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Notes -
Perhaps missed in the debate noise: SCOTUS rules that for January 6 protestors to be convicted under the Sarbanes-Oxley law against impairing an official proceeding, "the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so". Just interfering by making a ruckus which caused the proceeding to halt doesn't cut it.
(Also Chevron deference was overturned, though I suspect courts will lose no time finding other reasons to defer to agency judgement)
Fischer v. United States
6-3, but an unusual lineup: Opinion by Roberts, joined by the other men and Jackson, Jackson concurrence, and Barrett dissent, joined by Sotomayor and Kagan.
This case involved charges for actions January 6th, but I don't think it's very politically momentous. It's about whether the Sarbanes-Oxley Act covers that behavior. It's a case on statutory interpretation.
The text of section 1512 is:
The question is what (c)(2) there extends to. Must it involve documents or other objects? Or just anything that affects a proceeding?
(Following Roberts, now)The parties agree that (c)(2) must cover some set of "matters not specifically contemplated" by (c)(1). So, does that involve all obstructive acts (with (c)(1) being to illustrate just one type)? Or does (c)(2) involve a narrower scope, with (c)(1)'s things in mind?
Roberts turns to two textual canons, that is, principles for legal interpretation: noscitur a sociis ("it is known by companions") and ejusdem generis ("of the same kind"). Noscitur a sociis says we should look at surrounding words to understand the more precise meaning; ejusdem generis says that a general term at the end of a list is usually defined in reference to the classes of things preceding it in that list. Two fun examples: "do not pet, feed, yell or throw objects at the animals, or otherwise disturb them" should not be taken to refer to talking to a friend near the enclosure, even if it disturbs the gorilla within. Likewise, if a football league said that players must not "grab, twist, or pull a facemask, helmet, or other equipment with the intent to injure a player, or otherwise attack, assault, or harm any player," this should not be read as including insults hurting the other player's feelings. Likewise, "otherwise" provisions should be interpreted in context, as in Begay where they ruled that driving under the influence is not a "violent felony."
In this case, then, (c)(2) should be read as limited by the preceding list. If it were read broadly, beyond (1)'s focus on impairment of evidence, the examples would hardly have been needed, and (c)(2) would "consume" (c)(1), leaving it with nothing to do. Reading it this was is the opposite of the ordinary reading of statutes, where broad language should be limited by narrower terms. This reading better recognizes the purpose: to impair the availability or integrity of them in ways other than specified in (c)(1), like creating false evidence, or impairing the availability of things that are not "record, documents or other objects."
A narrow reading, Roberts avers, also makes sense in light of history. These provisions were from the Sarbanes-Oxley Act, created after the Enron scandal. It turned out, to people's surprise, that the law did not prohibit destroying documents, but only persuading to destroy them; this act was to fix that.
Roberts reads the broader context of 1512 as limiting (c)(2). Section 1504 covers influencing jurors in writing. 1505, obstructing congressional inquiries. 1507, picketing with the intention of obstruction. 1510(a), obstruction through bribery. And so forth. But if 1512(c)(2) were read broadly, then it would make unnecessary all of that. It would also make unnecessary various things within 1512, and would also increase the prison sentence allowable in many cases.
The government argues that the difference in mens rea (guilty mind) is meaningful, as here it requires corruptly, whereas other portions do not require that. But Roberts argues that many of the other provisions are arguably corrupt, like knowingly using intimidation or threats. The other sections differ, because they often include more than just official proceedings. But it would still end up consuming several other portions. He rejects the dissent's arguments that theirs also creates some surplusage, because his interpretation creates less. They should avoid reading it as a coverall. That is usually the right way to go in obstruction cases, and there is no reason to go otherwise here. All this would give prosecutor's broad discretion for terms intended to have shorter maxima.
Jackson concurs. She emphasizes "Hewing closely to Congress's will or purpose in the statute. She finds the football analogy illustrative. She emphasizes that not only the less serious than intended things do not apply (trash talk), but also the more serious also fall outside of the intent and application (shooting another player). They would not call the referee, but the police. And so what is designed must be what is considered. (Jackson clarifies that she holds to noscitur a sociis and ejusdem generis not as principles in themselves, but as tools to help figure out what Congress was doing. They are not infallible. Other tools like context or history can also help show the intent.)
Turning to the statute, it is clearly caring about documents and objects and so forth. This fits also with the history, which involved documents at Enron. And there is no sign that this is intended to be sweeping. There is no comparable catchall from Congress for obstruction of justice, and so this is unlikely to be such a thing. It is unusual in that this would be a felony, whereas state level catchalls are nearly all misdemeanors, which befits residuals. And, this is in the midst of a long list of narrow provisions, it would be odd for Congress to stick something broad in that context. Jackson finishes by noting that she is glad the court vacated and remanded, as it is still possible it still embraces some of the events on January 6th, as documents and so forth were certainly in use for the proceeding going on then.
Barrett dissents, joined by Sotomayor and Kagan. She would read it expansively, as the provision naturally reads on its own. The words obstruct, impede, influence, official proceeding are all broad. Otherwise is often used for catchalls, and exlains how it fits with (c)(1). (c)(1) prohibits altering, destroying, mutilating, or concealing—targeting documents—and (c)(2) deals with obstructing, influencing, or impeding more generally, by different means than (c)(1). They are similar and connected in that both involve obstructing, influencing, or impeding an official proceeding. Barrett thinks that the two sections should be treated as distinct. Noscitur should not apply, because it properly speaks of a list of terms with an ambiguous word, which is not the case here. Ejusdem should not apply, as (c)(2) is not a collective following a list of items. They are "distinct and independent prohibitions." Though they share the "whoever corruptly," they contain different verbs, and (c)(1) has a separate mens rea provision. Barrett does not think we have ever applied terms to a statute like this one. She would prefer as an analogue, rather than the court's football analogy, this one:
This example clearly supports her reading, as a separate, broader, prohibition.
Barrett also rejects the Court's invocation of Begay, because it doesn't have something separated into two parts like this, but is part of one list, and wasn't even that good of a statute anyway: the final term was eventually voided for vagueness.
Barrett then addresses the argument that then there would be no reason to provide examples in (c)(1). (Barrett notes briefly that the court's interpretation also has (c)(2) subsume (c)(1).) She addresses that argument by turning to the history: Enron. Congress enacted (c)(1) to close the gap in the law, and (c)(2), then was to make sure there were no other possible loopholes. This requires that it be broad.
