“Part of it is legitimizing arguments that might have once been considered an off-the-wall argument.” “It’s not all about the law here,” he said. Circuit Court of Appeals in New York.īut the fact that an outsized number of GOP lawsuits against Biden are landing in the 5th Circuit is notable because some judges on the court have been receptive to burgeoning legal theories - such as the “major questions” doctrine - that are helping conservatives wage war against federal regulations, Nolette said. Circuit Court of Appeals on the West Coast and the 2nd U.S.
During the Trump years, multistate challenges, most of which came from Democratic attorneys general, were evenly distributed across courts largely seen as more favorable to their side: the D.C. Nearly all of those are Clean Air Act cases.įorum shopping - or selecting a court that is more likely to favor a litigant’s claims - is nothing new. Under Biden, red states have advanced only four - or about 7 percent - of their multistate cases in the D.C. Court of Appeals for the District of Columbia Circuit, which by law has the first bite at Clean Air Act disputes. During the Obama years, most multistate challenges came up through the U.S. According to data compiled by Nolette, 43 percent of multistate lawsuits from Republican attorneys general against the Biden administration have originated in federal district courts under the purview of the 5th Circuit, which covers just three states: Texas, Louisiana and Mississippi.
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