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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
J. Aughenbaugh: Hello, Nia, how are you?
N. Rodgers: I'm excellent. It is the summer of Scotus and today, which is July 2, we're recording this on July 2, these are all going to come out in late July or early August. Sorry, folks, you're getting us, but well, one of us will be on Sabbatical at that point, but it's a lovely day. July 2 is a lovely day where I'm located. It's not too hot, it's not too gross the Internet is working. I mean, all is well in the universe and because it is the summer of Scotus and because they have had cases. By the way, in the last five days, they have dumped all of their cases. Now they ran away to wherever it is justices go in the summer. I assume off to make money on the side doing talks and teaching seminars.
J. Aughenbaugh: I don't know if they're going to do as much of that seem as though some of them have gotten into trouble.
N. Rodgers: Right now they're not super popular.
J. Aughenbaugh: They're not so they may have to go overseas.
N. Rodgers: But today, we're going to talk about the three cases or this episode, we're going to talk about the three Internet cases.
J. Aughenbaugh: Yes.
N. Rodgers: Supremes handled three Internet cases just in the well, they decided them in the last few days, and I'm sure they've been working on them for months.
J. Aughenbaugh: The first case, Nia, is Murphy versus Missouri. What was at issue in this case, is that the state of Missouri and a couple other states complained that the Biden administration violated the First Amendment when that administration attempted to influence what social media companies allowed to be posted regarding public health and election mis or disinformation. The Supreme Court heard the case, and they decided in a six to three vote that the challengers, particularly the states of Louisiana and Missouri, in a few individuals, did not have standing. Therefore, the case was dismissed.
N. Rodgers: Now, remember, standing, listeners, is you personally or you as the state have been harmed, by the other party. By whatever it is that the other party did, you can show harm, direct harm to you, and that's how you get standing. That's why I can't sue for the treatment of other people. Sorry, we're recording at a time when Newsweek released an opinion piece about Taylor Swift. I would sue that guy like for the harm he's done to her if I could get away with it, except I have no standing in that. That's the attempted harm. I should say actually he probably made her more popular by.
J. Aughenbaugh: Well, it's interesting you brought this up because what you're referring to is what's known in legal circles as third party standing. Can you sue on behalf of other people, who may not be able to speak for themselves? This has become a huge issue in regards to any number of civil liberties protected in the US Constitution. From a woman's right to choose to challenging government behavior on behalf of children, but that's for a different, if you will, podcast episode.
N. Rodgers: Well, and let's just be straightforward. Taylor Swift does not need me to sue on her behalf.
J. Aughenbaugh: No, I'm pretty much thinking.
N. Rodgers: She pretty much can cover her lawsuits.
J. Aughenbaugh: She's made enough money to hire some of the best attorneys, operating in the world, but the vote was six, three.
N. Rodgers: But basically, that's what standing is. You have to show that you've been harmed.
J. Aughenbaugh: But before we get to the majority opinion, I want you all to take note of the vote grouping. The vote was six to three, but what you actually saw was three of the conservatives join with three of the liberals. The three dissenters were Alito joined by Thomas and Kors..
N. Rodgers: Who are always the dissenters.
J. Aughenbaugh: For those of you who have shown some remarkable resiliency and have been listening to all of these summer of Scotus episodes. You will know that that is a growing, if you will, or developing trend line on this particular court. Which is the liberals usually vote together. The conservatives, however, there seems to be a split between the three really hard core conservatives, Thomas, Alito and Gorsich. Then the three more moderate conservatives populated by Chief Justice Roberts and then Justices Kavanagh and Coney Barrett. Nia, as you alluded to, just a few moments ago, Coney Barrett did write the majority opinion. She made it very clear that Louisiana and Missouri just did not show how they were specifically injured. She really emphasized Nia in her majority opinion. Projecting future harm does not satisfy the Supreme Court's standing precedents or doctrine. You have to show.
N. Rodgers: Did she write like a 600 page. The opinion to this thing?
J. Aughenbaugh: Yes. I actually put this in our prep notes and I actually use exclamation points. Let me see where was?
N. Rodgers: Early 30 pages.
J. Aughenbaugh: It was nearly 30.
N. Rodgers: On standing.
J. Aughenbaugh: Yes.
N. Rodgers: She was like no. That's first word, no. Then 30 more pages on. Here's why you don't even have standing to bring this case. You go now. I like that you in your notes said that one of the impacts of this, is going to be that if people are going to sue, they're going to really need their ducks in a row. You can't just walk in there and say, well, it's just obvious that we would be harmed by this. No, Coney Barrett is saying you have to lay out clearly how you individually or states are harmed currently. Not will be harmed sometime in the future, not could be harmed sometime in the future, but are currently being harmed by this thing.
