Transgender student athletes, the nondelegation doctrine and abortion clinic protests
RELIST WATCH
It has been two weeks since the last installment, and we haven’t received any new grants. The Supreme Court has cleared out some old relists from the last few order list. The court denied review of Smith v. Stillie in the case challenging Alaska’s disclosure requirement statute regarding political contributions. The court also denied review of two cases challenging New York City’s rent-regulation laws, with Justice Neil Gorsuch noting that he would have granted the petitions.
It’s good the court has cleared out a bit, because there are eight new relists this week addressing three basic subjects. If one of these issues is granted, this would be an interesting addition to a rather humdrum docket. If all are added, it will make the term significantly more interesting.
Nondelegation & private nondelegation
Four of the new relists concern a cluster of issues surrounding the federal “E-rate program,” which subsidizes phone and internet service for rural areas, low-income families in cities, public schools, and libraries. The program requires telecommunications companies to contribute to the Universal Service Administration Company. This nonprofit corporation manages the Universal Service Fund, which is used to finance these subsidies. Congress created the E Rate program and authorized the Federal Communications Commission (FCC) to establish and supervise the corporation. Although formally independent, the FCC controls the Universal Service Administration Company in practice. The agency chooses the company’s board of directors, allocates its budget, and the company is required to act in compliance with FCC rules.
Consumers’ Research is an advocacy group that targets companies that, in its view, engage in “woke politics.” The group, funded in part by Leonard Leo’s Marble Freedom Trust, runs attack ads (like this “Woka-Cola” ad) and has spent millions of dollars campaigning to block the consideration of climate change, or ESG, in Wall Street investing. The FCC is another major target. It argued, first, that Congress had improperly delegates legislative authority to FCC. This included effectively giving Congress’s power of taxation to the FCC by allowing the FCC to set the fees telecommunications companies must pay to fund. This, it argued, violates the nondelegation doctrine, which prohibits Congress from delegating its power to legislate to other branches of government.
Second, the group maintained that the FCC had in turn improperly delegated too much authority to the corporation, including by allowing the company to basically determine the amount of the fee. The group argued that this violated the private nondelegation principle, which states that the government can’t delegate its power to private entities. The full 5th Circuit agreed to hear the case again. Before it could decide the case, the Supreme Court denied the group’s petitions seeking review of the 6th and 11th Circuit decisions.
But then, the full 5th Circuit ruled for Consumers’ Research, holding that “Congress’s sweeping delegation to FCC and FCC’s unauthorized subdelegation to” the nonprofit violates the Constitution.
In Federal Communications Commission v. Consumers’ Research, the agency asks the court to reverse the 5th Circuit’s ruling. The FCC argues Congress did not improperly transfer legislative power, because it set forth a number “intelligible principle” that directed the agency on how to act. This is all that is required by the current nondelegation theory. In Schools, Health & Libraries Broadband Coalition v. Consumers’ Research, a group of trade associations representing entities that receive E-rate funding likewise asks for review.
Consumers’ Research agrees that the Supreme Court should take up the question, arguing that the 5th Circuit’s decision is correct and that the program is unconstitutional. But in a pair of cases identically captioned Consumers’ Research v. Federal Communications Commission, it urges the justices to grant rehearing of its petitions seeking review of the 6th and 11th Circuit rulings and decide the issue either in those cases alone or consolidated with the government’s petition.
This issue strikes me as a likely grant, with the FCC and SHLB cases as the most likely vehicles, because the court rarely grants rehearing petitions, even if it winds up granting plenary review of a related petition. In late 2015, the same situation was presented by United States Army Corps of Engineers, LLC v. United States Army Corps of Engineers, and Kent Recycling Services, LLC. Protesters outside abortion centers
In Hill, the Supreme Court upheld Colorado law that prohibits groups or individuals opposed to abortion from protesting or distributing materials or speaking with patients, doctors or staff outside medical facilities offering the procedure. The law created an eight-foot buffer zone around people entering or leaving abortion clinics. The challengers claimed that the buffer zones prevented them from communicating with people, and in particular, making eye contact as they made their arguments. As a former Kennedy clerk, I felt that Hill was at odds with the pro-speech attitude of the Supreme Court. This feeling has only increased with conservative appointments. and That feeling was reinforced two years ago, when, as the court overruled the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito wrote in his majority opinion that Hill has “distorted First Amendment doctrines.”
Abortion opponents have brought the question to the court in challenges to two cities’ restrictions on protesting outside of clinics and hospitals. In response to disruptive protests around an abortion clinic, the city of Englewood, New Jersey, passed an ordinance in 2014 that bars expressive activity of any sort in an eight-foot buffer zone outside entrances or driveways of all health care facilities.
