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Golfer Charley Hull vapes during the 2024 Solheim Cup on September 15, 2024. | Brian Spurlock/Icon Sportswire via Getty Images FDA v. Wages and White Lion Investments, which the Supreme Court will hear on the first Monday in December, is a significant case in its own right. It involves the Food and Drug Administration’s long-delayed attempt to regulate flavored nicotine vapes and to prevent children from becoming addicted to nicotine because they are enticed by vapes with fruit or candy flavors. But the case is also significant for another reason. Seven federal appeals courts unanimously rejected legal challenges to the FDA’s decision not to authorize certain flavored vapes and e-cigarettes. Only one outlier court, the United States Court of Appeals for the Fifth Circuit, took a position that is unusually favorable to tobacco companies, which led us to this Supreme Court case. The Fifth Circuit is the most right-wing appeals court in the federal system — and is notorious for its contrarian decisions. Post 2024 election, it is a particularly important court to watch, as it is also considered a breeding ground for potential Trump nominees to the Supreme Court. One of its judges, Andrew Oldham, is the author of the Fifth Circuit’s decision in White Lion. Oldham is widely considered a strong contender for a Supreme Court nomination if an opening arises in the incoming Trump administration, especially if his former boss, Justice Samuel Alito, retires.  In his White Lion opinion, Oldham claims that the FDA botched its decision to effectively pull several fruit- and candy-flavored nicotine vapes from the market, and must run through its decision process again. If it were to do so, the agency could reach a different result on flavored vapes: It will have new leadership in the Trump administration. There are two things to know about Oldham’s opinion. One, it appears to have been written not just to sabotage the FDA’s regulation of vaping but to drastically undercut the federal government’s ability to perform all sorts of routine and uncontroversial actions. If the Supreme Court accepted his arguments, they’d greatly undermine the federal government’s ability to regulate businesses and communicate with the public. Two, Oldham’s opinion is very sloppy: It takes significant liberties with the law and is riddled with very basic factual errors. In fact, shortly after it was handed down, one of the tobacco companies that prevailed in Oldham’s court filed a brief motion pointing out one of these factual errors and asking the court to “amend, modify, or otherwise clarify” Oldham’s opinion to remove this misstatement of fact (the court refused to do so). All of that means White Lion is significant for three reasons. It is likely to reveal whether the Supreme Court will allow judges to sabotage attempts to regulate tobacco that are authorized by federal law. It shines a light on a prominent Trump judge who may soon become one of the most powerful people in the United States. And it places the justices in the awkward position of reviewing some truly shoddy work by someone who could soon become one of their colleagues. Though the Supreme Court is very conservative, with a 6-3 Republican supermajority, it is likely that even this Court will reverse Oldham’s White Lion decision. Neither the Fifth Circuit, nor Oldham in particular, have a particularly strong record when their decisions are reviewed by the Supreme Court. Additionally, seven federal appeals courts other than the Fifth Circuit have considered the same legal question presented in White Lion, and every single judge that heard those cases rejected Oldham’s reasoning. Still, it’s important to remember that this is the same Supreme Court that recently held that Trump is allowed to use the powers of the presidency to commit crimes, so there’s no guarantee that a majority of the justices will follow existing law in White Lion, no matter how clear that law may be. So what are the rules governing flavored vapes? White Lion arises out of the FDA’s effort to rein in youth vaping long after, as Trump’s own FDA commissioner said in 2019, the US saw an “epidemic-level rise in youth e-cigarette use.”  Congress did not pass a law permitting the FDA to regulate tobacco until 2009, and the FDA didn’t finalize its regulations allowing it to regulate vapes until 2016. Those regulations, moreover, only gradually rolled out enforcement of the new restrictions on vapes, and litigation delayed matters even further.  In the end, companies that wished to sell vaping products were required to seek FDA approval of those products by September 9, 2020, or else those products were to be removed from the market. Companies that met this application deadline were given an additional grace period when they could still market their product in the US while the FDA considered their application. The result is that flavored vapes are now everywhere, and the FDA is stuck playing catch up. The White Lion case involves the FDA’s decision not to allow two companies to sell vapes with flavors that seem designed to appeal to children and teens, such as “Chewy Clouds Sour Grape,” “Killer Kustard,” and “Suicide Bunny Mother’s Milk and Cookies.”  