Each fall, on or around Constitution Day, which commemorates the signing of the U.S. Constitution in Philadelphia in September 1787, faculty members at the George Washington University Law School and guests preview the upcoming October term of the U.S. Supreme Court before an audience of students and other interested observers in the Jacob Burns Moot Court Room.
Faculty panelists this year included Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law and professorial lecturer in law, who discussed cases touching on social media and the First Amendment, and Caroline Cecot, visiting associate professor, who previewed some administrative law cases that may curb the power of government regulatory agencies.
Guests included returning moderator Mark Joseph Stern, a legal analyst and senior writer at Slate, who gave sustained attention to a gun rights case, and Kimberly Atkins Stohr, senior opinion writer and columnist for Boston Globe Opinion, who focused on a case involving transgender equality as well as an Oklahoma death penalty case.
The panel kicked things off with Cecot’s discussion of the case City and County of San Francisco v. Environmental Protection Agency. It asks whether the Clean Water Act enables the EPA or an authorized state to impose what are called “generic prohibitions” in permits granted under the National Pollutant Discharge Elimination System (NPDES) when seeking to enforce water quality standards without specifying the exact limits to which discharges must conform.
“San Francisco’s sewer system carries sewage for treatment,” Cecot said. “When it rains, the system also carries all the stormwater. Sometimes the combination of the sewage and stormwater will spill over and discharge into water bodies before it reaches treatment. Those are called combined sewer overflows, and these require a permit under the Clean Water Act.”
Given the Supreme Court’s recent interest in curbing the regulatory power of government agencies, Cecot predicts the EPA will not be given deference in this case.
“The EPA and the states are really struggling to enforce water quality standards,” Cecot said.
Caroline Cecot spoke about three pending administrative law cases, including one that may curb the power of the EPA. (William Atkins/GW Today)
Cecot also discussed Seven County Infrastructure Coalition v. Eagle County, Colo., which asks whether the National Environmental Policy Act requires agencies to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority, and Food and Drug Administration v. Wages and White Lion Investments, LLC. The latter case arose when the Food and Drug Administration denied an application to market fruit- and candy-flavored e-cigarettes, citing research clearly showing that adults prefer e-cigarettes with a tobacco flavor, but the fruit and candy flavors are more attractive to children.
Trans rights on the chopping block
A ”blockbuster” LGBTQ rights case this term, Stohr said, is U.S. v. Skrmetti, which challenges bans in Tennessee and Kentucky on gender-affirming care for minors.
“Parents in both states challenged these bans,” Stohr said, “saying they targeted trans people. Whether it’s hormone therapy, puberty blockers or surgical transitions, they are all banned for anyone under the age of 18, [with the] reasoning that it is harmful for trans youth to get this sort of gender-affirming care, despite the fact that there is a tremendous amount of research saying that it could be very harmful if they don’t.”
Building on Stohr’s observation that these bans target trans youth, Stern noted hypothetical cases such as one in which an adolescent boy who is growing excess breast tissue can get access to testosterone therapy benefits. An adolescent girl who does not want to grow breast tissue because she is transgender could protest that she, too, is a boy, Stern said, but to no avail in states where similar bans are imposed.
“It’s a really important case because there are other states, too, that have such bans,” Stohr said, noting that medical associations and the Biden administration have argued on the side of trans youth and equal protection under the law for all citizens.
Kimberly Atkins Stohr discussed a case involving the rights of transgender minors. (William Atkins/GW Today)
Other pending cases involving LGBT issues, Stohr said, include challenges to the Affordable Care Act’s protections against discrimination on the basis of sexual orientation and sports bans keeping LGBTQ and trans kids from being able to participate in sports, among others.
In a moment of bleak humor, Stern noted that a disproportionate number of cases involving LGBTQ regulations came from the Fifth Circuit. He asked Stohr to comment on “what wild series of coincidences led the Fifth Circuit to essentially take charge of federal LGBTQ policy.”
“There is this place in the middle south of America called Texas,” Stohr deadpanned, “and people who want to get these litigation challenges go there because the judges there are very willing to help them.”
The death penalty case Glossip v. Oklahoma first came before the court in 2015. It involves a death row inmate who has been given a date certain for his execution eight times and served his last meal three times, which Stohr pointed out would seem clear violations of the Eight Amendment’s prohibition against cruel and unusual punishment. She thinks that Glossip will succeed in preventing his execution and that his conviction could be tossed out, especially since it is known that prosecutors hid exculpatory information.
Digital dystopia
Morrison discussed a series of cases touching on the internet, social media and First Amendment rights. The first of these involves Free Speech Coalition v. Paxton, an ongoing battle between the state of Texas and the trade association for the adult entertainment industry.
