A Seat at the Sitting - December 2024

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below. Food and Drug Administration v. Wages and White Lion Investments, LLC (December 2) - Federalism & Separation of Powers; Issue(s): Whether the court of appeals erred in setting aside the Food and Drug Administration’s orders denying respondents’ applications for authorization to market new e-cigarette products as arbitrary and capricious. U.S. v. Miller (December 2) - Bankruptcy; Issue(s): Whether a bankruptcy trustee may avoid a debtor’s tax payment to the United States under 11 U.S.C. § 544(b) when no actual creditor could have obtained relief under the applicable state fraudulent-transfer law outside of bankruptcy. Republic of Hungary v. Simon (December 3) - International Law & Financial Services; Issue(s): (1) Whether historical commingling of assets suffices to establish that proceeds of seized property have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act; (2) whether a plaintiff must make out a valid claim that an exception to the FSIA applies at the pleading stage, rather than merely raising a plausible inference; and (3) whether a sovereign defendant bears the burden of producing evidence to affirmatively disprove that the proceeds of property taken in violation of international law have a commercial nexus with the United States under the expropriation exception to the FSIA. U.S. v. Skrmetti (December 4) - Federalism & Separation of Powers& SOGI; Issue(s): Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment. Kousisis v. U.S. (December 9) - Environmental Law & Financial Services; Issue(s): (1) Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme; (2) whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services; and (3) whether all contract rights are “property.” Feliciano v. Department of Transportation (December 9) - Federal Employment Law; Issue(s): Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency. Seven County Infrastructure Coalition v. Eagle County, Colorado (December 10) - Environmental Law & Financial Services; Issue(s): Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority. Dewberry Group v. Dewberry Engineers (December 11) - Civil Procedure; Issue(s): Whether an award of the “defendant’s profits” under the Lanham Act can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates. Featuring: Boyd Garriott, Associate, Wiley Rein LLP Eric N. Kniffin, Attorney, Kniffin Law PLLC, Fellow, Ethics and Public Policy Center Michael Pepson, Regulatory Counsel, Americans for Prosperity Foundation Alexandra Shapiro, Partner, Shapiro Arato Bach LLP Jeff Stier, Senior Fellow, Consumer Choice Center (Moderator) Tessa Shurr, Committee Staff, U.S. House of Representatives