Yesterday, I expressed frustration how the Court narrowly construed, and indeed reimagined, the record in Bondi v. VanDerStock. Worse still, the Court applied Salerno to reject a facial challenge to a regulation. This move amply rehabilitates Chevron. And why did the Court do this? In my jaundiced view, the Justices were looking for a narrow way to reverse the Fifth Circuit.
Another day, another reversal of the Fifth Circuit. This time, the Court unanimously remanded the en banc Fifth Circuit in FDA v. Wages and White Lion Investments, LLC. Justice Alito's majority opinion is striking in how narrowly it reads the record and the question presented.
For example, Justice Alito's opinion states:
In a footnote, the en banc majority also suggested thatthe FDA had violated a provision of the TCA's notice-and-comment requirements, see 21 U. S. C. §§387g(c)–(d), by imposing a "de facto ban on flavored e-cigarettes" through mass adjudicatory denials, 90 F. 4th, at 384, n. 5.
Suggested? Here is the footnote from Judge Oldham's en banc majority opinion:
FDA's categorical ban has other statutory problems. For example, the TCA states that FDA must follow notice-and-comment procedures before adopting a "tobacco product standard." See 21 U.S.C. § 387g(c)–(d). And Congress specifically called a ban on tobacco flavors a "tobacco product standard." See id. § 387g(a)(1)(A) (referring to tobacco flavors, "including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke"); see also id. § 387g(a)(2) (cross-referencing noticeand- comment obligation to revise flavor standards). FDA unquestionably failed to follow § 387g's notice-and-comment obligations before imposing its de facto ban on flavored ecigarettes.
This is not a suggestion. It seems like a definitive statement of illegality. Is there really some new rule now that an issue not properly preserved unless it is raised in the body of an opinion? Or is this only a rule for circuits abutting the Gulf of America? It does seem different rules apply to the Fifth Circuit.
Justice Alito further argues that the notice-and-comment issue is only "touched on" in the Respondents' brief:
The question we agreed to decide is whether the FDA acted arbitrarily and capriciously in denying respondents' applications for premarket approval of their tobacco products. See Pet. for Cert. I. But before tackling that question, we briefly address as a preliminary matter an argument that is touched on in respondents' brief: namely, that either the APA or the TCA required the FDA to use notice-and-comment rulemaking to set out the requirements that must be met in a premarket tobacco product application.
There is an entire free-standing section in the Table of Contents, and two full pages of the brief (pp. 47-49), focusing on the notice-and-comment issue. What the heck does it take to squarely raise an issue?
Justice Alito repeats that the Fifth Circuit only touched on this issue in a "short footnote"--as if the length of a footnote matters:
But their brief also suggests that the FDA's decision to issue denials based on standards developed in adjudication violated other provisions of the APA and TCA that, they claim, required notice-and-comment rulemaking. See Brief for Respondents47–49, and n. 33. This echoes an argument the Court ofAppeals made in a short footnote. See 90 F. 4th, at 384, n. 5 (citing 21 U. S. C. §§387g(a)(1)(A), (a)(2), (c)–(d)).
But, the Court will not address that issue:
We did not grant certiorari on that question, and without adequate briefing, it would not be prudent to decide it here.See Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 461 (2006). Accordingly, we do not reach that question and express no view on its merits.
There is a malleable standard here. If an issue is fairly encompassed within the question presented, the Court can decide it. Here, the Court chooses not to decide the issue.
There is another malleable standard: the Court can affirm on alternate grounds. Justice Alito identifies several such grounds:
3Respondents' amici offer numerous alternative grounds for affirmance. Three of these arguments are based on the Constitution: (1) that the TCA unconstitutionally delegated lawmaking power to the FDA with respect to, among other things, the necessary contents of a premarket tobacco product application, see Brief for Taxpayers Protection Alliance as Amicus Curiae 7–8; (2) that the relevant provisions of the TCA are unconstitutionally vague, see id., at 6–8; and (3) that respondents weredenied due process, see Brief for Washington Legal Foundation as Amicus Curiae 8–11; Brief for Thirteen Members of Congress et al. as Amici Curiae 13–16. Some amici also argue that the FDA violated our "majorquestions" doctrine. See, e.g., Brief for Vaping Industry Stakeholders as Amici Curiae 30–34; Brief for Thirteen Members of Congress et al. as Amici Curiae 6–13.
