Any bets on Biden v. Nebraska (2023)?

[brucejoel99]

Just saw this thread - the fact some people here thinking there is any chance the court doesn’t block this is WILD to me. It’s as if you guys haven’t been paying attention

For ideological reasons the conservative legal movement has long sought to narrow who has standing to sue in most cases.  This case cuts strongly against that long term effort.  The 3 conservative justices who take legal tradition most seriously seem to have noticed.

I wouldn't say 3; 1, maybe 2 (Gorsuch had a problem with standing in the individuals' case, DoE v. Brown, but not here).

[politicallefty]

Just saw this thread - the fact some people here thinking there is any chance the court doesn’t block this is WILD to me. It’s as if you guys haven’t been paying attention

For ideological reasons the conservative legal movement has long sought to narrow who has standing to sue in most cases.  This case cuts strongly against that long term effort.  The 3 conservative justices who take legal tradition most seriously seem to have noticed.

I wouldn't say 3; 1, maybe 2 (Gorsuch had a problem with standing in the individuals' case, DoE v. Brown, but not here).

I actually made the point of listening to oral arguments twice (at least in the case of Nebraska). As bad as the arguments are in that case, it'd be really frightening if any significant number of Justices bought into the standing regime offered in Department of Education v. Brown. It's really just the height of lawlessness that we've come to see on a regular basis out of Texas and the Fifth Circuit.

[Skill and Chance]

Just saw this thread - the fact some people here thinking there is any chance the court doesn’t block this is WILD to me. It’s as if you guys haven’t been paying attention

For ideological reasons the conservative legal movement has long sought to narrow who has standing to sue in most cases.  This case cuts strongly against that long term effort.  The 3 conservative justices who take legal tradition most seriously seem to have noticed.

I wouldn't say 3; 1, maybe 2 (Gorsuch had a problem with standing in the individuals' case, DoE v. Brown, but not here).

I actually made the point of listening to oral arguments twice (at least in the case of Nebraska). As bad as the arguments are in that case, it'd be really frightening if any significant number of Justices bought into the standing regime offered in Department of Education v. Brown. It's really just the height of lawlessness that we've come to see on a regular basis out of Texas and the Fifth Circuit.

It's basically "the government gave someone else a benefit, but not me, therefore I am injured and can challenge it," right?

[MillennialModerate]

Just saw this thread - the fact some people here thinking there is any chance the court doesn’t block this is WILD to me. It’s as if you guys haven’t been paying attention

I’m not saying paying attention to the thread - I’m saying paying attention to the issue at hand and at the straight up corrupt partisanship of the SCOTUS.

Give anyone who wants it 4 to 1 on a $$ bet on the outcome of this case …

[politicallefty]

I actually made the point of listening to oral arguments twice (at least in the case of Nebraska). As bad as the arguments are in that case, it'd be really frightening if any significant number of Justices bought into the standing regime offered in Department of Education v. Brown. It's really just the height of lawlessness that we've come to see on a regular basis out of Texas and the Fifth Circuit.

It's basically "the government gave someone else a benefit, but not me, therefore I am injured and can challenge it," right?

That's part of it, yeah. That would fail the injury-in-fact component of standing. There's also redressability. The two plaintiffs in the case were complaining that they either didn't get debt relief or were excluded from the maximum of $20,000. The district court took it upon itself to find standing and strike the program down altogether, so one plaintiff gets nothing anyway and the other actually loses $10,000 he would have otherwise got.

[brucejoel99]

[T]he standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. Under the Administrative Procedure Act, a plaintiff arguably could obtain review of agency non-enforcement if an agency "has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." Heckler, 470 U. S., at 833, n. 4 (internal quotation marks omitted); see id., at 839 (Brennan, J., concurring); cf. 5 U. S. C. §706(1). So too, an extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion and support Article III standing.

Although the list of which justices fully joined & only concurred in the judgment gives me even more pause:

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and BARRETT, JJ., joined. BARRETT, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined. ALITO, J., filed a dissenting opinion.

[Skill and Chance]

[T]he standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. Under the Administrative Procedure Act, a plaintiff arguably could obtain review of agency non-enforcement if an agency "has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." Heckler, 470 U. S., at 833, n. 4 (internal quotation marks omitted); see id., at 839 (Brennan, J., concurring); cf. 5 U. S. C. §706(1). So too, an extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion and support Article III standing.

Although the list of which justices fully joined & only concurred in the judgment gives me even more pause:

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and BARRETT, JJ., joined. BARRETT, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined. ALITO, J., filed a dissenting opinion.

What do you think the implication of the language you quoted is for this case?

[brucejoel99]

[T]he standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. Under the Administrative Procedure Act, a plaintiff arguably could obtain review of agency non-enforcement if an agency "has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." Heckler, 470 U. S., at 833, n. 4 (internal quotation marks omitted); see id., at 839 (Brennan, J., concurring); cf. 5 U. S. C. §706(1). So too, an extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion and support Article III standing.

Although the list of which justices fully joined & only concurred in the judgment gives me even more pause:

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and BARRETT, JJ., joined. BARRETT, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined. ALITO, J., filed a dissenting opinion.

What do you think the implication of the language you quoted is for this case?

