Petitions of the week

Justices meet to fill out 2024-25 docket

The Petitions of the Week column highlights some of the cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

When the justices meet for their next regularly scheduled conference today, they will discuss what might become the final petitions granted for oral argument during the 2024 Term. It is also the next-to-last conference before President-elect Donald Trump’s inauguration on Jan. 20. This week, we highlight a number of those petitions the justices are set to consider, seeking review of lower court decisions on student-loan forgiveness, the constitutionality of federal agencies, and more.

If the justices decide to take up any of these cases, the government will presumably be represented in its briefs and at oral argument at the Supreme Court by Trump’s pick for solicitor general, John Sauer. Noel Francisco, solicitor general during the first Trump administration, departed from the longstanding tradition of maintaining the government’s position between Republican and Democratic administrations in several cases before the court. In turn, Biden’s solicitor general, Elizabeth Prelogar, sometimes did the same, veering from Francisco’s stance in disputes over the Affordable Care Act, labor unions, and more. It remains to be seen whether Sauer will return the favor, both in cases already argued before the court and in cases such as the following ones filed by the Biden administration, should the justices decide to hear them this spring.

Constitutionality of federal agencies

Two sets of petitions involve rulings by the conservative U.S. Court of Appeals for the 5th Circuit constraining federal administrative agencies.

Becerra v. Braidwood Management, Inc., asks the court to look at a decision by the 5th Circuit holding that members of the Preventive Services Task Force are unconstitutionally appointed. Part of the Department of Health and Human Services, the Task Force is a Reagan-era agency that issues federal guidelines about medications, screenings, and other medical treatments that prevent disease. Although HHS Secretary Xavier Becerra can remove Task Force members at any time, for almost any reason, federal law requires them to be “independent” and “not subject to political pressure.”

The Affordable Care Act, meanwhile, requires health insurance providers to cover the full cost of treatments deemed especially preventive by the Task Force. This includes pre-exposure prophylaxis drugs, or PrEP, which in clinical trials can be nearly 100% effective at preventing the spread of HIV when prescribed to members of at-risk communities, including gay men.

Seeking to avoid covering PrEP, a group of individuals and businesses that object to providing the medication on religious grounds went to federal court, arguing that the Task Force’s members must be confirmed by the Senate because they have binding authority over insurers but are insulated from control by the HHS secretary.

The 5th Circuit agreed. It also rejected the government’s suggestion to resolve the issue by lopping off the provision mandating the members’ independence from political pressure, which would have restored the secretary’s control.

Federal Trade Commission v. National Horsemen’s Benevolent and Protective Association and a group of related petitions stem from a second 5th Circuit decision invalidating the Horseracing Integrity and Safety Act, a law signed by Trump that created a private nonprofit company tasked with reining in the high rates of injury, death, and performance-enhancing drugs in the horseracing industry. Frustrated with oversight, a group of industry players went to federal court, arguing that the law unconstitutionally delegates federal power to a private company.

The justices refused earlier this year to take up petitions seeking review of decisions rejecting similar challenges. But then the 5th Circuit weighed in, agreeing that the company wields unconstitutional power and striking down the law. The justices granted the nonprofit’s request to temporarily reinstate the law in October. Now the Biden administration joins the challengers in asking the justices to resolve the dispute once and for all.

Student-loan forgiveness

Another 5th Circuit ruling led to the government’s petition in Department of Education v. Career Colleges and Schools of Texas. At issue in the case is a limited federal program forgiving federal student loans for students whose schools either defrauded them or were shut down. Since 1998, students have been able to apply to the Department of Education for loan forgiveness before they stop making their payments.

In 2015, Corinthian Colleges, one of the country’s largest families of private, for-profit colleges, folded under the weight of massive fraud revelations. Still dealing with a backlog of applications for loan forgiveness from Corinthian and other students seven years later, Education Secretary Miguel Cardona issued a regulation streamlining the review process.

An association of private, for-profit colleges in Texas went to federal court to challenge that regulation. Last April, the 5th Circuit agreed with the challengers and invalidated the rule. Interpreting the federal law establishing the program, the court ruled that the Department of Education cannot forgive loans for students swindled by their schools directly; rather, those students must first default on their loans and then raise fraud as a defense during debt-collection proceedings in court.

A dispute over withheld tax refunds

Jennifer Zuch and the Internal Revenue Service disagree over whether she paid her taxes. Insisting she hadn’t, the IRS imposed a levy on her property. After first unsuccessfully appealing within the agency, Zuch went to tax court to challenge the levy. While litigation proceeded over several years, the IRS began recovering Zuch’s allegedly unpaid taxes by withholding her annual tax refunds. Once her balance reached zero, the agency then asked the tax court to dismiss the case, arguing that it no longer had any dispute with Zuch and there was thus no controversy to resolve.

