When the Government Changes Sides in Ongoing Litigation

[Music] now we're very pleased to be joined this afternoon to moderate this discussion by ms beth williams beth williams served as assistant attorney general for the office of legal policy at usdoj the department of justice from august 2017 to december 2020. in that role she served as the primary policy advisor to the attorney general and the deputy attorney general and as the chief regulatory officer for the department ms williams also led the judicial nomination process for the department assisting in the selection and confirmation of more than 230 article iii judges ms williams graduated from harvard college and harvard law school where she served on the harvard journal of on public policy and with that mrs williams thanks very much for being with us the floor is yours that's great thank you so much nick and thank you to the federalist society for hosting this fantastic panel and thank you especially to our wonderful panelists who've agreed to be with us today so what we're going to do is i'm going to give some introductions and then each panelists will speak for about five minutes on their reflections about the changing litigation positions in the solicitor general's office and then we'll have a moderated discussion um throughout as you think about questions please feel free to write them into the chat and then toward the end we will take those questions and and have the panelists respond to them so to start us off um i want to introduce to you hashem mupan a former clerk to justice antonin scalia and a graduate of harvard law school mr mupan has served in the doj as counselor to the solicitor general and deputy assistant attorney general for civil appellate mr muppan has personally argued four cases in the supreme court and dozens more in the lower federal courts during his doj service mr muppen supervised the most significant appellate litigation in which the federal government participated with a particular focus on separation of powers issues constitutional challenges and apa claims before his doj service mr muppan was an attorney at jones day next we have beth brinkman ms brinkman is co-chair of the appellate and supreme court litigation group at covington and burling she served most recently in government from 2009-2017 as deputy assistant attorney general in the doj's civil division where she presented oral arguments in several high-profile cases including the successful defense of the constitutionality of the affordable care act and the government's victory in federal immigration preemption litigation prior to that ms brinkman served for eight years as assistant to the solicitor general a graduate of yale law school and a former clerk to justice harry blackman miss brinkman has argued 25 cases before the u.s supreme court and last but not least we have gene hamilton mr hamilton earned his law degree from washington and lee's school of law magna laude he most recently served as counselor to the attorney general from 2017 to 2021 where he provided legal advice counsel and strategic guidance to attorney general jeff sessions attorney general william barr acting attorney general jeff rosen and others during his time at doj mr hamilton advised on and participated in litigation regulatory actions and policy making on high priority issues for the administration thank you all so much for being here and with that i will turn it over to tahash to kick us off thanks beth uh so i think the way of thinking about this is there isn't any one right answer it's not like the government should never change positions and it's not like the government should change positions willy-nilly so what i think would be helpful is i i'll go through some of the factors that i think are relevant and then i'll talk about my sort of view of what has happened both in the last few months and the equivalent period during the trump administration so in terms of factors i think the first thing to focus on is the type of case is the case where the government is changing positions because the underlying agency has changed its actions or is the government just changing positions in ongoing litigation in ongoing litigation without an underlying agency action change i think there are basically four factors that i think are pretty relevant uh to consider one is how recently the government had taken a different position the second is at what level of court had the government taken a different position was it a lower court or is it the same level of court or higher the third is the timing of the change is the court is the government making the change early enough in the litigation that the courts and the parties can respond or is it happening at the last minute and sort of altering the course the litigation and then the fourth is the nature of the issue are these the sort of issues are these significant important issues is is there a view that the prior decision is not just wrong but egregiously is wrong i think all those sort of factors are things that the government should weigh because they all ultimately go to the credibility of the flipping position and the sort of respect for the litigation process and the importance of the government continuing to speak with one voice i think the analysis is a little bit different when the impetus of the change is that the underlying agency action that the government is defending has changed obviously if the government as a policy matter makes a change in what the agency is doing on the ground then the government is going to change uh its litigation defense but in those circumstances i think the pretty significant factor is how does the government resolve the ex the past litigation does it dispose of that past litigation in a way that preserves the government's overall discretion by ensuring that short prior judgments that have been entered get vacated so that there will be litigation over the new agency action but you don't freeze and lock in the litigation the judgments that were issued against the past agency action and therefore constrain the government's discretion going forward so those are i think the factors that i would generally consider and now let me sort of talk through how i think those that played out in the beginning of the trump administration as opposed to the beginning of the administration [Music] during the trump administration in the you know sort of first year it was fairly widely reported and accurately that there were four major changes that the solicitor general's office made in the epic case the janus case the husted case in the lucia case and i think the sort of best way of thinking about them for purposes of this is the most salient factor was in none of those cases did the government change the position of what the merits brief had said in that very case every one of those cases were cases where the government changed positions from either what had been said in prior cases or in lower courts uh and i get one other fairly relevant factor is in all four of those cases the court ultimately agreed with the changed position so if the government hadn't changed positions it would have lost four four more cases uh there to my recollection there weren't any cases where the administration the underlying agency action change so that second bucket of category cases that i talked about wasn't really in play during the beginning of the trump administration uh so recently uh with respect to the body administration there have been at least 10 agency changes and i think five of them fall into the first category of changes in litigation position and five of them turn into the category of changes in agency action what seems notable to me about the litigation position changes is that three of them happened after a marriage brief had been