OPINION ANALYSIS

Court approves early challenge to agency proceedings

To the surprise of few informed observers, Friday’s decision in Axon Enterprise v. Federal Trade Commission confirmed a new avenue for pre-enforcement challenges to the administrative proceedings of federal agencies. Traditionally, when an agency institutes an administrative proceeding, the defendant waits until the end of the proceeding and then challenges the result in a federal appeals court, which applies a deferential standard of review limited to the record that the agency has produced.

The Supreme Court broadened a different path with its decision in Axon, which was consolidated with a similar case involving the Securities and Exchange Commission. The two cases include a variety of challenges to the agency proceedings, but the common thread is a claim that the method of appointing the administrative judges unconstitutionally insulates them from presidential control.  Justice Elena Kagan’s opinion for the court allows the defendants in both cases to short-circuit the administrative process and go directly to a district court to challenge the proceedings up front.

CASE PREVIEW

Justices will consider false claims in two pharmacy cases

The False Claims Act has for decades been the government’s primary anti-fraud statute. The Department of Justice has used the law to recover more than $70 billion since 1986, largely in cases related to health care and defense contracting. Under the FCA, a defendant is liable for submitting a false claim to the government for payment if it acted “knowingly,” which the statute defines as acting with actual knowledge, deliberate ignorance, or reckless disregard. On Tuesday, the justices will hear arguments in a pair of cases on whether a defendant can be found to have acted knowingly if it believed its conduct was unlawful but its conduct represented an objectively reasonable interpretation of the relevant legal requirement.

Significantly, FCA cases frequently involve complex rules — defendants frequently seek to challenge the government’s position on the legal requirements at issue, and the government regularly points to evidence that defendants were aware they were breaking the rules. A ruling for the defendants here would eliminate an important weapon from the government’s arsenal unless it could first show that the defendant’s alternative interpretation had already been foreclosed by authoritative guidance warning it away from the view it took.

WHAT WE'RE READING

The morning read for Friday, April 14

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Friday morning read:

• DOJ to Ask Supreme Court to Intervene in Abortion-Pill Case (Greg Stohr, Bloomberg)
• Supreme Court Won’t Block Student Loan Class-Action Settlement (Adam Liptak, The New York Times)
• Billionaire Harlan Crow Bought Property From Clarence Thomas. The Justice Didn’t Disclose the Deal. (Justin Elliott, Joshua Kaplan and Alex Mierjeski, ProPublica)
• How Far Will the Supreme Court Go This Time? (Irin Carmon, New York Magazine)
• U.S. Supreme Court needs ethics rules to restore public trust (The Seattle Times editorial board, The Seattle Times)

WHAT WE'RE READING

The morning read for Thursday, April 13

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Thursday morning read:

• Supreme Court’s upcoming decision in SuperValu and Safeway: a game changer for False Claims Act enforcement (Brett Johnson & Claudia Stedman, Reuters)
• Supreme Court showdown over Sabbath could change workplaces across US (Devin Dwyer & Isabella Meneses, ABC News)
• Thomas revelation of gifts fits a broader pattern of financial nondisclosure from the Supreme Court (Joan Biskupic, CNN )
• The Court Is Likely to Reject the Independent State Legislature Theory (J. Michael Luttig, The Atlantic)
• In Which Conservative Justices Ponder Just How Far They Will Go (Carlos Lozada, The New York Times)

WHAT WE'RE READING

The morning read for Wednesday, April 12

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Wednesday morning read:

• Supreme Court won’t call off execution of ‘ninja killer’ (Kelsey Reichmann, Courthouse News Service)
• Can Democrats Actually Hold Clarence Thomas — And The Supreme Court — Accountable? (Eric Lutz, Vanity Fair)
• Jet-Setting With Clarence Thomas Puts Spotlight on an Eccentric Billionaire (Abbie VanSickle, The New York Times)
• Making True Threats Is a Crime (Timothy Zick, The Atlantic)
• 5 things the Supreme Court might take into account in medication abortion case (Ariane de Vogue, CNN)