Media Contact: Curt Levey
Phone: (202) 510-0128
Takeaways from SCOTUS Ruling in TX Abortion Case
Trump’s appointees did not disappoint
September 2, 2021

The Committee for Justice released the following statement by its president, Curt Levey, on the Supreme Court's ruling late last night in Whole Woman’s Health v. Jackson, allowing Texas’s “fetal heartbeat” abortion law to go into effect:
 
There are several important takeaways from the Supreme Court’s abortion ruling last night.

1) Despite the immediate hysterics from the Left—announcing the effective demise of Roe v. Wade—the ruling did nothing to modify or weaken the Court’s abortion precedents. Instead, the Court made it clear that its order "is not based on any conclusion about the constitutionality of Texas’s law,” is based entirely on procedural issues, and “in no way limits other procedurally proper challenges to the Texas law."

2) In fact, the Texas law, which bans abortions after six weeks of pregnancy, is likely to ultimately be struck down, precisely because Roe is unlikely to be overturned anytime soon. However, Roe may be circumscribed next spring in Dobbs v. Jackson Women’s Health, involving Mississippi’s 15-week abortion limit. Dobbs, which will be argued a few months from now, is the abortion case to watch.

3) Nonetheless, last night’s decision, the most important abortion ruling since Justice Amy Coney Barrett joined the Court, is an important step in the right direction for abortion opponents. The biggest obstacle to the Court curtailing Roe is not the Constitution—its text contains nothing hinting at a right to abortion—but the Court’s willingness despite knowing it will be pilloried by the nation's academic, media and cultural elites. That the Court’s three newest justices followed the rule of law yesterday rather than worrying about elite opinion is what makes last night’s ruling so significant.

4) The backbone the Court’s newest members showed yesterday confirms that President Donald Trump did a good job of picking justices who not only espouse conservative principles (the easy part), but are also willing to stick to those principles when the winds of political correctness are blowing in the opposite direction (the hard part). Last night’s ruling will help to quiet the conservative voices that point to some of the Court’s recent decisions and wonder if even President Trump got it right. The Committee for Justice supported all three of Trump’s appointees, not because we believed they would consistently rule in ways that please conservatives, but because we believed they would consistently apply conservative jurisprudential principles, such as adherence to the plain language of the Constitution. So far so good.

5) In contrast, Chief Justice Roberts, in dissent, conceded that Texas “may be correct” that “existing doctrines preclude judicial intervention,” but said he would block the Texas law “to preserve the status quo ante.” That is typical of what we have called Roberts’ “wont to take an ostensibly narrow and moderate approach that nonetheless yields a politically correct result sure to win praise in the nation’s leading editorial pages and law schools.” But with Barrett’s addition to the Court, the politically-minded Roberts can no longer do as much harm. Last night’s ruling confirmed both that the Court’s advertised 6-3 conservative majority is a myth, while its more realistic 5-4 conservative majority is more than a paper tiger.

6) As part of the hysterical reaction to yesterday’s ruling, the Left’s calls for court packing will grow louder. But the Left will not get its wish. While we have urged conservatives to keep an open mind about thoughtful Supreme Court reforms that don’t give either party an obvious advantage, packing the Court with additional, Biden-appointed justices is a nakedly partisan proposal that would do nothing to address the Court’s overreach, the one problem liberals and conservatives seem to agree on (see Levey’s testimony to Biden’s Supreme Court Commission).
Last night, the U.S. Supreme Court struck down President Biden’s August 3 extension of the CDC’s eviction moratorium. Earlier this week, Committee for Justice president Curt Levey wrote about why the CDC-imposed moratorium is unconstitutional, concluding that “the courts should not hesitate to put an immediate end to it before it does more damage.” Levey’s key points were:

