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  • Writer's pictureElizabeth Slattery

Recapped: Standing and Lots of Government Pennypinching

It was a packed week at the Supreme Court with five oral arguments. Check out my preview for background about the cases. I've got to pack for spring break, so let's get to it!


The first argument of the week, Becerra v. San Carlos Apache Tribe & Becerra v. Northern Arapaho Tribe, concerns funding for Native American tribe members’ healthcare. When tribes opt to contract with the government and administer healthcare services directly, they receive appropriated funds the government would have spent on those services. They also are supposed to be reimbursed for contract support services including audits, certain taxes, and regulatory compliance costs. The question is whether the costs associated with collecting what’s known as "program income" from third parties are contract support services.

A theme that came up repeatedly was how much this would cost the government.

The attorney for the government asserted that this could cost between $800 million - $2 billion per year. Justice Sonia Sotomayor jumped in, "[Y]ou've been talking about this costing a lot. It may well be But I understand that in terms of tribal healthcare, it's about one-third of what is spent by the average American on their own healthcare. So it's not as if all of this money is bringing us a luxury healthcare spa. It's actually bringing us to a fairly minimal level of healthcare for tribal members." 

Justice Neil Gorsuch asked the tribes' attorneys, "Do you know how much money your client is seeking in contract support costs roughly?" Adam Unikowsky, one of the attorneys, said they were seeking $1.5 million for two years, and the other said $1 million per year. The government's $800 million to $2 billion figure was simply "an unexplained estimate that's not in the record." Unikowsky continued, "I don't think that the amount of money in hypothetical judgments from a number that is not in the record and it was just taken out of nowhere is a basis to decide this case against the tribe." 

At one point, Justice Samuel Alito wondered whether it was improper for the Court to even consider the costs. 

The second argument of the day, Harrow v. Department of Defense, concerned whether missing a 60-day filing deadline to appeal a ruling by the Merit System Protection Board deprived a reviewing court of jurisdiction to hear the appeal. The Supreme Court has previously held across a variety of areas that these sorts of filing deadlines are not jurisdictional. This comment from Justice Gorsuch wraps up the argument:

What is your understanding as to why the government has resisted your client's case so … strongly? I mean … he spent seven years waiting, five of which were because the government couldn't manage to get a quorum together to resolve it, sent an email to an old email address, and he acted as quickly … as he could when he got it, and yet here we are in the Supreme Court of the United States over a $3,000 claim … I'm just kind of surprised … the government's making us do this one.

On Tuesday, the Court heard FDA v. Alliance for Hippocratic Medicine, a challenge to FDA actions relaxing safety protocols for the abortion drug mifepristone, including allowing it to be prescribed remotely and shipped to a patient’s home. 

Nearly the entire 90-minute argument focused on whether an organization of doctors has standing to challenge FDA’s actions. The lower court held the challengers have individual and associational standing based on their conscience objections to performing abortions as well as their time and resources that are diverted away from their regular labor and delivery patients to deal with patients suffering complications from mifepristone as a result of FDA’s actions. 

Justice Clarence Thomas asked Solicitor General Elizabeth Prelogar the first question: "If we agree with you on standing, could you give us an example of who would have standing … to challenge these FDA actions?" 

Prelogar explained that prescribing doctors might, or patients who want greater access to a drug, but "if the question is whether there would be individuals who generally oppose abortion who would have standing and want to challenge FDA's actions, the answer to that is no because those people aren't regulated in any relevant way under FDA's decisions here."

Justice Alito was not buying it. "Is there anybody who can sue and get a judicial ruling on whether what FDA did was lawful?" Alito asked. "[M]aybe what they did was perfectly lawful, but shouldn't somebody be able to challenge that in court? So your argument is that it doesn't matter if FDA flagrantly violated the law, it didn't do what it should have done, endangered the health of women, it's just too bad, nobody can sue in court?" 

Prelogar responded that "with respect to these regulatory changes, it's hard to identify anyone who would have standing to sue, but the Court has said time and again that the fact that no one would have standing doesn't provide a basis to depart from Article III principles." Gotta love agencies' ability to safeguard their actions from scrunity by courts.