Bad, given 31 U.S.C. § 3711's requirement that agencies "shall try to collect a claim of the United States Government for money or property arising out of the activities of, or referred to, the agency," & something something MQD>HEROES Act.

[soundchaser]

[T]he standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. Under the Administrative Procedure Act, a plaintiff arguably could obtain review of agency non-enforcement if an agency "has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." Heckler, 470 U. S., at 833, n. 4 (internal quotation marks omitted); see id., at 839 (Brennan, J., concurring); cf. 5 U. S. C. §706(1). So too, an extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion and support Article III standing.

Although the list of which justices fully joined & only concurred in the judgment gives me even more pause:

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and BARRETT, JJ., joined. BARRETT, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined. ALITO, J., filed a dissenting opinion.

What do you think the implication of the language you quoted is for this case?

It looks to me like a carve-out for standing — but I’m not sure the Executive Branch would be “exceed[ing] the bounds of enforcement discretion” in this case.

[politicallefty]

I'm not sure I read it that way, but I can see how it can be. There's been a lot pulling both ways in terms of reading opinions over the last couple weeks. United States v. Texas alone pulls you both ways with different parts.

Although the list of which justices fully joined & only concurred in the judgment gives me even more pause:

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and BARRETT, JJ., joined. BARRETT, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined. ALITO, J., filed a dissenting opinion.

Why is the alignment of the Justices giving you pause? The Gorsuch concurrence is actually interesting and really understated in what it would actually do. Ending vacatur would be a massive change in how the judiciary operates, but it would be a welcome one. It's what Prelogar actually argued at SCOTUS and I agree. It was the Justices from the DC Circuit that seemed most apprehensive to such a shift. Roberts seemed almost beside himself when she mentioned that in oral arguments.

It might be worth noting that we didn't hear much from Gorsuch on the standing issue in Nebraska. He'll come out the other side of an issue if he finds some "technical" issue. He's dissented in cases where he otherwise agrees with the majority. I can't really think of any other Justice like that over the past several decades.

[brucejoel99]

I'm not sure I read it that way, but I can see how it can be. There's been a lot pulling both ways in terms of reading opinions over the last couple weeks. United States v. Texas alone pulls you both ways with different parts.

Although the list of which justices fully joined & only concurred in the judgment gives me even more pause:

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and BARRETT, JJ., joined. BARRETT, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined. ALITO, J., filed a dissenting opinion.

Why is the alignment of the Justices giving you pause?

Because even with the possible reading, I don't think the 3 liberal justices would've signed onto that paragraph if (or remained signed onto it once) they knew that its reasoning would be used in a week's time to kill student debt relief.

[brucejoel99]

I'm not sure I read it that way, but I can see how it can be. There's been a lot pulling both ways in terms of reading opinions over the last couple weeks. United States v. Texas alone pulls you both ways with different parts.

Although the list of which justices fully joined & only concurred in the judgment gives me even more pause:

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and BARRETT, JJ., joined. BARRETT, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined. ALITO, J., filed a dissenting opinion.

Why is the alignment of the Justices giving you pause?

Because even with the possible reading, I don't think the 3 liberal justices would've signed onto that paragraph if (or remained signed onto it once) they knew that its reasoning would be used in a week's time to kill student debt relief.

Ok, phew:

https://twitter.com/scvphillips/status/1672272253512187904

There's another curious qualification in the Court's opinion too. "[T]he standing calculus might change," we are told, "if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions." Ante, at 11. But the Court declines to say more than that because "the States have not advanced" such an argument. Ibid. Is that true, though? The States have pleaded a claim under the Take Care Clause. App. 106. Is that not an abdication argument? Did they fail to plead it properly? Or is the Court simply ignoring it?

Third, the majority tells us that the standing outcome "might change" if the Federal Government "wholly abandoned its statutory responsibilities," but that statement is both equivocal and vague. Ante, at 11 (emphasis added). Under what circumstances might the Court say that the Federal Government has "wholly abandoned" its enforcement duties? Suppose the Federal Government announced that it would obey 80% of the immigration laws or 70% of the environmental laws. Would the Court say that it had "wholly abandoned" enforcement of these bodies of law? What would happen if the Final Memorandum in this case had directed DHS agents not to arrest anyone convicted of any covered crime other than murder? DHS would still be enforcing the arrest mandate as to one of the many covered crimes. Would this only-murder policy qualify as complete abandonment? And why should the ability of a particular party to seek legal redress for an injury turn on the number of others harmed by the challenged enforcement policy? Standing is assessed plaintiff by plaintiff. The majority has no answers, and in the end, it cannot even bring itself to commit to this complete-abandonment exception. It says only that "the standing calculus might" or "arguably could" change. Ibid. (emphasis added).

[politicallefty]

Yeah, I referenced footnote 3 in the other topic. It's definitely interesting, though it obviously remains to be seen as to whether or not the Court will latch onto it in this case. You've actually made me more nervous about Barrett. She joined Gorsuch's concurrence in Texas that essentially agreed with the first part of standing (injury-in-fact) being met. His concurrence focused on the ability of the courts to provide redressability. The standing issue in Nebraska hinges on the first aspect. Redressability in this case is easy, as that would just involve striking down the program.

I do have to say that I think Massachusetts v. EPA is a case where I like the result as a matter of policy, but the legal basis of the decision seems quite unsound (with respect to standing, that is).