Goodness me! Imagine how stressful it is to ER doctors to treat the victims of gunshots, particularly from the AK-15's ammunition. I assume the Supreme Theological Court will ban firearms. Oh, wait. They like firearms.
Maybe we should force them to spend a weekend in the ER Department of Cook County Hospital. So they can see what the free exercise of Second Amendment "rights" does to the human anatomy.
Adam, thank you for your clear and brilliant posts on these decisions. For a court of appeals to not understand the implications of their standing argument is frightening. Opening up standing to anyone who claims they might potentially be affected by a change in a rule, or permitting organizations to manufacture standing by expending resources (print flyers!), is a power grab for the judiciary: it hollows out the cases & controversies requirement of Art III, and thus shifts power from the legislature to the judiciary. It is anti-majoritarian, and a significant realignment of the separation of powers. (I find it hard not to read this opinion on ideological terms.)
Proposal to call this "homeopathic standing", where you dilute down standing so much to an organization who might have a doctor who might have known a doctor that, magically! It creates standing out of hogwash.
"I will conclude with a note of optimism. Decisions like this one are rare. [...] I do not agree with suggestions that the Administration or anyone else should violate judicial decisions. Trust the process."
Do you still hold this opinion?
This is now a federal judge in Texas and the 5th circuit of appeals that have offered obviously lawless decisions based in clear political biases. I think there's a reasonable argument that it is these precise biases that are the primary reason they were appointed to those positions in the first place.
I contend that there is similarly no guarantee that the supreme court will strike down this lawless decision. The same president who appointed the other judges who signed off on it appointed 3 members of the supreme court, and two further members (Alito and Thomas) are similarly infamous as hardline republican partisans.
Should we continue to trust the process?
If yes: when should we acknowledge that a significant portion of the federal judiciary has been filled by extremist partisans with no real interest in accurately interpreting the law? When should we acknowledge that there is a serious problem with the legitimacy of the courts? Or should we ignore all of these extreme, lawless decisions that will cause significant harm across the country, because...
...because...
...Help me out here, man. Why should we uphold the fantasy that these people are acting within the bounds of the law? What happens if the supreme court upholds this ruling?
First of all, more praise for your excellent post. You note the DOJ's lawyers are excellent, and that you're looking forward to the stay request to the SCOTUS. Presumably these same lawyers made a strong request to the 5th Circuit, or did they? If so, are these judges simply not very good, or (to other commenters points) are they simply biased and will twist matters to their ideological preferences?
Very appreciative of this analysis but after a bad appeals court ruling this seems like a much less
defensible position: “I will conclude with a note of optimism. Decisions like this one are rare. We should be proud of the exceptionally high quality of the federal judiciary and its commitment to the rule of law. Individual decisions like these should not change that.”
Thanks for the thorough discussion, including looking past the ellipses (which appear to reflect poorly on the authors’ honesty) and details of group membership policies. Very difficult to see why we should credit claimed injury on the part of doctors treating patients—especially emergency doctors. And the case on the merits is ridiculous. Stunning that courts could see fit to alter the status quo on a preliminary basis on such a record.
This and the competing mifepristone ruling will force SCOTUS to take this up. My hope is they will grant a full stay, and then smack down the Fifth Circuit, who have beclowned themselves with this ruling.
Thank you for a good discussion. A question if you have time: is there any penalty for a health care provider to continue to provide mifepristone after 7 weeks? Are providers required to follow the REMS? Or can use from seven to ten weeks be considered "off-market"?
One thing to keep in mind is that if a provider does this and this is not within what the FDA recommends or approved then they place themselves in a vulnerable position should they be sued for malpractice.
As you point out Summers was about my declaration for a lawsuit challenging Forest Service regulations. If you want to understand how absolutely frivolous the Standing claims by the Trump judges are, here is a link to my Standing Declaration that was used to throw us out in Summers. https://drive.google.com/file/d/10fZ-YLJCGKUENbzN-8CN8H3IjwRkrV-b/view?usp=sharing As you can see, my Standing declaration is exponentially better than what the Trump judges are saying about the doctors.
You stated:
Although Bensman alleged past injury, this allegation was insufficient for standing because, among other things, “it relates to past injury rather than imminent future injury that is sought to be enjoined.” And although Bensman also alleged future injury, he lacked standing because he failed to “allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of Bensman's to enjoy the national forests.”