Despite the law’s slow rollout, it imposes strict regulations on “new” tobacco products, which it defines as any such product “that was not commercially marketed in the United States as of February 15, 2007,” or any modification to a tobacco product marketed after this date. Flavored vapes count as such a “new” product. Under the law, the FDA “shall deny an application” seeking to market such a product unless it determines that permitting a particular vape to remain on the market is “appropriate for the protection of the public health.” To make this determination, the FDA must weigh whether permitting a particular vaping device to be sold would cause more existing smokers to “stop using such products” than it would cause “those who do not use tobacco products” to “start using such products.” Armed with this statutory mandate, the FDA has approved vaping products that it believes are likely to convert tobacco smokers into vapers, on the theory that vaping is less dangerous than smoking. But it has rejected products that it believes are likely to encourage people who do not currently use nicotine — and especially children and teens who do not vape — to take up the habit. Specifically, the FDA approved several vaping products that taste similar to cigarettes, believing that adult smokers may prefer these less-dangerous products over smoking. Most of the FDA-approved flavored vapes are tobacco flavored, but the FDA also recently approved a handful of menthol-flavored vapes as well (menthol is a common flavor in cigarettes). At the same time, the FDA has thus far rejected applications to market fruit-flavored, candy-flavored, or other sweet-tasting vapes, pointing to data showing that these products are especially likely to appeal to children and teens.  All of this said, the FDA has not issued a blanket rule forbidding fruit-flavored vapes or approving tobacco-flavored ones. Instead, anyone who wishes to sell a vaping product in the United States must submit an individualized application to the FDA, which must lay out the evidence that their product is likely to convert adult smokers into vapers without encouraging new people to take up vaping.  So it is at least theoretically possible that someone could develop a cherry-flavored vape that is unusually unattractive to teens and earn FDA approval. So how did Andy Oldham wind up getting involved? After the FDA started denying applications to sell flavored vapes, lawsuits abounded. For the moment, however, every single judge who does not sit in the Fifth Circuit rejected Oldham’s arguments that the FDA broke the law when it denied these applications. (The one possible exception is the Eleventh Circuit, which ruled in favor of a vaping company in Bidi Vapor v. FDA (2022). Bidi Vapor, however, was a narrow opinion that turned on facts specific to that case.) Oldham and his court, meanwhile, claim to have found five separate legal flaws in the FDA’s decision to reject flavored vapes that every other judge this issue came before missed. Oldham devotes the bulk of his opinion to a single argument: He claims that the FDA broke the law because it told vaping companies to submit one kind of evidence when they applied for FDA approval of their products, and then the FDA did a “regulatory switcheroo” and denied those applications for failing to present a different kind of evidence. However, in reaching this conclusion, Oldham misstates the law and makes factual errors that undermine the entire premise of his opinion. Oldham’s primary argument, for example, is that the FDA engaged in a “switcheroo” because it previously told vaping companies that it “does not expect that applicants will have to conduct long-term studies to support an application,” then later decided to impose “two requirements—randomized controlled trials and longitudinal cohort studies.” (A “longitudinal cohort study” is one that follows a large group of test subjects over a long time.) But this claim is obviously false. Here’s what the FDA actually said when it denied the applications at issue in White Lion: In light of the known risks to youth of marketing flavored [vaping products], robust and reliable evidence is needed regarding the magnitude of the potential benefit to adult smokers. This evidence could have been provided using a randomized controlled trial and/or longitudinal cohort study that demonstrated the benefit of your flavored [vaping] products over an appropriate comparator tobacco-flavored [product]. Alternatively, FDA would consider other evidence but only if it reliably and robustly evaluated the impact of the new flavored vs. Tobacco-flavored products on adult smokers’ switching or cigarette reduction over time. The FDA, in other words, very clearly did not say that applicants must submit “randomized controlled trials and longitudinal cohort studies,” as Oldham claims. It said that applicants “could have provided” these kinds of studies. But the FDA also “would consider other evidence.” Elsewhere in his opinion, Oldham tries to impose a new legal obligation on federal agencies that would severely undermine their ability to function and communicate with the public. During the period between 2016, when the FDA issued its initial rule announcing that it would regulate vapes, and when the agency actually started to grant or deny applications to sell certain vaping products, the agency also released several nonbinding “guidance” documents. These documents provided vaping companies with some information on the agency’s thinking on the product approval process, and offered them advice on how to assemble a successful application.  