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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.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I am excellent. Do you know why I am excellent?
J. Aughenbaugh: Why is that?
N. Rodgers: Because it is the summer of SCOTUS. They have given us their cases, and then they have left out. Now we get to talk about their cases and you get to explain to me because several of their cases made me go, huh? I need you to help me not sound like that anymore than I have to.
J. Aughenbaugh: Well, it's funny you mentioned the fact that they may have left out because as we will discuss in a future summer of SCOTUS episode, I don't know if their summer vacations this summer will be as relaxing as previous summers because they have a whole bunch of emergency docket cases concerning Trump administration policies, executive orders.
N. Rodgers: Well, you know Aughie how you had plans to go to Europe? Yeah, no. I'm going to need you to be here.
J. Aughenbaugh: Or you better have a reliable, secure Internet connection.
N. Rodgers: Secure is the key.
J. Aughenbaugh: Yes, right. But nevertheless.
N. Rodgers: You can't be in a cafe in Switzerland sitting out on the street giving your SCOTUS opinion on that. Yeah, not so much.
J. Aughenbaugh: You can't be doing a Zoom call.
N. Rodgers: Although we've seen him do some interesting things on Zoom. Remember the toilet flushing incident?
J. Aughenbaugh: The infamous Stephen Breyer forgot to turn off the audio.
N. Rodgers: I love it he carried his laptop into the bathroom. But we're going to talk about some cases.
J. Aughenbaugh: Yes. Listeners, we've already done one episode where Nia and I discussed the rather difficult spot institutionally the current Supreme Court is in.
N. Rodgers: If you'll recall from those cases, they were all pretty well unanimous. They started easy because they were like, this is the stuff we can agree on. We can all agree that breathing air is good. We all agree that vegetables are good for your digestion. We all agree these things like that. Then came the rest. Is how the music would go for that.
J. Aughenbaugh: For this episode, we're going to try to get through three or four of the cases. Then then the next episode, we'll get to the remaining cases. Now, listeners, if you've not listened to a previous summer of SCOTUS, we don't cover all 60 plus cases.
N. Rodgers: Would that ever be a very long summer of SCOTUS?
J. Aughenbaugh: Yes, and moreover, most of you all would tune us out within the first five minutes because you'd be like, I really don't want to hear about some arcane tax case.
N. Rodgers: I was going to say tax cases or stuff that's so procedural that no one cares. Even SCOTUS Blog or Justia covered it because they had to, but not because they wanted to.
J. Aughenbaugh: You imagine being the reporter or staff member who got assigned a civil procedure case. Really?
N. Rodgers: You're just sitting there trying to stay awake.
J. Aughenbaugh: The first case is a biggie. This comes from the state of Tennessee, US versus Skrmetti. This is the case where Tennessee was defending a law that it passed that banned gender affirming care for transgendered minors. The Biden administration, the ACLU and parents of one child, I believe in Tennessee, all brought a lawsuit. The question that the court decided to answer in this case is whether or not the Tennessee law violated the Equal Protection Clause of the 14th Amendment.
N. Rodgers: Basically, can the state put this ban into place?
J. Aughenbaugh: That's correct.
N. Rodgers: We will see that it has happened several times in there. They did not talk about the underlying issue of the case. They're answering the question, can Tennessee do this not should minors be allowed to or not allowed to or whatever. They're not answering that question.
J. Aughenbaugh: That is correct. This is your standard constitutional question. Did the state of Tennessee have the authority to pass this law, or did the law violate the Equal Protection Clause of the 14th Amendment? Now, mind you, to put this in context, listeners, about half the states, 24 states have similar bans. This has been an issue that has been percolating. Does that make sense?
N. Rodgers: Yeah. It makes sense that the Supremes would want to answer the question of do states have the power to do this? Do states have the power to ban this kind of care?
J. Aughenbaugh: Yes. Now, the court decided on a vote to 6-3, and it was the conservatives, meaning the justices appointed by Republican presidents versus the liberals, those appointed by Democratic presidents, the court held 6-3 that the Tennessee law did not violate the Equal Protection Clause of the 14th Amendment.
