The recent ruling by the Supreme Court on the Mandamus case brought forth by the American Association of Retired Persons (AARP) is not a surprise to anyone. The Supreme Court basically told Congress, “Don’t do it.” In doing so, the Supreme Court has put itself in the shoes of Congress and ruled against the wishes of the people. Since Congress did not want the Mandamus case, the Supreme Court merely attempted to do the same thing it had previously ruled against the people.
That is the very essence of the Majority Opinion delivered on January 21, 2021.
To say that the majority opinion is incorrect is truly an understatement. The Mandamus case was simply the citizens petitioning the federal court for an injunction based upon violations of the due process clause of the Fifth Amendment. Those violations deprived the individuals of their right to fair notice and an adequate opportunity to settle their disputes in a civil manner.
If the United States Federal Trade Commission would have allowed that to happen, there would never have been an iPhone in the marketplace and there never would have been the “Apps” that are available on the iPhone or any smart phone for that matter. Had the FTC’s anti-trust department applied the rules they claimed were there in the law, there simply would have been no competition, as there is now. Therefore, the claim is not even arguable that there is a likelihood of harm here in violation of the Supremacy Clause of the Constitution.
It is interesting to read the complaint filed by AARP in this lawsuit, because it is interesting to read the contention regarding the meaning of corporate governance. The complaint maintains that they are not corporations but organizations. Thus, the corporate governance clause of the United States Federal Trade Commission should apply to non-custodial members of the companies, such as AARP, that wish to join the lawsuit loans syndicate. Well, if the corporations are not corporations, then the argument goes on, because the complaint is that the entities are still within the bounds of corporate governance, even though they are not controlled by shareholders.
The United States Federal Trade Commission would argue that such a regulation is preempted by the Fifth Amendment to the Constitution.
This is an argument that was brought up at the Texas Supreme Court and was rejected by the United States Supreme Court in the 2021 case of NFCC vs. City of New London. However, there is a different opinion from several top legal authorities, including Associate Justice Anthony Kennedy, who wrote the decision for the Supreme Court of the United States: “the scope of corporate governance has changed substantially through recent decades and it is beyond our ability to predict what the current view will be of a modern corporate resolution’s potential application to a contemporary corporate body such as the AARP.”
However, the argument is somewhat irrelevant because the states can always sue companies within their jurisdictions. This is true whether the state is suing the federal government or the companies themselves. For instance, if the state of California is unhappy with the policies of the California State Workers’ Retirement System, which has hired former Aarp employees, then they can bring a lawsuit against Aarp, regardless of whether the company is located in California or Virginia. In other words, the state can sue not only the company but also the employees.
There is yet another problem with the argument that companies can sue states outside of the jurisdiction of the United States, but one that doesn’t get mentioned much. First, how does the federal government define a state? The simple answer is that each state is independent, although most states are extremely correlated with one another, especially in terms of population and industries. It is therefore very difficult to assess whether a state is a “natural” state or is artificially induced by outside forces. For this reason, it is my contention that the argument that “tech companies can sue states” is not only facile, but also tends to be an attempt to use the state courts to bully the federal government into accepting things the federal government doesn’t want.
So, how do I sue the big tech companies and federal government in federal court?
Hopefully, at some point in time, a judge will say the argument that the federal government is seeking to force Apple to make their new phones in the United States is not a legitimate one. Then, we will once again have another discussion about the role of state courts in aiding and abetting the federal government’s desire to increase corporate control over society. Of course, the argument won’t gain much traction in the short term, because the Supreme Court has already ruled that the federal government cannot mandate something that is not pertinent to the States. However, the argument may later be used when challenges to massive healthcare programs come before the Supreme Court..