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09/13/2018

CoA Institute Defends U.S. Citizens’ Privilege and Immunity From Excessive Fines in Latest Amicus Brief

On Tuesday, September 11, 2018, Cause of Action Institute (“CoA Institute”) filed an amicus curiae brief in the Supreme Court case Tyson Timbs v. State of Indiana in support of the Petitioners, who asked the Court to determine whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States through the Fourteenth Amendment. The matter arises from a civil action against both Tyson Timbs and his vehicle, which the State sought to forfeit. The state trial court and intermediate appellate court ruled that forfeiture of the vehicle (worth about $40,000) would be “excessive” and “grossly disproportional to the gravity of”[i] crimes to which Timbs pleaded guilty in a separate case (the maximum fine for which was $10,000, and Timbs was actually fined much less). But the Indiana Supreme Court reversed because the U.S. Supreme Court has not yet held that the Excessive Fines Clause applies to the States.[ii] CoA Institute argues that the Indiana Supreme Court should be reversed because, as a citizen of the United States, Timbs is privileged and immune under the Fourteenth Amendment from the grossly disproportionate fine that Indiana seeks to impose through forfeiture of his vehicle.

Our brief calls attention to the fact that the Supreme Court has never ruled on whether the Excessive Fines Clause is applicable against the States. We argue that the Excessive Fines Clause is, in fact, enforceable against Indiana through the Privileges or Immunities Clause of the Fourteenth Amendment. That clause provides that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” CoA Institute relies on recent jurisprudence, like Justice Thomas’s concurrence in McDonald v. City of Chicago, which notes that on its face, Section 1 of the Fourteenth Amendment grants U.S. citizens a “certain collection of rights – i.e., privileges or immunities – attributable to [their] status” as citizens of the country as well as an individual state.[iii]

Additionally, our brief demonstrates that Excessive Fines Clause includes the ancient principle of salvo contenemento, which prohibits fines that would deny any defendant the basic ability to earn a living. Forfeiture of Timbs’ vehicle in this case would violate this ancient principle.

Our amicus brief is available here

Libby Rudolf is a Research Assistant at Cause of Action Institute.

[i] State v. Timbs, 84 N.E.3d 1179, 1181 (Ind. 2017) (quoting trial court).

[ii] Id.

[iii] McDonald v. City of Chicago, 561 U.S. 742, 808 (2010) (Thomas, J., concurring in part and concurring in judgment).

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08/22/2018

U.S. Fish and Wildlife Service Attempts to Evade Judicial Review of an Unnecessary Critical Habitat Designation That Would Significantly Cost Landowners

On August 8, 2018, the U.S. Solicitor General sent a letter to the Supreme Court informing them of a proposed rule change published by the U.S. Fish and Wildlife Service (the “Service”) that would relate to a pending case: Weyerhaeuser Company v. U.S. Fish & Wildlife Service. While the proposed rule would only apply to future critical habitat designations and would not permit a reevaluation of the designation at issue in Weyerhaeuser, the proposed changes do relate to the underlying issues in the case and would support the argument Cause of Action Institute (“CoA Institute”) made in its amicus brief that the Service’s actions are subject to judicial review.

On April 30, 2018, CoA Institute filed an amicus curiae brief in Weyerhaeuser in support of Petitioner, Weyerhaeuser Company. The company asked the Supreme Court to review the Fifth Circuit’s decision upholding the Service’s questionable designation of 1,544 acres of private land in Louisiana, identified as “Unit 1,” as “unoccupied critical habitat” for the dusky gopher frog, an endangered species. As the Service has acknowledged, Unit 1 is not only currently uninhabitable by the dusky gopher frog, but the critical habitat designation could result in up to $34 million of lost revenue for the private landowners. Simply put, the designation of Unit 1 as critical habitat is not necessary for the conservation of the dusky gopher frog but would come at a significant cost to the landowners. Nevertheless, the Service included Unit 1 as critical habitat. Completely ignoring the landowners’ interests, the Service is forcing these individuals to forfeit a significant profit from their land for a frog that has not been able to survive on their land for over 50 years.

