Missouri plaintiffs asking for rehearing

The plaintiffs in the case of Missouri v. Biden have asked the Fifth Circuit Court of Appeals to rehear their case en banc – meaning before the entire Fifth Circuit Court, not just three judges. And indeed the Fifth Circuit might grant their petition, even while the Supreme Court considers the government’s petition for review.

Latest Missouri action

The Fifth Circuit issued a writ of mandamus on Monday, September 11, after first publishing an opinion on an appeal of the Big Injunction. The court modified – and weakened – the original injunction to apply only to the White House, the Surgeon General’s office, the CDC, and the FBI. It left off the hook the Cybersecurity and Information Security Agency (CISA), the National Institute of Allergy and Infectious Disease (NIAID, Anthony S. Fauci’s old directorate), the State Department, and three semi-private organizations, all of them affiliated with Stanford University.

On Thursday, September 14, the government applied for an immediate stay of even the weakened injunction. They alleged “irreparable harm” to the government if it could not stop the people from even hearing anything contradicting their narratives. Justice Samuel A. Alito, Jr., the supervising Justice for the Fifth Circuit, has granted, and lately extended, an administrative stay in the case. That stay technically expires at midnight tonight – at the time of this writing.

On Friday (September 22), the plaintiffs filed in the Fifth Circuit for an en banc hearing. Unaccountably, on Monday (September 25), the Court granted the petition, without even asking for a response. Yesterday the Court, apparently repenting of its haste, withdrew the order – and recalled their writ of mandamus. The latest two-page Fifth Circuit order reads:

IT IS ORDERED that the court order entered on September 25, 2023, is withdrawn.

IT IS FURTHER ORDERED that the mandate issued forthwith, on September 11, 2023, is recalled.

IT IS FURTHER ORDERED that the Appellants are directed to file a response to the petition for rehearing by September 28, 2023, at 12:00 p.m.

IT IS FURTHER ORDERED that the preliminary injunction issued on July 4, 2023, by the United States District Court for the Western District of Louisiana will remain STAYED pending resolution of Appellees’ petition for panel rehearing.

Herewith the docket pages for Missouri v. Biden at District and Fifth Circuit levels. See also the docket page for Murthy v. Missouri, the title of the case at the Supreme Court.

Government’s filings at SCOTUS

The two orders from the Fifth Circuit caused a flurry of filings at the Supreme Court. Louisiana Attorney General Jeff Landry notified the Supreme Court, first after the Fifth Circuit granted the en banc hearing, and again after that Court withdrew its grant and asked the government to respond. Mr. Landry’s first letter contains the rehearing petition, which is not available from CourtListener. The petition makes the following argument:

I. The Court’s Analysis Overlooks Significant Evidence Demonstrating that CISA Violated the First Amendment in Cooperation With the FBI.

II. The Court Overlooked Significant Evidence of CISA’s and the GEC’s Entanglement in Content-Moderation Decisions Through the EIP.

A. Enjoining federal officials’ actions through the EIP does not “exceed the scope of the parties’ presentation.”

B. The EIP is not a “private organization” but a joint government-private consortium launched by CISA.

C. Through the EIP, CISA successfully pressured platforms to adopt more restrictive content-moderation policies.

D. The State Department participated in the EIP along with CISA.

E. Enjoining federal officials from participating in the EIP inflicts no cognizable injury on the rights of third parties.

Solicitor General Elizabeth Prelogar filed two “supplemental memoranda” with the Court. The first asked, in so many words, why the Fifth Circuit would grant a rehearing without asking for a response. The second asks the Supreme Court to be sure to issue a stay extending to the resolution of the government’s review petition, not merely to the resolution of the plaintiffs’ en banc hearing petition.