filed in the supreme court and the uh solicitor general's office notified the court basically but just by a letter that it was no longer taking that position providing little to no reasoning for why uh so that is i think fairly remarkable and fairly unusual uh it certainly didn't happen during uh the trump administration i don't recall it happening in prior administrations but i'd be curious if uh beth brickman has uh any recollection of that happening uh and then in the second category of agency actions that changed uh there have been five of those three of them happened pretty normally you know things like uh return to mexico and the border wall the underlying uh depart agency or uh the president himself decided to cease engaging in the conduct and the government basically told the supreme court to put the cases in the banes and they're trying to work out what will happen that's a fairly standard thing but there have been two that are much more unusual in both the public charge litigation and the title 10 litigation what the government has done is just dismiss all their shirt petitions and all their appeals and what that has had the effect of doing is locking in final judgments against those agency actions even though uh the government had won a lot of that litigation and including gotten a stay from the supreme court itself and those that is very unusual i'm not aware of that really ever happening and it has pretty significant consequences which i think we'll discuss in greater detail later but for now i'll turn it over to beth brinkman thanks so much josh and thanks very much for having me this is a really interesting topic to discuss it's been discussed for many years now and it's a great time to think about it again like josh i was thinking about it in terms of kind of what would be the factors that will really affect the analysis and the decision making and i think he's pointed out some very good factors um to consider i'd maybe um change it a little bit between whether it's a litigating position or a policy position um i think that's one of the first factors whether it's a change in court you know as an advocate before the court and particularly the supreme court and how the department of justice is interpreting the law as opposed to an agency taking action and then the litigation following from that and i do think some more of the actions that josh was mentioning in the recent biden administration actions have to do with an executive order for example directing the agency to reconsider it so those that's almost all of the ones that the body administration has done in one course or another the policy has changed they're reconsidering it and part of that interest is not litigating something that's no longer going to have legal relevance that's very different than when it's a um position about a statute so that's the second kind of consideration is it a position about the legal interpretation of a federal statute or about a rule because of course a rule the executive branch can change those and there's much more authority there changing the um position on uh the constitutionality of the federal statute is a particularly high bar very unusual and so i would point to one of the letters that um hash sent as being the affordable care act and really i think that's just unusual because the body administration is simply reverting to an earlier defense of the constitutionality of the statute and the trump administration's change on that had been very dramatic to have changed that and as i'm sure most of you know it ended up that different states were litigating the constitutionality of that federal statute in essence so in addition to it being a question of whether it's a statute or rule or whether it's a litigating position or really a policy position that's being unchanged or reconsidered the other angle to look at really are the um factors that have to do with the solicitor general's office and the solicitor general is charged by federal statute with determining the position of the united states in the supreme court of course the solicitor general you know confers with the attorney general and in some instances even the president on that but um one thing that's important to understand is often this issue is talked about in terms of kind of story decisis in the solicitor general's office but it's very different from a court deciding about starry decisis and when to adhere to precedent because of course the solicitor general is only making a decision as an advocate what position to argue before a court it doesn't bind the conduct of citizens whereas courts deciding whether or not to revisit precedent whether they're bound by story decisions involves a lot more significant concerns about stability of the law predictability reliance on you know organizing your behavior to comply with the law so on that and i think it it's not the same as reconsidering precedent by a court although sometimes that's the language it's spoken in the other thing i would say of course is not only is the solicitor general an advocate a political appointee not a you know judge not a um uh life tenure and the other role for the solicitor general is very important as an advocate to the supreme court is assisting the supreme court because of course the you know foundational undergraduate of our adversary position is so both sides are robustly presented to the court the solicitor general's office takes that's very seriously and oftentimes we'll even point out in a brief that although they're not changing position there are countervailing considerations oftentimes um within the government there's disagreement and that's one of the things that the solicitor general has to figure out how to resolve or present to the court on the other hand though there are very important institutional interests in the solicitor general's office about maintaining consistency and it really goes to the long-term institutional interests of the court um former solicitor generals paul clement and elena cagan two of the most brilliant minds have been in that position have talked about this in um you know recent times and really emphasized how during their 10 years it was a very high presumption that the solicitor general would not change positions and institutionally you know one of those reasons is because that position the prior position has been developed by very committed um career and political attorneys there with deep analysis and you know you don't overturn that lightly also they're generally cases that involve really hard questions that's why you know it's come to this issue about what the actual um position is that should be taken and then there's also this concern if the government changes positions too much whether that will affect their credibility with the court so one last thing i just want to focus on that i think is so key to those institutional interests is process the department of justice says an extensive process for determining the position that the solicitor general takes in any case for an appeal not just in the supreme court there are memoranda that are written by all of the attorneys at the trial level the appellate level user solicited from various agencies and not just the agency whose issu whose decision might be on in question in the case but other agencies that would be affected by the same action that process was really key and i can give one example although it was in the lower courts the one time on the obama administration um declined to defend the constitutionality statute it was the defense of marriage act and that was an extensive process i actually was recused from it but i it was aware of what was going on and that process is um just something that helps the government in fact it improves their you know position in the supreme court