Quote:
Originally Posted by ubercapper
There's still a chance HISA survives, or the Supreme Court Intervenes.
This is because there are arguments scheduled next month in the 6th circuit on an appeal of Judge Hood's previous ruling that HISA was constitutional. This could turn out the opposite of the ruling by the three judge panel in the 5th circuit, then there would be a split and the Supreme Court would have to settle the dispute.
Another issue is the ruling by the 5th is likely only binding in three states (Texas, Louisiana and ?Mississippi). This is not a national ruling and HISA is still in place in the rest of the country even after the lower court in Texas issues a ruling in line with what the three judge panel of the 5th instructed.
There was a similar case the 5th (Jarkesy) ruled on in May regarding a government agency (SEC) being subservient to a private entity. The government asked for a full "en banc" hearing by the 16 (17?) judges in the 5th and were denied, but it took FIVE MONTHS.
In this case the lower court judge has to rule as the appellate court directed, then HISA can ask for the "en banc" hearing, and if that denial (or approval) takes five months, HISA is well in effect, except perhaps in the states the 5th has purview over.
Unless one of the parties asks for, and is granted, a stay of the ruling.
I am open to being corrected by Dilan or any other attorney on PA if anything I have written may be inaccurate.
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HISA could very much survive. There is possible en banc review in the 5th Circuit, and absent a reversal en banc, there is likely to be a conflict of the circuits because the 6th Circuit and perhaps others will hold the statute constitutional. And that could set up Supreme Court review.
Having said that, if HISA went to the Supreme Court, the determinant of whether HISA survives would depend on whether the Justices can distinguish it from FINRA. They aren't holding FINRA unconstitutional. But they like holding federal statutes they see as low stakes to be beyond Congress' power, a practice the legal scholar Orin Kerr calls "symbolic federalism". They might want to do that here.
EDIT: and it is also possible, remember, for Congress to amend the statute. If they give the FTC the power to modify HISA rulings, that obviates the 5th Circuit's constitutional issue. Again, this isn't high stakes or partisan in Washington DC- Congress might do that.
