ARGUMENT ANALYSIS

Supreme Court likely to let vape company’s FDA challenge proceed

At oral arguments earlier this week the Supreme Court was skeptical of the Food and Drug Administration’s effort to block a North Carolina-based company from challenging the denial of its application to market e-cigarettes in the conservative U.S. Court of Appeals for the 5th Circuit, based in Louisiana.

During 72 minutes of oral arguments, almost all of the justices peppered Vivek Suri, the assistant to the U.S. solicitor general representing the FDA, with a barrage of questions. Ryan Watson, who argued on behalf of R.J. Reynolds Vapor Company and a group of retailers based in Texas and Mississippi, primarily fielded questions from just two justices, Justices Sonia Sotomayor and Ketanji Brown Jackson – a promising sign for his clients.

The question comes to the court as part of the FDA’s efforts to regulate the multibillion-dollar vaping industry. In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act, which gives the FDA the power to regulate tobacco products and requires manufacturers to obtain the FDA’s permission before putting a new tobacco product on the market. In 2016, the FDA issued a rule indicating that the law applies to e-cigarettes and e-liquids.

WHAT WE'RE READING

The morning read for Friday, Jan. 24

Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Friday morning read:

• Supreme Court clears way for corporate transparency law to take effect (Justin Jouvenal, The Washington Post)
• Corporate Transparency Act Still Blocked Despite Supreme Court Decision (Mengqi Sun, The Wall Street Journal)
• New Research Finds Potential Alternative to Abortion Pill Mifepristone (Pam Belluck & Emily Bazelon, The New York Times)
• On the Credibility of the Department of Justice (Steve Vladeck, One First)
• Who Wins at the Supreme Court? Exploring the Patterns of Victory in Major Case Areas (Adam Feldman, Legalytics)

EMERGENCY DOCKET

Justices allow enforcement of corporate transparency law to go forward

The Supreme Court on Thursday afternoon granted the federal government’s request to be allowed to enforce a federal anti-money-laundering law while the government’s appeal moves forward in the conservative U.S. Court of Appeals for the 5th Circuit. In a brief unsigned order, the justices put on hold an order by a federal trial judge in Texas that would have barred the government from enforcing the law anywhere in the United States.

Justice Ketanji Brown Jackson dissented from the court’s decision to temporarily block the lower court’s ruling. She observed that the government’s appeal is moving quickly in the 5th Circuit, and she questioned whether there is any real emergency warranting the justices’ intervention.

The law at the center of the case is the Corporate Transparency Act. Passed in 2021, it is intended to prevent crimes like money laundering and the financing of terrorism by requiring businesses to report information about their owners.

WHAT WE'RE READING

The morning read for Thursday, Jan. 23

Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Thursday morning read:

• Supreme Court leans toward reviving excessive claim against cop who killed a Black man in a traffic stop (Lawrence Hurley, NBC News)
• Supreme Court Seems Ready to Reject Limit on Excessive-Force Suits (Adam Liptak, The New York Times)
• Crisis pregnancy centers ask Supreme Court to revive suit against New Jersey (Brendan Pierson, Reuters)
• How the modern Supreme Court might view the 14th Amendment and birthright citizenship (Joan Biskupic, CNN)
• Trump’s Death Penalty Order Is a Message to the Supreme Court (Barbara L McQuade, Bloomberg)

WHAT WE'RE READING

The morning read for Wednesday, Jan. 22

The justices will hear oral arguments in Barnes v. Felix and Cunningham v. Cornell University this morning. Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Wednesday morning read:

• Cop kills driver in routine stop. Supreme Court weighs whether it’s justified. (Maureen Groppe, USA Today)
• US Supreme Court weighs police conduct in fatal Houston shooting (Andrew Chung, Reuters)
• Cornell Case May Be Bellwether For ERISA Transaction Claims (Kellie Mejdrich, Law360)
• Supreme Court Questions Prosecutors’ Focus on Sex in Capital Case (Adam Liptak, The New York Times)
• The Online Porn Free-for-All Is Coming to an End (Marc Novicoff, The Atlantic)