D.C. Circuit Greenlights House Representatives’ Suit against GSA

Summaries of noteworthy decisions in the last 48 hours from the U.S. Supreme Court and the D.C. Circuit and Second Circuit Courts of Appeals. Areas of law include standing for individual members of Congress in an inter-branch dispute, administrative law and the Affordable Care Act, and COVID-19 attendance limits on religious institutions.

U.S. Supreme Court

Monday morning, the Supreme Court vacated and remanded two lower court judgments in light of its recent per curiam decision in Trump v. New York. This was an expected procedural move. The lower courts had enjoined the Trump administration from moving forward with its plan to exclude undocumented immigrants from the 2020 census for the purpose of Congressional reapportionment. But the Court in Trump v. New York dismissed the case on standing and ripeness grounds.

D.C. Circuit

A panel of the D.C. Circuit Court of Appeals held that eight members of the 2017 House Oversight and Reform Committee have standing to bring an enforcement action against the General Services Administration. The members were looking into the GSA’s lease of the Old Post Office in Washington to President Trump and members of his family. They requested information about the lease under an obscure federal statute. The GSA responded that the members had no standing to sue; the entire Committee must request the information. But the D.C. Circuit disagreed. Judge Patricia Millett, writing for the majority, held that the members demonstrated personal injury under Article III in much the same way as one might assert injury because of an agency’s refusal to cooperate with a Freedom of Information Act request. “A rebuffed request for information to which the requester is statutorily entitled is a concrete, particularized, and individualized personal injury, within the meaning of Article III,” she wrote. The panel’s decision allows the suit to proceed. Judge Douglas Ginsburg, in dissent, subtly sought to reframe the question. He would hold that the injury the members allegedly suffered was, in fact, a harm to the entire institution (i.e., the Legislative branch), and thus the members cannot assert standing on behalf of the entire Committee.

A different panel ruled for Health and Human Services Secretary Alex Azar in American Hospital Ass’n v. Azar. The Affordable Care Act requires hospitals to publicize lists of “standard charges for items and services provided by the hospital.” It also empowers the HHS Secretary to define such “standard charges.” Secretary Azar did so. Standard charges must include prices hospitals charge insurers, he said in a 2019 administrative rule enacted under the Administrative Procedure Act. The American Hospital Association and a group of hospitals sued, claiming that Azar’s rule violates the ACA, the APA, and the First Amendment. But the D.C. Circuit disagreed. Judge David S. Tatel wrote for the panel. The text, structure, and purpose of the ACA’s relevant provision allow the HHS Secretary to adopt the rule. Azar’s decision was neither arbitrary nor procedurally deficient under the APA. And Zauderer v. Office of Disciplinary Counsel (1985) “squarely bar[s]” the hospitals’ First Amendment claim.

Judge Merrick Garland was on this panel originally, but he recused himself from the final decision. Garland has recused himself from several cases recently. It is no secret that the Biden administration is considering Garland for Attorney General, and some have speculated that Garland’s recent recusals suggest that he is on the short-list. It is mere speculation but worth keeping an eye on.

Second Circuit

Yesterday morning, a panel of the Second Circuit Court of Appeals in Manhattan struck down some of New York’s COVID-19 occupancy limits on houses of worship. On remand, the panel agreed with the U.S. Supreme Court: (1) the regulations that limit church attendance to 10 and 25 people discriminate against religious institutions because they are more stringent than limits placed on comparable secular institutions, and (2) those regulations cannot survive strict scrutiny. It directed the district court to determine whether other limits—capping church attendance in other areas to 25% and 33% capacity—might survive strict scrutiny.

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