In 2022, the city of Carbondale, Illinois, adopted its own ordinance, which likewise employed an eight-foot buffer zone. Carbondale’s regulation places buffer zones around people, not clinic entrances. This means activists are prohibited from being within eight feet of anyone entering or exiting a medical facility in the vicinity of the building. Carbondale’s city council enacted its ordinance in response to Dobbs, and their law was closely modeled on the Colorado law upheld in Hill — as the city council made clear at the time of its enactment.
Plaintiffs brought challenges to both laws, but federal district courts rejected them. The U.S. Courts of Appeals of the 3rd Circuit and 7th Circuit affirmed these rulings. Turco v. City of Englewood in New Jersey and Coalition Life V. City of Carbondale in Illinois ask the justices for an overruling of Hill. They claim that subsequent decisions have undermined Hill’s decision, leaving it “all but interred”, “defunct”, and “an aberration”. They point to the 2014 decision that struck down a Massachusetts statute that created a 35-foot buffer zone outside medical facilities. The challengers argue that the time has come to overrule Hill and make clear that ordinances like the ones the cities adopted are unduly restrictive of speech.
Transgender athletes in students’ sports
As if the other cases we’ve been discussing aren’t hot button enough, the third group of cases concern a major cultural issue of the moment, transgender athletes’ participation in sports. Half of all states prohibit transgender athletes competing with those who are not born with the same sex. The law included a procedure that allowed anyone to dispute a competitor’s sex and required the athlete to undergo medical tests to verify their gender. Male student athletes are not subjected to the same process. The law was challenged by Lindsay Hecox, who is transgender and wanted to join the women’s track team at Boise State University. An Idaho federal district court temporarily blocked the state from enforcing the law, holding that it likely violated the equal protection clause of the 14th Amendment.
The U.S. Court of Appeals for the 9th Circuit affirmed the injunction in part, holding that the law likely violated the equal protection clause because it only provided intrusive verification procedures for women. But the court of appeals vacated the injunction as it applied to anyone other than the parties to the case.
In Little v. Hecox, Idaho — supported by 15 amicus briefs — urges the Supreme Court to take up the case and reverse the injunction as to Hecox.
Similarly, West Virginia adopted a law providing that “
thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport,” and the act defined sex based on “biological sex determined at birth.” Like Idaho’s law, it too was motivated by concerns about “inherent physical differences between biological males and biological females” and their effects on competition.
B.P.J. B.P.J. is a transgender 14-year-old who has publicly identified herself as a female since third grade. She is taking hormones with estrogen and puberty blockers in order to avoid developing male characteristics. B.P.J. was in the sixth grade when she began hormone therapy with estrogen in 2021. B.P.J.’s mother Heather Jackson sued West Virginia for her. A district court granted an injunction after concluding that B.P.J. A divided panel of the U.S. Court of Appeals of the 4th Circuit affirmed. The majority of the U.S. Court of Appeals for the 4th Circuit affirmed that Title IX was violated by B.P.J. The majority ruled that the state did not justify the restriction as B.P.J. B.P.J. The majority also found that B.P.J. Judge G. Steven Agee dissented, concluding that “West Virginia may separate its sports teams by biological sex without running afoul of either the Equal Protection Clause or Title IX.” Judge G. Steven Agee disagreed, concluding “West Virginia can separate its sports teams based on biological sex and not run afoul either of the Equal Protection Clause nor Title IX.”
In West Virginia V. B.P.J. by her next mother and friend, Heather Jackson. The state — supported with 19 amicusbriefs — urges to the Supreme Court that it grant review and reverse.
We will know more soon. Tune in next time!
New Relists
Consumers’ Research v. Federal Communications Commission, 23-456
Issues
: (1) Whether 47 U.S.C. SS 254 violates the nondelegation doctrine by imposing no limit on the Federal Communications Commission’s power to raise revenue for the Universal Service Fund; and (2) whether the FCC violated the private nondelegation doctrine by transferring its revenue-raising power to a private company run by industry interest groups.
(Relisted after the Nov. 15 conference. )
Consumers’ Research v. Federal Communications Commission, 23-743[a]Issues
: (1) Whether 47 U.S.C. SS 254 violates the nondelegation doctrine by imposing no limit on the Federal Communications Commission’s power to raise revenue for the Universal Service Fund; and (2) whether the FCC violated the private nondelegation doctrine by transferring its revenue-raising power to a private company run by industry interest groups.
