Forum Shopping and Legal Mischief
It's time to ban a growing and dangerous practice.
There’s quite a bit of consternation over an activist judge ruling a long-approved abortion pill illegal. It’s already on hold and unlikely to take effect. The fact that he heard the case at all, however, shows a major flaw in our system.
NYT (“Judge Invalidates F.D.A. Approval of the Abortion Pill Mifepristone“):
A federal judge in Texas issued a preliminary ruling invalidating the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone, an unprecedented order that — if it stands through court challenges — could make it harder for patients to get abortions in states where abortion is legal, not just in those trying to restrict it.
The drug will continue to be available at least in the short-term since the judge, Matthew J. Kacsmaryk, stayed his own order for seven days to give the F.D.A. time to ask an appeals court to intervene.
Less than an hour after Judge Kacsmaryk’s ruling, a judge in Washington state issued a ruling in another case, which contradicted the Texas decision, ordering the F.D.A. to make no changes to the availability of mifepristone in the 18 states that filed that lawsuit.
The conflicting orders by two federal judges, both preliminary injunctions issued before the full cases have been heard, appear to create a legal standoff likely to escalate to the Supreme Court.
Slate‘s Mark Joseph Stern goes a bit over the top with “The Lawless Ruling Against the Abortion Pill Has Already Prompted a Constitutional Crisis.”
On Friday evening, U.S. District Judge Matthew Kacsmaryk of Texas issued an unprecedented decision withdrawing the FDA’s approval of mifepristone, the first drug used in medication abortion, 23 years after it was first approved. His order, which applies nationwide, marks the first time in history that a court has claimed the authority to single-handedly pull a drug from the market, a power that courts do not, in fact, have. Kacsmaryk’s ruling is indefensible from top to bottom and will go down in history as one of the judiciary’s most shocking and lawless moments. It goes even further than expected, raising the possibility that he will impose “fetal personhood,” which holds that every state must ban abortion because it murders a human. Within an hour of its release, the decision also spurred the start of a constitutional crisis: A federal judge in Washington swiftly issued a dueling injunction compelling the FDA to continue allowing mifepristone in 17 states and District of Columbia, which brought a separate suit in Washington.
Alas, we get nutty judicial decisions all the time and they tend to be quickly reversed. Stern goes on to clearly articulate half a dozen reasons why the decision is outrageous, which I commend to those interested.*
To me, though, the more important point is that a lone judge in Texas simply shouldn’t have the power to make national-level policy. Former Idaho attorney general and Idaho Supreme Court justice Jim Jones had a good op-ed in The Hill on the subject (“Ideology-driven federal judges should not be allowed to rule the entire nation“) last month in anticipation of this very case.
He makes two points. First, about how forum shopping works:
The plaintiffs in the case specifically selected Judge Kacsmaryk in what has become commonplace forum shopping by conservative litigants. That is, you pick a judge you strongly suspect will rule in your favor rather than one who might be dedicated to the rule of law. It happens quite often in Texas, where some federal court districts have only one federal judge. Most other states have multi-judge districts where the presiding judge is randomly assigned.
Texas Attorney General Ken Paxton, infamous for his preposterous lawsuit seeking to overturn the 2020 election, has perfected the art of forum shopping for friendly judges under the Texas system. In 26 suits against the Biden administration in the last two years, Paxton filed seven in Kacsmaryk’s one-judge district and another seven in the one-judge district of another conservative judge.
This is a gross abuse of the justice system that should be halted by Congress. Forum shopping has most effectively and more recently been used by Republicans but was also used by Democrats in the Trump years. It should be fixed by legislation requiring that cases where national injunctive relief is sought be handled by the federal courts in Washington, D.C., which routinely decide such cases.
While I was aware that forum shopping existed, I hadn’t realized just how easy it is. But, yes, if there’s just one judge in a district, it’s pretty easy. And Jones’ solution, having all cases challenging federal laws and regulations in the DC jurisdiction, is one that I’ve touted for years. Not only do they have the expertise but the DC Circuit and the Supreme Court are the next steps in the legal fight.
The obvious pushback is that the DC district is among the more liberal in the nation, putting conservative plaintiffs at a disadvantage. Given that the Supreme Court, the ultimate backstop, is decidedly conservative at this point, that’s not that big of a concern, especially weighed against the obvious mischief of forum shopping.
Jones’ second point is about the scope of the judicial power, regardless of the forum:
Congress should also delineate when a nationwide injunction may be issued and what requirements must be shown to obtain one. The use of such injunctions has gotten out of hand, and it is not clear what legal authority exists to support them. They were virtually unheard of until the 21st century. During the George W. Bush presidency, 12 such injunctions were issued. There were 19 during the Obama presidency and at least 55 under Trump. They have frequently been used against President Biden for things like masking on planes, immigration enforcement, vaccine mandates, student loan forgiveness, stimulus payments to farmers of color, climate change rules and a host of other issues. Both parties have decried them as being without statutory authority, usually depending on which party then holds the presidency.