  • “[T]he nationwide eviction moratorium doom[ed] countless small landlords to financial ruin … [L]andlords big and small have already gone more than a year facing unpaid rent that is costing them $14 to $19 billion each month.”
  • “In light of the Supreme Court’s ruling, President Joe Biden called on Congress to extend the moratorium past July 31. … Congress declined.”
  • “Federalism concerns are ... raised because the CDC is regulating the landlord-tenant relationship, traditionally left to the states … Supreme Court precedent requires ‘a clear indication’ from Congress if it intends to override the ‘usual constitutional balance of federal and state powers.’”
  • “A plain reading of the relevant section of the statute, originally captioned ‘Quarantine and Inspection,’ shows that the power it grants to the CDC is actually limited to quarantining contagious people and measures such as inspection, fumigation, disinfection, and pest extermination.”
  • “[T]he Centers for Disease Control and Prevention stretched its regulatory authority beyond recognition by enacting its own more extensive moratorium.”
  • “As the landlords in a legal challenge to the moratorium correctly argue , the CDC’s expansive reading gives it ‘free rein to do anything it can conceive of, if it merely asserts that it subjectively believes the action helps slow the spread of disease.’”
  • “The CDC’s expansive reading of that provision to encompass an eviction moratorium is unprecedented”

The Supreme Court’s reasoning last night was similar:

  • “The moratorium has put … millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means.”
  • “Congress was on notice that a further extension would almost surely require new legislation, yet it failed to act in the several weeks leading up to the moratorium’s expiration.”
  • “The moratorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship. [Supreme Court] precedents require Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power.”
  • "[T]he CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination.”
  • “[I]t is a stretch to maintain that [the statute] gives the CDC the authority to impose this eviction moratorium.”
  • “It is hard to see what measures this interpretation would place outside the CDC’s reach, and the Government has identified no limit in [the statute] beyond the requirement that the CDC deem a measure ‘necessary.’”
  • “This claim of expansive authority under [the statutory provision] is unprecedented.”
Thursday, August 26 | 12:00 - 1:00 PM EDT
Tomorrow, the National Security Institute at George Mason University's Antonin Scalia Law School will host the first event in their four-part series, the Tech Innovation and American National Security project, which will examine the national security implications of antitrust challenges at home and abroad. The virtual panel will provide an introduction to domestic and international antitrust laws and examine the role of the U.S. tech industry in promoting U.S. national security and economic interests, including providing historical frameworks leading up to the current call by U.S. lawmakers to introduce antitrust lawsuits to protect consumers here in the United States. 

Please click HERE to register.

Featuring:

Ashley Baker, Director of Public Policy, Committee for Justice

Professor Joshua Wright, Executive Director, Global Antitrust Institute

Glenn Gerstell, Senior Advisor (Non-resident), International Security Program, Center for Strategic and International Studies

Mike Davis, Founder and President, Internet Accountability Project (IAP)

Jamil Jaffer, Founder and Executive Director, National Security Institute (moderator)
Recent actions by several tech companies of "deplatforming" some people have lead to a call for government to "do something." Many people are calling for antitrust legislation to break up Facebook, Twitter, Amazon and other tech companies that have a seemingly insurmountable advantage and are engaging in anti-competitive tactics. Is this a legitimate complaint?
July 28, 2021
 
The Honorable Frank Pallone
Chairman, House Committee on Energy and Commerce
 
The Honorable Cathy McMorris Rodgers
Ranking Member, House Committee on Energy and Commerce
 
The Honorable Janice D. Schakowsky
Chair, House Committee on Energy and Commerce
Subcommittee on Consumer Protection and Commerce
 
The Honorable Gus M. Bilirakis
Ranking Member, House Committee on Energy and Commerce
Subcommittee on Consumer Protection and Commerce
 
 
Dear Representatives Pallone, Rodgers, Schakowsky, and Bilirakis:
 
We at the Committee for Justice write today to provide you with comments for inclusion in the record of the Subcommittee’s July 28th hearing, "Transforming the FTC: Legislation to Modernize Consumer Protection."
 
