Oral argument in the U.S. Supreme Court's administrative law caseSEC v. Jarkesy will be Nov. 29, according to an update to the court’s calendar Thursday. The case has implications for the enforcement power of federal agencies that use administrative law judges, such as the FCC (see 2211030063). The proceeding stems from a 2013 SEC enforcement action against George Jarkesy and investment firm Patriot28 over securities violations by their hedge funds. The SEC ruled against Jarkesy, but in 2022 the 5th U.S. Circuit Court of Appeals said it was unconstitutional for Congress to give the SEC discretion over whether enforcement matters are adjudicated in front of its ALJ, imposing civil penalties in agency hearings with no jury violated the 7th Amendment, and ALJs are unconstitutionally difficult for the president to remove. In a brief Wednesday, Jarkesy argued the SEC violated the constitutional right to a jury trial by adjudicating fraud cases in its in-house courts. The SEC argued precedent allows those cases to be tried without juries outside the federal courts because its fraud enforcement involves the government suing violators on behalf of the public. This view of public rights doctrine ignores historical precedent stretching back to English common law, said Jarkesy Wednesday. Since SEC fraud cases like Jarkesy’s target deals reached between two private entities, without the government as a party, they involve private rather than public rights, and require a jury, said the brief. By delegating authority to the SEC to decide if fraud cases would be tried in-house in front of an ALJ or in the federal courts, Congress violated the Constitution, the brief said. Agency ALJs also violate the Constitution because their tenure protections mean they can’t be directly removed by the president, the brief said. Jarkesy also argued SCOTUS can’t separate the ALJ protections issue from the rest of the case, or remand the matter to the SEC. “The Court cannot fix the violation by severing the offending for-cause protection, because that protection was a material element of Congress’ statutory scheme,” said the brief. “The reviewing court’s decision is the final word.”
Opening briefs from NetChoice and the Computer & Communications Industry Association are due Nov. 30 at the U.S. Supreme Court in their constitutionality challenges of the Florida (docket 22-227) and Texas (docket 22-555) social media laws, said a text-only scheduling order Tuesday. The Florida and Texas response briefs are due Jan. 16, said the order. Amicus briefs in support of NetChoice and CCIA are due Dec. 7, and amicus briefs in support of the states are due Jan. 23, said the order. SCOTUS granted the cert petitions of NetChoice and CCIA Sept. 29 (see 2309290020). They argue the Florida and Texas statutes are unconstitutional under the First Amendment, and they violate the commerce clause, the equal protection and due process clauses of the 14th Amendment, and are preempted by Section 230.
The U.S. Supreme Court should “clarify the law” on direct infringement of copyrighted works, said Seth Cooper, Free State Foundation senior fellow and director-policy studies, in an analysis Wednesday. SCOTUS will consider at its Sept. 26 conference whether to take up ABKCO Music v. Sagan (docket 22-1053), a case in which a lower court “distorted the law regarding direct copyright infringement,” said Cooper. Section 106 of the Copyright Act “secures the exclusive rights of a copyright owner to authorize the copying and distribution of creative works,” he said. But the 2nd U.S. Circuit Court of Appeals “determined that a person who improperly authorizes someone else to make and distribute copies of a creative work” isn’t liable for direct infringement “if the improper authorizing person did not actually ‘press the button’ to make the copies,” he said. If left standing, the lower court's decision “would undermine the ability of copyright owners to enforce their rights in many instances,” he said. SCOTUS “should grant review and vindicate the correct understanding of direct copyright infringement,” he said.
Internet industry groups renewed their call for U.S. Supreme Court review of two state social media laws. In supplemental briefs Wednesday, NetChoice and the Computer & Communications Industry Association (CCIA) agreed with the U.S. solicitor general that SCOTUS should review Texas (22-555) and Florida (22-393) cases but disagreed that the court shouldn’t review the state laws’ disclosure requirements. The court said Wednesday it distributed the cases for a Sept. 26 conference. “United States confirms that this case is exceptionally important and warrants the Court’s review,” the petitioners said in their Texas brief. They agreed with the solicitor general that SCOTUS should reverse the 5th U.S. Circuit Court of Appeals upholding the Texas law’s content-moderation restrictions. But the Supreme Court shouldn’t “artificially cabin its review” by skipping the disclosure requirements, they said. The U.S. can’t “deny that which First Amendment standard applies to governmental requirements to disclose editorial policies is increasingly recurring and important,” petitioners added. In the Florida case, NetChoice and CCIA said the U.S. “seeks to artificially limit” SCOTUS review to provisions invalidated by the 11th U.S. Circuit Court of Appeals, even though all the Florida law’s “provisions work hand-in-glove to punish a select handful of online services that the state indisputably disfavors.” Texas filed a supplemental brief Monday (see 2308290051).
The U.S. government misapplies U.S. Supreme Court "precedents and offers a view of the First Amendment that would imperil some of its own regulatory programs,” but the solicitor general is right that the Supreme Court should grant certiorari in both Texas and Florida social media law cases, Texas said in a supplemental brief Monday (case 22-555). The U.S. position (see 2308150010) would leave state and federal governments "with little, if any, guidance on how to draw the line between regulable and non-regulable activities of social-media platforms,” wrote the state’s provisional attorney general Angela Colmenero (R). "By characterizing the central feature of the platforms -- hosting third-party content -- as speech, the federal government all but immunizes social-media companies from any substantive regulation. The First Amendment does not mandate such a result.” Despite that objection, Colmenero said the solicitor general's brief confirms "these cases present the exceptionally important question of whether the First Amendment precludes the government from requiring large social-media platforms to provide equal, non-discriminatory access to the public regardless of viewpoint.” Texas doesn't object to the solicitor general's recommendation to deny cert on the state law's disclosure requirements, she added.