N. Rodgers: It is constitutional?
J. Aughenbaugh: It is constitutional.
N. Rodgers: For a state to make this ban. Makes sense for them with states rights and that sort of thing.
J. Aughenbaugh: Yeah. This is a court. We are in an era of the Supreme Court where first, the Rehnquist court, the court led by Chief Justice Rehnquist. But then one of his former clerks, John Roberts, became chief justice. They have been in favor of states rights. Roberts wrote the majority opinion, and he said that the law did not discriminate against a class of individuals in this case, gender, which the court previously held was a suspect classification. So therefore, neither intermediate or strict scrutiny applied. Now, for our listeners, Nia and I, a couple of years ago, did an episode about tests of the Supreme Court. When the court uses judicial review to review the constitutionality of a law, for instance, the court basically has three choices in regards to using judicial review. The most difficult for the government to satisfy is known as strict scrutiny, and it's typically used for race. Intermediate scrutiny is typically used in regards to laws that have sex as a classification, men versus women. Rational basis review, which is the easiest for the government to satisfy, because all the government has to show is it had some rationality in passing the law. Is the easiest to satisfy. According to Roberts, Tennessee only had to satisfy rational basis review. Why? Because historically, states using their police power, which is to protect or promote public health and safety has been allowed for laws targeting minors.
N. Rodgers: You can't buy cigarettes before you're 16.
J. Aughenbaugh: Yes.
N. Rodgers: Before 18 in many states. It's because we try to protect children from becoming addicted to cigarettes, to smoking.
J. Aughenbaugh: There are laws in regards to driving. You can't get your learner's permit in most states until you're 16.
N. Rodgers: You have to have an adult with you in a car, and there's all kinds of rules in many states which don't apply to you once you're past a certain age.
J. Aughenbaugh: That's right.
N. Rodgers: Marriage is another one of those where you can't marry below a certain age because they can't consent and all that sort of thing.
J. Aughenbaugh: You are not ready to make good decisions.
N. Rodgers: We should assume that about most people, I would think, no matter what their age, that's the servant law. Although I assume that the other side was arguing on intermediate because of sex.
J. Aughenbaugh: That's correct.
N. Rodgers: Nobody was trying to go with strict, but they were trying to go with it should be intermediate, not rational and rational won the day in terms of the court.
J. Aughenbaugh: Yeah. Justice Sonia Sotomayor had the lead dissent. She argued that gender identity laws, laws that basically target individuals because of the gender identity they have chosen, should have received intermediate scrutiny. If so, she applied intermediate scrutiny to the Tennessee law and said that Tennessee failed both prongs of the intermediate scrutiny judicial review. Again, those two prongs for intermediate scrutiny, the government must have a legitimate interest in making differences between sex or as Sotomayor was arguing, gender, and then, second, the policy had to be rationally related to that legitimate interest. She said Tennessee couldn't satisfy either part of intermediate scrutiny. What was also noteworthy was the number of concurring opinions.
N. Rodgers: Were there 84 concurring opinions?
J. Aughenbaugh: Justices Thomas Alito in the big shock, Coney Barrett, wrote separately, and they all did so to emphasize that this case was not really a difficult one for the court to decide because these three justices contended that the ACLU and the Biden presidential administration were making arguments that the court had never accepted in regards to equal protection under the law. Basically the conservatives on the court were saying to supporters of transgendered rights, "You need to get legislation and court rulings at what level if you want protection?"
N. Rodgers: I assume at the state level.
J. Aughenbaugh: That's right. The state level.
N. Rodgers: Well, the other thing is, and not to put too fine a point on this and I'm not trying to argue one way or another, whether it should be the case, but currently, your gender presentation is not a protected class, correct?
J. Aughenbaugh: Correct.
N. Rodgers: When they list off the things that are protected class in various titles, gender identity has never been one of those. Are they saying that that's where you have to start? Is that you have to get a recognition of gender presentation as a protected class, and then you can talk about these laws.
J. Aughenbaugh: What's interesting here, Nia, is if you think about it in what you just mentioned, and Sotomayor's dissent touches upon this briefly, about maybe four years ago in the Bostock case, the court in a 5-4 decision, and the majority opinion was written by Gorsuch, said that the 1964 Civil Rights Act protected transgendered individuals in regards to employment discrimination. But there, Gorsuch's majority opinion focused on the language of the law because the law says you can't discriminate against somebody because of sex. He said sex could be interpreted to include transgendered individuals, but the difference, according to the majority in this case, is that the Biden administration and the ACLU were arguing that the Tennessee law violated the constitution. Again, the ban was not in the employment context; it was transgendered children not in the employment context. The 64 Civil Rights Act would not apply because the Tennessee law was not focusing on employment.