J. Aughenbaugh: Yes.
N. Rodgers: She was very rusk about it.
J. Aughenbaugh: Listeners, you probably have been reading if you've been paying attention to how the media has been portraying the current Supreme Court as this is a conservative court. We'll get into the stats in our last episode, but the thing that I want you to all to take note of here is this may be a conservative court that is willing to go ahead and entertain or maybe even rule in a more conservative direction but they're going to force you to satisfy both jurisdiction and justice ability. You need to be able to go ahead and show that you have been specifically harmed. How you've been harmed, and that the court can correct or address your harm. If you can't, in particular, Coney Barrett, John Roberts, are not going to give you and the party you represent, any leeway whatsoever.
N. Rodgers: Can we for a moment. I was thinking about an example of justiciability the other day. The reason that if you have a hand cut off at work, that you don't go in and ask the court to give you a new hand is because they can't do that. They can't give you a new hand. What you ask for is money. You ask for financial recompense because they can't give you. There's only certain things they can give you. They can give you money, they can give you property, they can give you maybe peace of mind in certain instances, but they can't give you missing limbs, they can't give you time like prisoners that are then released. They get money, but they don't get time because that time is gone and the courts cannot give it back to you. You have to also ask for reasonable recompense. You can't just say to the Court, I want you to give me a unicorn because the court would be like, we don't have a unicorn, sorry.
J. Aughenbaugh: In particular, in this case, this couple of the justices, Coney Barrett, in particular. Were very skeptical of the lawyers for the State of Missouri, because there was very little concrete evidence that even though the Biden administration did interact with social media companies. They could provide very little evidence to show that they had been injured.
N. Rodgers: Bless their hearts, as we say here in the sound.
J. Aughenbaugh: That's the first prong of the Supreme Court's current standing doctrine. There's three parts. You got to show injury in fact. You got to show a causal connection between your injury and what the government did. Then the third part, which you just described, is you have to show that the court can address the harm that you suffered. Coney Barrett, in particular, was just like you can't project. You can't ask us to take a leap of faith that this will be an injury in the future. No, you had to go ahead and show that what the Biden administration did, harmed freedom of speech on these social media companies and you can show it. You don't have standing.
N. Rodgers: They basically said, you go away now. The other message, which is one of Aughie's favorite messages is to the lower courts. Which is to say, don't be sending this stuff our way. You need to investigate standing. You need to make sure that these people actually have just because they don't like something doesn't mean they have standing. I don't like lots of things in the world, but I don't have standing to sue about them.
J. Aughenbaugh: Again, this is pretty remarkable, at least the three moderate conservative justices on the court are seemingly saying they don't want to be part of this debate between conservatives and liberals about standing. For decades, conservatives complained that the Supreme Court, particularly the Warren Court, made standing easier, which, again, if you can get in court and argue in front of a court that you've been injured, you've got a greater chance that the court's going to rule in your favor. The standing is a gate keeping mechanism. Now you have more conservative lower courts, and many of them have adopted. When I say liberal, I mean loose definitions of standing. These three justices, but particularly, Robert and Coney Barrett are like, "Hey, we didn't like it for the liberals, and we don't like it for you all on the Fifth Circuit. That's going to be another one of our trend lines when we do the statistical wrap up. The lower court that's probably been overruled the most this term has been the Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi. Coney Barrett was sending a pretty clear message, and you can tell she's getting frustrated. Again, it's almost 30 pages.
N. Rodgers: Just as a side note, for a case that is relatively simple, that is a long opinion. That is not a long opinion for one of the more nuanced cases, one of the bigger cases.
J. Aughenbaugh: When we discuss in our next episode, Trump versus US, which is the infamous presidential immunity case. The total number of opinions in that case was almost 200 pages.
N. Rodgers: It was like 87 opinions. Like everybody had thoughts about that. That's not unusual if you get something that's big and involved and nuanced like that but this which is granting for 30 pages. Good for her.
J. Aughenbaugh: One of my favorite law professors that I read online is Professor Jonathan Adler from Case Western University Law School. I think he used the expression that she took a sledgehammer to the notion of broad standing. I just loved it. Anyways, that's one.
N. Rodgers: But we weren't done with the Internet. Because the Supremes, they went for the hat trick, they went for free.
J. Aughenbaugh: Yes. Hey, look at you using a professional hockey phrase. Well done. Hat trick. For our non-hockey enthusiasts that are listening, a hat trick is when a scorer on a hockey team scores three goals in a game and if he scores three goals in a row for his team, that's known as a natural hat trick.