because it helps them strengthen their arguments in any case by going through that analysis but that process is really important and connected to that i would um just also highlight how the branches work together congress has passed a statute 28 usc 530 d that requires the attorney general to notify congress when it's not defending the constitutionality of a statute that's how significant that determination is and again i distinguished that from determinations where policy has changed or rules are changing but when you're talking about the constitutionality of a federal statute the attorney general has to send a letter to um congress and for good reason because then congress can come in and defend the constitutionality of the statute itself and in the defense of marriage act case what happened is the attorney general i think took a very principled position it kind of goes to what josh was saying about how litigation proceeds once there's a determination to change positions and there the president um said we're not going to defend the constitutionality of this statute anymore because we think it's unconstitutional under this heightened scrutiny that the law now has suggested applies as is developed but we will continue to enforce it in the meantime again allowing the adversary system to play out by someone else coming in and being appointed to defend the constitutionality of it so those are all some of the institutional concerns and factors that i think layer on top of the um factors that posh pointed out that go into this determination by the government about when to change positions i'm going to turn it over to gene now thank you beth and thanks for everyone for being here and for your thoughts um as as i found myself doing so many times over the last four years i'm sitting here listening to all the points that have made but in particular by hosh and i'm agreeing with nearly all of them and it's it i don't want to sound like a broken record but so many of the factors that he went through and discussed i think are are very very important in my mind coming at this from somewhat of a legal policy um thinking about what are the real world implications of some of these changes i like to think about the the distinction between a situation where the federal government's actions and of themselves are at issue in the litigation as opposed to some of the cases where uh the solicitor general's office has been asked for their views by the court and so it's different parties different different agent different action at issue and certainly that that's an important it's an important thing for the the solicitor general's office to participate in there's only one executive at a time elections have consequences and so in those cases switching positions um is is something that i i find more or less to be okay well that's just the way that it's going to work but when there is agency action at issue or there is a federal statute that's at issue in a case and the solicitor general's office is coming through in changing positions especially in front of the supreme court i think that's fairly remarkable and should be a very rare instance uh where that happens and i'm just thinking about a couple of the cases that were before the court or they currently are just just to illustrate the the innovation law lab case which is the remain in mexico mpp case obviously so far all that we've seen is a request to hold the case in advance pending a further review of the underlying policy by the biden administration but what's at issue in that case is a ninth circuit decision uh that found that the statutory underlying statutory authority to for the program in and of itself didn't authorize the program in the way that it was operated if we had 70 000 something people maybe 60 000 who were subjected to the process there are going to be all kinds of things to think about in terms of not only freezing the government's position forever in locking in future administrations on the interpretation of a statute without actually undergoing any analysis internal to doj that would say that oh the statute totally didn't authorize that conduct versus what actually happens with those 60 or 70 000 cases that went through the system or that are currently pending there is going to be a lot of remedial work that's going to have to be done down the road if in fact they completely abandon the case and they proceed with a course of action like they've done in a couple of these other cases and so like for an example the wilkinson versus san francisco or formerly barber san francisco that was the sanctuary city funding it's my recollection that that we we filed a cert petition and it was granted it that you know based on this joint joint dismissal letter that was submitted it was wiped off of the court's docket in a day the title 10 case i think hasn't yet suffered that consequence i think that we had a few states who got involved or are trying to get involved and are engaged in some arguments on paper uh back and forth amongst a number of different parties about what should happen with that case i so i think that what happens though big picture when the solicitor general's office undertakes a course of action where they're reversing um course on big cases like those i think in the real kind of downstream consequence is that what that can do is that can encourage some of this law fair it's almost litigation warfare that we've seen uh in particular over the last four years where you were rewarding uh in essence a rush to find whatever district court judge uh you think is going to be most suitable to advance uh to rule in your favor in the best circuit possible and to try to time things strategically and wait things out when things are uh looking at there might be a change in administration what's going to happen here and so i i think that it's something that has to be done um it's an analysis that has to be undertaken very carefully um it's something that there's a lot of consequences that that that beth and hosh have talked through and articulated so so much better than i ever could um but i i think that there are some real real serious problems uh that we have seen i think from a practical standpoint with some of the things that have been done just over the last few months that i think bear bear further thought well that's great thank you all of you for those thoughts um just a reminder to everyone who's watching if you have questions please put them in the chat and we'll we'll take them as they come up but but to start off you know a recent bloomberg article reported that the biden administration is on track to reverse the government's position in more cases before the supreme court than the justice department did during the first full high court term of president trump's presidency and of course as we know the biden administration hasn't yet even gotten a full term because uh they just started in january and the court's term obviously started in october and so uh my question for for all of you is is that headline um does it seem like a bigger deal than it actually is i think some some uh people might say well because the trump administration changed so many positions themselves this is just reverting back to the mean and some other people might think that this is um a real shift in um just given the number so i'll i'll open it to you for your thoughts on that yeah so look i i think the i think the focus on the number by itself is not very helpful for a lot of the reasons that both beth and i said i think you really have to look at what they're doing in the way in which they're doing it and that's where i think it's actually much more surprising so as i said i think there are about 10 changes five of which fall into the changing litigation positions five of which fall