N. Rodgers: You and I discussed privately before this episode that the court has been extraordinarily careful about how it views children.
J. Aughenbaugh: Yes.
N. Rodgers: That children are a whole different preacher than people who are over the age of 18 and are viewed in a very different way. The court has had, I think, a history of being cautious about children and children in the law and what applies to children, what doesn't apply to children.
J. Aughenbaugh: To your point, Nia, in our next podcast episode, we're going to be looking at a case that arose from Texas that requires age verification before minors can access porn sites on the Internet.
N. Rodgers: Again, coming back to that question of minors, youth, and how do we protect youth or how do we adjudicate youth.
J. Aughenbaugh: That's right. For my former students who are listening to this episode, this should take you back to civil rights/civil liberties, where we looked at a whole bunch of cases regarding free speech, particularly pornography versus obscenity, where children and how they are depicted, and whether or not children should have access to porn. The Supreme Court has tended to defer to state governments who have passed laws to protect children in ways that they cannot restrict or regulate adults accessing that speech content.
N. Rodgers: That has to do a lot with the court's idea that states' rights are basically the community setting boundaries for itself.
J. Aughenbaugh: Yes.
N. Rodgers: One community may set one boundary and another community may set another boundary. That's an acceptable patchwork because of the way communities police themselves.
J. Aughenbaugh: Yes.
N. Rodgers: Again, they did not address whether minor children should have the right to have transgender care. They didn't get into that. That was not the question they were answering. The question they were answering was, can Tennessee ban this, and apparently Tennessee can, which settles it for the other states as well, because that means that the other states' bans will hold.
J. Aughenbaugh: Yes. It also means that your state could decide to not ban. It's a state matter. Now, where this is also going to potentially apply, and we will discuss this in a future podcast episode, the Supreme Court has already decided to take a couple cases concerning state bans on transgendered athletes participating in competitions.
N. Rodgers: That'll be interesting.
J. Aughenbaugh: The court has decided to look at that in its next term. That was a pretty well-known case that many in the media covered. Our next case is one that may have slipped underneath the radar, but I still think it's somewhat important. It's the case of Diamond Alternative Energy versus the Environmental Protection Agency.
N. Rodgers: You know what's interesting to me about this case?
J. Aughenbaugh: What's that?
N. Rodgers: Kagan joined the conservatives.
J. Aughenbaugh: Yes, she did.
N. Rodgers: Often, it is six, three, six, three.
J. Aughenbaugh: We will discuss this in a future podcast episode about how two of the current Supreme Court justices have been criticized by, shall we say, their usual fans because they have been willing to cross over the ideological lines. One of whom is Justice Elena Kagan. As Nia pointed out, the vote in this case was 7-2. Kagan joined the conservatives. What was at issue in this case, Nia, was whether or not fuel producers had legal standing. That's the right to stand in front of a court and say they've been wronged.
N. Rodgers: Right to sue.
J. Aughenbaugh: The right to sue. Because they wanted to bring a lawsuit against the EPA, which had approved California's regulations requiring automakers to alter their fleet of new vehicles. California had passed a law and they received the EPA's permission to do this that would require more electric vehicles and fewer gas-powered cars. Why this is really important for the automobile industry is California has a whole bunch of people who do what, Nia?
N. Rodgers: Drive.
J. Aughenbaugh: Yes.
N. Rodgers: They have many, many highways, full of cars.
J. Aughenbaugh: That's right.
N. Rodgers: It cannot be understated how much the California market drives things like automobiles in the United States because between California and Texas, that's the two. If those two make laws, whatever it is that is being done, everybody else will have to fall in line because their markets are so huge.
J. Aughenbaugh: The fuel producers are the ones. We're talking about professional and trade associations representing people, companies.
J. Aughenbaugh: Gasoline.
N. Rodgers: Right. If you're switching over to EVs, you're hurting their market.
J. Aughenbaugh: Big time.
N. Rodgers: That's like we now have hover cars. You know who's gonna come out against hover cars? Tire makers. Because why would they not. If you don't need to change your tires as often, they lose money. I understand them asking, hey, can we sue? Can we say this is not cool?