N. Rodgers: I think it also applies to soccer as well because I'm pretty sure that soccer and hockey are the same sport only played with or without ice skates. More or less, there's an awful lot of running in soccer, and there's a lot of skating in hockey. But anyway, you have to be a really good athlete to be either one. I think every sport takes a certain athlete but I'm none of those kinds of athlete. I admire. I was just admiring the Euro soccer thing. But a couple of weeks ago.
J. Aughenbaugh: Well, you also have Copa America.
J. Aughenbaugh: We have two more in the Supreme Court merged these cases. This was NetChoice versus Paxton and then Moody versus NetChoice. What was at issue in these two cases or laws passed by the States of Texas and Florida, which would restrict social media companies from removing certain political posts or the accounts of individuals who were making too many or egregious or posts that violated contractual norms? The question was, did these state laws violate the First Amendment rights of social media companies? The Supreme Court voted 9-0, but with four concurring opinions.
N. Rodgers: We got to the right place, but not in the right way.
J. Aughenbaugh: Yes.
N. Rodgers: That's what concurring.
J. Aughenbaugh: Yes. I agree with your outcome but me and your explanation was just.
N. Rodgers: We all arrived at the restaurant, but you took the stupidest route possible, and I'm going to tell you why you should have gone a different way. That's what that means.
J. Aughenbaugh: Let me explain why your route was stupid. But the vote was 9-0, and the court vacated both lower court decisions. But they didn't do so on First Amendment grounds. Basically, as explained in the majority opinion by Justice Elena Kagan, neither the Fifth nor the 11th Circuit Courts of Appeal properly considered the facial nature of NetChoice's challenge. We talked about this in a previous podcast episode for this summer of Scotus. Basically, let's say a state passes a law. There are two challenges to the constitutionality of that law. One is known as a facial challenge, which means as it is written, before it gets applied to anybody, the law is obviously unconstitutional. The second challenge is what's known as an applied challenge. The law gets passed, an executive branch agency begins to execute the law, and you can show that the law violates one of your constitutional rights. What Kagan said was, the lower courts erred. They screwed up because they allowed the facial challenges to occur without taking into account, whether or not, the laws as they might be applied could be unconstitutional. Now, Kagan did make it very clear in some parts of her opinion, that more than likely neither the Florida or Texas laws would be constitutional because as she points out in her majority opinion, there are any number of reasons why a social media company might reject a post, take down a post, close a person's account, that have nothing to do with one's first amendment rights per the US Constitution. Go ahead.
N. Rodgers: I have a question here. First of all, just as aside not, this is NetChoice LLC V Paxton and Moody V NetChoice LLC. NetChoice being the company, Paxton and Moody being the attorneys general, Paxton for Texas, Moody for Florida, which I also think is interesting. They didn't sue the state. They sued the individuals as an attorney general, you got to keep that in mind. You're going to be named in lawsuits.
J. Aughenbaugh: I joke with my students all the time, for those of my students who aspire to be attorneys general or secretaries of this department or that department to be aware that you may end up being a named party in an infamous constitutional law case.
N. Rodgers: Let me ask this question, which I'm not sure I understand. NetChoice is not the government?
J. Aughenbaugh: Correct.
N. Rodgers: NetChoice can stop all over your First Amendment rights because you don't have First Amendment rights with them. Like you don't have a right to post on their.
J. Aughenbaugh: But this is where Kagan said the lower courts erred. The lower courts basically assumed that the states argument that social media platforms had become the modern day or current version of.
N. Rodgers: The public square?
J. Aughenbaugh: The public square that social media companies have to honor the First Amendment just like the government does.
N. Rodgers: She rejected that?
J. Aughenbaugh: Well, she didn't reject it. What she said was, there's no evidentiary record to support that claim.
N. Rodgers: She was saying the court should have made the states prove that it is a constitutional right to speak on a social media platform.
J. Aughenbaugh: Yes.
N. Rodgers: You have to establish that before you can then establish, then you can't tell people that they can't be on that platform.
J. Aughenbaugh: Yes.
N. Rodgers: They didn't start in the right spot, basically.
J. Aughenbaugh: Well, and Kagan's majority opinion also dropped some not-too-subtle hints for the lower courts when they get these cases back on remand. She made it very clear that moderating content on social media platforms is very similar to the content decisions made by other media outlets. If you're the lower courts, unless you want to go ahead and have a future decision appeal to the Supremes and have them reject or overturn your decision, you ought to pay attention to what Kagan was saying because Kagan dropped a whole bunch of bread crumbs in her majority opinion. The net result excuse.
N. Rodgers: Pun a very tragic pun.
J. Aughenbaugh: Yes and very poor at that. The end result. Well, let's go with that. The end result was the court punted the case back down to the lower courts. But they made it very clear. Again, this is the Supreme Court sending very clear messages once again to the Fifth Circuit and the Eleventh Circuit that they had to engage in more thorough hearings before ruling for or against the state laws in question.