Barrett argues that the court doesn't clearly articulate what exactly its limited to—records, documents, or objects, or evidence more generally. The first would leave (2) not addressing very much (and so, why the broad language?), and the second it is unclear how the Court would conclude that. Congress could easily have specified records and so forth into (c)(2), but it did not. Barrett thinks the court exaggerates how much (c)(2) renders other provisions superfluous—several of what it points to involve obstruction of investigations, not proceedings (past held to be distinct), as well as some other categories. Barrett argues that it would not swallow things that might eventually end up instructing the initiation of a proceeding, because in other similar obstruction offenses, they've ruled there must be a "relationship in time, causation, or logic" with the proceeding for it to apply, and it must be in contemplation of that proceeding. That said, there would still be some overlap. But it leaves enough work for the rest, and overlap is not rare in criminal statutes. That is especially true when it was enacted subsequently, not as part of the rest of what is going on. The court's interpretation also still has some surplusage. Barrett thinks the statutory context works against the court, as 1503 prohibits influencing, obstructing and impeding the administration of justice, by threats of force.
Barrett rejects that this could be applied against innocent activists and lobbyists and so forth, as it requires that it be corrupt. She notes that, yes, it has a high maximum, but it has no minimum, which often happens when prohibited conduct varies widely in severity.
Not sure who I agree with more here. Maybe Barrett, but I'm really not sure. I'm glad it wasn't a partisan case, though.
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Thursday's cases:
The abortion DIG I already wrote up. I still need to get to Friday's cases.
Ohio v. EPA
5-4, men vs. women. Gorsuch writes, Barrett dissents.
Another procedural case. The question is whether to stay the enforcement of the Clean Air Act as some states sue over it.
Specifically, the EPA threw out a bunch of State Implementation Plans when it wanted to put in place a Federal Imlementation Plan for preventing ozone pollution (ozone is bad at low altitudes). The states want it not to be enforced until they sue.
The court approves. Gorsuch, joined by the other men, argues that the harms go both ways, so the question goes to who is more likely to actually win the case. He think the states. Specifically, the states are arguing that the agency hasn't explained why the plan would remain in place for the remainder without needing additional evaluation or justification if some states drop out. He rejects the EPA's arguments that they offered a sufficient response (to the argument that the number of states involved might have affected the threshold, so it should be reevaluated), he rejects their claim that they were required to have submitted it during public comment (Gorsuch argues that there was a comment that was close enough), and he rejects their argument that they need to refile, as their grounds for objection arose after the period of public comment. He also rejects the dissent's argument that the complaint was not important, as it doesn't depend on the number of states, because the government did not make the arguments the dissent makes, and there is some reason to think that the different rules for harmless errors seem to be for "procedural determinations," not "actions." And so the stay is granted.
Barrett argues (as background) that the 23 states' SIP rejections were legitimate, and that the disapprovals are only temporarily stayed, not yet invalidated. Barrett rejects the Court's main complaint, the lack of reasonable response, as something that could not have been brought up earlier, and so requires a petition for reconsideration, as it's a new problem. (That is, there was no way to object that, before the public comment period was over.) Second, she doesn't think the comments applied specifically enough. She further thinks that they need to show that the actions were "arbitrary and capricious," which she doesn't think was the case: she doesn't think the cost-effectiveness thresholds were dependent upon which states were involved, but that they were based on national data, so it shouldn't matter which states were involved. It justified the severability in the plan. And they might not be important comments, and the agency only needs to respond to relevant and significant comments. Finally, there's a harmless-error rule in the Clean Air Act. (She argues contra Gorsuch that it applies.) She argues that the court itself is following a theory not advanced by the applicants' briefs, only the oral argument. And so it would be odd to expect the EPA to have forfeited when it never had the proper opportunity to respond. And she would exercise discretion anyway to look at the harmless-error rule, even had this not been brought up.
I'm more sympathetic to Barrett here.
Harrington v. Purdue Pharma L.P.
5-4, but not quite the usual lineup: Gorsuch, joined by Thomas, Alito, Barrett and Jackson. Kavanaugh dissents, joined by Roberts, Sotomayor, and Kagan.
The case is about bankruptcy law.
Based on Gorsuch's presentation of the history:
Purdue Pharma, held by the Sackler family, made billions from sales of Oxycontin, and so was a major force behind the opioid epidemic. A decade later, they admitted it was wrong to brand it as less addictive, and underwent thousands of lawsuits. In response, the Sacklers significantly increased the revenue that they took in from the company.
Purdue filed for bankruptcy. The Sackler family proposed to return 4 billion over the course of a decade of their 11 billion profit, asking to extinguish outstanding claims that the Purdue bankruptcy estate would have against the family, and "the Sackler discharge": to stop lawsuits against them from opioid victims. The Sackler discharge consisted of a release voiding current and future opioid-related claims, and an injunction enforcing the release "forever staying, restraining and enjoining" claims against them. Purdue agreed to this (of course) and included them in the bankruptcy plan. In that plan, Purdue wanted to reorganize as a company for opioid education and abatement. And they would pay victims between 3500 to 48000 over up to ten years. Opioid victims opposed the plan, as did some states. The bankruptcy court confirmed the plan. The district court vacated the plan. The Sacklers suggested upping the amount in Purdue's estate by another billion and a half, if the states would withdraw their objection, which events then took place. The Second circuit judged it good. Now SCOTUS addresses it.
Gorsuch turns to the text of the statute, saying what a bankruptcy plan may do. All agree that the Sackler discharge is justified in the final category: "(6) include any other appropriate provision not inconsistent with the applicable provisions of this title." Gorsuch argues that it is standard to interpret catchalls like this not in the most broad manner, but in context, involving only similar things to the preceding list. But the previous five all involve the rights, responsibilities, and relationship to creditors of the debtor (here, the debtor is the Purdue estate), not other parties. And the word "appropriate" qualifies it, it is not unbounded. The dissent claims that not all are about the debtor's rights and resonsibilities, as (3) may settle "derivative claims" against nondebtors, but Gorsuch responds that that involves only claims belonging to the estate. All agree that the bankruptcy plan can address claims held by Purdue. But not claims by others against others. Gorsuch rejects the dissent's arguments that the catchall should be read as anything that would help bankruptcy law in its purpose, by arguing that bankruptcy law is not intended to be limitless; it cannot just do whatever to manage bankruptcy, without regard to other legal mechanisms.