Weyerhaeuser Company, who leases the land at issue, along with other Unit 1 landowners, challenged this designation in 2013, alleging that because Unit 1 is uninhabitable by the dusky gopher frog, Unit 1 is not essential for the conservation of the frog as required by the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., for unoccupied critical habitat. Additionally, Weyerhaeuser argues that the Service did not adequately weigh the costs of inclusion against the benefits of exclusion, failing to effectively consider the significant economic costs the landowners will have to endure from lost development opportunities.[i] The district court recognized that the agency action in this case is “odd,” but it nonetheless proceeded to grant summary judgment in the Service’s favor, deferring to the agency action and finding itself “without power” to overturn it.[ii]

On appeal, a divided Fifth Circuit panel affirmed the district court.[iii] The Fifth Circuit held that, under the Administrative Procedure Act (“APA”), the Service’s decision not to exclude Unit 1 was discretionary and not subject to judicial review, a decision that, if it remains unchecked, could give excessive and unregulated power to not only the Service but throughout the administrative state.[iv] After being denied a petition for rehearing en banc, Weyerhaeuser Company petitioned the Supreme Court to address the following two questions:

  1. Whether the ESA prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation.
  1. Whether an agency decision not to exclude an area from critical habitat designation because of the economic impact of the decision is subject to judicial review.

While CoA Institute agrees with Petitioner on both issues, it chose to address the latter question in its brief because of the momentous consequences it perceives on the administrative state if the Service’s determinations are not subject to judicial review.

In her dissent from denial of rehearing en banc, Judge Jones expresses these same concerns by warning that the “ramifications” of the panel’s decision regarding judicial review of agency action “cannot be underestimated.”[v] Should the Fifth Circuit’s determination stand, agencies throughout the administrative state could be permitted to make unconstrained decisions.

In its brief, CoA Institute argues that the Fifth Circuit’s determination that judicial review is precluded under the APA’s § 701(a)(2) exception, which states that judicial review will not apply when “agency action is committed to agency discretion by law,” is erroneous. The court failed to perform the necessary analysis required to make this determination, and had the court done so, it would have been clear that the Service’s actions in this instance are subject to judicial review. The Supreme Court has recognized that there is a “‘strong presumption’ favoring judicial review of administrative action” because “Congress rarely intends to prevent courts from enforcing its directives to federal agencies.”[vi] The Fifth Circuit’s conclusory determination in this case, however, contradicts this “strong presumption” of reviewability, because the court instead seems to have wrongly relied on a strong presumption of “unreviewability.”[vii]

CoA Institute argues that, in failing to apply the “strong presumption” of judicial review of agency action, the lower courts did not perform the “careful examination” that the exception requires. The only way for judicial review to be barred in this case, under the § 701(a)(2) exception, is if the language in the ESA that describes how the Secretary makes critical habitat determinations  is drawn in such a way that it precludes a reviewing court from having a “meaningful standard against which to judge the agency’s exercise of discretion.”[viii] To determine this, the court would have needed to conduct a more-adequate examination of the language of the ESA.

Instead of conducting this essential examination of the statutory language, the Fifth Circuit relied on caselaw from the Ninth Circuit and several district courts that suffer from similar analytical ailments. In its brief, CoA Institute performs that careful examination of the ESA’s statutory language, showing that the language of 16 U.S.C § 1533(b)(2) and the overall structure of the ESA do not preclude judicial review. We depend on our courts to conduct the analyses necessary to ensure that government agencies are acting justly and not needlessly impeding individuals lives, a step which the Fifth Circuit failed to do in this case. Had the Fifth Circuit applied the “strong presumption” of judicial reviewability of agency actions, conducted the “careful examination” that is required to establish that judicial review is precluded under § 701(a)(2), and not simply relied on previous erroneous findings in other courts, it would have been evident that the Service’s decision is subject to judicial review.

In its recent notice of proposed rulemaking, the Service offers revisions to portions of the regulations implementing Section 4 of the ESA that would create an even more “meaningful standard” that reviewing courts could use to judge the agency’s use of discretion. Specifically, the proposed rule “provides additional predictability to the process of determining when designating unoccupied habitat may be appropriate”[ix] by clarifying when the Secretary may determine that unoccupied areas are essential for the conservation of a species.