into the category of change agency actions what i think is really much more remarkable than the number is the nature of what has happened so i take bet's point on the aca case the aca seems fairly suey generous but some of the other changes are really pretty remarkable so in both the vr the voting rights case rinovich and cedar point those are merits cases where uh the trump administration filed a full-blown merits brief and the doj flipped their position by filing a letter after the briefing was concluded in one case the brnovich case the court the government didn't even say what it was disagreeing with it just said there are aspects of the brief we don't agree with and in cedar point they said they disagreed and basically agreed with the ninth circuit and didn't really have any explanation of why the stuff that was in the brief that the government filed was wrong perhaps the most remarkable of the these bunch though is the terry case which is a fair sentencing case where the government had opposed cert shirt was granted the period for the top side the defendant criminal defense brief was filed and then on the day that the government's response brief was due the government filed a letter that just said actually we agree with the plaintiff so yet again you have a situation where the government hasn't explained any of its reasoning and here they've done it at the absolute last minute which actually complicated the briefing and argument of the case because at that point the court had to appoint an amicus it they had to reschedule the argument and it just it's very surprising because you would think that if the government was going to flip positions they would have done it when the brief was at the top side briefs were due so it makes it seem almost like at the very last minute that she's office was told that they couldn't file the brief in support of the prosecution so i think it's the structure of what's happening that is more surprising rather than the numbers relatedly on the agency changes uh i think that what what's really remarkable are the title 10 and public charge changes where it's not just the the agency had changed their action in fact in neither circumstances the agency actually changed their position it's that the government just dismissed their shirt petitions and their appeals and that has two very significant consequences the first is it means that the agency doesn't actually have to go through notice and comment rulemaking to rescind the rule they were able to just acquiesce in the final judgment of a district court vacating it so it's a huge end run around the apa and then the second is it locks in the district court ruling so in a future administration if they want to go back to this they've got a final judgment saying it's illegal even though the supreme court had said that the government was likely to win on the public charge because they granted the stay so that's what seems very very surprising to my recollection not be during both the trump administration and the obama administration i don't recall the government ever doing that of just acquiescing in final judgments against agency rules even though there was active litigation to and that you were likely to prevail on the normal way to handle that situation is to wait for the agency to actually go through notice and comment rule making promulgate a new rule and then say the final judgments against the old rule should be vacated as moved that preserves the status quo and the freedom of the the executive branch institutionally over the long term so it's those sort of the way of what of their acting is what's surprising to me not the number yeah but we need to look i think i think that that headline oversimplifies that i think we need to look at the fact that in those situations for example there have been presidential orders entitled ten should reconsider the rule and part of what's really important here is the separation of powers and the jurisdiction of the supreme court clearly the court cannot issue advisory opinions and if the solicitor general did not inform the court of this announcement that there was to be a reconsideration and that the rule the legality of which is the issue before the court may not exist by the time the court decides the opinion that would be a huge problem for the solicitor general's office that is a very important candor so they let the court know that this case may be becoming moved very soon you know you may not you may end up issuing an advisory opinion so i think that's very important to take into account um i would also uh point out the unique role of the solicitor general's office particularly going to gene and kind of his comments which i take that they're these really important issues and it's going to affect all these people but again the supreme court only can decide live cases where there's an active case or controversy where you know there's a disagreement between the parties that are adversely affected that have standing and the um solicitor general has this two other examples i can think of this unique relationship with informing the court of what's going on one is this usually happens in criminal cases not often but the solicitor general confesses errors sometimes after winning in the court of appeals and goes and tells the supreme court you know we won and sorry but you know we're confessing error we were wrong court of appeal judges do not like that there's a old saying that a you know appellate judge once said well it's one thing if the supreme court reverses me but you know i'll be darned if the solicitor general is going to reverse me so you know not necessarily a popular position with appellate courts but it does go to this unique candor and role of the solicitor general to let the supreme court know what's going on in cases all the other one is sometimes when there's a cert petition filed and again the government one below anybody else any other party opposes the petition to preserve the victory but sometimes the solicitor general says oh you know we did win but we think it's such an important issue or for other reasons it should be deciding the acquiescence cert so that's part of that relationship and i i want to go to one other thing kind of talking about the pattern of these changes because as um posh talked about the four changes that were really highlighted the beginning of the trump administration two of them were in union cases one was in a voting rights case another was about the presidential power um to appoint but when you go back and look at the obama administration so i served in the clinton bush and obama administration so i follow a lot of this before the trump administration came in and you know whether it was solicitor general paul clement or solicitor general elena kagan or solicitor general ted olson there was a lot of continuity about these standards and just to put it in perspective before the trump administration in the obama administration according to what i've seen in the first four years of the obama administration there were no changes like this then in the second um four years you know a second term wow these are really not the earth shattering cases of voting rights or union rights or you know any of that one was about the equitable relief that was available under orisa the employee retirement you know whatever act and um you know that had to do with explaining a um change in position and really it was there was an intervening case that had come down from the supreme court since the earlier briefing another was about the intentional tort exception to the federal torts claim act um and that was really to explain i think the party on the opposing party must have raised this issue to explain that the question before the court wasn't addressed in the earlier brief so