If you're sensing some frustration emanating from Justice Alito, perhaps it’s because the Court’s standing jurisprudence has not always been consistent. And specificially in the abortion context, for decades courts have allowed doctors and clinics to challenge abortion regulations (i.e. the limiting kind) on behalf of women they assert would be harmed. But several of the justices expressed skepticism about the doctors' standing, so sauce for the goose may not be sauce for the gander, as Justice Breyer is fond of saying.   

Justice Gorsuch brought up the “rash of universal injunctions” entered by courts in recent years. This has become a preoccuption of the justice's.

[T]his case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on … an FDA rule or any other federal government action … I went back and looked, and there are exactly zero universal injunctions that were issued during Franklin Delano Roosevelt's 12 years in office, pretty consequential ones. And over the last four years or so, the number is something like 60 … they're a relatively new thing. And you're asking us to extend and -- and pursue this relatively new remedial course which this Court has never adopted itself. Lower courts have kind of run with this.

Erin Hawley, the attorney for the doctors, replied that a universal injunction halting FDA’s 2016 and 2021 changes was the "only availability for relief … Otherwise, those parties are simply out of luck, and that's inconsistent with equity." 

Justice Amy Coney Barrett asked several questions about the individual doctors’ conscience claims and Justice Ketanji Brown Jackson wanted to know if courts owe any deference to FDA experts, wondering whether it’s better to have judges or experts "parsing medical and scientific studies." 

Justices Thomas and Alito both asked about the Comstock Act, which prohibits mailing drugs that are "advertised or described in a manner calculated to lead another to use or apply it for producing abortion." Should FDA have considered this when it, in effect, authorized mifepristone to be shipped directly to patients?

Solicitor General Prelogar said the act’s provisions "don’t fall within FDA’s lane," and it didn’t "affirmatively approv[e] mailing in violation of Comstock" (that's a lawyerly answer if I ever heard one, since FDA simply left it to doctors to decide the best way to dispense the drug).

Hawley had a different perspective, remarking, "We don’t think that there’s any case of this Court that empowers FDA to ignore other federal law… [T]he Comstock Act says that drugs should not be mailed … either through the mail or through common carriers. So we think that the plain text of that, Your Honor, is pretty clear."

Chief Justice John Roberts and Justice Brett Kavanaugh remained relatively sphinx-like, posing only a handful of questions between them. 


First up Wednesday was Erlinger v. United States, which concerns whether the Sixth Amendment requires a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were committed on separate occasions in order to impose an enhanced sentence under Armed Career Criminal Act. One exchange that caught my eye was when Justice Thomas asked whether the Court would need to overrule an earlier case. 

Jeffrey Fisher, the attorney for Erlinger who has argued a few dozen cases, including the landmark Confrontation Clause case, Crawford v. Washington, replied, "I think the Court should someday, but I don't know the Court needs to do it in this case." Justice Alito pressed him further, and Fisher said, "Well, I'm not even asking you to do that today, Justice Alito but, if you did, I suppose fair is fair." Wink wink, nod nod.

Closing out the week was Connelly v. United States. The question presented is whether the proceeds of a life insurance policy taken out by a closely held corporation to facilitate the redemption of a shareholder’s stock is a corporate asset when calculating the value of the shareholder’s shares for federal estate tax. Two questions made the government sound a little greedy, if you ask me.

Justice Barrett wanted to know "Do you agree that none of the money escapes taxation because more value I mean the $3 million of the life insurance proceeds didn't vanish, as you say it's retained by the company, and [Connelly's attorney] Mr. Shanmugam was pointing out that [the petitioner] will be taxed on that as a capital gains tax when he sells out his shares. So Mr. Shanmugam says that means that the government is double dipping."

And Chief Justice Roberts posed this question to the government, "Do you dispute your friend's statement that this has been a common way for family corporations to maintain continuity of operations? And if that's the case how long has the government overlooked the fact that there was this great pool of money out there waiting for them to take?"


The justices won’t meet again until mid-April, so I’ll leave you with my favorite SCOTUS moment of the week: Alito’s new spin on Scalia’s classic about hiding “elephants in mouseholes." Did Congress hide a “mastodon in an ant hill”? 


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