The current rule only provides two ambiguous situations when unoccupied areas would be considered essential to species conservation, while the proposed rule will include additional situations that would clarify the meaning of “essential.” For example, the proposed rule would require that the Secretary determine “that there is a reasonable likelihood that the area will contribute to the conservation of the species.”[x] Additionally, the Service would consider the “current state of the area and the extent to which extensive restoration would be needed for the area to become usable,” and how willing a non-federal landowner is to undertake such restoration.[xi] This language articulates an even stronger and “meaningful” standard that the Service uses in determining whether to exclude an area in a critical habitat designation, making the §701(a)(2) exception to judicial review even more inapplicable to this type of agency action. Even more, should this rule become final, this more-clearly articulated standard will ensure that the essential steps are being taken to conserve endangered species without unnecessarily hindering landowners’ use of their land – a win-win situation.

Comments regarding the proposed rule are due September 24, 2018. The Supreme Court will hear oral argument in Weyerhaeuser on October 1, 2018.

Libby Rudolf is a litigation support analyst at Cause of Action Institute.

 

[i] Markle Interests, LLC v. U.S. Fish & Wildlife Serv., 40 F. Supp. 3d. 744, 759–760 (E.D. La 2014).

[ii] Id. at 758–59.

[iii] Markle Interests, LLC v. U.S. Fish & Wildlife Serv., 827 F.3d 458 (5th Cir. 2016).

[iv] Id. at 473–75.

[v] Markle Interests, LLC v. U.S. Fish & Wildlife Serv., 848 F.3d 635 (5th Cir. 2017).

[vi] Mach Mining, LLC v. Equal Emp’t Opportunity Comm’n, 135 S. Ct. 1651 (2015).

[vii] Brief for Petitioner at 48, Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., No. 17-71 (U.S. Apr. 23, 2018), available at http://bit.ly/2PrkGjz.

[viii] Heckler v. Chaney, 470 U.S. 830 (1985).

[ix] Endangered and Threatened Wildlife and Plants; Revision of the Regulations for Listing Species and Designating Critical Habitat, 83 Fed. Reg. 35193 (proposed July 25, 2018) (to be codified at 50 C.F.R. pt. 424).

[x] Id. at 35198

[xi] Id.

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07/19/2018

CoA Institute Joins Amicus Brief Challenging Qualified Immunity

Washington, DC – July 19, 2018 – Cause of Action Institute (“CoA Institute”) has joined a Supreme Court amicus brief in support of the petitioner seeking a writ of certiorari in Allah v. Milling. The brief argues that qualified immunity denies justice to victims of government misconduct, imposes prohibitive and unjustified costs on civil-rights litigants, and harms law enforcement officials by eroding public trust.

“Preserving the fundamental liberties afforded by our Constitution remains a critical priority in today’s policing environment. The notion of qualified immunity has grown from the bench and is not rooted in our founding charter. Some form of meaningful redress for those admittedly injured by police errors must be available,” noted John Vecchione, President and CEO of Cause of Action Institute.

From the amicus brief:

[Q]ualified immunity often bars even those plaintiffs who can prove their case from remedying a wrong: harm, but no foul. Qualified immunity thus enables public officials who violate federal law to sidestep their legal obligations to the victims of their misconduct. In so doing, the doctrine undermines the public’s trust in those officials—law enforcement in particular—making on-the-ground policing more difficult and dangerous for all officers, including that vast majority who endeavor to uphold their constitutional obligations.

The amicus brief is available here.

About Cause of Action Institute

Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

For more information, please contact Nichole.VanValkenburg@CauseofAction.org

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05/18/2018

Federal Court Upholds Cigar Labeling Requirements — Why and What This Means

Cause of Action Institute (“CoA Institute”) has been active as an amicus curiae (friend of the court) in an ongoing federal lawsuit regarding cigars and other tobacco products.  Meaning, while we don’t represent any of the parties, we have been submitting briefs to help the Court reach its final decision. The Food and Drug Administration (“FDA”) originally proposed a burdensome tobacco-safety regulation that would have effectively crippled the premium cigar market, putting countless American small businesses out on the street.  After the 2016 election, however, new FDA leadership delayed that rule with the intent to change it. This was a wonderful development for both cigar companies and hobbyists alike. However, the FDA kept pushing a scaled-back rule that would require large, intrusive warning labels on premium cigar products.  We submitted a brief opposing that rule.