N. Rodgers: Quit sending stuff to us before you thoroughly send it yourself. Don't send it to us with the well, the Supremes will take care of it. I'm just going to send it back to you.
J. Aughenbaugh: Because this was another case where both the lower courts. Allowed appeals of district court injunctions. There wasn't even a fully formed lower court record. Again, you can tell some of the justices are getting really tired of the use of the emergency/shadow docket. They would actually like to see more of these cases fully fleshed out in the lower courts before they get to the Supremes.
N. Rodgers: You know, every once in a while it used to be that there were boxes and in a case of emergency, break glass, and there'd be a hammer behind it?
J. Aughenbaugh: Yes.
N. Rodgers: The Supreme's box says, You better make sure this is an emergency before you break this glass.
J. Aughenbaugh: Yes.
N. Rodgers: This hammer comes with consequences. That's basically what they're saying is, do your jobs. Do your jobs because these things shouldn't be ending up in front of the Supreme Court. They should be thoroughly vetted.
J. Aughenbaugh: But not with these records. Again, you see this with Kagan's majority opinion in the net choice cases. You see this with Coney Barrett, in her majority opinion in the Murphy case. Both of these justice as you could tell.
N. Rodgers: Exasperated.
J. Aughenbaugh: In Coney Barrett's case, she's tired of attorneys making these arguments, and the courts not, if you will, challenging those arguments. But Kagan was to me, what was also interesting about this is that in two of the concurrences, one by Thomas and one by Alito, both of them called into question as to whether or not federal courts should take facial challenges to laws.
N. Rodgers: Really? They're discussing at the constitutional level, not.
J. Aughenbaugh: Yes. Because according to Thomas and Alito, Article 3 of the Constitution says that the federal judiciary should hear cases and controversies. How can you show a controversy if you don't know how the law is going to be applied?
N. Rodgers: I imagine it's going to be like this. We don't care what you imagine.
J. Aughenbaugh: It's like Nia how you and I have joked off recording about how parents will go ahead and say to their children, you can't do X. But if you're a smart kid, you wait to see how that gets applied. Because if you go ahead and challenge just the statement, it gets you nowhere. But you wait to see how the rule gets applied and then you figure out how you want to challenge it.
N. Rodgers: Well, what they're basically saying, too, is you are wasting the appellate court's time.
J. Aughenbaugh: You're definitely wasting the Supreme Court's time.
N. Rodgers: By not thoroughly dealing with this and if you can't come to a conclusion, then it has to move up through the system. It's an interesting. They've been crabby a lot with the lower courts, though. John Roberts Court is going to be known as the crabby with lower courts Court. I know there was a lot of court there, but you know what I mean like the Warren Court is known as the Civil Rights Court. I think J Robs Court is going to be, that was the court that was mad with all the lower courts all the time. The lower courts, what's weird is they keep abdicating this authority upward. In these or similar to Congress abdicating authority to the president. They don't want to do hard things.
J. Aughenbaugh: Or sometimes I get the sense that some of the judges on the Fifth Circuit have adopted the attitude that we used to see with judges on the Ninth Circuit Court of Appeals. The attitude of a lot of liberal justices on the Ninth Circuit Court of Appeals was the Supreme Court can't catch all of our rulings that expand civil liberties. They can't catch them all. Infamously, Ninth Circuit Court of Appeals Judge Reinhard said that. He was asked in an interview with LA Times, how do you feel about being one of the most overturned federal Appeals Court judges? He didn't even blink. He just went ahead and responded, but they can't catch them all. Sometimes I get the sense that some of the judges on the Fifth Circuit Court of Appeals have adopted the same philosophy that Reinhard had, which is, they can't catch them all. If we send up 15 or 20 of these every term.
N. Rodgers: They're not going to pick 15 or 20, they're going to pick one or two.
J. Aughenbaugh: Yes.
N. Rodgers: Interesting. That's anxious. Well, but I get it if you're trying to change the court if you're trying to change precedent.
J. Aughenbaugh: Precedent in the United States, that'll do it.
N. Rodgers: But how about we move on from the Internet?
J. Aughenbaugh: Yeah.
N. Rodgers: To camping.
J. Aughenbaugh: Yeah.
N. Rodgers: Can we go to camping? Lets go camping Aggie.
J. Aughenbaugh: Well, it's not necessarily.
N. Rodgers: See listeners, what you don't know about Aggie, but what I do, and what I love to do is to say, well this is just a simple case about blah, blah blah. Aggie's face always does this thing like a Picasso where his features move around in weird ways and he's like, it's really not about that, and it's not that simple, and then he has to explain it to me because he's a teacher, and he can't have me not know.
