This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
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)
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.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link