Look at 14,
The new regulations allow projects such as timber sales to be Categorically Excluded without
appeals. Since these regulations have been implemented there have been several projects that I have not been able to appeal. For example, this year the Allegheny National Forest put out for scoping comments a series of about 20 timber sales that are being Categorically Excluded. Some of these sales are in places I have been before and want to go back and see again. Several of the projects have been approved. If these timber sales were subject to appeal, Heartwood and I would have appealed them.
I filed a second standing declaration that Scalia refused to consider. The other 4 Judges in their Dissenting Opinion pointed out my 2nd declaration that Scalia would not consider has exactly what is required. So here is a link to my 2nd declaration so you can see what is actually required. https://drive.google.com/file/d/10hxi8gTWjQg11lPuQCl5y75C9N4cWafl/view?usp=sharing In this declaration I pointed to several on going projects that were harming me.
During Oral Arguments I secretly gave Scalia the finger as he was talking about me. I sure hope I get the last laugh by my first Standing Declaration getting them thrown out!
This post misuses the term "ellipsis". The singular is "ellipsis", the plural is "ellipses" (which coincides with the plural of another word, "ellipse"). The term "ellipsis" refers both to an omission (typically in a quote) and to the typographical mark that represents an omission (typically "..."). Thus, all three dots in "..." together form a single ellipsis. To refer to them as "ellipses" in the plural doesn't make sense (unless it were to imply that the individual dots have elliptical shape). In addition, after twice using "ellipses" as a plural ("those ellipses" / "the ellipses replace", which is grammatically correct, though inappropriate when referring to a single ellipsis), the text uses "ellipses" as a singular ("an ellipses", which is grammatically incorrect).
Goodness me! Imagine how stressful it is to ER doctors to treat the victims of gunshots, particularly from the AK-15's ammunition. I assume the Supreme Theological Court will ban firearms. Oh, wait. They like firearms.
Maybe we should force them to spend a weekend in the ER Department of Cook County Hospital. So they can see what the free exercise of Second Amendment "rights" does to the human anatomy.
Maybe the justices should spend a weekend in the ER
Right. And ER doctors whose conscience doesn't allow them to save lives should resign or be fired.
Quite so.
Adam, thank you for your clear and brilliant posts on these decisions. For a court of appeals to not understand the implications of their standing argument is frightening. Opening up standing to anyone who claims they might potentially be affected by a change in a rule, or permitting organizations to manufacture standing by expending resources (print flyers!), is a power grab for the judiciary: it hollows out the cases & controversies requirement of Art III, and thus shifts power from the legislature to the judiciary. It is anti-majoritarian, and a significant realignment of the separation of powers. (I find it hard not to read this opinion on ideological terms.)
Proposal to call this "homeopathic standing", where you dilute down standing so much to an organization who might have a doctor who might have known a doctor that, magically! It creates standing out of hogwash.
Hi Adam,
In your last post, you said this:
"I will conclude with a note of optimism. Decisions like this one are rare. [...] I do not agree with suggestions that the Administration or anyone else should violate judicial decisions. Trust the process."
Do you still hold this opinion?
This is now a federal judge in Texas and the 5th circuit of appeals that have offered obviously lawless decisions based in clear political biases. I think there's a reasonable argument that it is these precise biases that are the primary reason they were appointed to those positions in the first place.
I contend that there is similarly no guarantee that the supreme court will strike down this lawless decision. The same president who appointed the other judges who signed off on it appointed 3 members of the supreme court, and two further members (Alito and Thomas) are similarly infamous as hardline republican partisans.
Should we continue to trust the process?
If yes: when should we acknowledge that a significant portion of the federal judiciary has been filled by extremist partisans with no real interest in accurately interpreting the law? When should we acknowledge that there is a serious problem with the legitimacy of the courts? Or should we ignore all of these extreme, lawless decisions that will cause significant harm across the country, because...
...because...
...Help me out here, man. Why should we uphold the fantasy that these people are acting within the bounds of the law? What happens if the supreme court upholds this ruling?
Another excellent read on this subject. Thank you. Sure smells like judicial activism!