J. Aughenbaugh: There is that, but also two, it has been alleged by now decades of students, a very expressive face. It's a large face, and there's plenty of forehead.
N. Rodgers: There is more forehead than when I met you eight years ago.
J. Aughenbaugh: Eight years ago, yes but anyways. The case we're going to talk about next. We're moving on from the Internet. We're going to try to talk about two more cases in this particular episode. This case is City of Grants Pass, Oregon versus Johnson.
N. Rodgers: Thank you for telling us where the City of Grants Pass is because.
J. Aughenbaugh: I actually had to look it up on a map.
N. Rodgers: I'm not trying to be ugly, but if you say anything outside of Portland, I'm not going to have any idea whether it's in Oregon or not.
J. Aughenbaugh: I know Portland, and I know Salem, which is I believe the Capitol.
N. Rodgers: The Capitol.
J. Aughenbaugh: Grants Pass had issued three ornces that were related to camping out, and sleeping on public property. The plaintiffs or the named plaintiffs was Johnson, challenged the ordinance arguing that they violated the Eighth Amendments ban on cruel, and unusual punishment because what Johnson at all claimed was these ordinances were targeting homeless population in the City of Grants Pass. The District Court agreed with Johnson, and so did the nine Circuit Court of Appeals.
N. Rodgers: Due to lack of shelter beds.
J. Aughenbaugh: Yes.
N. Rodgers: If there had been sufficient indoor or state run beds or city run or however, county run, then they would not have agreed with the camping, but they were basically saying, what else can people do?
J. Aughenbaugh: Yeah.
N. Rodgers: There is no place else for them to go.
J. Aughenbaugh: The court vote of 6-3 conservatives versus liberals overturned the lower courts, and held that the city did not violate the Eighth Amendment, and the majority opinion was written by Justice Neil Gorsich. Basically the ruling held that the ornces simply barred campaign on public property by everyone. They were generally applicable to, it didn't matter if you were homeless, if you were not homeless, because these were generally applicable laws that did not specifically target the homeless, nor were the ornces applied solely to homeless individuals. The Eighth Amendment therefore was not violated. All right?
N. Rodgers: Okay.
J. Aughenbaugh: Gorsich emphasized in his opinion that the Eighth Amendment does not authorize federal judges to, ''Dictate the nation's homelessness policy.'' Instead he said, ''This is a complex public policy issue that should be addressed by the people's elected representatives.'' Now, Sotomayor, writing the main dissent, said that the majority ruling, ''Focuses almost exclusively on the needs of local government, and leaves the most vulnerable in our society with an impossible choice. Either you stay awake or you're going to be arrested.''
N. Rodgers: Yeah, this one's tough for me.
J. Aughenbaugh: This is tough.
N. Rodgers: I mean I feel enormous sympathy for people who are homeless.
J. Aughenbaugh: Yes.
N. Rodgers: They get chased around in cities, which is unhealthy for them. It's unhealthy mentally to be chased around, and to be constantly in a threat of arrest, and that thing but I also think, I mean maybe cities should have the right to say there are places where you can't put up tents, either because of public safety issues or other things like that. I don't know, I'm really torn on this one. This one was tough for me, I do think it's interesting that it comes out of the West, and it's written by Gorsich.
J. Aughenbaugh: Yeah.
N. Rodgers: It's another one of those things that you occasionally mentioned when you're like, let's all remember, he's the one from the West.
J. Aughenbaugh: Yeah.
N. Rodgers: I get Sotomayor's point, like it puts people between a rock and a hard place because either they're going to get arrested if they fall asleep, or they have to stay awake, and wander the streets, and I don't know how much healthier that is but it is a public policy issue. Thank you, it's a public policy issue. I don't know, it's so complicated.
J. Aughenbaugh: I struggle with what provision of the Constitution would protect the homeless.
N. Rodgers: Right.
J. Aughenbaugh: You could see this in Gorsich's majority opinion, because he doesn't shrink from acknowledging the scope of the problem. On the other hand, I find it so ironic that on one hand, you have the Supreme Court saying that the court should not be handling this problem but then in the next two cases, we're going to look at, you have the Supreme Court saying, we should second guess federal agency's interpretation of law, and I'm like.
N. Rodgers: How are all those personalities living in your head at the same time? I think of what makes this so hard for the liberals is the numbers involved, 600,000 homeless folks. There are these things that are done spot check wise. CDC does some of them, census does some of them. Local organizations do some, Hud does some where they'll take a night, and they'll go out and count. How many people are sleeping in parks, how many people are sleeping out in the open, how many people are sleeping in cars. Six hundred thousand people in a single night in 2023. That's a lot of people.