He argues further that there are other statutory reasons to reject the Sackler discharge. First, in general, the bankruptcy code only gives discharges to the debtor. But that isn't the case here. Second, it constrains the debtor: they must come forward on all assets, it doesn't dismiss charges around fraud or willful or malicious injury, does not affect trial by jury regarding injury or wrongful death. But the Sackler discharge does none of these—they pay much less, and even those sorts of claims are extinguished. And finally, bankruptcies involving asbestos have a specific provision that they may bar action against third parties, and so that shouldn't be allowed in general. Gorsuch turns to history, stating that there are no comparable cases prior to the enactment of this act under previous bankruptcy codes, so it should not be read as embracing it, when there's nothing explicit to that effect.
Gorsuch states that "plan proponents and the dissent resort to a policy argument." (Recall that in Rahimi last week, Kavanaugh, the author of this dissent, rejects policy.) That argument is that the Sacklers assert that they will give nothing unless the release and injunction are granted, and so this is better for victims. The Trustee argues that the Sacklers can still face lawsuits of their own, and they may even negotiate consensual releases to avoid the lawsuits. On the other hand, the U.S. Trustee argues that ruling in favor of the Purdue here, and allowing nonconsensual third-party releases allow winning immunity for claims that are not dischargeable in bankruptcy, and without all assets, which would allow corporations to misuse the system to avoid liability. Gorsuch rejects policy concerns, on both sides, as irrelevant; he's not Congress.
Kavanaugh's dissent is enormous—54 pages. 13 on the appropriateness of non-debtor releases, 13 on appropriateness in the case of Purdue, and 21 disagreeing with Gorsuch's (20 page) opinion. This might be the longest opinion of the year; it's at least the longest one I've read yet from this year, I'm pretty sure.
Kavanaugh opens by explaining bankruptcies. They exist to resolve collective-action problems, in the form of everyone trying to get in a claim, then the slowest get nothing once the first ones recover everything. Instead, creditors get a proceeding upon all of them. The parties make a plan, and that plan may release claims against the debtor. At least creditors holding at least 1/2 in number, 2/3 in a mount, and in every class must confirm the plan for it to go into effect. They are consensual, even if some dissent. This case is a mass-tort case. Sometimes, "it is not only the debtor company, but rather another closely related person or entity such as officers and directors who may hold valuable assets and also be potentially liable for the company's wrongdoing." But it can be hard to pass legal hurdles, or reach their assets, so settlements are often reached releasing them, in exchange for substantial payments. It also solves a collective-action problem, in that it allows them to be divided equitably. And so they have often found them appropriate, and have been in use in asbestos bankruptcies and other such cases. They are needed for fair recovery and distribution of claims. He argues, then, that they are "appropriate," as that is the key term in (6), and argues that that, as in previous cases, is a broad term. The second circuit has ruled that the released party must be (1) closely related to the debtor, (2) they must have claims "factually and legally" intertwined with the ones against the debtor, (3) the "scope of the releases" must be "tailored to only the claims that must be released to protect the plan,"(4) the court should approve only if it is essential to the plan's success, (5) and the court must consider whether they've paid substantially to the estate, (6) determine if it provides fair payment, and (7) show that creditors must approve with at least 75%.
1-4 are to solve collective action problems, 5 makes it not a free ride, 6 to ensure fair compensation, 7 to ensure most approve.
He highlights that in general, there are high approval rates. He highlights also that these bankruptcies, by default, involve releasing claims non-consensually, the only difference here is against whom.
Then he turns to Purdue Pharma and the Sacklers. Apparently, there are $40 trillion worth in claims. Over 95 percent approved of the plan. Claims against both Purdue Pharma and the Sacklers were released. This was needed to preserve Purdue's assets. Purdue had agreed to pay for liability and legal expenses that officers and directors of Purdue would undergo in the future, including against the Sacklers. So Purdue could pay a substantial amount of money from the Sacklers. "So releasing claims against the Sacklers is not meaningfully different from releasing claims against Purdue itself." Otherwise some could race to the courthouse and take all the assets. (Gorsuch had addressed this in a footnote, saying that the US Trtustee said that the agreement does not apply if the Sacklers did not act in good faith, and that bankruptcy courts could get rid of the claims in other ways.) Second, the agreement increases the funds in the Purdue estate, so that victims receive more. (The US would take the entire 1.8 billion first, otherwise.) Kavanaugh says that the Bankruptcy court said that victims would be unlikely to recover from the Sacklers the money otherwise, as their legal theories have weaknesses, and their assets are overseas and otherwise protected. And if they did, one large claim could wipe out most of their assets, leaving everyone else with virtually nothing. Over 95 percent approved. Only a few are opposing it now. And so, it is appropriate.
Now Kavanaugh turns to address the court. He doesn't think the ejusdem generis (that is "of the same kind") canon for interpretation of catchalls was applied there properly. The releases do still involve the debtor: they involve releases on Purdue's misconduct. But he reads the court's argument as wrong in two ways: First, they are not limited to the debtor, as (3) nonconsensually extinguishes derivative claims against nondebtors. He argues that the court is wrong in distinguishing derivative from nonderivative claims. Kavanaugh argues that three other types of release also argue against the court's interpretation. Consensual non-debtor releases happen, are uncontroversial, and are not explicitly authorized in the bankruptcy code (and so would fall into 6.) But that would seem different—why should that be permitted in bankruptcy plans? Full-satisfaction releases provide full payment, and then release the claim. But this too is not explicitly listed. Exculpation clauses "shield the estate's fiduciaries and other professionals from liability for their work on the reorganization plan," (in order to prevent liability in creating the bankruptcy process), also fall into the catchall, and involve claims against nondebtors.
And secondly, it is proper to look at the purpose of the statute when doing an "ejusdem generis."
He rejects the Court's other arguments: the asbestos portion explicitly says it is not to be taken to affect any of the rest of the statute. He reject's the court citing a passage which says that a plan's discharge of the debtor "does not affect the liability of any other entity on … such debt," as that is instead to be read as leaving those who were co-debtors with a bankrupt company with the debt they had taken on, instead of wiping it. He rejects the claim that this is a discharge, as discharges are technical, and involve getting rid of all debts. Released are narrower, and involve payment. Kavanaugh rejects also the court's saying they would need to file for bankruptcy, to pointing to where they could release a nondebtor from liability to the debtor. He argues that discharges are meaningfully different from releases, so it's not a problem that it releases all classes of torts, not just some. And he says that the court seems concerned that they did not pay enough, but that is no reason to categorically shut down such releases. He also disagrees on history and practice, as they have been in use throughout the history of the bankruptcy code, and changes in the current code from previous codes are relevant.
He says, "today's decision makes little sense legally, practically, or economically. " Among other things, it hurts the victims. More litigation is costly, even if things get worked out. It is hard to achieve a deal without such releases. There are unlikely to be any settlements. This will prevent exactly what the bankruptcy system is designed to do.