The tax court agreed and dismissed the case, but the U.S. Court of Appeals for the 3rd Circuit reinstated it. The court of appeals agreed with Zuch that, even if the IRS lifts the levy on her property, she will still have a right to demand her withheld refunds if she prevails in the litigation. The government asks the justices to overturn that decision in Commissioner of Internal Revenue v. Zuch.

Other notable cases

The justices will also consider on Friday a number of petitions in which the Biden administration opposes Supreme Court review. If the Trump administration switches positions and agrees with the challengers that the lower courts got it wrong, the justices will need to appoint a lawyer as a “friend of the court” to defend the rulings below should they agree to take up any of the disputes.

• National Association of Realtors v. United States concerns the Department of Justice’s decision to reopen an antitrust investigation into the group’s requirement that brokers representing home sellers online offer the same commission to all brokers representing home buyers.
• Oklahoma v. Department of Health and Human Services is a challenge by the state to its loss of federal grants for family-planning services after it refused to provide counseling and referrals for abortion.
• Ohio v. Environmental Protection Agency is the latest installment in the fight over the EPA’s “Good Neighbor” air-pollution rule, over the agency’s successful, newly mounted defense of the rule at the court of appeals after the justices ruled it was insufficiently justified last June.

 

A full list of this week’s featured petitions is below:

Becerra v. Braidwood Management, Inc.
24-316
Issue: Whether the U.S. Court of Appeals for the 5th Circuit erred in holding that the structure of the U.S. Preventive Services Task Force violates the Constitution’s appointments clause and in declining to sever the statutory provision that it found to unduly insulate the task force from the Health & Human Services secretary’s supervision.

Oklahoma Statewide Charter School Board v. Drummond
24-394
Issues: (1) Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students; and (2) whether a state violates the First Amendment’s free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or instead a state can justify such an exclusion by invoking anti-establishment interests that go further than the First Amendment’s establishment clause requires.

St. Isidore of Seville Catholic Virtual School v. Drummond
24-396
Issues: (1) Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students; and (2) whether a state violates the First Amendment’s free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or instead a state can justify such an exclusion by invoking anti-establishment interests that go further than the First Amendment’s establishment clause requires.

Department of Education v. Career Colleges and Schools of Texas
24-413
Issues: (1) Whether the U.S. Court of Appeals for the 5th Circuit erred in holding that the Higher Education Act of 1965 does not permit the assessment of borrower defenses to repayment before default, in administrative proceedings, or on a group basis; and (2) whether the 5th Circuit erred in ordering the district court to enter preliminary relief on a universal basis.

Commissioner of Internal Revenue v. Zuch
24-416
Issue: Whether a proceeding under 26 U.S.C. § 6330 for a pre-deprivation determination about a levy proposed by the Internal Revenue Service to collect unpaid taxes becomes moot when there is no longer a live dispute over the proposed levy that gave rise to the proceeding.

National Association of Realtors v. United States
24-417
Issue: Whether the United States enjoys greater rights than a private party to withdraw from a contract based solely on its determination that it no longer wishes to be bound by that contract.

Federal Trade Commission v. National Horsemen’s Benevolent and Protective Association
24-429
Issue: Whether the enforcement provisions of the Horseracing Integrity and Safety Act of 2020 — which allow the Horseracing Integrity and Safety Authority, a private entity, to assist the Federal Trade Commission in enforcing the statute — violate the private nondelegation doctrine on their face.

Oklahoma v. Department of Health and Human Services
24-437
Issues: (1) Whether a federal agency, through regulations, can impose upon states a funding condition that satisfies the Constitution’s spending clause when the underlying statute does not contain or is ambiguous as to that condition; and (2) whether the Weldon Amendment prohibits the federal government from requiring a state’s health department to provide abortion referrals.

A.M.B. v. McKnight
24-441
Issue: Whether a state’s categorical disqualification of unmarried people from adopting the children of their partners violates the equal protection clause of the 14th Amendment.

Ohio v. Environmental Protection Agency
24-450
Issue: Whether the Clean Air Act permits remand to the Environmental Protection Agency to supplement the administrative record with new information and justifications after a rule is promulgated.

Braidwood Management, Inc. v. Becerra
24-475
Issue: Whether the Affordable Care Act violates the nondelegation doctrine by empowering agencies to unilaterally decree the preventive care that private health insurers must cover, while failing to provide an “intelligible principle” to guide the discretion of those agencies.

Gauthier v. Total Quality Logistics, LLC
24-592
Issue: Whether a wrongful death or personal injury claim against a freight broker that is based on the broker’s negligent hiring of an unsafe motor carrier to provide motor vehicle transportation invokes the state’s safety regulatory authority “with respect to motor vehicles,” and, thus, falls within the safety exception to the Federal Aviation Administration Authorization Act.