CoA Institute did not take a position on the efficacy or utility of tobacco warning labels.  Our concern was, as it frequently is, that agencies must show their work when they enact a new regulation.  The governing statute here, the Family Smoking Prevention and Tobacco Control Act (“FTA”), required the FDA to show that any new regulations would be appropriate for the protection of the public health.  Plaintiffs, as well as CoA Institute, argued that the FDA had not done its work and, indeed, had conceded it had no real quantitative data or analysis for the efficacy of these new warning labels for cigar products.  Regulatory action for the sake of regulatory action is bad policy.

Unfortunately, the Judge disagreed, finding that the FDA had done its due diligence in determining that the warning labels would be effective.  He held that the FDA’s statements connecting the labels to public health, as well as their citation of certain data, such as the overall addictiveness of nicotine, was enough.  Furthermore, he found that the agency’s concession that it had no data available was merely an admission of the “agency’s inability to quantify the benefits of the Deeming Rule’s requirements prior to their implementation date.”  He held that a mere connection, quantifiable or not, between smoking prevention and the larger warning labels is enough.  He cited the agency’s prior work with other tobacco products, singling out cigarettes, as the foundation for the FDA’s contention that the new health warnings were appropriate and would affect cigar and pipe tobacco usage.

As any cigar aficionado knows, cigars and cigarettes are distinct products.  I regularly enjoy cigars, but I never touch cigarettes.  Why?  Because, in my opinion, the health risks are profoundly different for the two products.  More importantly, the addictive nature of the two is incomparable.  I regularly smoke cigars during the summer—which, for me, is 1-3 a week—and completely stop for the long winter months with no undesired effects or feelings of withdrawal.  That, to put it lightly, is not the usual experience with cigarettes.  Aficionados know: these are two different worlds.

Some might criticize me for relying on personal anecdotes to argue a federal regulation is unfounded.  I agree!  And that’s why the FDA should have conducted quantitative studies specific to premium cigars, rather than just relying on general science on nicotine addiction and the agency’s experience with a totally different product, cigarettes.  I suspect this is why Congress included language in the statute mandating that a “finding as to whether such regulation would be appropriate for the protection of the public health shall be determined[.]”  Of course, we live in the era of Chevron deference, where the Supreme Court has instructed the lower courts to defer to an agency’s interpretation of a statute and, sometimes by extension, the agency’s own science (or lack thereof).  Accordingly, the agency’s own statements in support of the rule were given enormous deference by the Court.

The Plaintiffs in the case argued that it was ridiculous for the FDA to claim to not have access to quantitative data, since they’ve had “sixteen years and an entire nation’s worth of data to examine the efficacy of the [prior-implemented] FTC warnings.”  After all, most of the cigars produced and sold in the United States are subject to an FTC consent decree that requires these companies to put warning labels on their products.  The FDA could have studied the efficacy of the FTC warnings on cigar use, but failed to do so.  In rejecting this argument, the Judge made an interesting comment: “Plaintiffs, however, have identified no requirement, statutory or otherwise, that compelled the FDA to undertake such studies to make the findings required by [the statute].”  CoA Institute, as amici, did just that though.  We contended that Chamber of Commerce of the United States v. Securities & Exchange Commission, which applied to similar statutory language in the financial sector, was controlling here.  The SEC made basically the same claim the FDA did, arguing “it was without a reliable basis” to determine costs associated with a regulation.  In Chamber, the D.C. Circuit recognized that limitations on data cannot “exclude the Commission from its statutory obligation to determine as best it can the economic implications of the rule it has proposed.” In its decision upholding the labeling rule, the District Court did not cite Chamber.

If this case were to be appealed—and, again, CoA Institute was just amici and did not represent any of the parties—we believe the D.C. Circuit would be faced with two interesting questions.  First, is the statutory language enforced by the Court in Chamber similar enough to the FTA that the case controls here?  And second, if Chamber does apply, can the FDA comply by simply reaching back and pointing to data based on cigarettes and other general science on tobacco?  We, of course, would argue no, given the distinct differences between premium cigars and cigarettes.