I don't really know how I feel about this case. Kavanaugh convinced fairly effectively that his preference is better for the victims, but I'm still not sure which is better law.
SEC v. Jarkesy
6-3. Roberts writes, joined by the conservatives. Gorsuch concurs, joined by Thomas, Sotomayor dissents, joined by the liberals.
The court argues that under the 7th amendment, the SEC needs juries, as it is trying people for fraud, which is
Roberts briefly notes that the seventh amendment was a product of the British trying people without juries in other courts that did not require it, and it was in this context that it was enacted. Its text is that in "suits at common law…the right of trial by jury shall be preserved." Common law there is not restricted to common law at the time of the founding, but is talking about law as opposed to equity, admiralty, and maritime jurisprudence. (He cites precedent for this.) So any suit that's not equity or admiralty jurisdiction is common law. This requires that it be legal in nature. The relevant factor (citing Tull) is that its remedy be legal, not equitable. Because the SEC seeks monetary damages as punishment, not solely to restore, it is legal. The facts are clearly legal, as both the conditions for penalties and the level of them have to do with punishing the defendant, rather than restoring to victims. (The SEC may give money to victims, but that's optional.) And so this must involve the Seventh Amendment. This also makes sense because securities fraud is closely related to common law fraud, even if the boundaries are not precisely the same. This is also evidence that it is legal in nature.
Roberts turns to address the contention of the Government and the dissent that the "public rights" exception applies. In such cases, Congress can give it to an agency, without the Seventh amendment. Private rights cannot be removed from Article III courts. But the court has recognized "public rights." These could historically be done exclusively by the executive and legislative branches. The example cited is compulsion of a customs collector to deliver a sum of public funds that he had failed to deliver; his land was seized to do so. Other examples also exist, such as a fine on a steamship company on those who brought the sick who had bad diseases (He rejects the dissent reading this broadly; the case cited here explicitly restricts itself to power over foreign commerce). Or the imposition of tarriffs. Some others involve Indian tribes, administration of public lands, and granting public benefits, like patent rights. While these are not worked out in full, Roberts emphasizes that these are exceptions, not the rule, and so require close attention. (The dissent would read this as Congress can do whatever, essentially, that public rights are whenever Congress passes a statute. This is, Roberts says, argued neither from constitutional text, ratification history, careful analysis, nor case-specific analysis. Rather, some unrelated cases, and Atlas Roofing. This, Roberts says, blurs distinctions in a legally unsound way. He also rejects an appeal to precedent, considering how new the relevant law is.)
There is relevant precedent. Granfinanciera, 35 years ago, did much the same as what they do in this case: it ruled that Article III judges are needed for fraudulent conveyance claims. They ruled in the same way then, for the same reasons: they were "quintessentially suits in common law."
He rejects the argument that Congress can form new statutory obligation—they can't make up a new penalty for the same old common law thing and so strip away protections.
The dissent depends mainly on Atlas Roofing. Roberts doesn't quite get to the point of arguing that Atlas Roofing is overturned, but he critiques it. He points out that its author thought so, when Granfinanciera was judged, in a footnote. Atlas Roofing claimed that what Congress was doing was outside the Seventh amendment in the OSH act, when it required how walls be built. They ruled that it was a new cause of action. Atlas Roofing acknowledges that common law actions need a jury, and so is not relevant here. It cannot support a broader rule. Roberts, in a footnote notes that the dissent treats it as widely respected, and in response provides a lengthy list of critiques of Atlas Roofing, then finishes the footnote by saying "We express no opinion on these various criticism." He then notes that subsequent precedent after Atlas Roofing have clarified that new statutory regimes are included, if the claims are "akin to common law claims," and that the public rights exception does not apply every time Congress gives an agency any adjudicatory power. Roberts also rejects the argument that public rights applies whenever more government efficiency is useful, which would gut the Seventh amendment altogether.
Roberts declines to reach the other two issues (nondelegation, and separation of powers), as this suffices to resolve the case.
Gorsuch concurs, with Thomas, writing "to highlight that other constitutional provisions reinforce the correctness of the Court's course." He points to Article III and the Due Process clause of the Fifth Amendment.
Gorsuch goes a little further into the process of Jarkesy's case. The Dodd Frank act in 2010 had given the SEC the ability to direct people through its own adjudicatory system, rather than through courts, which the SEC did in this case. They sent him to an "administrative law judge," but those judges are not as independent as article III judges, but serve an agency, and there is no jury. They have a significantly higher win rate. He lost, in doing so, many other procedural protections, such as being able to cross-examine witnesses, or discovery being a thing. Its judgment can be appealed to the Commission, but they may decline to review, or may increase the penalty. Afterward, he can go to court, but there he would not have had a jury.
Gorsuch then turns to history. The British would preferentially seek rulings not in local courts, but in vice-admiralty tribunals, without juries or properly independent judges, and with weaker standards of evidence. Those courts were supposed to be confined to maritime matters originally, but more and more things were allowed by Parliament to be litigated there over time, at least, in the American colonies. They preferred to avoid colonial juries, who "were not to be trusted." The British preferred to turn to them, as they were more successful there. This matter was among the causes motivating the declaration of independence. Article III served to avoid this, in its vesting the Judicial power in courts giving life-tenure and protected salary, to restrict the influence of the executive branch. Nor could Congress move other things out from judicial power. In response to additional concerns, the bill of rights was passed. The seventh amendment preserved juries, the fifth amendment ensured proper procedure.
Each of these three require ruling in favor of Jarkesy. First, since it is in the common law, it requires Article III judges, in article III courts. Second, it is neither equity nor admiralty, but before common law courts, so the Seventh Amendment guarantees a jury. And third, the Due Process clause requires common law, which would mean usual proceedings, not "ad hoc adjudication procedures before the same agency responsible for prosecuting the law, subject only to hands-off judicial review."
Gorsuch turns to public rights. The government suggests any new statutory obligations, civil penalties, and administrative agency suffice. Gorsuch agrees that they are not that, but specific classes. He mentions theories as to their origin—practical consideration in tax collection, or that they fall outside the traditional "life, liberty and property." But whatever the cause, they need "an unbroken historical pedigree." The things outside judicial courts at the time of the founding are what public rights actually are. But this is plainly not that. Gorsuch addresses their reasoning: the Court's precedent In Crowell v. Benson, the court allowed the Longshoremen's and Harbor Workers' Compensation to proceed. It had it vested in a commission. Gorsuch treats it as a bit sketchy ("took a dash of fiction and a pinch of surmise"), and involved some dubious things in relation to Article III judges. But at least it was only in admiralty jurisdiction. But swiftly, there were further encroachments. The most was in Atlas Roofing, which some read to suggest essentially anything in a statute is public right. But this was mostly rejected in Granfinanciera, which read Atlas Roofing as leaving "public rights" undefined. Various tests have occurred since then, but in this case they return to the proper understanding.