(Relisted after the Nov. 15 conference. )
Turco v. City of Englewood, New Jersey, 23-1189
Issues
: (1) Whether the City of Englewood’s speech-free buffer zones, including zones outside an abortion clinic, violate the First Amendment; and (2) whether the court should overrule Hill v. Colorado.
(Relisted after the Nov. 15 conference. )
Little v. Hecox, 24-38
Issue: Whether laws that seek to protect women’s and girls’ sports by limiting participation to women and girls based on sex violate the equal protection clause of the 14th Amendment.
(Relisted after the Nov. 15 conference. )
West Virginia v. B.P.J., by her next friend and mother, Heather Jackson, 24-43
Issues: (1) Whether Title IX of the Education Amendments of 1972 prevents a state from consistently designating girls’ and boys’ sports teams based on biological sex determined at birth; and (2) whether the equal protection clause of the 14th Amendment prevents a state from offering separate boys’ and girls’ sports teams based on biological sex determined at birth.
(Relisted after the Nov. 15 conference. )
Coalition Life v. City of Carbondale, Illinois, 24-57
Issue: Whether this Court should overrule Hill v. Colorado.
(Relisted after the Nov. 15 conference. )
Schools, Health & Libraries Broadband Coalition v. Consumers’ Research, 24-422
Issues: (1) Whether Congress violated the nondelegation doctrine by authorizing the Federal Communications Commission to determine, within the limits set forth in 47 U.S.C. SS 254, the amount that providers must contribute to the Universal Service Fund; (2) whether the FCC violated the nondelegation doctrine by using the financial projections of the private company appointed as the fund’s administrator in computing universal service contribution rates; and (3) whether the combination of Congress’s conferral of authority on the FCC and the FCC’s delegation of administrative responsibilities to the administrator violates the nondelegation doctrine.
(Relisted after the Nov. 15 conference. )
Federal Communications Commission v. Consumers’ Research, 24-354
Issues: (1) Whether Congress violated the nondelegation doctrine by authorizing the Federal Communications Commission to determine, within the limits set forth in 47 U.S.C. SS 254, the amount that providers must contribute to the Universal Service Fund; (2) whether the FCC violated the nondelegation doctrine by using the financial projections of the private company appointed as the fund’s administrator in computing universal service contribution rates; and (3) whether the combination of Congress’s conferral of authority on the FCC and the FCC’s delegation of administrative responsibilities to the administrator violates the nondelegation doctrine.
(Relisted after the Nov. 15 conference. )
Returning Relists
Boston Parent Coalition for Academic Excellence Corp v. The School Committee for the City of Boston, 23-1137Issue
: Whether an equal protection challenge to facially race-neutral admission criteria is barred simply because members of the racial groups targeted for decline still receive a balanced share of admissions offers commensurate with their share of the applicant pool.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8 and Nov. 15 conferences. )
Andrew v. White, 23-6573Issues
: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8 and Nov. 15 conferences. )
Kerr v. Planned Parenthood South Atlantic, 23-1275Issues
: (1) Whether the Medicaid Act’s any-qualified provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; and (2) what the scope of a Medicaid beneficiary’s alleged right is to choose a provider that a state has deemed disqualified.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8 and Nov. 15 conferences. )
Wilson v. Hawaii, 23-7517
Issue: Whether the test of New York State Rifie & Pistol Association, Inc. v. Bruen determines when a state’s criminal prosecution for carrying a handgun without a license violates the Second Amendment.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8 and Nov. 15 conferences. )
Diamond Alternative Energy LLC v. Environmental Protection Agency, 24-7
Issues: (1) Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties; and (2) whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate is unlawful.
(Relisted after the Oct. 11, Oct. 18, Nov. 1, Nov. 8 and Nov. 15 conferences. )
Ohio v. Environmental Protection Agency, 24-13
Issue: Whether Congress may pass a law under the commerce clause that empowers one state to exercise sovereign power that the law denies to all other states.
(Relisted after the Oct. 11, Oct. 18, Nov. 1, Nov. 8 and Nov. 15 conferences.)
Parents Protecting Our Children, UA v. Eau Claire Area School District, 23-1280
Issue: Whether, when a school district adopts an explicit policy to usurp parental decision-making authority over a major health-related decision — and to conceal this from the parents — parents who are subject to such a policy have standing to challenge it.
(Relisted after the Nov. 1, Nov. 8 and Nov. 15 conferences. )
Baker v. City of McKinney, Texas, 23-1363
Issue: Whether the takings clause of the Fifth Amendment applies even when the government takes property for a particularly compelling public use.
(Relisted after the Nov. 1, Nov. 8 and Nov. 15 conferences. )
