Last week I wrote about the Fifth Circuit's decision in United States v. Rahimi, on remand from the Supreme Court. The panel explained that the Supreme Court "modified" Bruen. Though the Supreme Court reversed the Fifth Circuit, in candor, the Fifth Circuit should not be faulted for faithfully applying the precedent that existed at the time.
Yesterday, the Fifth Circuit decided another case on remand from the Supreme Court: Alliance for Hippocratic Medicine v. FDA. The panel remanded the case back to the district court. I know this is another case that is scored as a reversal for the Fifth Circuit. But here the Solicitor General altered the government's position, so the Supreme Court resolved a different dispute than the one faced by the Fifth Circuit. Specifically, SG Prelogar made very specific representations in AHM, as well as in Moyle, that federal conscience law would protect doctors. And with those concessions, the Court unanimously reversed. I wrote about Prelogar's switch in time that saved nine here.
Judge Ho wrote a concurrence which explained, in some detail, how the case changed on appeal.
