RadCasts

Today's episode takes a look at a tragic case currently unfolding of a pregnant young woman being detained for being in this country illegally and the Trump administration's efforts to deny her the right to an abortion. We begin with a quick procedural update on the 9th Circuit's ruling on EO-2 before taking a deep dive into the nuts and bolts behind Zarda v. Altitude Express, which we first discussed back in Episode 91.  Thanks to some great questions from our listeners, Andrew and Thomas get into the civil procedure weeds with concepts like "claim-splitting" and res judiciata. In the main segment, the guys break down Jane Doe v. Wright, and discuss whether the government can prohibit an minor alien in this country outside of legal status from seeking an abortion. Next, Andrew and Thomas discuss a prominent tweet within the skeptical community and whether it is fair to characterize the statement itself as "sexual harassment." Finally, we end with the answer to Thomas Takes the Bar Exam Question #47 about landlord responsibility and immunity.  Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None!  Have us on your show! Show Notes & Links

1. The recent news regarding the 9th Circuit was reported by Bloomberg News and other outlets.
2. We first discussed Zarda v. Altitude Express in Episode 91.
3. New York's Human Rights Law can be found in the New York Consolidated Laws, Art. 15, § 290 et seq.
4. We took you through the current status of abortion in our detailed two-part discussion of Planned Parenthood v. Casey in Episode 27 and Episode 28.
5. You can read Jane Doe's complaint, as well as the en banc decision of the Court of Appeals for the D.C. Circuit in Jane Doe v. Wright.
6. The regulations implementing sexual harrassment under Title VII can be found at 29 C.F.R. § 1604.11.

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On October 11, 2017, the Supreme Court heard argument in National Association of Manufacturers v. Department of Defense, a case regarding the proper jurisdiction of federal circuit courts of appeals with respect to rules issued under the Clean Water Act.
In 2015, the U.S. Army Corps of Engineers and U.S. Environmental Agency (the “Agencies”) issued a final rule intended to clarify the definition of “waters of the United States” as used in the Clean Water Act (the “Clean Water Rule”). Petitioner associations and companies filed suit in various federal district and appellate courts to challenge the Clean Water Rule, claiming that the definitional changes improperly expanded the Agencies’ regulatory jurisdiction and dramatically altered the existing balance of federal-state collaboration on water resource concerns. Many of the suits were eventually consolidated before the U.S. Court of Appeals for the Sixth Circuit. The Clean Water Rule, Petitioners contended, is inconsistent with Supreme Court precedent and was improperly adopted without satisfying the requirements of the Administrative Procedure Act. Petitioner National Association of Manufacturers (“NAM”), which had brought its challenge in federal district court, then intervened in the Sixth Circuit litigation and moved to dismiss for lack of jurisdiction, arguing that judicial review must first take place in district court and that this case did not fall within the judicial review provisions of the Clean Water Act. The Sixth Circuit ultimately rejected this argument and concluded that it could exercise jurisdiction over requests for review of the Clean Water Rule under 33 U.S.C. Sec. 1369(b)(1)(F). That provision provides for exclusive jurisdiction in the federal circuit courts of appeals to review an action “issuing or denying any permit under section 1342, [the National Pollutant Discharge Elimination System]....”
The question presently before the U.S. Supreme Court is whether the Sixth Circuit erred in holding that it had jurisdiction under 33 U.S.C. § 1369(b)(1)(F) to assess a Clean Water Rule that did not actually “issu[e] or den[y] any permit,” but rather defined the waters that fall within the scope of the Clean Water Act.
To discuss the case, we have Jonathan Adler, Director of the Center for Business Law & Regulation at Case Western Reserve University School of Law.