With the goal, Texas officials say, that nothing sexually explicit should be seen by minors, the state wants to require certain internet platforms to make users prove that they’re over the age of 18. And this would apply to any user of the site, whether they were looking at sexually suggestive content or not.
“This is not just what we consider to be pornography,” Morrison said. “It’s anything that's sexually suggestive, which according to the plaintiff here, includes romance novels. And anything that would be an R-rated movie is on the wrong side of Texas on this.”
Alan Morrison focused on cases involving the internet, social media and the First Amendment. (William Atkins/GW Today)
If more than a third of the content on a site met this criterion, Morrison said, then everybody using the site would be required to have government or other approved ID proving they are over 18. Opponents say that filter software allowing parents to block objectionable material is a much more effective and realistic solution to the perceived problem than imposing censorship on adult users. Morrison predicts the Supreme Court will rule against Texas.
Moving on to a discussion of the TikTok ban scheduled to take effect Jan. 19 (the day before the inauguration of the next president) unless its ownership changes, Morrison said he thinks the platform will survive. A particularly interesting facet of the case, he added, is that TikTok might seem to have a strong argument on First Amendment grounds even though objectionable content is not the issue and there’s no evidence that the case involves viewpoint discrimination. The issue here is foreign (in this case, Chinese) ownership and potential influence or monitoring of data.
“If you were trying to shut down an entity for First Amendment purposes,” Morrison said, “you wouldn’t do what Congress did, which will allow somebody else to operate TikTok as it was. So, my own view is that it could be very difficult to win this case on First Amendment grounds.”
Instead, he said, the argument that the ban is a bill of attainder, or law imposing punishment on a particular entity without a trial, will likely prevail. The Constitution expressly forbids such laws.
Ghost guns
Stated in its most abstract terms, the question at issue in Garland v. VanDerStok, presented by Stern, is whether existing statutes may be applied to emerging problems.
“Over the last decade or so, we have seen a proliferation of ghost guns used in crimes in this country,” Stern said. “Ghost guns are essentially weapons kits sold on the internet that you can put together into a fully functioning weapon with a 20-minute YouTube video as assistance.”
Mark Joseph Stern discussed a gun rights case involving ghost guns. There is an extremely lucrative market for these weapons, which are untraceable, Stern said. (William Atkins/GW Today)
There are essentially no restrictions on ghost guns, Stern added, and the market for them is extremely lucrative. One of the major issues with such weapons is that they are untraceable. Whereas federally licensed firearm dealers are generally required to sell only firearms that have a serial number, ghost guns have no such number.
“Because of the lack of federal regulations, there are companies that make a lot of money selling ghost guns,” Stern said. “And when the Biden administration said it would restrict the sale of ghost guns, these companies filed suits. What the Biden administration did is interpret an existing statute to cover this emerging problem. This should send off flares in all of your heads—the Fifth Circuit and Supreme Court don’t tend to like it when agencies interpret existing statutes to address emerging problems. That used to be sort of what agencies did, but it is now considered a cause for aggressive judicial review.”
Existing federal statute enacted decades ago bans any weapon that can “expel a projectile by the action of an explosive,” and so the Biden administration interpreted the statute to cover ghost guns, which are killing large numbers of people in America every year.
“All the administration said was that these guns are subject to the same laws that apply to virtually all other firearms,” Stern said. “They have to be sold by licensed dealers. They have to comply with requirements, including serial number requirements. We can’t just have a Wild West where anybody can order a disassembled gun delivered to their door, put it together, and then use it untraceably to commit a criminal offense.”
After a federal judge in Texas disagreed with the Biden administration and issued a nationwide injunction blocking the ghost gun rule, the Fifth Circuit affirmed the injunction. The ruling was “so ridiculous,” Stern said, that the Supreme Court stepped in and halted the injunction. Then a Texas judge issued a new, similar injunction. Because of that history, Stern thinks there’s a good chance that the Supreme Court will side with the Biden administration in this case.
Possible election-related cases
The Supreme Court’s docket this term is not full, Stern observed, perhaps because the court is expecting some election-related cases to require urgent attention.
Stohr said she expects litigation stemming from state efforts to get around the Electoral Count Act. She also wonders if there will be an attempt to remove Donald Trump from the ballot, or if he wins, to refuse to seat him on the grounds that he is an insurrectionist.
There will always be some litigation from Trump, Morrison said, while Stern predicted issues surrounding mail-in ballots.
“A group of conservative plaintiffs is claiming that it somehow violates federal law to count ballots that were mailed by Election Day but received shortly thereafter,” Stern said. “This case is about imperiling or destabilizing the swing states that do accept mail ballots that arrive after Election Day.”