J. Aughenbaugh: The majority said the fuel producers had standing to challenge the EPA's approval.
N. Rodgers: I think is interesting. They're not saying they'll win. They're not saying they'd side with the fuel producers. They're just saying the fuel producers do have a legal ball game as it were.
J. Aughenbaugh: Yes. What is really funny, and the reason why I brought this case up, right, is that the vote in this case challenges accepted, if you will, notions about who on the Supreme Court is in favor of standing versus who's typically against.
N. Rodgers: It's usually the liberals are like, more standing, more standing. Everybody can sue. Let's all sue. I'm suing you for looking at me sideways.
J. Aughenbaugh: Open up their house doors and let the people in.
N. Rodgers: Let juries decide. Basically, that's where the liberal. And the conservative tends to be, your standing needs to be based on you were actually personally individually harmed and you were a witness to the homicide and you were like, I mean, it used to be all these narrow.
J. Aughenbaugh: That the government is the reason why you were harmed. By the way, you need to convince us that we can actually address your harm.
N. Rodgers: Conservatives give huge sided to standing, usually.
J. Aughenbaugh: Usually.
N. Rodgers: This time, they were like, Standing, schmanding, let them do it. Let's see what happens.
J. Aughenbaugh: When you read the majority opinion, okay, which was written by Kavanaugh, and then you read the dissent, which I believe was written by Again Sotomayor, you almost get the sense that they were copying, pasting from other justices opinions.
N. Rodgers: The other side.
J. Aughenbaugh: From the other side, you're just like, what am I reading here?
N. Rodgers: But can I ask a question about that, Aggie cause it is part of the reason that the conservatives in this instance are giving standing to fuel producers is because if the EPA gave California permission to do this, they essentially made a federal law without making a federal law.
J. Aughenbaugh: Yes.
N. Rodgers: Is that why the conservatives are crabby about?
J. Aughenbaugh: Yes. Because again, this is going to go back to.
N. Rodgers: This was a backdoor way of making a federal law. If you make it that it has to happen in California to a vehicle in California, no carmaker is going to make it just California only. They're going to make it for all the vehicles.
J. Aughenbaugh: This is the long standing conservative complaint that government experts at the federal level. Are frequently making policy without the people's elected representatives in Congress having input.
N. Rodgers: Because Wyoming if this was put up for a vote in the Senate, Wyoming would say, Why should I care about that? First, we can't have EVs here because nobody can drive that far on one charge of an EV. Like, there would be a whole different I mean, I'm not trying to slam Wyoming or Montana, but.
J. Aughenbaugh: No, I mean, you are correct.
N. Rodgers: The infrastructure there and it would be a lot more costly than it would be in California where it's going to get used a lot.
J. Aughenbaugh: Again, there's no guarantee that the fuel producers are going to win, but it's going to force the federal government to go ahead and explain why they signed off on the California regulation. Now, let's also be very clear. The Trump administration has already indicated that they intend to rescind the EPA's approval of what California did. What's California preparing to do?
N. Rodgers: Sue.
J. Aughenbaugh: Sue the federal government.
N. Rodgers: To keep the EPA ruling.
J. Aughenbaugh: That's right.
N. Rodgers: What you're telling me is this case has spawned or not this case, particularly, but this question has spawned a lot of lawsuits. Because California. We're just going to sue the Trump administration slash the EPA and say no take you Bies. That's not how this is allowed to work. And then the question will be, that'll be an interesting question for Scots, which will Tan a president rescind another president's.
J. Aughenbaugh: Approval of what a state did when historically, this is a court that defers to state policy innovation.
N. Rodgers: That's going to be painful for them.
J. Aughenbaugh: Yes.
N. Rodgers: Well, that'll be fun to watch.
J. Aughenbaugh: Now, the next case also somewhat technical and arcane.
N. Rodgers: It is the best.
J. Aughenbaugh: But it has some real life impact. And the name of the case is Kennedy versus Braidwood Management. Now, the Kennedy in question is the current Secretary of Health and Human Services. Braidwood.
N. Rodgers: Kennedy junior?
J. Aughenbaugh: Yes. Braidwood Management, is a company that challenged a federal government task force that makes recommendations on preventative care coverage requirements in the Infamous Affordable Care Act. This is basically the task force that says, we think health insurance companies should cover following preventative care, if you will, medicines, procedures, etc.
