Dorf on Law

The very first question during the oral argument in  FDA v. Alliance for Hippocratic Medicine , posed by Justice Thomas to Solicitor General Prelogar, was this: "if we agree with you on standing, could you give us an example of who would have standing to challenge . . . these FDA actions?" It was a good question. Already this week, both Professor Segall and I have argued separately that the Court should deny standing to the particular plaintiffs, with my contribution also explaining how the Court might do so. Justice Thomas was implying that under the SG's account of why these plaintiffs lack standing, it's hard to imagine any plaintiff who does have standing. If that's right, is it a problem? Not necessarily. As the SG would eventually note, the Supreme Court's cases say that the fact that no one has standing to challenge some government action is not a reason to find standing where it is otherwise lacking. Even so, one might worry that if no one has standi...

Note to readers: This guest column was written by Donald J. Murdaugh, Class of '25 at the University of Florida Levin College of Law.   As many readers of this blog are aware, in 2022, during the heat of his war against “woke,” Florida Governor Ron DeSantis signed into law the bill known colloquially as Don’t Say Gay. A little over two weeks ago, a group of plaintiffs who had challenged the law’s constitutionality in federal court signed a Settlement Agreement (the “Settlement”) with the Florida Department of Education (“DoE”). The group of plaintiffs, comprising students, parents, educators, and pro-LGBTQ advocates, hailed the Settlement as a victory that protects civil liberties for LGBTQ students and educators. Specifically, their attorney claimed that the Settlement “safeguards against hate and bullying” and said, “Simply put, the State of Florida has now made it clear that L.G.B.T.Q.+ kids, parents and teachers in Florida can, in fact, say they are gay...

Cutting to the chase, I agree with Amy Howe's assessment  (on SCOTUSblog) of yesterday's Supreme Court oral argument in FDA v. Alliance for Hippocratic Medicine   that, one way or another, SCOTUS will likely reverse the Fifth Circuit, with the result that mifepristone remains available without the requirement of in-person dispensation and in accordance with the protocol approved in 2016. The simplest way to get there would be to hold that the plaintiffs lack standing. As Professor Segall argued on this blog on Monday, although standing doctrine is notoriously manipulable, the plaintiffs' argument for standing is extraordinarily weak here. To recap very briefly, here's the chain of causation the plaintiffs invoke to try to demonstrate an imminent injury: (A) The FDA changes in 2016 (allowing mifepristone to be used somewhat later in pregnancy than before, at a lower dose, and without the requirement to report certain adverse events) and 2021 (allowing dispensation by ma...

I often point out that politicians and media commentators in the US are too often captives of the conventional wisdom .  Although that makes them lazy and thus dangerous, they are at least saying things that they think are thoughts .  That is, they will talk about Social Security supposedly going bankrupt (not true), or they will say that Democrats should not tell people how to "feel" about inflation (which is silly ), but they say these things because they think that it is important to take a position on a policy issue.  Mindlessly aligning oneself with the conventional wisdom is lazy and almost always gets it wrong, but it passes for thinking in a minimal sense. Arguably worse would be the rote repetition of statements that seem to be uncontroversial but have become anything but.  Are there any examples of that?  Yes, there is at least one, and it is unfortunately a very high-stakes error.  Countless commentators and politicians -- and this is truly non-i...

Tomorrow, the Supreme Court will hear a made-up abortion case brought by anti-choice doctors because they want to do everything imaginable to make sure women cannot use abortion medications in states where abortion is legal. This suit is an attempt to change national policy regarding abortions brought by people who have suffered no injury at all and are unlikely to suffer any injury in the future. Of course, the Fifth Circuit Court of Trump found the plaintiffs had standing and then issued absurd rulings, which the Supreme Court stayed pending its decision in this litigation later this Term. Given the incoherence and malleability of standing doctrine, anything can happen in standing cases and usually does. Yes, standing is the WWE of constitutional law: all show, no substance. And yet, there are rare extreme cases where the lack of standing is so obvious that reasonable people should agree the Court simply should not hear the case. This dispute is one of those. The background to this...

My latest Verdict column discusses this week's maneuvers in the litigation over Texas S. B. 4--which, as I explain in the column,  makes it a state crime for an undocumented immigrant to enter Texas, imposes severe penalties, authorizes state deportation to Mexico regardless of the nationality of the undocumented immigrant, and requires state court judges to proceed with state criminal and deportation measures even if the undocumented immigrant is in the midst of a federal proceeding (such as adjudication of an asylum claim) that could result in permission to remain in the country. The column describes how: (1) the federal district court properly enjoined S. B. 4; (2) the Fifth Circuit then issued an administrative stay of that injunction but also stayed its stay for up to seven days pending an application to vacate the administrative stay in the Supreme Court; (3) the Supreme Court declined to vacate the stay , which meant that the stay of the stay was dissolved, so the stay went...

My latest V erdict column, Delaying Trump’s Trials Is What Savvy Democrats Should Have Wanted All Along , extends my argument that Donald Trump's obvious desire to delay his criminal trials -- with notable success thus far -- is counterintuitively good for the country.  In Dorf on Law columns published last summer (on June 28 and August 4 ) and on February 29  of this year, I argued that any type of pre-election "vindication" of Trump, most likely a hung jury, would have a very bad impact on the election.  I also argued that, other than the idolators who deny Trump's manifest guilt, no one would feel that justice had been served if Trump were somehow convicted and then jailed, only to become President again and walk free after only a few weeks or months behind bars. The best (perhaps only) potential reason to reject my argument is that a conviction before November 5 could change the outcome of the election, turning either a Trump win into a Biden win or a small Bid...

I continue to ping-pong between writing hair-on-fire columns about the end of (political) days and penning analyses of old-fashioned policy questions.  The latter continue to bubble up not only because I genuinely care about them but also because I need to preserve my mental health.  Last Thursday's column was a bit of both, as I discussed inflation as a matter of economics while also arguing the political point that Democrats should not shy away from telling people the good news that inflation is no longer a problem. At one point in that column, I wrote this: [A]nnual inflation through January was 2.5 percent ... [a]nd because the Fed's target rate of inflation is 2.0 percent (which is an arbitrary target that is in fact too low , but I digress), inflation is now essentially already back to where the Fed wants it to be.  Seriously, a 0.5% difference is nothing in this context, and people who would make a big deal about it are either dishonest or irrationally ultr...

During the oral argument yesterday in Murthy v. Missouri , Justice Jackson repeatedly attempted to turn the focus away from the issues on which the advocates and other Justices mostly focused--whether any plaintiff has standing and whether the government's jawboning of social media companies regarding anti-vax disinformation, election denialism, and other harmful content rendered those companies' actions with respect to users "state action" subject to the First Amendment. Justice Jackson asked questions indicating she thought that the real issue was whether the government's underlying objection to the users' content was sufficiently justified. At one point, she offered the following provocative example: Suppose someone started posting about a new teen challenge that involved teens jumping out of windows at increasing elevations. This is the challenge. And kids all over the country start doing this. There's an epidemic, children are seriously injuring or ev...