The Supreme Court heard oral arguments Tuesday FDA vs. Hippocratic Medicine Alliance, the case of mifepristone. Much of the discussion focused on whether AHM had standing to challenge the FDA’s actions. From my perspective, it looks like the plaintiffs will lose. Indeed, the writing has been on the wall since the Court granted a stay of the Fifth Circuit’s decision in April 2023. The question is not self AHM will lose; the question is As. I would humbly suggest that the Court could take this opportunity to eliminate several aberrations in the existing law.
Firstthe Court should recover the so-called “diversion of resources” based on Haven’s Realty. Because this theory has been interpreted by some lower courts, an organization can claim Article III validity simply by arguing that a government policy obligates the organization to deviate resource. In other words, the organization would usually spend its resources on X, but due to some state action, the organization now spends its resources responding to the state action. That damage appears entirely self-inflicted and is at odds with decades of existing law. Yet some lower courts have accepted this theory in legal challenges to Trump’s policies. I had hoped the Supreme Court might intervene Real estate paradises In Achesonbut the case failed for disputed reasons.
During the oral discussion in AHMseveral judges addressed it Real estate paradises standing. Earlier in the argument, Judge Barrett said AHM’s injury “rings[s] In the Real estate paradises membership position.” Barrett added that these are the types of “allegations we see from immigration advocacy groups.” They allege a “diversion of resources” in the form of “increased expenses that arise from the complications of having to deal with ” state action Barrett asked Attorney General Prleogar to distinguish “diversion of resources” from Real estate paradises.
Prelogar explained it in Paradises, the civil rights group suffered “demonstrable direct and concrete harm” in addition to the diversion of resources. Specifically, the organization “had a contract to provide low-income housing” and “racially discriminatory practices directly interfered” with the “contractual obligations.” Prelogar said Real estate paradises did not “bless”.[] a theory of legitimacy that would allow an organization to assert a retreat from its abstract social interests.” The Attorney General acknowledged that “in the immigration context,” some “lower courts in particular have appeared to read Paradises to support much broader theories about the position.” Prelogar said “we would welcome any clarification from this Court on the organizational position.”
Erin Hawley, representative of the AHM, said this Real estate paradises he was “on all fours with this case.” Hawley said “there has been a weakening of the organization’s mission” and “a waste of resources.” That impairment, Hawley said, is sufficient for a de facto injury. Justice Thomas said of that reading Paradises makes the position “easy to produce”. The organization should simply “we[e] resources to argue their case in court” and claim that such expenditures “now cause harm.” Hawley acknowledged that “lower courts have Paradises to say where there is a sort of prelude to litigation-type activities. “It is not enough to divert resources. Hawley said AHM’s actions were “neither a prelude to litigation, nor would they have occurred if not for the FDA’s unlawful conduct in this case.” Judge Thomas did not return on the issue.
He turned to Judge Barrett Paradises with Hawley. He asked “what additional costs [AHM] may have suffered or how [AHM’s] resources have been diverted in a satisfactory manner Paradises“? Barrett pointed to AHM’s conduct and analysis of studies. Barrett responded, “Is that so?” Barrett and Thomas didn’t seem convinced.
During the Attorney General’s rebuttal, Prelogar said he would “clarify” this Real estate paradises does not allow “any organization in this country… to challenge any federal policy it doesn’t like.” I suspect that progressive lawyers eager to challenge Trump’s future immigration policies were gritting their teeth when Prelogar made this comment.
Second, the Court may raise some doubts about the so-called “stability of aggrieved observer” under the Establishment Clause. I have long wondered how someone can claim legitimacy to challenge a policy on the basis of the Establishment Clause simply because they feel offended. Justice Gorsuch raised the issue in his American Legion competition. And Gorsuch pushed SG Prelogar on this issue. Prelogar attempted to deviate and “would put Establishment Clause precedent and First Amendment precedent generally in a separate container.” Gorsuch pushed back. “To stand is to stand.” There is no First Amendment exception to Article III.
Gorsuch “was looking for guidance” on how to “sew it all together.” Prelogar acknowledged that a “felony or distress type injury” would “probably go too far in the direction of allowing Article III courts to intervene based on generalized grievances.” But he said the Court found “cognizable” harm where “there is some sort of direct governmental action that produces that kind of harm.” I’m not sure the distinction works. Article III is not satisfied because some “direct governmental actions” offend a person. In fact, there must be real, concrete damage. Cases like VanOrden AND American Legion they are inconsistent with decades of standing doctrine.
In the end, there are probably more than enough votes to reverse the Fifth Circuit. There is a temptation to write a 9-0 decision that finds a way to rule against the AHM, without speaking to these broader issues. But it would be helpful if the Court, or at least a plurality of justices, would express a restrictive opinion on the other theories at play in this case. There is some degree of unilateral disarmament when conservative litigants are kicked out of court, but progressive groups can go unnoticed. The Court may reject the broad reading of Real estate paradisesand believe that mere emotional distress is not sufficient to establish a concrete injury.