The court may not deprive the people of their constitutional rights. They do not treat the other rights so lightly. (See the 1st, 2nd, 4th, and 6th amendements.) The 5th and 7th should likewise be taken seriously.
Gorsuch says that the dissent's account is "astonishing." The Constitution, apparently imposes no limits on the government's power to seek penalties outside the ordinary courts of law. Not even the balancing tests after Atlas Roofing. No account of how at all this addresses the Founders' concerns, or where this rule comes from Article III, the Seventh Amendment, or due process. They cherry-pick the precedent. Misread Oceanic Steam Nav. Co. v. Stranahan, which is actually just one of the narrow questions. It's odd, Gorsuch says, if the public rights is really that broad, that the former courts would bother to look at all the things they did to justify their law, instead of following the simple rule of the dissent. Gorsuch notes (and I found this particularly pointed) that the dissent is not even consistent, as in other cases the same justices have often argued for the need for procedural safeguards, worried about governments abusing, and pressure from prosecutors, and been concerned with matters of procedure, and argued the importance of the jury-trial right. The dissent also gives no explanation why this does not extend to criminal matters. The dissent complains against turning to the founding, and says that it's rule would be easier. (Gorsuch cites himself saying in Rahimi that it would indeed be easier to implement a rule that the government always wins.) When the dissent complains that this is unworkable and unpredictable, he rejects their balancing test approach as no better. And the Court's approach to precedent is better, and, as they acknowledged in another case, consistent with stare decisis. He characterizes this as really about a "power grab," that the Constitution's promise of a jury trial would constrain governance too much.
It's well written.
Now, onto the dissent. After her intro, and introducing the facts, Sotomayor states that "longstanding precedent and established government practice uniformly support the constitutionality of administrative schemes like the SEC's." This, she cites, should have great weight.
Sotomayor says there are two relevant constitutional provisions: the 7th amendment, and the vesting clause of Article III. "The principal question" is about aricle III and the separation of powers. The amendment is about "suits at common law." As it is suits, it only involves judicial, and not administrative proceedings. And since it must be at common law, it must be legal in nature. When it is not in an Article III forum, the proper question for whether it is legal in nature is whether Congress properly assigned the matter to that forum consistent with Article III and the separation of powers. If Congress properly assigned the matter to an agency for adjudication, it therefore resolves the Seventh amendment challenge. So, then, the question is whether it can assign it to a non-Article III factfinder. These are permissible as public rights. Public rights, Sotomayor says, refer to "right of hte public," claims brought by or against the United States.
Sotomayor goes through precedent. Murray's Lessee, involving seizure of lands to make up for withheld funds, referring to "public rights." Then Oceanic Steam Nav. Co. v. Stranahan, upholding a customs offical's imposition of penalties. It rejected that "in cases of penalty or punishment enforcement must depend upon the exertion of judical power, either by civil or criminal process." There was already at the time delegation by Congress to executive officers to enforce penalties, without judicial power. Congress being able to assign that power has been repeatedly affirmed by SCOTUS. This was unanimous in Atlas Roofing, the last case involving the constitutionality of an "in-house adjudication of statutory claims." Two employers had argued that OSHA was unconstitutional, because seeking civil penalties for violation of a statute is a suit for a money judgment, which is in common law. SCOTUS upheld OSHA, due to public rights arguments. Sotomayor says that the majority "wishes away Atlas Roofing by burying it at the end of its opinion and minimizing the unbroken line of cases on which Atlas Roofing relied, and this undermines stare decisis and rule of law. Both this and Atlas Roofing involve "new causes of action, and remedies therefor, unknown to the common law." So it's fine to assign them elsewhere. "In a world where precedent means something this should end the case."
Sotomayor says that this has not been addressed since Atlas Roofing because it is so settled, and undisputable. Sotomayor does not think the majority suitably defines a public right, and does not explain why it exists. Atlas Roofing rejects the theory that public rights is limited to particular exercises of congressional power. The employers made the argument that they referred to several narrow roles like taxation; SCOTUS rejected that. And she does not think the majority can justify Atlas Roofing's decision. Sotomayor points out further that the majority skips several cases where they uphold adjudication in a non-Article III forum, in cases not able to be characterized as public right under the majority's definition. She asserts that it is actually the majority and concurrence that are picking and choosing, not her. She thinks their definition of public right is a "we know it when we see it."
Tull and Granfinanciera she thinks not relevant: the first involved a suit in federal court, and the second a dispute between private parties, and so do not involve the government in its sovereign capacity. Sotomayor argues that the Court has long endorsed imposing money penalties without needing judicial power. Tull was in federal court, so it isn't relevant to show that "statutory claims for civil penalties" is a "type of remedy at common law." Tull also agrees that it does not involve administrative proceedings. Granfinanciera only involves disputes in which the Federal Government is not a party in its sovereign capacity, and allows for claims analogous to common-law claims to be judged in non-Article III fora. (In a footnote, Sotomayor says that Granfinanciera reaffirms Atlas Roofing several times; disagreements are constrained.) Sotomayor says that Granfinanciera says how to identify public rights: from Congress, inhering in the Federal Government in its sovereign capacity, or when Congress, acting according to a valid purpose, created a private right integrated into a public regulatory scheme "as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary." Sotomayor sees the majority as dismissing the distinction between the two. The majority is wrong to have Granfinanciera decide the case, when it only specifies that its analysis applies when not involving the Federal Government. And so the majority fails to distinguish Atlas Roofing. "A faithful and straightforward application of this Court's longstanding precedent should have resolved this case." Following precedent keeps courts apolitical. Departure should have considered special justification. The majority's striking down the law is "a seismic shift." It "Pulls a rug out from under Congress" without acknowledging what it's upending. There are over 200 relevant statutes, and more than two dozen agencies that can impose civil penalties. It is a "massive sea change." Sotomayor does not like that the Court tells Congress how to structure agencies, or provide for the enforcement of rights. the SEC's scheme has benefits. This decision is a "power grab," an arrogation of Congress's policymaking role, and violates the separation of powers.