Founded in 2002, CFJ is a non-profit legal and policy organization that educates the public and policymakers about the rule of law and promotes constitutionally limited government. CFJ has a long history of leadership on Supreme Court and federal judicial nominations in the Senate and has recently focused on issues at the intersection of constitutional law and technology. Consistent with that mission, our latest efforts have encompassed areas such as data privacy policy, administrative law, and antitrust law.
 
By way of background, on July 1, 2021, the Federal Trade Commission (FTC), after allowing six days for public comment, voted to rescind the 2015 Statement of Enforcement Principles Regarding “Unfair Methods of Competition” (UMC) Under Section 5 of the FTC Act. Prior to the FTC’s meeting, comments were submitted by Ashley Baker of the Committee for Justice and Daren Bakst of The Heritage Foundation, on behalf of a group of 20 legal experts, conservative advocates, former FTC officials, and economists.
 
On July 21, 2021, the FTC voted to rescind its bipartisan 1995 Policy Statement on Prior Approval and Prior Notice Provisions in merger cases. Relevant comments were once again provided. Notably, both of these actions – along with other significant changes – were effected along party lines, with limited opportunity for public input, and without dialogue among the Commissioners.
 
Since today’s hearing will consider a wide array of reforms, many of which are relevant to the level of discretion and enforcement principles under FTC Act § 5 and to the broader capabilities and mandate of the Commission, we attach to this letter the two recent comments to take into consideration in your discussion of the FTC’s legal and administrative authorities.
 
We thank you for your oversight of this important issue and ask that this letter be included on the Committee or Subcommittee’s website and repository. Please feel free to contact us should you have any questions or requests for additional input from signatories. We welcome the opportunity to further discuss these views and relevant proposals or congressional assessment with the Committee.
 
Respectfully,
 
Ashley Baker
Director of Public Policy, The Committee for Justice
Founder, The Alliance on Antitrust
 
Attachments:
 
  1. Comments In Re: Rescission of 2015 Statement of Enforcement Principles On Unfair Methods of Competition Under FTC Act § 5
  2. Comments In Re: Rescission of 1995 Policy Statement on Prior Approval and Prior Notice Provisions in Merger Cases
On July 9, President Biden signed the Executive Order on Promoting Competition in the American Economy, which is perhaps the most sweeping executive order in several decades, and will drastically expand the power of the federal government. The E.O. contains 72 specific actions that will impact not only tech companies, but also financial institutions, internet service providers, pharmaceutical companies, railways, airlines, biopharmaceutical innovators, drug prices, patent owners, and much more. Our panel of antitrust experts discuss the underlying justifications for the order, the possible effects, and the implications for consumers, businesses, and regulatory agencies.
SPEAKERS:
Jay Ezrielev

Founder, Elevecon &
Former Economic Advisor to FTC Chairman Joseph Simons
Bilal Sayyed

Senior Adjunct Fellow, TechFreedom &
Former Director, FTC Office of Policy Planning
Steven J. Cernak

Partner, Bona Law PC
Ashley Baker (moderator)

Director of Public Policy, Committee for Justice &
Founder, The Alliance on Antitrust
Committee for Justice president Curt Levey testified Tuesday before the Presidential Commission on the Supreme Court appointed by President Biden to consider possible reforms to the Court, including the court packing option favored by many progressives. Mr. Levey was one of a handful of conservative witnesses to testify. In both his written and spoken testimony, he challenged the progressive views of most of the witnesses and commissioners.

For instance, he challenged the view that the Supreme Court, as currently constituted, is dangerously far to the right. Levey explained that the Court’s decisions since Justices Kavanaugh and Barrett were added reveal a moderately conservative Court that angers conservative as often as liberals.

Similarly, Mr. Levey pushed back against the progressive view that Republican presidents have appointed judicial activists to the Court. He described how most of the activism on the Supreme Court has come from Democrat appointees and their “living Constitution” approach to judicial interpretation.