What does this all mean for cigar smokers?  Probably not that much, at least for now.  The original rule would have rocked the market, cutting off competition, reducing quality, and increasing prices exponentially.  The new, cutback rule might result in some increase in price, given the labeling costs cigar companies will now need to endure, but the same quality and quantity of cigars should be available for purchase.

But here’s the important point: there’s nothing preventing a future administration from bringing back the original rule.  And, given the Judge’s opinion in this case, the FDA would not have to reach a high bar to “deem” and regulate cigars the same way it does cigarettes.  This could be a death knell for the pastime.  The Courts and Congress must act to hold agencies accountable to good science and, most importantly, to doing their job.

*There were many other strong arguments made by the Plaintiffs, including Administrative Procedure Act and constitutional claims.  These were similarly rejected by the Court. For this blog post, I concentrated only on the arguments CoA Institute highlighted in our amicus brief.  The Court did vacate one part of the rule, which defined retailers who blend pipe tobacco in their stores as “manufacturers,” asking the agency to justify its reasoning.*

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04/30/2018

CoA Institute Encourages Supreme Court to Provide Check on Federal Agencies in Latest Amicus Brief

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed an amicus curiae brief in the Supreme Court case Weyerhaeuser v. U.S. Fish and Wildlife Service, arguing that United States Fish and Wildlife Service’s (FWS) authority to exclude an area of land from critical habitat designation under the Endangered Species Act is not discretionary, but rather is subject to judicial review.

“Previous Supreme Court precedent as well as the Endangered Species Act make it clear that the Fish and Wildlife Service is subject to judicial review when it comes to determining what is and isn’t a critical habitat,” said John Vecchione, CoA Institute President and CEO. “We look forward to the Court upholding its previous standard and providing a check for the administrative state.”

CoA Institute’s brief encourages the Supreme Court to reverse the Fifth Circuit ruling in this case because it failed to conduct the sort of “careful examination” required by law to determine if FWS is excluded from judicial review.

The Supreme Court will hear argument in Weyerhaeuser during the fall 2018 term.

The amicus brief is available here.

About Cause of Action Institute
Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

For more information, please contact Mary Beth Gombita, mbgcomms@gmail.com.

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11/14/2017

Opposing Government Retaliation Against Free Speech

Cause of Action Institute Files Amicus Brief in Support of LabMD’s Bivens Claim Against FTC Officials

Cause of Action Institute filed an amicus curiae brief (“Brief”) in Michael Daugherty, et al v. Alain Sheer, et al[1] in support of Appellees Michael Daugherty and LabMD, Inc. in their Bivens lawsuit against certain FTC employees in their individual capacities seeking monetary damages. The Brief argues that the Federal Trade Commission (“FTC”) Act does not displace Bivens or immunize First Amendment retaliation, and that  the misconduct and collusion of individual FTC staff directly infected the investigation and administrative prosecution of LabMD after the company’s CEO spoke out against the agency.

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.C 388 (1971), the Supreme Court first recognized an implied private action, directly under the Constitution, for damages against federal officials alleged to have violated a citizen’s constitutional rights.

As our Brief argues, Appellees’ complaint “alleges a straightforward First Amendment retaliation claim actionable under Bivens: LabMD’s CEO, Michael Daugherty, publicly criticized the Defendants’ abusive investigation of LabMD. In response, Defendants retaliated by ramping up the investigation to harm LabMD; bamboozling the Commission into authorizing an administrative prosecution based on false pretenses and stolen files; and then continuing to retaliate against LabMD throughout the enforcement action (including by subpoenaing its CEO’s book drafts and allegedly importuning the creation of false evidence for use against LabMD).”

Importantly, the Brief continues, “Defendants’ conduct led to the destruction of LabMD, formerly a thriving cancer-detection business supporting numerous jobs. That is a plausible Bivens claim. Therefore, Appellees should be entitled to discovery and the opportunity to make their case on the merits.”