Thoughts: I think Sotomayor was more convincing as to what the precedent was saying, though not to the point that the majority didn't have a few points here or there. On the other hand, the majority was more convincing as to what the Constitution was saying, and unequivocally so. I think Gorsuch's account upheld the 5th circuit, though he didn't say as much, on all three possible grounds, which makes it considerably more radical. It's a good opinion, though. Also, Gorsuch thought Granfinanciera was 25 years old; it's 35. This is a big deal, though maybe not quite as big a deal as Sotomayor portrays, because Roberts restricts himself to the first ground. I think I was underestimating importance, despite already thinking it relatively important, prior to reading it.
Anyway, I still need to get to Friday's cases.
I have yet to see a single proponent of drug legalization (with the underlying reasoning being that if drugs were legal and produced to pharmaceutical standards, then no one would ever use them dangerously) write a single piece, in any venue, arguing that this claim is simply not true. One would think that if they really believed in their professed position, they would be screaming from the rooftops that the Sackler family should be absolutely praised for flooding the market with carefully crafted, pharmaceutical quality drugs, because the only logical conclusion is that this action necessarily saved lives by giving consumers a choice to use a well-regulated product rather than possibly tainted cartel dope.
Can anyone link me to even one such argument? It can be from the weirdest economist that you can dig out of the George Mason basement; it can be the weirdest communist stoner with a cushy lefty sinecure; I don't care. I just want even one that actually embraces the premises of the legalization movement and actually applies them to the case of the Sackler family, concluding that everyone else has gotten it wrong, and that we must necessarily view their actions as an unalloyed good for the world.
I am a proponent of drug legalization, but that underlying reasoning is garbage and I cannot think of a single person I know who holds the position I do based on that reasoning.
I mean, obviously, I was being flippant in a parenthetical. But yeah, there are people in this very thread who are saying that pharmaceutical drugs have nothing to do with overdose deaths, at least. I haven't gotten them down to the nitty gritty of other types of dangerous use, but most advocates of drug legalization generally don't want to talk about any type of dangerous use.
In any event, would you praise the Sackler family for at least trying to flood the market with pharmaceutical drugs (whether they succeeded in this endeavor or not, would you praise the endeavor)? Would you say that the only real problem is that they didn't manage to sell billions more pills through millions more doctors looking the other way to millions more straw purchasers? That if only they had flooded the market enough that the street price of pharmaceutical drugs dropped to rock bottom, then it would have positively helped the opioid crisis?
Absolutely not - I come at this from the "smelly hippy" angle rather than the libertarian one, and I think that what they did was actually monstrous. I'm a proponent of drug legalisation, but I think that legalisation should be accompanied with responsible education and policies with regards to addiction and the like. The Sacklers were ultimately responsible for and made substantial profits from a legal and corporate structure that heavily encouraged and even induced addiction in cases where it wasn't necessary. I absolutely think that drugs should be legal, but I think that part of that liberalisation should include responsible management of them. Encouraging addiction because those ruined lives are extremely profitable is the part of what the Sacklers did that I object to, not so much the distribution of the drugs themselves.
How so?
Someone else has already written this up for me, so I'll just quote them.
https://web.archive.org/web/20201004103052/https://www.newyorker.com/news/news-desk/the-sackler-familys-plan-to-keep-its-billions
This is an absolutely magic sentence that tells us nothing about how any of this works. There is no model here. At least, there is no model that can be stated in words, in public. My suspicion for why is because the model that is implicitly being used violates the claims of people who are pro-legalization.
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That pro-legalization people refuse to endorse your strawman is still not a point against legalization. The Sacklers were not trying to flood the streets with pharmaceutical drugs; they were trying to sell more drugs through already-legal channels. And charge more for them than generic pharmaceutical drug producers were charging, too. Insisting on misrepresenting the Sackler's actions as somehow the ideal of what drug legalizers would want, and then attacking drug legalizers for not endorsing them, proves nothing outside your own mind.
Where is the daylight between these things? If they sell more and more drugs through already-legal channels, especially if they can use doctors who will look the other way and straw patients who will then put them on the streets, then the latter helps accomplish the former.
Nope. I don't think at all that it is the "ideal" of what drug legalizers would want. But it sure as hell helps the world, helps the situation, helps the opioid crisis, under the commonly-stated model of how the world works. It's a completely beneficial work-around, rather than the ideal, but isn't it absolutely a work-around that has positive impact? Shouldn't someone at least remark on this wonderful positive impact, that it's one of the very few ways that people are helping, rather than hurting?
Where's the evidence that the Sacklers were using unethical doctors and straw patients to get their product out to recreational users?
One example. Fundamentally, the claim is that Purdue/FDA believed that, with non-abusive use, extended release was less likely to result in addiction. This is probably true for some value of true (interesting discussion to be had about RCTs, selection effects, ideal/typical use/abuse, with connections to things like obesity/alcoholism/etc.), which then led to physicians being much more nonchalant about prescribing them. Thus, the pipeline was born, and there have been plenty of profiles of 'kingpins' running straw patient networks to siphon as many pills as they could into the streets. (The Sacklers didn't need to personally set up networks of doctors/patients.) This entire chain worked together to accomplish the important final outcome: more pills on the streets.
Given the beliefs about this pipeline, its mechanism of operation, and its final outcome, one can pretty much take the entire proposition to be, "This is a way to get pharma-quality opioids onto the streets." It's a work-around, yes. But any utilitarian consequentialist, who also believes the preliminaries about making pharma-quality opioids, should think that this work-around is an absolute utilitarian Good (TM). They could agree to quibbles on many edges, but they should absolutely endorse the project as a whole.
But really, we can divorce ourselves from any specifics. Let's just assume a hypothetical world, and it's purely questions about the pipeline that are in play. It's like the Underground Railroad, but for pharmaceutical opioids. Sure, it's not the abolitionists' ideal world; it's a kludgy work-around, but it gets more pharmaceutical opioids into the streets (gets more slaves away from slavery). Different abolitionists might quibble with different details, but at least somebody would be willing to stand up and say, "Getting slaves out of slavery is a Good, and if we could get more slaves out of slavery via the Underground Railroad, it would be Better." Similarly, somebody should be willing to say, "Getting pharmaceutical opioids into the streets is Good, and if we could get more pharmaceutical opioids into the streets, it would be Better." Would you agree with that?
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Here you go, courtesy of Jacob Sullum writing for the libertarian Reason Magazine. Amusingly, the one wrongdoing he accuses Purdue Pharma of committing was reformulating the drug to make it harder to abuse, which was correlated with an increase in overdose deaths.
