Venue disputes—specifically, between courts in Washington DC and those in the Fifth Circuit—are again on the horizon as a result of challenges to aggressive use of immigration-related laws by the Trump Administration.

In yesterday’s case of J.G.G. v. Trump, the D.C. Circuit denied an emergency motion to stay TROs against the use of the Alien Enemies Act to detain and remove Venezuelan citizens. No. 25-5067 (D.C. Cir. March 26, 2026). While the operative judgment of the panel comprises only a one-page order, each of the three judges wrote an opinion (two concurrences and one dissent), as follows:

• Judge Karen Henderson noted that the Act grants the President near-blanket authority to detain and deport noncitizens affiliated with a belligerent state during times of war or invasion.  However, she underscored the necessity of judicial oversight, stating, “The Alien Enemies Act sets forth ‘conditions upon which it might be invoked’ but is silent as to ‘how long the power should last when properly invoked.'”
• Judge Patricia Millett argued that the government’s position, which would allow for the summary removal of individuals without any opportunity for judicial review, was fundamentally at odds with the Constitution’s guarantee of due process.
• Judge Justin Walker’s dissent contended that the plaintiffs’ claims should have been brought in the Southern District of Texas, where they were detained, rather than in the District of Columbia.  He also argued that the district court’s orders interfered with sensitive national security operations.

In a famous dissent from a death-penalty case, Justice Harry Blackmun wrote: “From this day forward, I no longer shall tinker with the machinery of death ….”

Others have continued such tinkering, however, leading to the macabre question presented in Hoffman v. Westcott — whether the Eighth Amendment forbids execution by “nitrogen hypoxia” sa opposed to a firing squad.

The panel majority held that this question was for the state to resolve; the dissent, for the district judge based on the preliminary-injunction record. No. 25-70006-CV (March 14, 2025).

The recent vote against en banc review in Repub. Nat’l Comm. v. Wetzel, a case about the acceptable time frame for counting mail-in ballots, produced this configuration of votes and opinions:

Bruen, Rahimi, and their history-focused perspective on the Second Amendment led to a firearms restriction being held unconstitutional because:

“[T]he text of the Second Amendment includes eighteen-to-twenty-year-old individuals among ‘the people’ whose right to keep and bear arms is protected. The federal government has presented scant evidence that eighteen-to-twenty-year-olds’ firearm rights during the founding-era were restricted in a similar manner to the contemporary federal handgun purchase ban, and its 19th century evidence ‘cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.'”

Reese v. BATF, No. 23-30033-CV (Jan. 31, 2025) (citation omitted). (A demographer would note that the average lifespan in the 1790s was about 40 years, providing some perspective on the framers’ views about aging, although that number is likely skewed downward by the high infant mortality of the time.)

Stone v. Graham, 449 U.S. 39 (1980), holds:

“Posting of religious texts on the wall  serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.“

Unsurprisingly, then, the Fifth Circuit voted 14-3 on December 30 to reject an overly enthuastic application for en banc hearing in Roake v. Brumley – the challenge to a Louisiana law about display of the Ten Commandments that is flatly inconsistent with the above Supreme Court holding.

Repub. Nat’l Comm. v. Wetzel  held that a Mississippi statute, allowing absentee ballots to be received up to five days after Election Day, is preempted by federal law, which mandates that all ballots must be received by Election Day. The court emphasized that the term “Election Day” refers to a singular day. Slate’s Mark Stern offers some provocative commentary about the potential impact – or lack thereof – of this ruling. No. 24-60395, Oct. 25, 2024.

In Tesla, Inc. v. Louisiana Automobile Dealers Assoc., the Fifth Circuit addressed Tesla’s challenges to Louisiana’s automobile dealership regulations, which prohibit manufacturers from selling directly to consumers and performing warranty services for cars they do not own.