In principle, I agree with him that the power should be limited. On the other hand, the reason there were so many suits during Trump’s four years is his administration’s flagrant disregard of the Administrative Procedures Act. And, while Biden’s management has been much more competent, there has been a marked increase in resort to governance by executive fiat this century, mostly to get around the fact that Congress tends to be unable to act.
Which, it turns out, is my second objection to Jones’ suggestion: regardless of whether it’s a good policy idea, it’s almost certain Congress won’t enact it. Too many Members will look at it in terms of partisan impact rather than the rule of law.
The technicalities are interesting as well:
There are technically two varieties of what are generally lumped together as nationwide injunctions. The plaintiffs in the mifepristone case claim FDA’s approval of the drug was faulty. They seek a “vacatur,” which would invalidate the drug’s approval and take it off the market. A typical injunction grants affirmative relief, but the basic effect of either is the same. Some observers believe a vacatur finds legal support in the Administrative Procedure Act passed by Congress in 1946, but the Act says nothing about nationwide injunctive relief.
The Congressional Research Service issued a report in 2021, noting that “no federal statute explicitly authorizes the courts to issue such injunctions, nor does any statute expressly limit their ability to do so, and the Supreme Court has not expressly ruled on the legality of nationwide injunctions.”
Elizabeth Prelogar, the U.S. solicitor general, raised the shaky legal foundation of the vacatur in an immigration case she argued before the Supreme Court last December. That drew a heated response from Chief Justice Roberts and Justice Kavanaugh, but she was right on the mark. These abusive measures need to be reined in by Congress if not by the Court.
Erwin Chemerinsky, dean of the UC Berkeley Law School, contends that they are a bipartisan problem and that their wanton use should be abolished. However, we need not go that far. There are likely a few cases where nationwide injunctions would be appropriate, but their present widespread use is unwise and destructive to our legal system.
The Republican-controlled House Judiciary Committee approved legislation in 2018 to do away with most nationwide injunctions. The bill did not get further action but does show that there is bipartisan concern about the abusive practice. The time has come for Congress to act by: (1) significantly limiting the cases where a nationwide injunction can be issued; (2) spelling out the requirements for obtaining the relief; (3) specifying that litigation seeking the relief must be filed in the federal district court in Washington; and (4) requiring approval by the D.C. appellate court before a nationwide injunction could take effect.
Allowing ideology-driven federal judges to exercise authoritarian control over the entire country is a gross distortion of our system of justice. Congressional action is essential to stop the practice.
I haven’t thought enough about the broader issue of nationwide injunctions to have a strong opinion. I’m more skeptical of their use against acts of Congress than I am regarding executive orders, given that the former has a stronger Constitutional basis and firmer political standing in a democracy. Still, if there’s a valid basis for ruling that a policy violates the Constitution, injunctive relief has to be possible. But it rather obviously shouldn’t be based on filing the suit with the right crackpot judge.**
UPDATE: The original post incorrectly referred to mifepristone as a “morning after pill,” confusing it with Mifeprex.
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*One of the charges leveled against Kacsmaryk by Stern and others is that he was an anti-abortion activist before being appointed to the bench and should therefore have recused himself. While that strikes me as reasonable as a matter of principle, I would note that we don’t apply that reasoning to former civil rights lawyers like Thurgood Marshall or Ruth Bader Ginsburg.
**In an ideal world, of course, there would be none. Alas, we do not live in that world.
Another big point here is that Dick Durbin is directly responsible for this: the reason there is only one judge in that district is that Durbin refuses to schedule hearings for nominees in thar district because of a stubborn refusal to abandon the “blue slip” process.
It’s not a morning-after pill, James. It’s an abortifacient.
Men don’t understand reproduction. Story at eleven.
With a federal agency action, it’s kind of hard not to have a nationwide injunction. The action is either legal or not. If it’s not legal (or it’s unconstitutional, which is a different question), there is no basis for the agency to enforce it – anywhere. It also presents some problems to have the agency enforce it in Missouri, but not in Illinois, let alone enforce it in the Central District of Illinois, but not the Norththern District.
We need a flag with a picture of a mifepristone pill on it with a caption that says “Come and Take it”.
Steve
@Cheryl Rofer: A minor (discussable) misapplication of terminology hardly makes a basis for a smarmy genderised assertion of Men or Women not understand X (or by extension that Pr Joyner does not understand biological processes of reproduction rather than merely using a generic term perhaps over broadly in a popular sense).