This is close, thanks. He's just missing the real important step. He's mostly focused on showing that perhaps they didn't actually get enough pills into the market to really have been much of a major driver in the increase in usage. What he's lacking is the, "...and it would absolutely be an affirmative good if they had churned out billions more pills and pumped them into the market via even more doctors looking the other way and correspondingly more straw patients." There's gotta be someone out there endorsing this as a project for good, rather than simply saying that they didn't actually manage to sell enough pills to make a difference. There's gotta be someone finishing that sentence at least with, "...they didn't actually manage to sell enough pills to make the clearly and obviously positive difference that they would have made had they sold more pills."
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Coming up with a position you think your opponents should hold and then demanding that if they were sincere they would have come up with it and advocated it really isn't the argument you think it is. The main reason not to defend the Sacklers is it's far, far, far outside the Overton Window; doing so instantly ejects you from the discourse. It's also possible the drug warriors are correct that the Sacklers lied about the addictive qualities of Oxycontin, which would make them villains for both sides.
That's why I explicitly said that you could bring me the weirdest economist that you can dig out of the George Mason basement or the weirdest communist stoner with a cushy lefty sinecure. Give me literally anyone, even if they're outside of the Overton Window. Hell, we have shitloads of people here who make all sorts of arguments that are wildly outside of the Overton Window, and not even one?! Not even one!?
Oh yes. The legalize all drugs folks are going to make sure that legal heroin makers have to publish a scientifically-proven coefficient of addictiality (with p-values!). That'll be the line they definitely hold.
Actually, yes, it will. Entirely aside from the fact that fraud is very well established as something that most libertarians think should be illegal, people who want to consume drugs have significantly more interest than average in those drugs being as advertised.
(TBF, I'm not quite on team "legalise all drugs" (I'm generally opposed to methamphetamine legalisation on the grounds of "murders are an externality", and I'm nervous about the dose ratio of opiates) and I'm personally straight-edge (haven't even had alcohol in a decade).)
The joke is that there is no such thing as a coefficient of addictiality. It's not possible to do such a thing, so if that's the line that they will actually hold, they'll be demanding something impossible.
Purdue was involved in fake science, though, helping to spread the myth that less than 1% of people become addicted to prescription opioids. That fails to meet even the very low bar of "don't actively mislead people".
They give no cite for that claim, so it's hard for me to evaluate what's going on. I can think of a few hypotheses, but can't really check.
In any event, are you saying that flooding the market with a drug, even one that is of pharmaceutical quality, that has some addictive potential (quantity unclear, in part because it's probably impossible and in part because we have no cite to that number) might actually cause some people to be addicted and might actually do things like "make the opioid crisis worse"?
Like, I feel like you're on my side here. It's the legalization folks who think that you can just flood the market with dangerous and addictive drugs, so long as they have the magic stamp of being 'pharmaceutical', and that nothing bad could possibly happen.
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Last time you made this claim, someone DID bring up the point that the overdoses vastly accelerated with the crackdown on Oxycontin, more than its introduction.
Sneering isn't much of an argument either. Many of the legalize-all-drugs people would object to a drugmaker claiming an addictive drug is non-addictive.
No, they didn't.
Ok, let's not sneer. Let's be straight. There is no such thing as a coefficient of addictiveness. There is no such line in the parameter space of coefficients of addictiveness with which to draw a distinction between "addictive" and "non-addictive". It's entirely about them being all, "It's less addictive," other people not liking that, and the lawyers/courts doing what you always expect them to do: beat up on somebody that they don't like, based on extremely squishy, subjective shit, like what you always complain about constantly. Moreover, please find the pro-legalization folks who have some sort of plan for how their new world is going to manage this issue. How they're going to draw lines, require certain types of disclosures, and police squishy statements about various products. Oh, and how strict their regulatory regime (that I'm sure you'll love) will be when it comes to exhaustive testing of unfindable coefficients of addictiveness for every minor drug variant that any producer wants to put on the market.
No, that's all bullshit. The reality is that someone outside of the Overton Window, like we have plenty of here, should at least be able to stand up and say, "We can debate how disclosure should work and whether the Sacklers screwed up there, but we absolutely cannot blame them for the opioid crisis, because they're the only people who are doing the very thing that we want to happen in order to help the opioid crisis." The italicized part is important. Somebody, even one, should be up yelling that the fundamental project of the Sackler Family is Good (TM), and that we shouldn't lose sight of that, and that we definitely shouldn't be blaming them for the opioid crisis.
The closest you're going to get is that pharma companies are fundamentally in the business of solving their patients' pain issues (the "doing good" part), that the opiod overdose crisis is unrelated to this, and that overdose deaths aren't correlated with prescription rates. In short, Richard Lawhern is arguing that we have an overdose crisis A. because synthetic opioids that became pervasive in street drugs during the 2010s have a very low margin for user error and B. we have too many people suffering from something akin to shit life syndrome.
Perhaps a good sanity check would be to check on non-opioid problems with addiction. Say what you want about the Sacklers, but they aren't in the food and beverage industry, and thus can't plausibly be blamed for the rise in alcohol deaths or 10% of Americans being morbidly obese.
I don't want to live in a world with more pillheads, think that full libertarian wet dream drug legalization would be a disaster (It would almost certainly lower the death rate among active drug users, but you'd almost certainly get a lot more users, as happened with Marijuana legalization.), and even accept that crucifying the Sacklers may be a societally necessary action, but I'm not convinced that Oxycontin in particular is what broke everything.
I'm also not on the train that Oxy in particular broke everything, FYI. I'm just wanting to find someone who is willing to go the step further, using the axioms of the drug legalization movement, to come out and say that it doesn't actually matter whether the pharma companies parrot the line that they're just trying to solve patients' pain issues. That it's nice, but also unimportant that overdose deaths aren't correlated with prescription rates. What's important is that they get pharmaceutical drugs into the streets, as many as possible. Because that allows users to carefully and scrupulously use drugs in the way that they prefer, knowing exactly what they'll get, and which is definitely not dangerous to their life or their lifestyle (and like, probably won't increase usage or something).
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Sorry about that, I did see that claim, but it was over at Data Secrets Lox, based on (unsurprisingly) a Cato Institute analysis
You're still sneering. Anyway, there are certainly plenty of legalization proponents who would want more regulation than me.
The italicized part is not, in fact, true. The Sacklers did not invent pharmaceutical-grade opiates, and they certainly were never the only producer.
Fair enough. They should be able to stand up and say, "We can debate how disclosure should work and whether the Sacklers screwed up there, but we absolutely cannot blame them for the opioid crisis, because they're some of the extremely few people who are doing the very thing that we want to happen in order to help the opioid crisis."