U.S. Supreme Court Justice Brett Kavanaugh granted a Consumers Research request to extend until Oct. 27 the deadline to file a petition for writ of certiorari Tuesday (see 2307310061). The group sought the extension for its challenge of the 6th U.S. Circuit Court of Appeals decision upholding the FCC's USF 2021 Q4 contribution factor. Kavanaugh is the justice assigned to the 6th Circuit.
Justice Elena Kagan requested Apple's response by Friday at 5 p.m. EDT to Epic Games’ July 25 emergency application to vacate the stay of the appellate mandate issued to Apple by the 9th U.S. Circuit Court of Appeals, or to vacate the court’s stay pending appeal (see 2307280011), said a docket entry Monday (docket 23A78) at the U.S. Supreme Court. The stay is preventing enforcing the injunction that Epic won in the district court to enjoin Apple from imposing its anti-steering rules against mobile app developers. Kagan is the U.S. Supreme Court justice for the 9th Circuit.
Consumers' Research asked the U.S. Supreme Court to extend the deadline to file its cert petition challenging a 6th U.S. Circuit Court of Appeals decision upholding the FCC's USF 2021 Q4 contribution factor (see 2305300009). The group asked in an application posted Friday that the court extend the Aug. 28 deadline by 60 days, to Oct. 27, to file its petition. The group noted the 5th Circuit's decision to grant rehearing for its challenge of a separate contribution factor, saying it "signals that it may soon split from the Sixth Circuit on these important nondelegation matters" (see 2306290074).
Federal courts have the “constitutional power to say what the law is,” and Chevron deference “nullifies that power and should therefore be overruled,” said the nonprofit Pacific Legal Foundation (PLF) in an amicus brief Monday (docket 22-451) at the U.S. Supreme Court in support of the petitioners in Loper Bright Enterprises v. Raimondo. The petitioners are vessel owners challenging the authority of the National Marine Fisheries Service to require them to pay the salaries of the federal observers they must carry onboard. In a case with clear ramifications for the future of Chevron deference for federal agencies, the petitioners are asking SCOTUS to reverse a D.C. Circuit decision in the government’s favor that critics of the ruling are calling clear agency overreach. SCOTUS “disserves the Constitution” each day it allows Chevron deference to exist, said PLF’s brief, listing 27 reasons why SCOTUS should end the doctrine. “It should be plain by now” that the Supreme Court should end Chevron “and not attempt to mend it,” said the brief. The petitioners’ question leaves open the option for SCOTUS to mend Chevron, but there’s nothing in it “that can be mended in a manner that would bring the doctrine in compliance with the Constitution,” it said. Chevron’s presumption that Congress “relinquished a measure of its legislative power to agencies is simply unsupportable,” said the brief. Chevron “fatigues federal courts and Congress into compliance with agency diktat,” it said. It dissolves the legislative and executive powers “into one concoction, and it obstructs the administration of justice by disarming the judicial power” of the U.S., it said. Chevron by another name “will remain just as violative of the Constitution’s entwined checks and balances,” it said. It’s imperative that this SCOTUS “repudiate” the doctrine for good, it said.
The “far-reaching question” that the U.S. Supreme Court will address in Loper Bright Enterprises v. Raimondo -- whether Chevron deference “should be overruled or at least clarified” -- implicates the separation of powers, said an amicus brief Thursday (docket 22-451) by the Atlantic Legal Foundation in support of the petitioners in the case. The petitioners are a group of vessel owners challenging the authority of the National Marine Fisheries Service (NMFS) under the Magnuson-Stevens Act to require them to pay the salaries of the federal observers they must carry onboard. The petitioners are asking SCOTUS to reverse a U.S. Appeals Court for the D.C. Circuit decision in NMFS's favor that critics of the ruling are calling clear agency overreach. Their opening brief is due Monday. It's a case expected to have broad implications for the future deference afforded federal agencies under Chevron to properly interpret and enforce the federal statutes they have authority over. In addressing the viability or scope of Chevron deference, SCOTUS should use the case “as an opportunity to correct, or at least admonish,” the “brazen disrespect” that NMFS holds for the Constitution’s appropriations clause, said the foundation. Over many decades, both the executive branch and Congress, “often in concert,” have violated “the letter and/or purpose” of the appropriations clause “in too many ways to catalog here,” it said. Only SCOTUS can begin to restore the clause’s “crucial constitutional check against abuse” of executive branch power. it said. SCOTUS has limited its review to the question of whether Chevron should be overruled, or at least clarified, so courts don’t equate “statutory silence with statutory ambiguity” for purposes of deferring to an agency’s assertion of controversial powers under a statute that it administers, said the foundation. If Chevron deference excludes anything, it should be the NMFS’ “unconstitutional power grab here,” it said. An agency interpretation can’t be “reasonable, or permissible, or consistent with congressional intent,” if it conflicts with the constitution, it said.