“Lower courts continue to rubber-stamp agencies’ choice of venue rather than allowing federal courts to consider the constitutionality of the agencies’ structures.”
—John Masslon, WLF Senior Litigation Counsel

WASHINGTON, DC—Today the U.S. Supreme Court agreed to hear an appeal from an order dismissing an important separation-of-powers case.  The grant of certiorari was a victory for Washington Legal Foundation (WLF), which filed an amicus brief urging the Court to hear the case.

WLF’s brief argued that defendants have a right to have their constitutional challenges to an agency’s structure adjudicated by an Article III tribunal. In Thunder Basin, the Supreme Court announced three factors that courts must consider when analyzing whether Congress stripped district courts of jurisdiction to hear pre-enforcement challenges. But lower courts have ignored two of those factors—whether a claim is wholly collateral to the merits of a case and whether the agency has expertise on the question—and focused solely on whether the defendant can obtain meaningful judicial review of an adverse agency decision. Lower courts have then impermissibly allowed illusory review to satisfy the meaningful-judicial-review factor.

WLF looks forward to participating at the merits stage and urging the Supreme Court to reverse the United States Court of Appeals for the Ninth Circuit’s decision and instruct lower courts to properly apply Thunder Basin.