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The power of agencies to punish, before Jarkesy and likely after as well, is astonishing and previously endorsed by the courts. If the FAA, for instance, doesn't like something you've done, the penalty phase comes first: they send you a "Notice of Proposed Civil Penalty" which says you owe them money unless you request a hearing from a Department of Transportation administrative judge. If you request the hearing, while technically they must prove their case by a preponderance of the evidence, in fact the judge will simply accept the FAAs complaint as valid unless you prove otherwise.
You get one administrative appeal -- to the FAA itself, which refers it to its Office of Special Counsel, which is the office prosecuting you. It used to be the appeal could be to the very prosecutor handling your case, but they were told to knock that off. Your final appeal is to the Circuit Court of Appeals... but the standard of review ("substantial evidence") is extremely deferential.
Despite all the moaning from some sectors I suspect in fact this will continue. The decision will be limited to cases where the regulation overlaps common law crimes, which will not include most of the pestiferous regulations covering everyone and everything nowadays, and very little will change. It's the Roberts way.
Right. At the same time, it's quite common. Changing it, if it takes place more fully, would have a large effect across the entire administrative state. Definitely seems like Thomas and Gorsuch would go for it, but Roberts and Kavanaugh might be more hesitant. Nevertheless, this is a win, and further, the kind of win that is unlikely to polarize ordinary people further against the court.
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I appreciate all of the effort that you put into these, but I do have one minor suggestion. Instead of a single massive post for three or four cases, you might get more engagement if you made a single top post and then put your discussion of each case in a separate reply. A few times I’ve wanted to reply to something toward the top of one of your comments, but by the time I’m halfway through reading your discussion on the next case, I’ve forgotten it, and then by the end my eyes are starting to glaze over after trying to read up on case number three. Just a thought.
Good idea.
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They might think that the agency was correct? The recent assault on the Chevron doctrine has to be one of the oddest crusades in recent judicial history. I understand that a lot of conservatives are critical of the administrative state, but it's not like overturning Chevron really changes anything. I understand the justices had their own reasons for overturning it, but let's face it, they're all just a bunch of eggheads that make rulings based on principle. The reason Chevron became a doctrine in the first place was because it involved highly technical questions that courts were reluctant to wade into. The original case involved whether Chevron had to apply for a permit or not. While people are generally concerned about environmental issues, they're concerned about the kind of issues that actually affect the environment, not about the details of EPA permitting requirements. The present case involved whether certain fishing vessels were required to pay for observers while in international waters. Again, a purely technical question that the Supreme Court kicked back to the lower courts to answer. The end result of this isn't necessarily that the lower courts strike down the regulation at issue; they can always find that it was consistent with the intent of congress. In any event, whether vessels in restricted fisheries have to pay for observers required under the Magnuson-Stevens Act or whether the North Atlantic Fisheries Service has to pay for them isn't likely to be a topic of discussion here when the lower courts make their determination. If the courts rule that the NAFS has to pay then I doubt many will consider it a crushing blow to the administrative state.
There are several functionalists arguments about the "value" of Chevron but no one is making any legal ones. The decision doesn't hold up constitutionally.
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My understanding is that congress allowed fishing councils to pass regulations to require observers, but that would be balanced against the NAFS budget for enforcement. Deciding that every ship needed a compliance observer and the ship needed to pay for it was a huge bureaucratic expansion.
Under Obama the EPA classified CO2 as a pollutant subject to their jurisdiction. Taken to absurdity, the EPA could start requiring every household pay for their own emissions observer to monitor their gas stove usage, car idling, and excessive breathing.
Obviously that's too far. But imagine if forcing the ships to pay without legislation becomes a well established government right. The ATF could start forcing various businesses to pay for frequent inspections.
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OG Chevron was probably fine. Its extension basically eviscerated due process.
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I think people would care less if it were constrained to that, but Chevron is not some one-case-only matter. Even for the specific matter of EPA permitting requirement, Chevron applied not just the biggest businesses running power plants, but also smaller developers or individual homeowners (both later overturned). Nor does it limit to the EPA: big HHS tax credits, wireless stations, immigration law, vapes, wired internet, countless others. Some courts even tried to expand it to criminal law.
The bigger cases tend to involve corporations, both for obvious financial reasons and because individual plaintiffs seldom can attempt to follow the Sacketts at any price, but that just makes them the bigger cases.
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It wasn’t highly technical questions. At least not in the sense of factual questions (ie does smokestack include the bubble or each stack). No these are all questions of law (ie what does the statute say). Chevron allowed agencies to answer that question enabling the executive to increasingly set policy even when that policy was a bit at odds with the statute. Sometimes it involved smoke stacks (which the NRDC was very much interested in); other times it involved other more weighty matters.
As for the idea that overturning Chevron won’t be a big blow to administrative state power, go on Westlaw and shepardize Chevron. There will easily be thousands of citations. It was a monumental case and striking it will have real meaningful changes in admin law.
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Can they really that easily find other reasons why letting bureaucrats set policy is okay ?
Yes. They can just "independently" read the bureaucrat's meaning into the statutes.
The technical phrase is Skidmore deference (though now without the word deference).
I do think SCOTUS is actually pretty hostile to the admin state. See eg Major Questions, Kisor, and now this case. Of course lower courts may still BS but this was a good thing and I don’t think you need to black pill it.
The courts don't need any kind of deference doctrine to uphold the agency policy; they can always just find the agency's rationale persuasive enough to issue an opinion in accordance with it. All the various deference doctrines do is allow the courts to dodge the substance of the complaint. On the other hand, if the court wants to offer a differing interpretation, they're free to do so. This case may ultimately prove to by a pyrrhic victory for the petitioners, since all the court really did was kick it back to the First and DC Circuits rather than decide the issue themselves. I doubt many courts really want to get into the weeds over these kinds of questions.
Skidmore deference literally is in part about the persuasiveness of the reasoning (though it also looks at other factors like the history of the agency’s interpretation). That is, Skidmore is between Chevron and no deference.
And yes, the petitioners may lose! I don’t really care about these petitioners. I care about admin law and it got better! The outcome of this particular case is basically irrelevant.
Finally, the entire purpose of the court system is to “get into the weeds.” Indeed, the courts were supposed to have to do that even in Chevron to determine if there was in fact ambiguity and whether the agency’s interpretation was within that realm of ambiguity. Now practically we’re courts always doing their job? Maybe not. But that seems like a bad excuse to allow the executive to say what the law is. Doing so is inconsistent with (1) how Admin Law was conceived (IIRC Pound wrote about this in the early 20th century), (2) the APA, and (3) separation of powers.
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