Dear House Judiciary Committee: In Questioning William Barr, Employ the Ethics Complaint That 27 Distinguished DC Lawyers Filed Wednesday

FREDERICK BARON, DENNIS AFTERGUT, AUSTIN SARAT

Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.

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Shrimpers and Fishermen of the RGV v. Texas Commission on Environmental Quality

Docket: 19-60558

Opinion Date: July 31, 2020

Judge: Per Curiam

Areas of Law: Environmental Law, Government & Administrative Law

The Fifth Circuit dismissed, based on lack of Article III standing, a petition for review of the TCEQ's decision granting air permits to Rio Grande LNG. Petitioners, two membership organizations, ask the court to vacate the agency's decision and order either a contested-case hearing before the SOAH or the denial of the permits. The court held that petitioners have not satisfied their burden to show their members' injuries in fact. In this case, petitioners' claims -- that their individual members who live, work, and drive within a roughly fourteen-mile radius of the proposed facility will suffer an increased risk of harm that those living further away will not suffer -- are too generalized and petitioners have not produced enough evidence to show an actual or imminent harm. The court also held that, even if petitioners' members did identify specific risks, there is no evidence of the extent to which those risks would be increased for those members by the expected emissions. Furthermore, petitioners' claim that the proposed facility would cause ozone levels to be very close to violating the federally mandated levels failed to identify what specific health risks their members expect to suffer. Finally, to the extent petitioners argue that the denial of a contested-case hearing is a procedural harm separate and distinct from the harms they expect to be caused by the proposed facility, the court rejected that alleged injury as a basis for standing.

Texas v. Rettig

Docket: 18-10545

Opinion Date: July 31, 2020

Judge: Catharina Haynes

Areas of Law: Government & Administrative Law, Health Law

The States filed suit raising constitutional challenges to Section 9010 of the Affordable Care Act (ACA) and statutory and constitutional challenges to the Certification Rule. The Fifth Circuit affirmed the district court's ruling that the States had standing to raise their Certification Rule claims; reversed the district court's ruling that the States' Administrative Procedure Act (APA) claims were not time-barred; and dismissed those claims for lack of jurisdiction. On the merits, the court affirmed the district court's judgment on the Section 9010 claims, holding that the Provider Fee is a constitutional tax that does not violate the Spending Clause and that Section 9010 satisfies both the requirements under the Tenth Amendment doctrine of intergovernmental tax immunity. In this case, the Provider Fee does not discriminate against states or those with whom they deal because it is imposed on any entity that provides health insurance (with certain exclusions). Furthermore, the legal incidence of the Provider Fee does not fall on the states because Congress expressly excluded states from paying the fee. However, the court reversed the district court's judgment that the Certification Rule violated the nondelegation doctrine, holding that HHS did not unlawfully delegate to a third party its authority to approve state managed-care organization (MCO) contracts. Accordingly, the court rendered judgment in favor of the United States. Because neither the Certification Rule nor Section 9010 are unlawful, the court vacated the district court's grant of equitable disgorgement to the States.

Gjetani v. Barr

Docket: 18-60827

Opinion Date: July 31, 2020

Judge: James C. Ho

Areas of Law: Immigration Law

The Fifth Circuit denied in part and dismissed in part a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). As a preliminary matter, the court lacked jurisdiction to consider two of petitioner's claims based on his failure to exhaust administrative remedies. The court held that petitioner failed to show that the IJ and BIA erred in denying his request for asylum. In this case, the BIA did not err in finding that the attack and death threats against petitioner did not amount to past persecution. Furthermore, the IJ and BIA reasonably concluded that petitioner failed to show that his subjective fear of persecution on his return to Albania was objectively reasonable. Because petitioner did not qualify for asylum, he necessarily did not meet the higher threshold for establishing eligibility for withholding of removal. The court noted that its decision does not diminish the injury that petitioner and many other foreign nationals too often suffer in their home countries simply for holding unpopular political beliefs. The court stated that how our Nation deals with refugees is a political decision for the political branches to make.