J. Aughenbaugh: That's over half a million Americans were homeless on a single night in the United States.
N. Rodgers: Where can they go?
J. Aughenbaugh: Where can they go?
N. Rodgers: Because there's no 600,000 shelter beds. They just aren't.
J. Aughenbaugh: On the other hand, if you're a local government like Grants Pass, what capacity do you have to go ahead and address this problem?
N. Rodgers: But then when you look at it, and I'm not trying to be all on the conservative side, but if those parks are next to a business district or they're next to other or residential areas where that becomes a security issue, it becomes a safety issue because sometimes it does, and sometimes it doesn't. There are plenty of homeless people who would not hurt.
J. Aughenbaugh: But there's also security issue for the homeless themselves. They become targets of all kinds of crime.
N. Rodgers: It is the all bad channel because this is so unfortunate.
J. Aughenbaugh: If they're sleeping on the streets, now they become a locational target.
N. Rodgers: Right.
J. Aughenbaugh: Because if you're going to go in target the homeless, well, heck, if they're all sleeping on the streets, I struggle with that.
N. Rodgers: But I think Gorsich is right, though that the politicians need to fix it. There needs to be, it would certainly be a vote getting issue for me. If somebody said, here I've got this solution to what we can do to help folks, and to get them on their feet, and to make the city safe for housed, and unhoused folks. Let's get everybody housed, and then we can work on the other stuff. It's hard.
J. Aughenbaugh: Yeah because there is an extended causality in regards to solving this as a public policy issue, that I would be very interested in actually seeing our politicians discuss. Which is, if we make these investments in finding them beds, what else do we have to invest in so that they can actually have meaningful, and productive lives. Compare those costs to what are the costs if we do nothing.
N. Rodgers: Exactly.
J. Aughenbaugh: Because that's what I always come down on. If we don't address this, what costs are we more than likely going to see in the future because we haven't addressed this particular problem right now. The inter-connectedness here is stunning, but at the same time, and this is where I agree with Gorsich, I'm not entirely sure of the courts, because the tools at the disposal of courts tend to be blunt instruments, not surgical instruments.
N. Rodgers: They're winners or losers, and if you're a loser there's no good reason to go ahead and negotiate with the winners and if you've won, well, why do you negotiate with the losers?
N. Rodgers: Right. You just stance on the grave of the losers.
N. Rodgers: I really struggle with this one. Now, where I don't struggle is with our next case.
N. Rodgers: Can I just say wait. I want to warn our listeners. We are about to enter the administrative law Geek zone and for the next few minutes, you just got to put on your dee cat because this is the case that Aggie lives for. He was trying to explain to me why it was so sexy off.
N. Rodgers: Of recording, yes.
N. Rodgers: I was like o because I love his passion for it. I am not sure that I feel as passionate as he does, but tell us all about your administrative law case, Aggie.
N. Rodgers: The next case is actually two merch cases. Loper Bright enterprises versus Ramondo and Relentless Incorporated versus the Department of Commerce.
N. Rodgers: Now, part of the reason you like it is cause it's relentless. Relentless for the Department of Commerce.
N. Rodgers: Yeah, and unfortunately, in all the media accounts they keep on focusing on Loper Bright enterprises. I'm like no. It's the relentless case. Anyways, the basic question underlying both of these cases is whether federal courts have to continue to defer to reasonable interpretations of federal government officials, enforcing ambiguous laws passed by Congress. In other words, should the Supreme Court overturn one of the best known administrative law precedents that was issued in 1984, the Chevron case? The Chevron case basically said that when Congress speaks clearly, both federal agencies and the federal courts have to honor Congress's intent. That's step one. But if Congress's intent is vague or unclear.
N. Rodgers: Which would never appear.
N. Rodgers: Never appear.
N. Rodgers: The Shaw I say to you.
N. Rodgers: Yes.
N. Rodgers: This is when the Congress says to the EPA, go clean up the air. That's what we're talking about in the second instance. In the first instance, we would like you to remove all the particular matter from the smokestacks of the following cities. Blah blah, blah, blah, blah. That's very clear.
N. Rodgers: Yes.
N. Rodgers: Very clear. Go clean the air. Significantly let's clear.
N. Rodgers: Let's clear and when that happens, Chevron said.
N. Rodgers: Which it does.
N. Rodgers: Chevron said that federal courts have to honor reasonable agency interpretations of those laws.
N. Rodgers: Then the Chief of EPA says, we're going to make smoke stacks in all the cities put this thing on top of them that cleans the air as it comes out and that will clean the air and that's a reasonable way to do the thing that Congress has asked us to do, and in past, the courts have said, we will take that on face value.