it wasn't really changing positions it was addressing a position that hadn't been um really developed before one was the double jeopardy case was very interesting it was about the um whether puerto rico was a separate sovereign and there was a lot of history there there was a change in position from two briefs a couple years ago but there was an office of legal counsel opinion from decades ago and then that had changed so that was pretty much a suey generous case i think um and it really depended on the way in which the sovereignty issue had come up you can imagine there's just myriad ways that would and then the last one was about the alien tort statute in the kiobell case that again was pretty interesting that was the case that was re-argued and that the supreme court changed the question that was presented in that that's about the alien tort statute so that also involved a lot of internal government discussion so that was the framework and kind of this long-standing institutional interest that i had um pointed out before um the trump administration um really kind of started changing this and i do think particularly for the affordable care act i think it is now the bite administration is really just going back to the prior position and i would say as we were talking about all these other they really so many of them have to do with immigration policies that the agency and the policy makers are changing it's not changing a litigation position of something that's going forward to be litigated it's telling the court listen we think this is going to change we you know there has been a directive to the agency to reconsider this that's i think very different than saying we're coming into the court and we are changing our position we are no longer defending the constitutionality of these appointments of administrative law judges of the security exchange commission so you know which was the lucia case under the um trump administration so i do think that you know it it it's over simplifying it to count those numbers as hosh pointed out and to really take a deeper dive it's not um i think it's dramatic as one might think and it is it is influenced i think from the um prior administration which had really changed the norm on that so i guess what i i i don't actually disagree with anything you said about the obama administration but i guess i'm a little confused about the sort of trump versus biden issue because i agree with you kendra to the courts really important which is why i think in you know all four of the trump administration changes yeah they were big high-profile cases each of them we fought they filed full-length marriage briefs explaining at length what the rationale for the change was all four of them the court ultimately agreed with so that struck me as sort of consistent with the importance of candor to the court whereas you know in cedar point and brnovich and terry none of which involve immigration none of which involve agency action the government just filed a letter saying oh we we have the other view we're not going to tell you why we we've just changed and then on the agency action cases i absolutely agree that it's important to tell the court that the president has instructed the agencies to reconsider but very importantly that's to reconsider under the apa the mere fact that president biden said they should reconsider the rule doesn't itself make the rule go away and in the interim the rule is still in effect so there is a case or controversy and what historically under both the trump administration and the obama administration and every administration i'm aware of the process would be to keep that case pending until the agency actually went through the apa and got rid of the old rule and then vacate the other litigation as move what what seems so remarkable about what they're doing here is just because they're thinking about changing which if they haven't prejudged things you don't know whether they're going to change you don't know how they're going to change you don't know whether they're going to survive apa review if they change they've just dismissed these cases and now they don't have to change now they can just accept a district court judgment that said that the old rule was invalid the trump administration rule was invalid even though the supreme court said it was likely valid so what they've essentially done is and run the apa and allow a single district judge's erroneous judgment to be in effect by merely dismissing a certain petition opinion isn't going to bind any higher court going forward enough that's the final judgment if the final judgment vacating the rule is unlawful it's a district court judgment and it would be um a huge problem for the solicitor general not to tell the supreme court and it wasn't just somebody might be thinking about changing their mind there is a presidential order directing it so i take your points but i don't think it's just somebody thinking oh we might change it so let's get out of it i don't think that at all and um that's just not kind of the way the record is set up also it's kind of interesting i should have interesting views on this i think a lot of this has to do with timing right it's in the middle of the term you know things are moving very quickly some of these instances just the argument has been postponed too and um i haven't seen anything where there's going to be supplemental briefing yet but you know we still might see something else there right because they haven't dismissed the cases well not so i would say they have in both title 10 and public charge they just dismissed yes but in the other two they're the two other ones um where they just put off the uh yeah the the other ones i agree with you like that is much more consistent with the way the trump administration and the obama administration handle these agency change cases they put the cases in the veins and they're waiting to see what happens i've got no objection to that my objection is to the ones where and again i don't think the trump administration did it i don't think the obama administration did it of just dismissing appeals from final judgments against agency rules without the teaching of actually changing its position and then getting the final judgments making well keen i saw you nodding along does does mooting out these cases from a policy perspective does that limit the executive power is that contrary to the you know executive prerogatives right that that institutionally that the branch tries to preserve if you if you move these out and let these final judgments stand well i i think it really depends on the case it'll depend on the posture of the case but but to go back to the again uh one of the examples that folks have mentioned this innovation law lab case so far all we've seen is a request for the case to be held in advance but if they do the same fact pattern and follow the same through follow through on the same actions that they've done on some of these other cases what will happen is we'll have the case dismissed we will have a ninth circuit decision finding that the use of the mpp program as it was constructed was contrary to statute what their constitutionality wasn't an issue in that case as i recall but it was contrary to statute it depending on and this is a point josh made in his introductory remarks depending on what happens then after they seek dismissal of the case from the supreme court's docket that's really where the rubber is going to meet the road are they going to leave in place all of these other appellate court rulings and decisions that will bind future agency action particularly in the ninth circuit with respect to the innovation law lab case where you have california and arizona of course being border states being states where that policy could