• Due Process. The Court found that Tesla had plausibly alleged a due process violation. The Commission’s composition, with members who are direct competitors of Tesla, created a “possible personal interest” that could bias their decisions, which was sufficient for the Rule 12 stage.
• Antitrust. From there, the Court vacated and remanded the dismissal of Tesla’s antitrust claim, noting that the due process ruling fundamentally altered the grounds on which Tesla’s alleged antitrust injury was based. Tesla’s allegations of exclusion from the market due to the Commission’s actions could constitute a plausible antitrust injury.
• Equal Protection. The Court affirmed dismissal of Tesla’s equal protection claim, concluding that preventing vertical integration and potential abuses of market power were legitimate state interests justifying the regulations.

A dissent saw matters differently, focusing primarily on the due-process claim and its reliance on board structure. No. 23-30480, August 26, 2024.

The en banc court has ruled for Texas in the ongoing “border buoy” dispute, with a breakdown of votes as follows:

In 2022, the Fifth Circuit held that the CFPB’s funding was “double insulated” from Congressional review, and thus violated the Appropriations Clause of the Constitution.

In a recent 7-1 opinion by Justice Thomas, the Supreme Court reversed and held otherwise. Notably, “double” or “doubly” appears nowhere in the Supreme Court’s majority or concurring opinions. The Court held that “an identified source and purpose are all that is required for a valid appropriation.”

Now, Consumers’ Research v. FCC, a 9-7 en banc opinion from the Fifth Circuit, doubles down on this line of argument, holding that the method used to calculate a “universal service fee” for the communication industry is unconstitutional as a “double-layered delegation” of power. The dissent observes that “Congress has provided the FCC with an intelligible principle that sufficiently delimits the FCC’s discretion based on the established universal service principles.” No. 22-60008 (July 24, 2024) (en banc).

The Horseracing Integrity and Safety Act of 2020, and its novel use of a private entity (the “Horseracing Integrity and Safety Authority”) to make and enforce rules for horse racing, did not fare well on a previous visit to the Fifth Circuit. A return trip received a more favorable reception:

In sum, we affirm the district court’s judgment that (1) Congress’s recent amendment to HISA cured the private nondelegation flaw in the Authority’s rulemaking power; (2) HISA does not violate due process; (3) the Authority’s directors are not subject to the Appointments Clause under Lebron; and (4) Gulf Coast lacks standing to challenge HISA on anticommandeering grounds. We reverse the district court’s judgment in one respect. Insofar as HISA is enforced by private entities that are not subordinate to the FTC, we DECLARE that HISA violates the private nondelegation doctrine.

National Horsemen’s Benevolent & Protective Association v. Black, No. 22-10387 (July 5, 2024). The private-nondelegation holding creates a split with the Sixth Circuit.

Fifth Circuit affirmed in SEC v. Jarkesy:

A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator. Rather than recognize that right, the dissent would permit Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch. That is the very opposite of the separation of powers that the Constitution demands. Jarkesy and Patriot28 are entitled to a jury trial in an Article III court.

No. 22-859 (U.S. June 27, 2024).

The Supreme Court reversed the Fifth Circuit’s judgment in Murthy v. Missouri, a case about interaction between the federal government and social-media platforms during the COVID-19 pandemic. Again, the ground of reversal with standing, with the Supreme Court finding that the plaintiff’s claim of future injury was too attenuated, and that a “right-to-listen” theory of standing was not viable. No. 23-411 (U.S. June 26, 2024).

In 2022’s Bruen opinion, the Supreme Court disapproved of “means-ends” analysis in Second Amendment cases:

In today’s Rahimi opinion, the Supreme Court walked that disapproval back, while nominally following the same history-based test:

The result was an 8-1 reversal of the Fifth Circuit opinion holding that the subject of a domestic protective order had a Second Amendment right to carry a firearm. (I argued that the Fifth Circuit’s opinion took “history” too far in this Dallas Morning News editorial last year.)

“Double, double, toil and trouble,” chanted the three witches of Macbeth.  “Double insulated,” said the Fifth Circuit in CFSA v. CFPB, holding that the Consumer Financial Protection Bureau’s funding mechanism was so far removed from Congress’s ordinary appropriations process that it violated the Appropriation Clause of the Constitution. Parting company with the above, the Supreme Court didn’t use the word “double” in reversing the Fifth Circuit, and holding that the CFPB is appropriately funded, considering history and practicality. CFPB v. CFSA, No. 22-448 (U.S. March 16, 2024).

