Is SCOTUS receptive to a textualist argument? apparently not

This is funny (to me at least):

Somewhat reworded article from Slate. “Supreme Court blocking the Biden administration: Solicitor General Elizabeth Prelogar challenges judicial power,”, Mark Stern

“If she made one, Solicitor General Elizabeth Prelogar’s mistake was assuming this SCOTUS would be receptive to a textualist argument curbing the power of conservative judges under a Democratic president. When the White House falls back into Republican hands (if it does as I believe trump and his league of pseudo-Republican followers have damaged the image), the right-wing justices may suddenly become much more amenable to the idea, of ‘lower courts not having a floating veto over the president’s every move.'”

Sometimes you feel textualist and sometimes you don’t. In this instance the SCOTUS majority took issue with Biden’s Solicitor General Elizabeth Prelogar’s textualist argument. Read here and the article as The Solicitor General turns the tables on them. The question revolves around:

Can a plaintiff walk into court, challenge a federal regulation, and win a victory halting the entire government’s ability to enforce the regulation anywhere, against anyone—even parties playing no role in the litigation?

Judges of both political beliefs began using a specific power to “set aside” policies as granted to them by a provision of a 1946 law, the Administrative Procedure Act (APA). A power given to them halting executive policy nationwide. The courts claims Congress intended to grant them such sweeping power to do so. The usage of this tactic is relatvely recent and started when a Black man was elected to the Presidency.

With Joe Biden in office, conservative judges have transformed the power to “set aside” policies unitarily into a weapon of obstruction, voiding agency rules, and executive policies. They have turned the federal judiciary into a kind of shadow presidency with a permanent veto-power over the actual, elected president.

Kind of goes along with SCOTUS’s Shadow Docket where decisions are made and little or no detail is given of the decision. Brennan Center.

It is not actually clear, whether judges even have the legal authority to wipe federal policy off the books. A strictly textualist interpretation of federal law strongly suggests they do not.  To the contrary, federal courts have unlawfully expanded their power to interfere with duties of the executive branch and seemingly a direct attack on the separation of powers.

A ways back, traveling in my Wayback machine . . .

We were in formation in San Diego near the Quonset huts in which we were bivouacked. A lone woman (probably a mom) walks by us. Staff Sergeant Rivera politely explains to the woman. She is not allowed near our quarters or this area. She keeps going. He turns to us and explains women will go anywhere.

Back to the present.

Solicitor General Elizabeth Prelogar does precisely what few if any Solicitors have done and challenges SCOTUS. Of course, this is in a textualist manner of explanation by the Solicitor. Solicitor General Prelogar is making public the missteps of federal courts unlawfully expanding their power and interfering with duties of the executive branch.

By doing so, she incurs the wrath of Khan or Chief Justice John Roberts and anger of Justice Brett Kavanaugh, who sounded shocked and offended by such boldness.

Solicitor General Prelogar asserts the court voiding Biden’s immigration priorities had no authority to do so. The APA does not allow vacatur. Her argument being built on the work of University of Virginia School of Law Prof. John Harrison and Notre Dame Law School Prof. Samuel Bray.

Briefly, Harrison and Bray have persuasively demonstrated that under the APA directing courts to “set aside” an unlawful rule, Congress simply meant courts could reverse the judgment of the agency, and issue relief to the parties before it “alone.” It was not meant to be sweeping relief for the whole nation.

Their explanation explains why courts did not use vacatur for decades after the APA’s passage. Why Congress did not even hint at the option of a nationwide injunction type of remedy when debating the APA. And why the “set aside” language is in a separate section of the law has nothing to do with injunctions or other remedies.

Prelogar’s argument was based on the plain words of the APA. The explanation drove several justices mad. Roberts and Kavanaugh served on the D.C. Circuit before joining the court. Justices Clarence Thomas and Ketanji Brown Jackson also served there.


“Your position on vacatur. That sounded to me to be fairly radical and inconsistent with, for example, those of us who were on the D.C. Circuit. You know, five times before breakfast, that’s what you do in an APA case. And all of a sudden you’re telling us that, no, you can’t vacate it. You do something different. Are you overturning the whole established practice under the APA?”

Ahh, yeah, the solicitor is saying you Roberts are getting it wrong over the brief period you have been doing so as opposed to 1946 when the APA first came to be.

Solicitor General Elizabeth Prelogar:

 “The lower courts, including the D.C. Circuit, have in our view been getting this one wrong,”

Roberts interjected.

