's going to be for you. You touched on this a little bit in your remarks. But how important will a decision on Chevron be, as a practical matter, given, number one, the Court's rulings on the major questions doctrine, and, number two, what appears to be a more sincere commitment to the traditional tools of interpretation?

 

I guess the question adjacent to that is whether, assuming you agree Chevron is a canon of statutory interpretation, Chevron is subordinate to all the other traditional tools of interpretation, linguistic canon, substantive canons and the like. But I wonder, your thoughts on that. 

 

Prof. Christoper J. Walker:  So, in the last part of our amicus brief, we troll Paul Clement a little bit. Because Paul did a brief for the U.S. Chamber a couple of years before. Actually, maybe it's the year before in the Becerra v. American Hospitals case, where he says, "Chevron's fine. It actually represents constitutional values," kind of echoed the old judicial conservative ideas for why we should have Chevron that some of us still stick to.

 

      And he said, "And in any event, here’s the pathway to keep the right guardrails: step zero, step one, step two." Right? Major questions, now ambiguity, use all the tools. And then, step two, strike down if it's unreasonable or if they don't use the right procedures and all. And so, in our brief, we kind of just say, "Hey Court, there's no reason to get rid of Chevron, because you've already struck the right balance." I think that's right. Now, the flip side of that is, well, why don't you just get rid of it if it doesn't do anything anymore?

 

      And, from a stare decisis point, I think the argument is more, "this is why you keep it." But I do think we'll end up with it still mattering on minor questions where the agency has expertise and the Court might think there's a better answer than what the agency has, that the agency's might not be the best answer. But it's still a reasonable one. And I think you'd see that in a lot of different, highly scientific technical areas where the agency knows what they're doing, perhaps, better than a court.

 

      For what it's worth, in this case, in Loper Bright and Relentless, I think this is actually a pretty easy step-one case. And the agency doesn't have the authority to charge fishing companies to pay for monitors. I think it's actually pretty easy, from the text of the statute. And I'm kind of surprised that the D.C. Circuit didn't go in that direction. But I do think that if the Court does get rid of Chevron, we don't entirely know what's going to happen. I

 

It's hard to predict if Congress is going to legislate differently, if agencies are going to regulate differently, if parties are going to be more litigious and challenge things more often. And I think the anonymous attendee's question really hits why is it that we have the major questions doctrine and we have a much more searching step one inquiry under Chevron.

 

Eli Nachmany:  I'm going to kick it to Professor Rienzi, who I think wants to weigh in about Chevron deference and major questions.

 

Mark L. Rienzi:  One, I agree with Chris that even if the major questions doctrine is really muscular and does a lot of work, Chevron's still doing work on plenty of other minor technical questions. So, I think it would still matter. But one thing you could imagine the Court thinking about in a case like this is, the questioner points out, major questions and a heavier focus on -- I forget what the phrase was, "traditional" -- I lost the question.

 

Eli Nachmany:  Traditional tools of interpretation.

 

Mark L. Rienzi:  Great. Thank you. One thing to think about is there is just a difference between the Supreme Court and other courts. And it might be the case that this Supreme Court feels that it, itself, would apply the major questions doctrine strongly in a lot of cases. But if there is decades of precedent under Chevron, it's entirely likely that the lower courts wouldn't be all that quick to shift over and change what they're doing. It reminds me a little bit of the way the Court dealt with the establishment clause over the past few years, where, for a while the Supreme Court wouldn't touch Lemon.

 

It would not apply Lemon, so it wasn't reinvigorating Lemon. But it just kept ignoring it in key cases. And the Supremes can do that. But the problem really was, fine, but all the courts have built up the way that they do this. And so, eventually, the Supreme Court just had to come out and say, "Well, we've gone away from Lemon," and announce it more clearly to the lower courts. I can imagine they'd feel like they may need to do something like that here too, rather than rely on their own use of major questions.

 

Eli Nachmany:  Great. Thank you so much, Professor. We have one final question, because we do promise to get you out of here in 90 minutes or less. And this one is for Professor Somin, regarding Sheetz. How would you expect the Court to draw the line between permissible zoning power and unconstitutional legislative exactions if they do decide that there is no legislative exemption?

 

Prof. Ilya Somin:  It's an interesting question. I think what they will do is they simply say, "There is no legislative exception." But they could leave open the question of whether some kinds of government measures are just not takings at all, regardless of whether this is done by the legislature or not. Full disclosure, I'm actually working on an article arguing that much zoning actually is unconstitutional under the Takings Clause.

 

But that's a separate issue from the issue of the legislative exception because the defense of zoning — at least the traditional defense — is that it's not really a taking at all, regardless of whether it's legislative or not. And, on the other hand, in Sheetz, the issue is whether something that would be a taking if some other branch of government did it, would not be if it was done by the legislature. And those are distinct questions.

 

In principle, you could conclude there is no legislative exception, but still have a very narrow view of which kinds of government regulations qualify as takings. And the opposite is also logically possible. You could believe in a very broad theory of what kinds of government actions generally count as takings, but then say they still don't, or some of them still don't, when it's done by the legislature.

 

Eli Nachmany:  Well, I am extraordinarily excited to see what the Supreme Court does with these cases, to see how oral argument goes in these cases. The January sitting is just about upon us. Thank you all for joining us today. I want to thank the amazing panelists that we had here for truly a terrific discussion. And thank you to The Federalist Society for hosting this amazing Teleforum webinar. I will now hand it over back to FedSoc.

 

Nate Kaczmarek:  Well, very good. Our thanks for this preview panel. Very well done, everyone. We look forward to having you all join us again soon. Eli, thanks again for leading the discussion. We'll all be waiting to hear about your success with salmon rubs. The practice groups will follow SCOTUS closely in the coming weeks. So, stay tuned. We'll have additional practice group coverage of oral arguments coming your way soon. As always, audience feedback can be sent to us via email at [email protected]. With that, we are adjourned. Have a great day.