N. Rodgers: Yeah, the Chevron ruling was a ruling by the Supreme Court to basically send a very clear message to the lower courts quit second guessing reasonable agency interpretations of vague laws and it was a very clear message to a particular Federal Appeals Court. The DC Circuit Court of Appeals that had gotten in the habit of second guessing agency interpretations of vague laws. So initially both conservatives and liberals love Chevron because if your president is in office because of Chevron, guess what they could do. They could change the interpretation of law, but over time conservatives began to hate Chevron because they basically thought it gave unelected bureaucrats many of whom.
N. Rodgers: Free license.
N. Rodgers: Conservatives complain are liberal, free license to go ahead and expand the size and scope and reach of the federal government.
N. Rodgers: Because if the EPA forces you to put something on the top of your smokestack, you have to pay for it.
N. Rodgers: Well, that's right.
N. Rodgers: All of a sudden, the conservatives were like, whoa, whoa, whoa. wait a minute.
N. Rodgers: If the Department of Education wants to reinterpret Title 9, guess what? Federal court [inaudible]
N. Rodgers: That's how they're going to do it.
N. Rodgers: That's right. So it gets to the Supreme Court and after a number of years where the Supreme Court modified it, limited, finally the Supreme Court just came out and said in a vote of 6-3 conservatives versus liberals, Chevron deference should no longer be the controlling precedent. The majority opinion was written by Chief Justice Roberts and in particular he said, Federal courts have been given the responsibility in the Administrative Procedures Act which was passed in 1946, the so-called Bible of the federal bureaucracy because that law directs courts to, ''decide legal questions by applying their own judgment.'' This is separate but shared powers, checks, and balances.
N. Rodgers: Them saying, so to follow our example.
N. Rodgers: Yes.
N. Rodgers: The APA would allow a judge to say, that we understand that you want to clean the air in a city, but asking a company that has 7,000 employees to put the same thing on their stack as a company that has 20 employees and the same cost is not distributed fairly.
N. Rodgers: Yes.
N. Rodgers: That is not fair. There needs to be some mechanism in the law that allows the 20% company to do something within their means as opposed to having to do the thing that the 7,000% company did. That's what the APA says, that a judge can say, this is not being equally applied in these two instances.
N. Rodgers: A judge can go ahead and question.
N. Rodgers: Fairly applied. I should say fairly applied.
N. Rodgers: Well, to avoid arbitrary and capricious decision making. That is the standard in APA. But the other thing by getting rid of Chevron, the Supreme Court is telling the lower federal courts, you should force agencies to do a better job explaining why they revised or came up with new regulations. Days of merely blessing them and telling them to carry on ain't going to cut it because in particular we have a constitutional structure that emphasizes what well known principle checks and balances.
N. Rodgers: But it's not the tear down of agencies that the media has recently portrayed as. The media is like, and now agencies are dead in the water. They can't do anything. I'm like, wait easy there, Cheetah. It is not.
J. Aughenbaugh: First of all, listeners, let's not underplay the ruling in these two cases. As Justice Kagan and her dissent pointed out, the Chevron decision had been cited over 18,000 times by the federal courts in the last 40 years.
N. Rodgers: It's going to cause some upheaval. It's going to be, well, let's go back and revisit this now but.
J. Aughenbaugh: It's going to be a huge shock to the system. On the other hand, I tend to agree with you, Nia. One, the death of Chevron doesn't mean the views of federal agencies or agency officials are irrelevant. First of all, let's take note of the fact that Robert's majority opinion made it very clear. Federal judges should give agencies the opportunity to explain their reasoning when a regulation gets challenged in federal court.
N. Rodgers: Of course, they are because you're going to hear both sides.
J. Aughenbaugh: Both side.
N. Rodgers: You'll hear from the people who are saying, no, that's onerous and you'll hear from the people who are saying, this is the only way that we can get whatever the thing is that we're trying to get. It doesn't cut those people out of the process. It doesn't say, and judges don't have to hear anybody of any expertise on this. In fact, most judges are going to seek people of expertise in order to get. The vast majority of judges are not out there to make crappy decisions. They're out there to make good decisions because the vast majority of them want to do the right thing in the world. They're going to hear both sides. They're not going to just hear, agencies are always evil and overruled. That's not how that's going to work.
J. Aughenbaugh: It'll work. Second, in many cases, agencies will still have huge amounts of delegated authority.
N. Rodgers: Because when they make an agency, they usually give it all kinds of power.
J. Aughenbaugh: Power.
N. Rodgers: Why would you make an agency if you weren't going to give it power to do something?
J. Aughenbaugh: The number of times where Congress actually says in an agency's authorizing legislation.
N. Rodgers: They can't do anything.
J. Aughenbaugh: Yeah.
N. Rodgers: Why would they bother to write that?
J. Aughenbaugh: But many times Congress will even say when the agency exercises this authority, it cannot be reviewed by the courts. That's actually allowed for in the APA. If Congress says that, a federal court is still hamstrung.