“Wow, That’s what the D.C. Circuit and other courts of appeals have been doing all the time as a staple of their decision output.”

(edited to correct error – fired my proof-reader”)

Prelogar’s gutsy response;

“They haven’t been doing it with any attention to the text, context, and history of the provision”.”

A refusal to retreat from the wrath of Khan, the Chief Justice of the United States.

Beer Keg Kavanaugh scolds Solicitor General Elizabeth Prelogar, positing . . . he sat alongside the lions of the court, on the left and right. If vacatur was a made-up remedy, he suggests, they would have noticed. He claims a reverse argument opposing Prelogar’s textualist points. (one could only wish a lion had eaten Brett).

You said the judges on the D.C. Circuit haven’t paid attention to text, context, and history. I guess I would respectfully push back pretty strongly on that. I sat with judges like Silberman and Garland and Tatel and Edwards and Williams. They paid a lot of attention to that. And the government never has made this argument in all the years of the APA, at least not that I remember sitting there for 12 years. I haven’t seen it made. It’s a pretty radical rewrite, as the chief justice says, of what’s been standard administrative law practice.

Sounding aggrieved and exasperated as when questioned by the Senate, BKK adds to his complaint;

And you say they’re not paying attention to the text. Yeah, we did. “Set aside” means “set aside.” That’s always been understood to mean the rule’s no longer in place. No one’s really had this—no case has ever said what you’re saying anywhere. You know, it’s a recent law review proposal, good for that, but, you know, that’s not been the law. And so I find it pretty astonishing that you come up here and—I realize it’s not the main part of your submission—but I’m just going to push back pretty strongly on the three pages for—just toss out decades of this court’s law, of circuit law.

It has not been decades of usage as Beer Keg Kavanaugh asserts. It has been since Obama. Conservative or renegade judges have been misusing the APA to interfere with the Presidency. There was no need to review as courts got it right until the textualists weaponized it to rebut and block Obama.

A strict textualist interpretation of federal law suggests they do not have such authority. To the contrary, the fact that federal courts have unlawfully expanded their power to interfere with duties of the executive branch appears to be a direct attack on the separation of powers.

Prelogar pointed out Justice Departments have in fact raised versions of this argument from 2008 onward. Through various presidencies, the administrations of Barack Obama, Donald Trump, and now Biden. She also explained the DOJ’s interpretation of the law as it was meant to be would end the bizarre process arising over the last decade:

Plaintiffs spread out across the country, filing lawsuits with multiple district courts, in the hopes of convincing just one judge to “set aside” a policy nationwide. Once a judge takes the bait, the government is captive. Unless (or until) reversal by a higher court, which can take years of litigation. Even if judges in other states and circuits disagree, they have no power to overrule a different district court.

This is precisely what trump’s attorneys did when not nsatisfied with Magistrate Judge Bruce E. Reinhart who signed the search warrant and also said he may reveal portions of the warrant. By filing in the Southern District of Florida with Judge Aileen Cannon (a trump appointee favoring the former president) they avoided Reinhart decisions. The rest of the story is clear and no further explanation is needed.

Shopping for favorable judges is rampant, unknown to the average citizen, and a growing practice amongst those with the influence to do so.

The law is what a judge makes it to be. Once Cannon accepted trump’s case and decided, no other district judge could rule or overrule. Since this was trump and the DOJ, their getting in front of a COA happens quickly. For an average citizen, it is months or a year or two. Your case filed in SCOTUS will more than likely be decided at the end of the year when a list of decisions is published of those rejected. The days of a Gideon Wainwright bringing a case to SCOTUS are long gone.

What you have witnessed here is a rare occasion. A person, the US Solicitor General, raising an issue with SCOTUS and their interpretation of the law. Remarkedly, bold on her part and much needed as SCOTUS should bring a stop to this interpretation by district courts and also the shopping for judges.

The DC COA District is considered to be “the second most important court as a matter of opinion goes. Look at today’s SCOTUS, most are from the DC District. They even took on Kavanaugh who sat with those lions of the DC District.

At the end, Justice Kagan quipped about the numbers of Justices from the DC court.

“there seems to be a kind of D.C. Circuit cartel.”

When one looks at the makeup of SCOTUS. A SCOTUS prep school.

Go figure . . .

Supreme Court blocking the Biden administration: Solicitor General Elizabeth Prelogar challenges judicial power,”, Mark Stern