Levey also refuted Democrats’ claim that Senate Republicans “stole” two Supreme Court seats when they declined to give Obama Supreme Court nominee Merrick Garland a hearing, then confirmed Justice Amy Coney Barrett.

Mr. Levey told the Commission why we should be wary of any structural reforms to the Court and denounced attempts by Democrat senators—most notably Sens. Chuck Schumer and Sheldon Whitehouse—to use threats of structural reform to intimidate the Justices. Finally, Levey suggested potential improvements to the judicial confirmation process in the Senate, which has become a political circus since the character assassination of Supreme Court nominee Robert Bork in 1987.
In Re: Rescission of 1995 Policy Statement on Prior Approval and Prior Notice Provisions in Merger Cases
Dear Chair Khan and Commissioners Phillips, Chopra, Slaughter, and Wilson:
On behalf of the Committee for Justice, please consider this comment concerning the July 21, 2021 open meeting agenda.[1] We appreciate this opportunity to provide comments regarding the possible rescission of the Commission’s 1995 Policy Statement on Prior Approval and Prior Notice Provisions in Merger Cases (1995 statement).[2]
 
The Commission claims to have a broader goal of bringing transparency through a series of monthly open meetings. The July 1 meeting fell short of this goal on all accounts.[3] The July 21 meeting does not seem to be an improvement. 
 
The public was given a mere four business days to comment on the proceedings. Allowing only several days for public comment on significant agenda items that will drastically affect the merger approval process is a deterrent to substantive public input. To allow for both transparency and public participation in these proceedings, the Commission should allow for a standard of 30 days of public input.

With this in mind, it is troubling that the Commission will be considering a significant shift in policy as the open meeting agenda will include this sudden push to revoke the 1995 statement. Of particular concern is the rejection of the prior approval provision. 
 
With the adoption of the 1995 statement, the Commission accepted the Hart-Scott-Rodino (HSR) Act[4] framework as adequate for handling mergers and thereby determined that prior approval of future acquisitions by a respondent should no longer be required as a routine matter.[5]
 
As the Commission explained when issuing its 1995 policy statement: “In light of its now extensive experience with the HSR Act, the Commission has reassessed whether it needs to continue regularly to impose prior approval requirements. Although prior approval requirements in some cases may save the Commission the costs of re-litigating issues that already have been resolved, prior approval provisions also may impose costs on a company subject to such a requirement. Moreover, the HSR Act has proven to be an effective means of investigating and challenging most anticompetitive transactions before they occur.”[6]
 
The rescission of the 1995 statement is another step in the direction of rejecting the HSR regime which, in the words of Peter W. Rodino, Jr on the 25th anniversary of the Act, “absolutely has transformed merger enforcement. Competition, as well as the consumer, has benefitted.”[7] ...
The following post by CFJ's Ashley Baker is the first of a four-part dialogue series between Ashley Baker and Professor Richard Epstein. Baker and Epstein will explore the underpinning's of today's political antitrust movement.
In a debate filled with misleading claims and hyperbole I will begin with an objective understatement: It is an eventful time to be working on antitrust law.

The rebirth of the political antitrust movement has propelled competition law to the center of national debate. In response, the federal government and dozens of states have filed lawsuits against tech companies. Congress is considering several sweeping proposals that would fundamentally alter the goals of antitrust and limit judicial oversight in order to drastically expand the power of regulators.

Not to be outdone, the FTC is wasting little time expanding its own power under newly-confirmed Chair Lina Khan. This coincides with broader efforts to undermine or eliminate the consumer welfare standard, which the Supreme Court has embraced and repeatedly reaffirmed for more than four decades.

It has been observed that political antitrust movements always result in inconsistent goals, but their contradictions are not often exposed. There is little agreement on the exact problems this new antitrust regime is supposed to remedy and even less agreement over the larger purpose of antitrust law.