Isn't "more ER patients" actually a tangible *benefit* to doctors? I was under the impression that was the whole business proposition of doctor-ing
First of all, more praise for your excellent post. You note the DOJ's lawyers are excellent, and that you're looking forward to the stay request to the SCOTUS. Presumably these same lawyers made a strong request to the 5th Circuit, or did they? If so, are these judges simply not very good, or (to other commenters points) are they simply biased and will twist matters to their ideological preferences?
Very appreciative of this analysis but after a bad appeals court ruling this seems like a much less
defensible position: “I will conclude with a note of optimism. Decisions like this one are rare. We should be proud of the exceptionally high quality of the federal judiciary and its commitment to the rule of law. Individual decisions like these should not change that.”
Thanks for the thorough discussion, including looking past the ellipses (which appear to reflect poorly on the authors’ honesty) and details of group membership policies. Very difficult to see why we should credit claimed injury on the part of doctors treating patients—especially emergency doctors. And the case on the merits is ridiculous. Stunning that courts could see fit to alter the status quo on a preliminary basis on such a record.
https://media.ca11.uscourts.gov/opinions/pub/files/202113657.pdf
Eleventh Circuit rejecting this exact same theory (came out today). Circuit split much?
This and the competing mifepristone ruling will force SCOTUS to take this up. My hope is they will grant a full stay, and then smack down the Fifth Circuit, who have beclowned themselves with this ruling.
Totally appreciate these explanations. Detailed but understandable. Thank you.
Thank you for a very detailed explanation. I hope the appeal of this messy decision is as detailed.
Thank you for a good discussion. A question if you have time: is there any penalty for a health care provider to continue to provide mifepristone after 7 weeks? Are providers required to follow the REMS? Or can use from seven to ten weeks be considered "off-market"?
I have read that providers can prescribe from 7-10 weeks in an "off-label" fashion. BUT, still requires 3 in-person visits!
One thing to keep in mind is that if a provider does this and this is not within what the FDA recommends or approved then they place themselves in a vulnerable position should they be sued for malpractice.
As you point out Summers was about my declaration for a lawsuit challenging Forest Service regulations. If you want to understand how absolutely frivolous the Standing claims by the Trump judges are, here is a link to my Standing Declaration that was used to throw us out in Summers. https://drive.google.com/file/d/10fZ-YLJCGKUENbzN-8CN8H3IjwRkrV-b/view?usp=sharing As you can see, my Standing declaration is exponentially better than what the Trump judges are saying about the doctors.
You stated:
Although Bensman alleged past injury, this allegation was insufficient for standing because, among other things, “it relates to past injury rather than imminent future injury that is sought to be enjoined.” And although Bensman also alleged future injury, he lacked standing because he failed to “allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of Bensman's to enjoy the national forests.”
Look at 14,
The new regulations allow projects such as timber sales to be Categorically Excluded without
appeals. Since these regulations have been implemented there have been several projects that I have not been able to appeal. For example, this year the Allegheny National Forest put out for scoping comments a series of about 20 timber sales that are being Categorically Excluded. Some of these sales are in places I have been before and want to go back and see again. Several of the projects have been approved. If these timber sales were subject to appeal, Heartwood and I would have appealed them.
I filed a second standing declaration that Scalia refused to consider. The other 4 Judges in their Dissenting Opinion pointed out my 2nd declaration that Scalia would not consider has exactly what is required. So here is a link to my 2nd declaration so you can see what is actually required. https://drive.google.com/file/d/10hxi8gTWjQg11lPuQCl5y75C9N4cWafl/view?usp=sharing In this declaration I pointed to several on going projects that were harming me.
During Oral Arguments I secretly gave Scalia the finger as he was talking about me. I sure hope I get the last laugh by my first Standing Declaration getting them thrown out!
This post misuses the term "ellipsis". The singular is "ellipsis", the plural is "ellipses" (which coincides with the plural of another word, "ellipse"). The term "ellipsis" refers both to an omission (typically in a quote) and to the typographical mark that represents an omission (typically "..."). Thus, all three dots in "..." together form a single ellipsis. To refer to them as "ellipses" in the plural doesn't make sense (unless it were to imply that the individual dots have elliptical shape). In addition, after twice using "ellipses" as a plural ("those ellipses" / "the ellipses replace", which is grammatically correct, though inappropriate when referring to a single ellipsis), the text uses "ellipses" as a singular ("an ellipses", which is grammatically incorrect).
Just waiting on the newest update from my new favorite lawyer Adam U.