These sorts of guidance documents do not have the force of law, but agencies of all kinds frequently release them to advise the public about the agency’s internal thinking, and to help companies anticipate what sort of actions could get them in trouble with the federal government. Oldham claims that the vaping companies should prevail because these documents “could be read in good faith” to support those companies’ position, even though these documents are nonbinding and the agency itself rejects the companies’ interpretation of these documents. As Oldham writes, “for FDA to prevail, not only must its understanding of the [guidance documents] be reasonable, but the manufacturers’ understanding of those [documents] also must be unreasonable.” Oldham, in other words, would permit regulated businesses to comb through every nonbinding statement an agency has ever made, looking for phrases that could plausibly be interpreted to undermine the agency, and then insist that such a contested interpretation of a nonbinding document must bind the agency.  As the Justice Department points out in its brief, Oldham’s rule would create a perverse incentive for agencies that would hurt regulated businesses in the long run. Right now, agencies routinely release guidance documents in order to “furnish private parties with useful advice about how the agency interprets the law and how it plans to exercise its discretion.” But if those documents can be weaponized against the agency in the way Oldham suggests, that “discourages agencies from providing guidance in the first place—an outcome that, in the long run, harms rather than helps regulated parties.” If you want to read a more comprehensive catalog of Oldham’s many missteps, I encourage you to read the Justice Department’s brief. It exposes an opinion riddled with errors of all kinds, many of which are obvious to anyone familiar with the facts of this case. The poorly reasoned White Lion opinion is typical of Oldham’s work Everyone, including federal judges, has bad days at the office. So if White Lion were an isolated example of Oldham releasing a shoddy opinion, it could probably be overlooked.  But White Lion is by no means an isolated case. It is, in fact, quite typical of Oldham’s work. Shortly before the election, for example, Oldham handed down an opinion in Republican National Committee v. Wetzel, which claims that an 1872 law setting the date when federal elections take place forbids states from counting mailed ballots that arrive after Election Day — and that somehow no one noticed this fact for the last 152 years. Ordinarily, after mentioning a judge’s opinion, I would attempt to summarize its reasoning, but it is hard to even say what Oldham’s argument is. As I wrote shortly after the decision was handed down, he appears to have simply made up some of his conclusions — and he cites no legal authority whatsoever to support key contentions. Or take Oldham’s opinion in NetChoice v. Paxton (2022), where Oldham upheld a state law that would have placed the Texas government in charge of content moderation at the major social media outlets. This law is obviously unconstitutional — the First Amendment does not permit the government to seize control of the media’s editorial decisions — and the Supreme Court rejected Oldham’s approach in a 6-3 decision. Oldham also joined two opinions threatening the continued existence of two entire federal agencies, the Federal Housing Finance Agency and the Consumer Financial Protection Bureau. If the Supreme Court had adopted Oldham’s position in either case, it would have so severely disrupted the US housing market that it could have triggered the worst economic catastrophe since the Great Depression. Fortunately, the justices rejected Oldham’s position in each case, and by a lopsided margin. At least on the surface, Oldham appears conventionally qualified for the Supreme Court. He graduated from Harvard Law School, clerked for Alito, and is a sitting US Court of Appeals judge. But his record on the bench reveals someone who is reckless with power, often not even really bothering to explain the reasoning behind his opinions.  Nevertheless, by all outward signs, he is a strong contender for the high Court in the incoming Trump administration. Among other things, the Federalist Society, which played an enormous role in selecting Trump’s judicial nominees during his first term, just made Oldham the opening speaker at its annual lawyers convention. That’s a plum speaking gig for any judge campaigning for higher office. If he does achieve such office, Oldham’s uniquely careless approach to legal analysis could shape US law for a very long time. Oldham is in his mid-40s, so he could potentially serve on the Supreme Court for several decades if appointed.