Prominent voices have advocated for the use of antitrust law for causes such as campaign finance reform, income redistribution, promoting progressive labor policies, countering systemic racism, stopping online political bias, redistributing political clout, and combating misinformation, and this is only to name a few. Antitrust is viewed as a convenient regulatory tool and as an easier substitute for unrelated legislative failings.

Strangely, at a time when antitrust expansionism has become fashionable again, there are efforts to create antitrust immunities for politically favored entities and causes. For example, allowing collusion, “the supreme evil of antitrust,” when it supposedly benefits the environment.

Astoundingly, Congress even seriously considered a proposal that would grant an antitrust exemption for a price-fixing cartel among members of the newsmedia. This was simultaneous with a revival of the discussion over whether to revoke baseball’s exemption. Although there are legitimate criticisms of the MLB’s exemption, if the goal is to stop large institutions from serving as proxies for progressivism, it seems that authorizing a mainstream media cartel is something to avoid.

However, these are not the conversations we should be having. It is all reminiscent of how Ralph Nader, prior to another period of antitrust expansionism, declared that “antitrust is going modern and will shed more and more of its complexities.” It did exactly that, and so did he.

Similarly devoid of complexities is the highly-charged antitrust discourse of today. This is coupled with the fact that, as demonstrated by the previous list of intended uses for antitrust, reform advocates emphasize the many things that antitrust law can be used to do, but fail to properly identify the ultimate goal of antitrust.

The absence of an underlying goal to which these efforts can be anchored has resulted in proposals that create a license for ideologically-driven mischief, untether antitrust from economics, and function to weaponize competition policy to reorder large sectors of the economy.

Proposals advertised as necessary to rein in "Big Tech" were the camel's nose under the tent. On Friday, this became abundantly clear with Biden's signing of the Executive Order on Promoting Competition in the American Economy. This is perhaps the most sweeping and economically consequential executive order of the past half-century, and will impact technology companies, financial institutions, ISPs, pharmaceutical companies, railways, airlines, biopharmaceutical innovators, patent owners, and much more.

There is much more to be said here – about the Executive Order, the process, and the many other pieces of the current antitrust debate – but that will have to wait for another day.
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The Supreme Court wrapped up it's session last week. People for Liberty Executive Director Dan Fishman will talk with Curt Levey, first about the attempts to pack the court and then about the most important decisions the court ruled on AND passed on this year.

The video from this event is now available on YouTube.
The following comments were submitted by Ashley Baker of the Committee for Justice and Daren Bakst of The Heritage Foundation, on behalf of a group of 20 legal experts, conservative advocates, former FTC officials, and economists to the FTC for consideration in the Commission’s scheduled July 1 vote on whether to rescind the 2015 Statement of Enforcement Principles Regarding “Unfair Methods of Competition” (UMC) Under Section 5 of the FTC Act.

Our comments explained that:

  • The rushed process through which this is being considered failed to allow for meaningful public input and transparency. The Commission’s decision to allow only six days for public comment on significant agenda items that will drastically affect enforcement policy decisions is a deterrent to substantive public input. The Commission should allow for a standard of 30 days of public input

  • The rescission of the 2015 statement would untether the FTC’s enforcement decisions from concerns over harms to consumers and to the competitive process. The 2015 statement provides a bipartisan framework that lays out widely agreed upon core principles regarding antitrust law and appropriately prioritizes consumer welfare, which remains the goal of antitrust as recognized and reaffirmed in existing case law.

  • Abandoning the 2015 statement’s framework would remove important guardrails that established predictability and guidance in enforcement actions. The FTC’s misadventure into UMC expansionism would generate unwarranted confusion, and eventually courts would have to grapple with questions of interpreting the outer boundaries of Section 5 authority that were previously cabined by the 2015 statement. 

  • And most of all, we are concerned that the sudden rush to revoke the 2015 statement foreshadows a broader agenda to radically change antitrust law by greatly expanding the FTC’s enforcement discretion.
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