Cause of Action Institute adamantly opposes any administrative action that exceeds Constitutional bounds. As the Brief states, “[i]t is never permissible for federal law enforcement to retaliate against citizens or businesses for exercising their First Amendment rights, no matter how vigorously law enforcement may disagree with or is offended by the speaker’s message.”

In March, the United States District Court for the District of Columbia partially rejected Defendants’ motion to dismiss. As Judge Tanya Chutkan wrote, “[i]n the court’s view, Plaintiffs’ First Amendment rights to criticize the actions of the federal government without fear of government retaliation are as clearly established as can be, and a serious escalation of an agency’s investigation or enforcement against Plaintiffs for publicly criticizing the agency would appear to violate that clearly established constitutional right.”[2]

In July, the FTC issued a final rule permitting indemnification of FTC employees in certain circumstances for claims made against them as a result of actions taken by them in the scope of their employment.[3] This general statement of policy relating to FTC management and personnel was published without the opportunity for public notice and comment, pursuant to the Administrative Procedure Act. As the agency stated, “[t]his policy is applicable to actions pending against FTC employees as of its effective date, as well as to actions commenced after that date.”[4] According to Bloomberg Law, the “FTC didn’t mention the LabMD case when it rolled out its new liability protection policy, but Daugherty said he believes there’s an obvious connection. ‘We’re hard pressed to believe this isn’t about us,’ he said.”[5]

Nichole Wilson is strategy officer at Cause of Action Institute.

[1] 17-5128 Michael Daugherty, et al v. Alain Sheer, et al (1:15-cv-02034-TSC)

[2] https://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2015cv02034/175313/24/

[3] “Indemnification of Federal Trade Commission Employees,” July 5, 2017; Federal Register Number: 2017-14008 https://www.regulations.gov/document?D=FTC-2017-0049-0001

[4] Id.

[5] Bloomberg Law, “FTC Tackles ‘Intimidating’ Threat of Lawsuits Against Staff,” Alexei Alexis, July 12, 2017 https://biglawbusiness.com/ftc-tackles-intimidating-threat-of-lawsuits-against-staff/

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11/2/2017

CoA Institute Urges Supreme Court to Hold EPA to Task

Section 321(a) of the Clean Air Act contains an explicit requirement that the Environmental Protection Agency (“EPA”) conduct “continuing employment evaluations” related to Clean Air Act implementation or enforcement.  What this means is that the EPA needs to continually do an analysis of how many jobs will be lost, if any, including whenever it considers new regulations.  This allows the EPA, Congress, and the public as a whole to evaluate whether the loss in American jobs is worth the overall benefit to American lives.  If a regulation, for example, has virtually no impact on environmental well-being, but would cost 30,000 jobs, a rational person would conclude the benefits of the regulation simply aren’t worth the cost.

Of course, most analyses are never this clear cut, which is why we need solid science and transparency from the EPA.  And that’s why Congress required it.  As we detail in our brief, EPA administrations past and present have confessed to not conducting these studies.  Similar requirements extend to a number of other environmental statutes and, to the knowledge of Cause of Action Institute, the EPA has only conducted one such study in the past three decades.  Very recently, the EPA publicly admitted this and indicated its willingness to finally comply, but hasn’t yet released any specifics.

The Murray Energy case centers on employment evaluations required under the Clean Air Act.  A federal court in West Virginia ordered the EPA to comply with the statutory mandates of Congress, castigating the agency for its willful disobedience.  The Fourth Circuit, however, sided with the EPA and ruled that Congress’ edict was too murky to be viewed as “mandatory” and was thus “discretionary.”

Murray Energy has asked the Supreme Court to reverse the court below, and Cause of Action submitted an amicus brief supporting this effort.  Our brief makes the following point: Congress specifically said that the EPA shall conduct the continuing employment evaluations.  Not may, or if something happens, or if the EPA deems it expedient, but shall.  The Fourth Circuit effectively read the mandatory language out of the statute, denying Murray Energy relief because the Circuit court believed it was too complicated to enforce.   That’s not how mandates work. We’re hopeful the Supreme Court will agree, grant review of the case, and reverse the Fourth Circuit’s error.

Eric Bolinder is Counsel at Cause of Action Institute

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