The Fifth Circuit’s recent en banc vote in Consumers’ Research v. CPSC, an unsuccessful constitutional structure to the Consumer Product Safety Commission in light of recent Supreme Court precedent, is summarized in the below chart. The vote was accompanied by a concurrence and two dissenting opinions.

The surprisingly slippery question whether Texas law allows a takings claim to proceed against the state came to an anticlimactic end with the Supreme Court’s opinion in DeVillier v. Texas:

As Texas explained at oral argument, its state-law inverse-condemnation cause of action provides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause. …  And, although Texas asserted that proceeding under the state-law cause of action would require an amendment to the complaint, it also assured the Court that it would not oppose any attempt by DeVillier and the other petitioners to seek one.

No. 22-913 (U.S. April 16, 2024).

After an earler (unexplained) grant of an administrative stay touched off weeks of fast-paced appellate litigation about Texas’s “SB4” immigration law, a majority of the Fifth Circuit’s merits panel denied any further stay of the trial court’s injunction against enforcement of that law. USA v. Texas, No. 24-50149 (March 26, 2024). Argument is scheduled next week; barring Supreme Court intervention, merits opinions similar to these are likely.

This morning’s Supreme Court arguments in the mifepristone cases (which will be available here when ready) lead to a couple of observations about legal issues of the day:

1. Standing. As the Washington Post effectively summarized: “A majority of justices from across the ideological spectrum expressed skepticism that the antiabortion doctors challenging the government’s loosening of regulations have sufficient legal grounds — or standing — to bring the lawsuit.” (Last year, I wrote about the “conservative” approach to standing in high-profile constitutional cases in a Slate article, and the application of basic standing principles in the mifepristone cases in this Dallas Morning News editorial.)
2. Comstock. Justice Holmes famously observed: “The common law is not a brooding omnipresence in the sky.” But the Comstock Act is, and Congress should do something about the law before its 1870s-era moralism is inflicted on modern society. Mark Stern’s X feed on the mifepristone arguments summarizes some of the present state of play.

In the 1950s, Big Tobacco advertised the safety of “Kent with the Micronite Filter,” which was unfortunately made with an exceptionally dangerous form of asbestos. After decades of advertising bans and mandatory disclosures, the battle over cigarette ads continues, leading most recently to R.J. Reynolds Tobacco Co. v. FDA – a First Amendment challenge to new, more graphic disclosures about the potential harms of smoking.

The Fifth Circuit rejected the challenge (reversing a contrary district-court opinion) and remanded for consideration of claims involving the Administrative Procedure Act. As to the First Amendment issues, the Court summarized:

When determining whether Zauderer applies, (1) images can be factual; (2) ideological or emotion-inducing statements are not per se controversial or non-factual; (3) “uncontroversial” means not subject to good-faith dispute about the accuracy of the factual statement; and (4) legitimate state interests other than the prevention of consumer deception are cognizable under Zauderer. For the reasons detailed above, the district court erred by finding Zauderer inapplicable to the FDA’s newest Warnings. Applying Zauderer, the Warnings survive constitutional muster against the First Amendment challenge.

No. 23-40076 (March 21, 2024).

In United States v. Abbott, Texas contends that the Rio Grande is not navigable, which allows it to place a floating barrier in the river to deter navigation. After a Fifth Circuit panel affirmed the district court’s injunction against the barrier, the Court voted to take the case en banc, after which the district court placed the underlying case on a rapid schedule. Texas sought a stay, which the en banc Court denied for a variety of reasons:

The mifepristone litigation – recently selected by Law360 as the most notable case of 2023 from the Fifth Circuit – will be heard by the Supreme Court. While it did not grant the petition about the original approval of mifepristone, a wide range of significant issues–including important standing questions, and the modern viability of the Comstock Act–are ripe for decision as part of the granted petitions:

Whatever your views of the remarkable civil-rights issue presented by Wilson v. Midland County (the intersection between some highly technical immunity rules and the bizarre injustice of a county employee working simultaneously for the prosecution and the courts), one can admire the deft prose of Jude Willett’s opinion:

Eschewing exotic constitutional issues about a state’s rights to engage in military activity, the Fifth Circuit affirmed a preliminary injunction requiring Texas to remove an obstacle from the Rio Grande, citing the federal government’s exclusive authority as to navigable waters. United States v. Abbott, No. 23-50632 (Dec. 1, 2023). A dissent had a different view; some serious consideration of en banc review is likely.