Clearly most people period have a poor grasp of the biology of sexual reproduction as they generally have a poor grasp of science in general.
@Joe: Indeed structurally this would seem as much an issue of US judicial structure perhaps being out of phase with the evolution of the Federal state – as you evolve step by step to more centralisation in actual fact while keeping layers and complex and not entirely coherent non-centralisation, in fact and in pretence.
Perhaps it is within scope of judicial reform to require legal challenges which are aimed at national level central government administrative regulation and law to go at minimum to a judicial panel to mitigate jurisdiction gaming – from a long-term policy souci.
Otherwise, this affaire would seem really to be a virtual gift to the Democrats in respect to politics, the Reactionary nature of the effort, the liklihood it boxes in the opposition to an extreme position that will appear (and is in fact) threatening to right to access as well as even coherent drug policy making (vaccines, marijuana, etc) with FDA… It is the very picture of reactionary ideologues over-reaching, and rather giving support to the worst case scenarios evoked about threats to rights as raised when the Roe decision was overturned.
Certainly, so long as the Left of the Democrats doesnt over-reach in other areas, a development that should positively drive the proverbial suburb mums and centrist women generally against the Reactionary takeover of the Republicans.
Close races in the at-play electoral geographies should be rather interesting in this context, as one suspects the Republicans, unable even to work in proper interest against Trump shall not be able to finesse this either over a rabidly reactionary primary voting core.
@Lounsbury: The difference between contraception and abortion isn’t “minor.” I find many women have a pretty solid grasp on reproductive matters, regularly getting a decent education from their gynecologists, their own bodies, and from each other. After two difficult pregnancies, my oldest sister — never an intellectual — sounded like an expert talking with my mom and aunts.
Perhaps you have a poor grasp on women? Maybe smarmy knownothing know-it-all mansplaining is a turn-off to them?
@Stormy Dragon:
People who vote for Republicans are directly responsible for this.
@Lounsbury:
You forgot to write “tedious” and “knee-jerk” in your post.
You feeling okay today?
@DK: How boring. Pr Joyner used a non-technical phrase (morning after) in a discussably imprecise and arguably inaccurate fashion, which hardly indicated a lack of understanding of mammelian or human reproduction versus simply an inadvertant mis-turn of phrase (the mis-turn of phrase being minor, as obviously the popular usage about pills is not making a statement on the contraception or abortion subject as such).
As for personal anectdotes, but of course, what else would one expect from an entourage from a specific socioeconomic universe. Survey data, rather than ad-hoc personal anectdote, rather suggest people broadly have a rather poor grasp of the microbiology beyond the broad strokes.
Of course genderised “explaining” – from either of the genders – such as the presumptive ‘you don’t get it’ overdrawn from misuse of phrase, as well as identity-based ad-hominem is typically very boring.
@Kurtz: That would be reserved for such responses as your specific one here, being tedious and knee-jerk.
@Lounsbury:
I’m not sure you know what either of those words mean.
Isn’t there some kind of jurisdictional issue here. The FDA has found the drug safe. There are dozens of papers out since the FDA approved the drug, all finding the drug safe. The FDEA can overrule the FDA on issues of drug safety? It sounds like the judge made his decision based upon he testimony of one doctor who cited 4 or 5 papers, that all said the drug was safe. Heck, you can find one doctor to say anything. There is no shortage fo quacks. Can the judiciary be so devoid of standards? Maybe the anti-abortion people finance fancy vacations for that judge?
Steve
@steve:
You also said:
Change the last word to one that rhymes and you have your answer.
Of course, the problem is likely a particular standard for nominations depending on who controls the WH and Filibuster Chamber.
In the Clarence Thomas thread yesterday, I’m surprised no one pointed out a picture that accompanied the ProPublica piece. It was taken at Harlan Crow’s private retreat in the Adirondacks. Thomas, cigar in hand, chatting with two relatively anonymous attorneys, Crow, and Leonard Leo.
@DK: An observation however relative to the difference between contraception and abortion:
Insofar as the radical reactionaries who have driven this attack on the pill do not in fact make the distinction at minimum in this area, certainly they will not stop if they win on this point, you would be likely well-served politically in not bothering any more with the distinction yourselves.
Morning after pill proper or Ru, all of the same piece for them and regardless if you lose firs trimester, chemical contraception falls next.
While at same time contraception as part of your defence has promising politics.
@Lounsbury: Jeebus you are an idiot. Here you are counting angels on the head of a pin while they are counting demons in hell.
Wake the F’ up, you aren’t playing the same game they are.
@OzarkHillbilly: remember…he isn’t from the US, and his main concern is that money flows easily. Such things in our politics aren’t really on his radar.