N. Rodgers: But also almost every agency is created with a mission in certain powers to do so like commerce. We want you to regulate commerce across all of the states. I don't know. The hand wringing on this is a little, I think dramatic, but there's another point.
J. Aughenbaugh: Here's the other thing. I will agree with some of the media that has said. This is a Supreme Court that is very skeptical of bureaucratic authority and exercise of that authority, because if you combine this case, longtime listeners, you've heard us discuss the major questions doctrine, but even this term, the Supreme Court decided yesterday on July 1st, a case the Corner post case where they went ahead and said that a party affected by an agency rule has six years to challenge the agency rule. Now again, this makes it easier to if you will, challenge and second guess agency, if you will, behavior. Now, that's all true. This is a court that is skeptical of how agencies have been using their authority, but I would argue, this may be just a general corrective, and it may not be, as some in the media have suggested, the Supreme Court blowing up the administrative state.
N. Rodgers: This sky is probably not falling.
J. Aughenbaugh: Falling. What we have seen in the history of the modern administrative state in the United States is the federal courts, particularly the Supreme Court, wax and wane in regards to review of agency behavior. It would not shock me if in 15 or 20 years, the Supreme Court says, we may have gone a little too far with the.
N. Rodgers: We were looking through some of our old stuff, and we found this thing called the Chevron document. We've decided maybe we should revisit that.
J. Aughenbaugh: Maybe we should dust that off. Hey, there was some good stuff in there. It wouldn't shock me. Yes.
N. Rodgers: But can I just say that I believe that in some deeply Mcavellan way, the Supreme Court with that six year has also laid that groundwork for if you weren't harmed in six years, it didn't harm you. You have to be careful about, we've been given all this time but if you walk into a court and they say, where's the harm, and you say there hasn't been any yet, they'll say, you've had six years. We are done.
J. Aughenbaugh: Yes. If you can't figure out that you've been harmed in six years.
N. Rodgers: I can't help you.
J. Aughenbaugh: SOL, and I'm not talking about standards of learning. Listener you can figure out what that is.
N. Rodgers: You get to go home because this. In some ways, the court, also, by upholding that six year, yes, that means the agencies can be held for six years to a regulation, which can be frustrating, I'm sure, for agencies. It also gives them the space to say, if you weren't harmed in this amount of time.
J. Aughenbaugh: Yes.
N. Rodgers: Then here we go. I don't know that it's as drastic, but then again, I'm telling you man, these last few days with the court the media has been breathlessly ridiculous about a lot of what the Court has done.
J. Aughenbaugh: This is part of my longstanding criticism about how the media reports on the Supreme Court. Every once in a while taking a longer view, once again, you have a longer history here, a longer memory, because the court's rulings in these administrative law cases. I could go ahead and track this over time as this is an example of the Supreme Court, oscillating back to the other side like a pendulum and saying, we need to show a little more review and skepticism of what's going on in the unelected bureaucracy.
N. Rodgers: Which I can't say that I disagree with.
J. Aughenbaugh: In 15 or 20 years, when you have maybe too many lower federal court judges who went too far with their view and skepticism. The Supreme Court will have to go ahead and offer a gentle nudge correction, if you will, back to the other side. These are institutions talking with one another. In my estimation, forcing federal agencies to do a better job at explaining why they came up with a new regulation or revised an old one, is a good great.
N. Rodgers: Is a great thing.
J. Aughenbaugh: We want these officials in the opposite branches talking with one another.
N. Rodgers: We want no matter which party is in control of the White House. We want the agencies to be forced to explain their actions.
J. Aughenbaugh: Yes.
N. Rodgers: The more transparency we have, the better. The better the laws will be. At least that is my opinion. Thanks, Aughie. We're in the home stretch.
J. Aughenbaugh: Yes.
N. Rodgers: In our next episode, we will talk about January 6th and immunity and all stuff like that. Then we will do a wrap up slash future.
J. Aughenbaugh: Yes.
N. Rodgers: Where we do the basic statistics of who did what with who and how.
J. Aughenbaugh: Yes.
N. Rodgers: How many were written and all that other stuff. Then where we're going because we've already accepted 20, 21 or 22 cases.
J. Aughenbaugh: Two cases. Next term.
N. Rodgers: We've got a couple of things to look forward to.
J. Aughenbaugh: Sounds good news.
N. Rodgers: This has been an interesting year on the court, hasn't it?
J. Aughenbaugh: Yes, it has. Yes.
N. Rodgers: There's some really interesting things you're going to get to talk about with the stats part, which I'm looking forward to. Thanks, Aughie.
J. Aughenbaugh: Well, thank you, Nia.
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