But, once again, these issues were not presented by the Respondents, so they will not be addressed:
Although these issues have a bearing on what appears to have been the Court of Appeals' animating concern—i.e., that the FDA did not give respondents and other applicants fair and accurate notice regarding what it would insist that an application contain—these arguments falloutside the scope of the question presented, were not passed on below,and were not pressed in respondents' brief. We therefore decline to reach them. See, e.g., Atlantic Marine Constr. Co. v. United States Dist. Court for Western Dist. of Tex., 571 U. S. 49, 61 (2013). And our opinion should not be read to suggest any view on their merits.
I'd have to review more carefully, but it may have been a strategic error on the part of the Respondents here. How do you not mention the major question doctrine? Everything is a major question now!
The Court also declines to address the due process issue:
At one point, however, respondents seem to suggest that the FDA violated their due-process rights simply because it failed to provide clearnotice before it denied their applications and thus effectively put themout of business. See Brief for Respondents 44. But the freestanding due-process question to which the respondents fleetingly refer lies outside the question on which we granted review and is not well developed in their brief. We therefore decline to decide it. See Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 461 (2006).
The Court also refuses to consider whether the Fifth Circuit was correct about whether the FDA erred.
As to the failure to consider marketing plans, the FDA does not seek review of the Fifth Circuit's finding of error. See Brief for Petitioner 31. Rather, it asks us to clarify the harmless-error rule and remand for application of the proper standard. See id., at 38. We agree withthe FDA that that is the appropriate course of action.
The Court notes another conflict that has existed since the time of Henry Friendly. The Court won't resolve that dispute, other than to say that the Fifth Circuit erred.
There is thus obviously tension between Calcutt and Sanders, and neither decision sought to harmonize the remand and harmless-error rules. Calcutt made no reference to the APA's prejudicial-error provision, and Sanders did not discuss the remand rule or even cite Chenery. Commentators have long puzzled over this tension andproposed ways to bridge the divide. See H. Friendly, Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders, 1969 Duke L. J. 199, 222–225 (Friendly); N. Bagley, Remedial Restraint in Administrative Law, 117 Colum. L. Rev. 253, 302–307 (2017) (Bagley); C. Walker, Against Remedial Restraint in AdministrativeLaw, 117 Colum. L. Rev. Online 106, 115–120 (2017). And the courts of appeals have apparently developed their own practices to reconcile the remand and harmless-error rules.See Bagley 302, n. 328 (citing cases). We will not attempt to provide a complete answer to this vexing problem here. For now, we agree with the FDA that the Fifth Circuit read Calcutt too broadly.
Okay then.
The Court also declined to consider what it deemed the Fifth Circuit's "alternative holding" in a "short discussion."
Despite its holding that Calcutt is the sole exception to the remand rule, the Court of Appeals appears to have issued a brief alternative holding at the very end of its opinion. In that short discussion, the court cited Circuit precedent echoing the rule of Massachusetts Trustees. See 90 F. 4th, at 390 (citing United States v. Johnson, 632 F. 3d 912, 930 (CA5 2011)). But the Court of Appeals applied Massachusetts Trustees at a high level of generality, and absent any analysis applying Massachusetts Trustees to the FDA's failure to consider respondents' marketing plans specifically, we are unable to affirm the decision on that alternative basis.
What is this business of focusing on how short a discussion is? I thought concise writing was a virtue?! An issue raised is an issue raised. The Court is bending over backwards to not address issues raised below.
To be sure, this case was 9-0, but only because virtually every other issue was excluded.
Whenever the Court stresses how narrow the question presented is, you know there is something going on behind the scenes. Some Justices want to address an issue but others do not. Justice Alito, who was assigned the majority, is stuck trying to mediate the dispute. The best he can do is to note these questions were not raised. The implication of these notes is that the issue can be raised in some future case, but almost certainly will not.
Did Chief Justice Roberts assign this opinion to Justice Alito as some kind of punishment, where he would have to reverse his former law clerk? Maybe. Really, not a good week or Judge Oldham, who was also reversed in VanDerStock. Yet another reminder that President Trump could have filled all three of his vacancies from the Lone Star State, but did not.
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