actually be used and so is that is that an example of a case where the government if it follows the same course of conduct as it has done some of these other cases wants to leave in place a decision from the ninth circuit that will be cited at least by advocates and by challengers if a future administration wants to go in in into change other cases are are procedurally different i think they're set up in a different posture and we can we can kind of talk about the uh merits of each of those cases but there there are certainly some of these and hash also raised a great point about the the interplay with the apa and when we're talking about rule makings uh final rules that are on the books and so the public charge being one example um title 10 being another example and circuit splits and you know i when when we engage in this course of conduct like with public charge where i i seem to recall i think it was in the fourth circuit that there was a favorable decision upholding uh the public charge rule now there might that may have subsequently been referred for a uh an on panel but regardless it leads to i think a little bit of acquiescence in some of this law fair that occurs where you go and you find the judgment that you want from the district court that you want or the circuit court that you want and if it's close enough to an administration if the case gets up and the administration changes they're free to reverse course in a manner that the apa never envisioned in terms of eliminating the rule and again i apologize for not recalling the precise details but i think that in the case of the public charge rule um it was a day or two days later that the federal that dhs uh published in the federal register that it was rescinding the entire rule based on uh the court's uh vacature of that rule uh below so i think that there's again one of these situations where there's there's a process that congress set up and i think that if you under the apa in the rulemaking context or in the defense of a statute where look i understand if it with mpp we're you know yes there are 60 or 70 000 people who were put in it and yes if they were as a policy matter decide not to use it on any cases going forward there are still undoubtedly going to be challenges associated with people who were initially placed into npp it's just the way that it's going to work and that is a life still a live case or controversy and i i think that it's one that should not be dismissed that the government can go up it can maintain the position that was asserted in the briefing that was submitted by the prior administration and let the supreme court rule the way that it will they don't ever have to use the authority they never have to do it let the supreme court interpret the statute provide clarity and so that we don't have to get into this mess in the future if a future administration wants to use it that if the supreme court can say yes the statute permits this type of a program that's great if the supreme court says no then that's that's fine too um but but in any event uh it doesn't require doesn't require the byte administration to actually use the program it is suggesting the supreme court would be issuing advisory opinions so if you want to do this in the future and that just isn't what the supreme court you know views its juris prudence or as i see the separation of powers i mean you really want them deciding cases that are being um you know presented within the you know four for the corners of square corners of article three i also think gene you mentioned that courts have held things in advance and i do think that is more common in the lower courts also as some of this gets sorted out um to determine whether or not again whether a position about a statute um you know maybe change or really about rules and um policy positions i do think that that is very different when you're involved with agencies and presidential orders who are reconsidering things as opposed you know to defending the constitutionality of a statute certainly from the perspective of the solicitor general's office um i was involved in many cases where we were looking at the questions of the constitutionality of various statutes and it's a very very high bar so i think that is very different than when we're talking about these rules and regulations that you know are being reconsidered or unchanged yeah but just to be clear all right there is a case for controversy because the rule remains in effect until it's rescinded under the apa and what they're doing here is in the cases where they dismiss rather than holding the bands what they're doing is despite the fact that there's a valid rule in effect and a live case for the controversy they're just acquiescing and then a district court judgment you know and that's very different from what i i know the obama administration did and what i know the trump administration did so for example the trump administration when i started in civil appellate i took over from you in fact uh there were multiple challenges to various obama administration rules like the department of labor had several rules that had been enjoined by this single district judge surprisingly in texas and all those appeals we could have just dismissed them all and said yep we're just going to live with that district court judgment but instead you know one of them we continue to litigate two of them we held in abandons until the department of labor changed the rule that's the traditional way the doj has both recognized that agencies can change their mind but also protected the long-term institutional integrity of the government what's very different here is they're they're not doing that they're just accepting district court judgments and then public charges particularly remarkable because the supreme court said they were likely to win they abandoned a rule and acquiesced in a district court judgment that the supreme court had already said was likely wrong i think the um issue is different i think the point that you make about the court of appeals is a good one hosh because that is as we both know from our prior positions there you know really looking holding something in advance is often a way to go there i think once the case is in the supreme court is being considered by the supreme court where it's discretionary review that type of thing you know different factors do come into play for example um at the third stage when they're deciding whether to a case they don't grant certain every case where they could decide it and you know whether or not it's a live case or controversy the question is whether they should be deciding an issue you know in their view of what their role is in the separation of powers and it's an issue that isn't going forward i mean as you know often the supreme court when they're deciding certain the government often points out to this this isn't a good vehicle this isn't going to have long ongoing implications in fact sometimes um if there's a third petition about a statute even the government may point out to the supreme court that it's a diminishing importance i agree but i think that almost cuts the wrong other way here right because both title 10 and public charge were granted cases and in fact the government waited until after the court granted cert to dismiss if they actually thought it wasn't cert worthy and all the rest like it would have actually been much more sensible to do it beforehand so i think actually what they were trying to do is they were hoping the court would bail them out and when the court didn't bail them out and the court granted cert then they pulled the rugs out from underneath both the court and the parties i think as you know the process of the department of justice at least in my experience is much more even-handed than