In Louisiana Creole cooking, gumbo is a flavorful, roux-based soup made with the ingredients available to the chef. Similarly, Alliance for Fair Board Recruitment v. SEC addresses a host of constitutional issues of the day, including the questions whether a board-membership disclosure requirement by Nasdaq can be “state action”; whether the SEC’s approval of such a rule exceeded its statutory authority (including the subsidiary questions whether that action infringed on state sovereignty or involved a “major question”); and whether the SEC properly assessed the relevant record in reaching its conclusion. Unusual for the Fifth Circuit, the panel consisted of three judges appointed by Democratic presidents. It remains to be seen what the view of the full court will be on these matters. No. 21-60626 (Oct. 18, 2023).

The remand of Collins v. Yellen, 141 S. Ct. 1761 (2020) did not end well for the plaintiffs, as the district court concluded that they “had not plausibly alleged that the removal restriction” on FHFA’s director caused them harm. The plaintiffs made a valiant effort to bring the case within the scope of a recent Fifth Circuit holding about the Appropriations Clause, but the Fifth Circuit found that its holding in that case did not create a change in the relevant law that was sufficient to overcome the mandate rule. Collins v. Dep’t of the Treasury, No. 22-20632 (Oct. 12, 2023).

The Supreme Court has granted review of three social-media regulation cases, one of which is the 2022 2-1 panel opinion by the Fifth Circuit in Netchoice v. Paxton, which conflicts with a 2022 opinion from the Eleventh Circuit about similar subject matter. These are the two issues referenced in the Court’s order granting review:

The Fifth Circuit’s mifepristone opinion has been released (although the trial court’s order remains stayed by an earlier ruling from the U.S. Supreme Court) – of particular interest is the panel majority deciding not to address the issue presented about the Comstock Act:

I discuss the importance of this point in a recent article in Slate, as does Professor Mary Ziegler in another Slate piece.

Just a few days before the Supreme Court’s opinion in 303 Creatiive, a Fifth Circuit panel reached a similar result in a related setting (here, the hiring and workpace practices of a church and a “Christian business”):

[W]e decide that RFRA requires that Braidwood, on an individual level, be exempted from Title VII because compliance with Title VII post-Bostock would substantially burden its ability to operate per its religious beliefs about homosexual and transgender conduct. Moreover, the EEOC wholly fails to carry its burden to show that it has a compelling interest in refusing Braidwood an exemption, even post-Bostock.

Braidwood Management v. EEOC, No. 22-10145 (June 20, 2023).

In May 2022, a Fifth Circuit panel held in Jarkesy v. SEC that the Seventh Amendment’s right to civil jury trial extends to an SEC enforcement action. The full Fifth Circuit later denied en banc review of the matter.

Critics of the administrative state celebrated the ruling as an important limit on agency power; others questioned whether “originalism” was fairly applied to an agency and a set of statutes that did not exist in 1792.

On June 30 of this year, the Supreme Court granted review of Jarkesy, which will be a fascinating addition to the next term of that court:

The high-profile police-shooting case of Edwards v. City of Balch Springs ended with an affirmance of dismissal on qualified-immunity grounds. Among other holdings, the opinion succinctly captures the challenge in scrutinizing official use-of-force policies in this setting:

“[A] written policy is not facially unconstitutional just because it leaves out ‘detailed guidance that might have averted a constitutional violation.’ If it were otherwise, a use-of-force policy would be facially constitutional only if it recited every jot and tittle of the applicable caselaw. Surmounting that logistical hurdle would produce a behemoth free of any practical use—less a policy than a treatise.”

