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Such Inferior Courts?

By Ben Feuer, Mitchell Keiter Brian Cardile | Nov. 17, 2017

U.S. Supreme Court,
Constitutional Law,
9th U.S. Circuit Court of Appeals

Nov. 17, 2017

Such Inferior Courts?

Under Article III Congress may 'ordain and establish' lower federal courts , but can it direct them to 'promptly dismiss' certain pending cases? As SCOTUS considers the question, Ben Feuer (Cal. App. Law Group) says its answer might skew the balance of federal power and lead to a more politicized judicial process. Also, Mitchell Keiter (Keiter Appellate Law) argues that SCOTUS should reverse the 9th Circuit in 'NIFLA v. Becerra,' a free speech and abortion case granted cert Monday


This week we hear from Ben Feuer, Chairman of the California Appellate Law Group, about a case just argued before the U.S. Supreme Court, Patchak v. Zinke. Though to some extent overlooked because of the high court's stacked docket this term, the case presents a consequential separation of powers question, the Court's answer to which Feuer says could interweave politics more inextricably in the federal judiciary by potentially empowering the majority party in Congress to legislate out of court cases it finds politically disadvantageous.

We'll also hear from Mitchell Keiter (Keiter Appellate Law), on perhaps the week's most notable news from the 9th Circuit, a free speech decision it rendered last fall being granted cert to the U.S. Supreme Court. In the case, National Institute of Family and Life Advocates v. Becerra, the 9th Circuit considered a California law mandating that pregnancy clinics display information advising patients of the availability of state-funded family-planning services including contraception and abortion. A group of religiously-affiliated non-profits, which run pregnancy centers in California and are strongly opposed to abortion, filed suit, arguing the required notice amounts to impermissibly compelled speech, in violation of their First Amendment rights. A unanimous 9th Circuit panel upheld the law, but Keiter believes there are likely five votes on the high court ready to render a reversal.


Brian Cardile

Daily Journal Staff Writer

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