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Elon Musk, currently the richest person in the world, gave over $130 million to support Donald Trump’s reelection. | Chris Unger/Getty Images President-elect Donald Trump and Elon Musk have become an inseparable duo. Since Trump’s reelection, the richest man in the world — and one of Trump’s top campaign donors — has been a shadow trailing him at his Florida residence. The tech billionaire has taken center stage in the incoming administration, promising to slash $2 trillion from the federal government’s budget. A whirlwind relationship developing between a politician — in this case, the president-elect — and a financial backer isn’t unusual. What stands out is how much the donor himself is in the spotlight. Tim Walz’s joke that Musk, not JD Vance, was Trump’s running mate, rings more true every day. “We’ve never really seen anyone be that directly connected with a campaign unless they were the candidate,” says Jason Seawright, a political science professor at Northwestern University and co-author of Billionaires and Stealth Politics.  It makes Musk an oddity among his billionaire class, who almost always use their influence quietly.  He’s showing other members of the ultra-wealthy a bold alternative to stealth politics, urged on by a president-elect who has embraced giving billionaires a seat at the table. A private citizen can grab power in full view of the public — as long as they’re rich enough, and have enough fans. “We are in an era that I call ‘in-your-face oligarchy,’” says Jeffrey A. Winters, a professor at Northwestern who researches oligarchs and inequality. Twenty years ago, it was a challenge to get his students to understand that there were oligarchs in the US. Now, he says, “I have a very hard time getting students to accept the idea that there’s democracy.” Buying political power is nothing new – but Musk’s brazenness is different American politics has always been dominated by its most well-heeled citizens, whether by holding office themselves, using their money to get their preferred candidates into office, or helping shape policies. Benefactors are often well-rewarded with access to the levers of government, whether it’s receiving a cushy ambassadorship or even cabinet position, getting generous government contracts, acting as informal advisers, steering controversial foreign policy decisions, or taking on a more shadowy but no less influential role.   While both Trump and Vice President Kamala Harris enjoyed an abundance of ultra-rich supporters, just 10 billionaires gave 44 percent of all the money supporting Trump. It’s part of why the word “oligarchy” is being thrown around, although not for the first time. “Going back more than 2,000 years in history, oligarch has always referred to people who are empowered by tremendous wealth,” explains Winters. “That’s always a small part of the population, but they’re able to convert their wealth into political influence.” Musk donated some $130 million to help elect Trump and other Republicans, and he doesn’t have an official appointment in the Trump administration at this point — instead, he’ll be leading the Department of Government Efficiency (DOGE for short) alongside fellow billionaire Vivek Ramaswamy. The twin heads of the efficiency commission aim to chop at least $2 trillion in government waste — such as the budgets of pesky regulatory agencies that slow down building and launching rockets. (It’s worth noting that there’s already an agency tasked with trying to ensure the federal government runs efficiently.)  Barbara A. Perry, co-chair of the Presidential Oral History Program at the University of Virginia’s Miller Center, tells Vox that she can’t think of another example in American history quite like Musk. “It just seems that Musk is taking a much larger role than any other person who would have come close to playing his role,” she says. Musk doesn’t have previous experience in a similar political appointment, nor is he stepping down from any of his companies despite potentially wielding a lot of sway over agencies that regulate his firms. Back in 2016, the big Trump donor drawing scrutiny was hedge fund manager Robert Mercer. The Mercer family gave over $15 million to support Trump’s run, and their considerable investment in the right-wing news site Breitbart was influential in promoting Trump’s presidential candidacy. The parallels to Musk are striking, given his ownership of social media site X and the role it played in spreading right-wing conspiracies and misinformation to voters, as well as the owner’s explicit Trump endorsements. But Mercer’s contributions came behind the scenes. He’s hardly ever given interviews, and little is known about his personal life. That’s the case for the vast majority of wealthy donors — it’s Elon Musk, posting incessantly on X about how he sees the world, who’s the outlier. Musk could be a sign of how billionaire political strategy is changing In Billionaires and Stealth Politics, published in 2018 in the aftermath of the first Trump election, Seawright and fellow Northwestern researchers Matthew J. Lacombe and Benjamin I. Page studied how this tiny subset of the super-rich engaged in political activity. What they found is that while most never speak publicly about their views, conservative billionaires tended to spend more money while speaking less; liberal billionaires spent less, but they were more likely to speak up. Take Mark Cuban, who became one of the most visible billionaire boosters of Harris this year but made a point to say he didn’t donate at all to her campaign. On the flip side, while Musk got all the attention as a Republican megadonor this cycle, the actual top donor was a man you might have never heard of: Timothy Mellon, a banking heir who the public knows little about.  