No. 22-10269 (June 9, 2023).  (The phrase “jot and tittle,” btw, has a Biblical origin related to pen strokes used to write Hebrew.)

Despite skepticism in other opinions about vaccination programs in response to the COVID pandemic (especially when religious-liberty issues are in play), the Fifth Circuit reversed and rendered judgment for a prison doctor who administered an antipsychotic drug to a dangerous prisoner. The Court reasoned, inter alia: “[E]mergency  circumstances justify the abbreviation or elimination of pre-deprivation procedures like hearings.” Pinkston v. Kuiper, No. 21-60320 (May 4, 2023) (per curiam).

Without reference to the Federalist Papers or the records from the Constitutional Convention, the Fifth Circuit held in Consumers’ Research v. FCC that the six criteria in 47 U.S.C. § 254(b) gave the FCC “intelligible principles” to guide its regulation of communication, unlike the “total absence of guidance” identified last year in Jarkesy v. SEC, 34 F.4th 446 (5th Cir. 2022). No. 22-60008 (March 24, 2023).

The original panel opinion in Devillier v. State of Texas, No. 21-40750 (Nov. 28, 2022) (footnotes omitted), said that in federal court “the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action for takings claims against a state,” but in state court, “[t]he Supreme Court of Texas recognizes takings claims under the federal and state constitutions, with differing remedies and constraints turning on the character and nature of the taking ….” Devillier v. State of Texas, No. 21-40750 (Nov. 28, 2022) (footnotes omitted).

The panel revised its opinion in January to say only: “The State of Texas appeals the district court’s decision that Plaintiffs’ federal Taking Clause claims against the State may proceed in federal court. Because we hold that the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action for takings claims against a state, we VACATE the district court’s decision and REMAND for further proceedings. Nothing in this opinion is intended to displace the Supreme Court of Texas’s role as the sole determinant of Texas state law.” A detailed footnote described the Texas Supreme Court’s holdings in this area.

An en banc vote proceeded, which produced an 11-5 vote against rehearing, released on March 23, 2023:

The en banc Fifth Circuit affirmed a nationwide injunction against President Biden’s federal-employee vaccine mandate, concluding that the relevant statute did allow federal jurisdiction over such issues. The breakdown of opinions in Feds for Medical Freedom v. Biden is as follows:

Last year the Fifth Circuit held that the Consumer Financial Protection Bureau was funded through an unconstitutional mechanism that circumvented the Congressional appropriations process. That matter is now before the Supreme Court. The Second Circuit has now joined the fray in CFPB v. Law Offices of Crystal Moroney, P.C., No. 20-3471 (March 23, 2023), joining the D.C. Circuit in finding that the CFPB’s funding mechanism does not violated the Appropriations Clause.

The Fifth Circuit updated its panel opinion in United States v. Rahimi. The holding  remains the same (that the federal law, criminalizing the possession of a firearm by someone subject to a domestic violence protective order, violates the Second Amendment), but the majority opinion adds explanation about what its holding does, and does not, affect. No. 21-11001 (March 2, 2023) (withdrawing and substituting prior opinion).

While I wrote an op-ed in the Dallas Morning News about the original opinion, noting that the Fifth Circuit had found the same statute constitutional under the pre-Bruen Second Amendment framework, I had not fully grasped the contrast until reading the revised opinion. The Fifth Circuit’s previous opinion turned on “means-end scrutiny” — in other words, a comparison of benefit and burden. The present opinion thus finds this law unconstitutional (as it must under its analysis of Bruen) even though Circuit precedent says that the law did not unduly burden gun rights when compared to the law’s policy objectives. It thus provides a particularly stark example of the impact of Bruen‘s history-only framework on the law in this area.

A case now pending in the Amarillo Division of the Northern District of Texas challenges the FDA’s approval of one of the drugs commonly used to carry out a “medication abortion,” including a question whether the 19th-Century Comstock Act prohibits the mailing of abortion-related medication.  A decision is expected after preliminary-injunction briefing closes on February 24. This is the plaintiffs’ brief in support of a preliminary injunction, and this is the defendants’ response.

