Things to Read This Week (7/13)
Me on the new Primus book, plus putative classes and the waters of the United States.
Constitutional Anti-Enumerationism from William Winslow Crosskey to Richard Primus — my contribution to the Balkinization symposium on Primus’s new book. It suggests that “Richard Primus’s new book, The Oldest Constitutional Question Enumeration and Federal Power, is in some ways the book that Crosskey should have written” although it also concludes that “Primus’s book may ultimately be a victim of its own virtues.” Read the whole thing.
Elias Neibart, The Rise of the All-Writs-Act-Putative-Class Injunction? Argues against relief like that as in AARP v. Trump because: “Members of an uncertified putative class are not proper parties before a court and are thus not bound by its judgments. Thus, when a court gives preliminary relief to a putative class under the All Writs Act, it’s giving relief to non-parties.”
Jack H.L. Whiteley, The Clean Water Act and Avoidance Creep, a critical account of Sackett v. EPA.
I didn't read the article thoroughly, but the attempt to say AARP doesn't matter is completely unconvincing. I would say the question was squarely presented, two justices dissented on those issues (among others) and the suggestion that the court would change it's mind post-CASA is an argument against overreading CASA, not against AARP having precedential value.