by that and yet it's quite slow-moving so you know we're sitting here in march and you know it's been what weeks since the new administration was in so i think that um i mean i know the process on doma took i don't know a year to make those determinations so i think you might be reading too much and giving too much credit to a process that we both know takes a long time it's possible but you know they did manage to put both the border wall case and return to mexico in the in the veins within a matter of a week or two so it's not really clear to me why would take longer to put this one in the bands well i think it's the pressing matter of them in the process by which they do and you know as you know also it involves the agency it involves whether you know in some of these instances where the president issued these orders for the agencies to reconsider and also i do think that there's you know a lot of different factors that are playing that come into play there and again i point out you know if they weren't telling the supreme court something and then there was a change there'd be a problem too so it is something that the solicitor general's office weighs really carefully to try and parse all this out and you know they're doing it very quickly because all of this is already in the middle of the term i want to make sure to get some questions from the audience since we have a few questions in the chat um so this is a question from jeffrey slaughter to all panelists uh to what extent is the court obliged to honor our new administration's about-face impending litigation and um you know are you think that there are do you think that there are any switches thus far where the credibility of the solicitor general's office you know could be damaged so so i guess first um on the court's reaction what what do you think um is the courts would be the court's reaction to this and um you know and i guess the court as a whole and perhaps specific justices too you know look to extend the court obliged i think it's going to depend on which of the types of cases we're talking about if if it's the agency change cases they're stuck right because if the agency has changed its position or they've dismissed their petition that's the end of it but in the cases where it's just a change in litigation position so the cases like cedar point and brnovich and terry they're not the court's not obliged like they'll appoint an amicus or the court's going to decide the case as the court is inclined to decide the case uh i you know it's always hard to predict but you know if i don't know for those folks who listen to the oral argument in cedar point it sure doesn't seem like the court is likely to agree with the new administration position on cedar point it seems like they're much more likely to agree with uh the prior the petitioner's position which is what the prior administration agreed with we'll see with some of the other ones i think that's where it's important i agree to you know distinguish this is an advocate's position it's not an adjudication it's the court's law that binds it's you know a position that will be presented to the supreme court and the court decides it and sometimes they bring in amiki they bring in other people and that is part of the real world the solicitor general to make sure all of the that they're assisting the court in hearing all sides of that one thing i wanted to point out about the um court's reaction to the solicitor general's office um you know there were some points in oral arguments where um you know the justices even in these erisa and federal tort claim act cases i mentioned where they were you know offended that there have been a change in position even when it they really weren't in some cases too much of a change in position at all it was like clarifying that they hadn't addressed the issue in the earlier brief but one thing i wanted to point out is um you know there not only is there a special relationship between the solicitor general and the supreme court because of the candor and everything that's due but let's not forget four by my account numbers of that court spent quite a bit of time in the solicitor general's office the chief justice you know spent a couple years in the solicitor general's office and definitely has um you know a fondness for the office and i think really has his own views about the institutional significance justice alito worked there justice kavanaugh i believe was a bristol fellow and of course elena kagan was the solicitor general and had to make these very decisions so that in my mind no doubt whether we hear it from them i don't think we will but it must somewhat inform their um approach and i think it could cut either way well we didn't do that or yes you should have done that that's what i thought you should have done but i think it just brings a kind of human interest part to this analysis that all of them had spent time in the office one interesting thing is it'll be harder to tell because precisely because they didn't file briefs in a lot of these cases like they didn't participate in argument in the bra case or cedar point so we have no like normally that would have been where the rubber hit the road on how the court felt about the change i uh it's not clear yet what will happen in terry whether they'll participate it'll be awfully weird to have a criminal case where they're not in but they also didn't file a brief so it'd be awfully weird to have them argue uh i think they will be presumably participating in the uh the afp case the first amendment california disclosure case so that might be the one window we have to see uh what the court thinks about uh their changes whether they ask the sort of questions that got asked to both uh uh the trump administration and obama administration sg's offices when they when they changed you know they didn't really ask many questions of the trump administration justice sotomayor in one argument brought it up and that wasn't that i think that was in the voting rights case where it was changing a position of an interpretation of a federal statute that bipartisan decades of the department of justice both sides of the aisle that interpreted the same way and i think she was the only one to even bring it up in that case and i might not miss remembering but i think it was the voting case so they didn't make much of a fuss at all it was really earlier you know not high profile cases where they uh made the comment which i i don't know what to make of that yeah well i think part of that is and i think uh michael driebben pointed this out in his article i think they were upset as much about the fact that the phrasing in the briefs about why the change in position had been made not sort of candidly admitting look there's been a change in administration and that's what was going on i think once you start saying the administration is there's a new administration and we've revisited it a lot of the uh they're just sort of knee-jerk reaction seemed to have melted away yeah i think that other language was an artifice you know the solicitor general has these conventions or the way they say things to the supreme court and i don't think they really thought they were yeah the way they change it can sound more direct well the court seems to be agreeing to these dismissals could they you know hold the cases in abeyance until the regulation is changed if you think that some supreme court justices might might be seeing this as an enron to the apa well so that's what's so procedurally problematic right is under the rules a dismissal is automatic as long as all parties agree now if they had given anyone notice of that this was gonna happen then what parties might have tried to intervene which is what has now happened states have all filed motions to