Referring to a federal law that prohibits firearm ownership by someone subject to a domestic-violence restraining order, the Fifth Circuit holds in United States v. Rahimi:

“Doubtless, 18 U.S.C. § 922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an ‘outlier[] that our ancestors would never have accepted.’ Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.

No. 21-11001-CR (Feb. 2, 2023) (citation omitted).

In a time of well-documented skepticism in the federal courts about the administrative state, the FTC has doubled down, seeking public comment on a rule that would ban enforcement of noncompetition agreements.

As part of the explanation for its authority, the FTC cited authority that “Section 5 reaches conduct that, while not prohibited by the Sherman or Clayton Acts, violates the spirit or policies underlying those statutes.” That broad language will sound familiar to readers of the vaccine-mandate cases and their discussions of the EEOC’s rulemaking authority.

Given the present climate in the courts about expansive claims of agency authority, it seems likely that any FTC rule in this area will lead to extensive litigation before such a rule actually takes effect.

In Louisiana v. Biden, No. 22-30019 (Dec. 19, 2022), a panel majority invalidated a Presidential vaccination mandate, holding: “This so-called ‘Major Questions Doctrine’ – that is, that ‘[w]e expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,’ – serves as a bound on Presidential authority.” (citation omitted, emphasis added, applying West Virginia v. EPA, 142 S. Ct. 2587 (2022)).

A dissent saw matters otherwise. A commentator in Slate criticized the expansion of the major questions doctrine to actions by the executive branch. On this general topic, I’ve suggested in Law360 that the major questions doctrine may have the unintended consequence of justifying Congressional restrictions on Article III jurisdiction.

12-3 (one recusal), the full Fifth Circuit denied en banc review in Freedom From Religion Foundation v. Mack, in which the panel found no coercion (and thus no standing) in a challenge to a Texas JP’s pre-court practices.

By a 9-7 vote, the Fifth Circuit declined to review en banc the panel opinion in Seekins v. United States. Under well-established Circuit precedent, Seekins presented a straightforward application of a criminal statute about possession of ammunition that had moved in interstate commerce. The petitioner directly challenged that precedent, arguing that it rested on an overly broad reading of Congress’ power to regulate interstate commerce. Plainly, the close vote signals the Court’s willingness to reconsider longstanding concepts about that constitutional provision. The breakdown of votes is below:

In federal court, “the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action for takings claims against a state,/” but in state court, “[t]he Supreme Court of Texas recognizes takings claims under the federal and state constitutions, with differing remedies and constraints turning on the character and nature of the taking ….” Devillier v. State of Texas, No. 21-40750 (Nov. 28, 2022) (footnotes omitted).

The plaintiffs in National Horsemen’s Benevolent & Protective Ass’n v. Black sought to rein in the Horseracing Integrity and Safety Authority, a private entity created by Congress in 2020 – nominally under FTC oversight – to nationalize the regulation of thoroughbred horseracing.  The Fifth Circuit scratched HISA, finding it facially unconstitutional as an excessive private delegation of federal-government power:

A cardinal constitutional principle is that federal power can be wielded only by the federal government. Private entities may do so only if they are subordinate to an agency. But the Authority is not subordinate to the FTC. The reverse is true. …  HISA restricts FTC review of the Authority’s proposed rules. If those rules are “consistent” with HISA’s broad principles, the FTC must approve them. And even if it finds inconsistency, the FTC can only suggest changes. … An agency does not have meaningful oversight if it does not write the rules, cannot change them, and cannot second-guess their substance.

No. 22-10387 (Nov. 18, 2022) (citations omitted, emphasis added).

For those who had doubts about the matter, Foley Bey v. Prator confirms that the search of a fez is protected by qualified immunity if conducted as part of courthouse security, notwithstanding the plaintiffs’ appeal to the U.S.-Morocco Friendship Treaty of 1836. (The digital image to the right could be called a hi-res fez.) No. 21-30489 (Nov. 17, 2022).