Stealth has pretty much been the modus operandi for as long as rich Americans have been putting their fingers on the scale of democracy — until Musk came along.  Musk isn’t the only vocally partisan conservative billionaire donor today, though — there are also figures like hedge fund manager Bill Ackman and crypto investors Tyler and Cameron Winklevoss who have no qualms about sharing their politics online — but he is the most emblematic of this shift. Musk isn’t just Trump’s financial backer and the media mogul behind an increasingly instrumental arm of right-wing messaging — he’s an influencer with a following that most politicians running for office probably wish they commanded.  Corporate executives today are more than bosses. They’re thought leaders who publish memoirs offering broad lessons on how to succeed in life and are often propped up as idols.  Musk is the prime example. Though he has now lost some of his original admirers, his word is still gospel to a horde of mostly young men who think Musk will fight back against the liberal establishment. It’s spurred on by an ecosystem of social media fan accounts circulating his wisest quotes, idyllic AI-generated images of him achieving fake heroic feats, and above all, by Musk’s own words as he holds forth on his personal X account. On X, Musk currently has over 200 million followers; at a Trump town hall that Musk hosted in October in Pennsylvania, it was clear that at least part of the crowd had come to get a glimpse of the famous billionaire. The nature of Musk’s public persona is important, too: Like Trump, he portrays himself as a populist who understands your frustrations. Musk’s acquisition of Twitter was framed as a remedy to “fake news” pushed by legacy media outlets, purporting to create a town square that boosts all voices. According to Musk, even the budget-cut ideas for DOGE will be crowdsourced (with the aid of volunteers willing to work 80-plus hours a week for free) and broadcast on X. The richest person in the world presents as a man of the people. Some might argue that Musk is “no different than the kind of oligarch that we see in many other countries,” says Benjamin Soskis, a historian and senior research associate at the Urban Institute’s Center on Nonprofits and Philanthropy. “What I think is different about it is that Musk is doing this in the full glare of public regard, and with a kind of presumed democratic legitimacy to it.” For his fans, in other words, Musk’s position as the incoming president’s right-hand man isn’t the dirty maneuvering of a billionaire using money to access power. It reads almost as a “philanthropic commitment” and an example of “do-gooding,” says Soskis. (Musk has famously not been very philanthropic.) If the noblesse oblige of billionaires in the past manifested in founding libraries and hospitals, Musk shows it by claiming to be a voice for the people — a megaphone for their anger and resentment. When asked why a billionaire like Musk might be so comfortable announcing their political worldview, Seawright offers one theory: Maybe there are thresholds of wealth where the consequences — like public backlash or losing a few billion dollars —  just don’t matter that much. If so, that has worrying implications for the trajectory of American society. Our billionaires are certainly enjoying never-before-seen heights of wealth. Tesla’s stock has soared since Election Day, with Musk’s personal net worth now hovering around $300 billion. But it’s worth noting that the birth of the centibillionaire is very recent; Musk, along with many other tech leaders, saw his fortune balloon during the pandemic. In 2019, he was worth a comparatively paltry $22 billion — which is about half of what he paid to buy Twitter in 2022.  Musk is unprecedented simply for the fact that there has never been a political donor, adviser, and celebrity all rolled into one with the gravitational pull of a $300 billion fortune. While wealth has always bought you access in America, Musk is one of the most unsubtle examples we’ve ever seen. And for all the worry one might feel upon witnessing him waltz into the White House, there’s something instructive about it, too. It lays bare the mechanism of power in American democracy in the starkest terms.

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