intervene and they're trying to get the court to either not dismiss or pull back the dismissals on the ground that if they had been able to intervene then it wouldn't be grounds to dismiss but that's part of why this all that strikes me is just very procedurally unusual that they took this basically unprecedented step of dismissing a granted case in a final action against the agency and they did it without telling anyone so that no one could protect their rights yeah that's the article three question what comes up whose rights are at issue i mean so that's one of the issues right the right of the people who are who are benefiting from the rule that's currently in effect they're the ones whose rights are an issue right and i was just going to echo exactly what josh said because this hits at both the question you just asked beth and also the question the prior question to what extent is the court obliged to follow well we actually won't know in some of these cases because under the supreme court's rule so these some of these cases have just been dismissed we'll never know what the what the justices will see uh what they would have thought about the merits of the case or or the merits of the the switches in position um but you know i i think that to hash's point when there is no notice whatsoever and there are parties who would have been uh so in the public charge cases i know that there was we saw in in the media in the press it was reported a number of states tried to intervene um after the case was dismissed they tried to get intervene in a number of the circuit courts and to my knowledge at least in i think in the fourth and i perhaps elsewhere also that was not successful um in the states who had a legitimate interest they had rights uh they had a a very strong interest in the case because of the impact on what they spend in tax dollars could have been implicated where the federal government was previously representing a position that the states agreed with and then the federal government completely about face switches positions doesn't give any notice to anyone doesn't give any chance for anyone to opine those parties don't have a chance to get involved in defense why can't they bring a new case if they are standing there's nothing to challenge at this point we asked in the final judgment the disreport entered the final judgment vacating the rule now the rule is gone so there's nothing to challenge exactly i think we have time for one more question and this is from greg curfman um and he's asking about the medicaid work requirements can any of the panelists discuss the medicaid work requirements case before the supreme court how could you expect the biden administration to support the trump administration's position on work requirements when their policy position is just completely different uh so look i would say two things one is if they really can't defend it the way you typically do it and i think they're actually consistent on this one this one is they're doing something more closer to the normal way what what you would do is you would say the agency would actually change their underlying position and then you would try to get the court to vacate the projection below and that's essentially what the administration has done they actually filed a motion to vacate the dc circuit's opinion they did in a little bit of a weird posture because they did it before the agency had changed actually changed but they are asking for a vacator but the second thing i would say is i think the way you can reasonably expect them to defend it is because you recognize that the question here isn't a policy question of is this a good idea it's a question as gene pointed out of do you have the lawful authority to do this and you could very well think that an agency has the lawful authority to do something even though they you might not think they should do it uh so you know there were lots of things that at the tail end you know i mentioned it before like you know fiduciary rule during the obama administration that uh the trump administration continued to defend i don't know whether the department of labor or i won't get into whether the department of labor would have thought that that was a good idea or a bad idea but to question whether they had lawful authority to do it it's just a different question right but sure i mean they came in and didn't defend the constitutionality of the appointment of administrative law judges security exchange commission very inconsistent with years of positions on that and in you know lower court litigation yep okay we were right about that too though so like but that does but that's not the issue that we're talking about right no i know i look i think it is partly right because i think the point was we the way we changed position in that was in a way that was heated up for the court to have full briefing adversarial process and a decision on it i agree with that that's what i'm saying that's what the process is and um i think that though it has to be a you know it not in it you're asking the court for an advisory opinion like if somebody wants to do this in the future they can do that i mean that's just not what the court's there for it's not a court of an appellate right it's a court of discretionary review it takes in consideration factors like at the third and as we all know sometimes they dismiss cases isn't probably granted when they find out that they don't have ongoing consequences i mean that's another approach that the court has taken when it turns out some case isn't going to have ongoing um significance so this has been a fantastic discussion i think really great points made on all sides uh it's now three o'clock so i want to be mindful of our time i just want to give the panelists you know a minute if you have any uh closing remarks you want to add that we didn't get to nothing for me yeah thanks for having me it's a very interesting discussion appreciate it beth i i guess the only remaining point that i would make is that just as a practical matter i think this is a dangerous practice and just across the board if an administration acquiesces to this kind of law fair that we're seeing with some of these cases you will eventually die by the same kind of law fair and that should factor into your considerations as well i've got to just say i don't go for labels about law firm you and all of that i just don't i'm looking at the institution of the office of the solicitor general and the supreme court of the united states and what happens when there are policy changes that come into play and how to respect the court and ensure they're not deciding cases that aren't going to have ongoing consequences because policies are being changed and the prerogative of any president to change policies and have agencies direct that so i i think that's really are the factors to be taken into account well thank you so much to all of our fantastic panelists this has been a fantastic discussion i'll uh throw it back over to nick yes uh we could go another hour it seems but unfortunately you've reached the end of our time thank you all very very much for joining us today especially to the panelists for the benefit of your valuable time to our moderator and beth thank you very much and to our audience for calling in your great questions there are many good ones we didn't get all of them unfortunately um but thank you for your good questions as a reminder be checking your email and our websites for announcements about upcoming teleform calls and zoom events like this one and with that until next time have a great weekend we are adjourned thank you thank you [Music] you

Channel: The Federalist Society

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Length: 61min 15sec (3675 seconds)

Published: Fri Apr 09 2021