In the 1985 classic, “Return of the Living Dead,” a rainstorm spreads a zombie-creating chemical throughout a city. In 2022, the Supreme Court’s relentless focus on originalism in cases like Dobbs has also awakened long-dead legal doctrines (even as it put to bed the prospects for a “Red Wave” in 2022’s Congressional elections).

Such a resurrection can be seen in the concurrence from Golden Glow Tanning Salon v. City of Columbus, No. 21-60898 (Nov. 8, 2022), which advocates an examination of a “right to earn a living” in light of how such economic matters were understood in the late 1700s.

Of course, that phrasing is precisely how the Supreme Court described the issue in Lochner v. New York, the long-discredited 1905 opinion that struck down a maximum-hour restriction in the baking industry:

“Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual ….”

The Supreme Court abandoned Lochner in the 1930s when laissez-faire ideas proved useless in the face of a systemic failure of capitalism itself. There is, of course, ample room for argument about the proper role of government in the economy.  But the invocation of “originalism” to simply ignore Lochner ‘s failure is not consistent with the recognized best practices for battling zombies.

The Fifth Circuit recently declined to review Jarkesy v. SEC en banc; the division of votes was as follows (names in blue were appointed by a Democratic president; red, by a Republican one):

CFSA v. CFPB finds – again – that the Consumer Financial Protection Bureau is unconstitutionally structured, but this time because its “double insulated” funding mechanisms violated the Appropriations Clause by circumventing Congress’ “power of the purse.” The arguments about that fundamental Constitutional provision are intriguing and seem likely to draw the Supreme Court’s interest. No. 21-50826 (Oct. 19, 2022). The Fifth Circuit’s treatment creates a split with seven other federal courts, including PHH Corp. v. CFPB, 881 F.3d 75 (D.C. Cir. 2018). A recent Slate article offered criticism of the opinion.

The opinion also presents a rare appearance of the word “magisterial” to describe an earlier case on this topic:       Cf. Herman Hesse, “Magister Ludi” (1943).

It’s been a busy fall for the Dormant Commerce Clause. In addition to the Fifth Circuit’s recent invalidation of a Texas law about the ownership of electricity-generation facilities, the Court also struck down a New Orleans residency requirement for the ownership of Vrbo-type rental properties:

The district court held that the residency requirement discriminated against interstate commerce. That was the right call. But the court then applied the Pike test [for an incidental effect] to uphold the law. That was a mistake; it should have asked whether the City had reasonable nondiscriminatory alternatives to achieve its policy goals. Because there are many such alternatives, the residency requirement is unconstitutional under the dormant Commerce Clause.

Hignell-Stark v. City of New Orleans, No. 21-30643 (Aug. 22, 2022).

In addition to the Court’s holding about the dormant Commerce Clause, NextEra Energy Capital v. Lake explained why the plaintiff’s claim based on the Commerce Clause was properly rejected (with citations omitted, although the citations are valuable and instructive):

          One of the original Constitution’s only express limitations on state power, it directs that “No State shall … pass any …  Law impairing the Obligation of Contracts.” The Contracts Clause was a response to the state laws relieving debtors during the 1780s. In the first century or so of the Republic, before the Bill of Rights restricted states, the Contracts Clause was “the primary vehicle for federal review of state legislation.”  Some of the greatest hits of the antebellum Supreme Court were Contracts Clause cases.

          But unlike the dormant Commerce Clause, the Contracts Clause is not what it once was. The Supreme Court substantially narrowed its scope during the Great Depression. Under modern caselaw, states have some leeway to alter parties’ contractual relationships “to safeguard the vital interests of [their] people.”

          A related principle that has sapped the Contracts Clause of its earlier force applies here. We now recognize that parties contract with an expectation of possible regulation. That is especially true in highly regulated industries like power. That history of regulation put NextEra on notice that Texas could enact additional regulations affecting its two projects.  After Order 1000, there was substantial uncertainty about how state regulators would respond.

          Despite PUCT’s declaration that transmission-only companies could enter the market, Texas courts never weighed in on the issue. Moreover, the emergence of state rights of first refusal signaled that Texas could enact something similar, if not more restrictive.

No. 20-50160 (Aug. 30, 2022).