N. Rodgers: Visit. They have to cover you for visits, if you need to go see somebody for something.
J. Aughenbaugh: Again, this is the task force that when they make the recommendations and the Secretary of Health and Human Services approves them, then by law, health insurance companies have to cover them. Now, the challenge was to the structure of the task force.
J. Aughenbaugh: Again, this is in the weeds in regards to.
N. Rodgers: How many people are on this task force?
J. Aughenbaugh: We should both know this. How many is on there? I want to say a dozen, a dozen people? Sixteen. Sixteen. Thank you very much. I always like it when Nia asked these questions that I went ahead and put the number in our prep notes, and then I forgot the number.
N. Rodgers: Sorry, I only do that because I want listeners to know. This is 16 volunteer experts?
J. Aughenbaugh: Yes.
N. Rodgers: On this task force.
J. Aughenbaugh: Yes.
N. Rodgers: The theory is that, and I believe if I'm correct, my memory may be completely wrong about this, but I think that they are different doctors, it's not just general practitioners. There's also mental health, and there's also oncologist. There's lots of different things that are covered. Basically, what they come up with are things like if your doctor says for preventative care that you need exercise bans, those should be covered under the ACA that you able to get exercise bans from your medical professional at no cost to you because they're preventative.
J. Aughenbaugh: I'll give you a really good example now. For Americans, once they hit 50, it is recommended you get a colonoscopy.
N. Rodgers: For a mammogram for women.
J. Aughenbaugh: Yes. That was a recommendation that came from this task force. When I turned 50, I remember my doctor saying, Aughie. Your insurance will cover colonoscopy. I was just like, Joy. He goes, well, it's actually recommended.
N. Rodgers: Good for me. He's like, but you need one.
J. Aughenbaugh: You need one, and by the way, it's recommended by the federal government task force. I remember the conversation, and I was just like, so I can blame this on the feds. He goes, Aughie, just go get one. But nevertheless. The complaint here was, this independent panel of experts was appointed by the Secretary of Health and Human Services. But by law, they didn't need to be nominated by the president and confirmed by the Senate.
N. Rodgers: Yet what they say.
J. Aughenbaugh: But the Supreme Court.
N. Rodgers: Becomes legal, becomes required. There is no accountability.
J. Aughenbaugh: Yes.
N. Rodgers: For these people being chosen. We don't know who these people are. They could just be 16 giant monkey heads who come up with all Kokame crap, and the Senate didn't get any power to say, yes, these people should be making what will eventually be health policy for people.
J. Aughenbaugh: Again, listeners.
N. Rodgers: I can see the lawsuit for that.
J. Aughenbaugh: Again, listeners, think about the constitutional process here. If you're the head of Health and Human Services, like Robert Kennedy Junior, you have to be nominated by the president and confirmed by the Senate.
N. Rodgers: Theoretically, there's accountability if you go out there and say, crazy stupid stuff, you can be held accountable in some way. You can either be impeached by the Senate or.
J. Aughenbaugh: Removed by the president.
N. Rodgers: You can be publicly held accountable.
J. Aughenbaugh: However, in a vote of 6:3, and it wasn't conservative versus liberal. It was Kavanaugh Roberts, Coney Barrett, plus the three liberals, the court said, the structure of the task force is constitutional. Why? Because the members of the task force are "inferior officers," and per the Constitution, Congress gets to decide how inferior officers take their jobs and may be terminated, okay?
N. Rodgers: I see. I also see that they make a recommendation, but it only becomes required coverage if the Secretary approves it. Because he can be held accountable.
J. Aughenbaugh: Accountable. Yes.
N. Rodgers: Their work can be held accountable. They are within the constitutional I see.
J. Aughenbaugh: Yes.
N. Rodgers: That's how they view it as it's not them making policy because if they were making policy, that group would be very different and probably that decision would have been different.
J. Aughenbaugh: That's right.
N. Rodgers: Because that policy still has to be approved by somebody who is appointed by.
J. Aughenbaugh: President and confirmed.
N. Rodgers: Confirmed. I see. Isn't that a strange bedfellows group of people?
J. Aughenbaugh: Oh, yes.
N. Rodgers: Everybody took a shower after they wrote that one.
J. Aughenbaugh: It runs counter to the usual, media narrative that it's always the Conservatives versus the liberals. Now, what's also fascinating about this, Nia, is more than likely, by the end of this year, Secretary Kennedy, if he is true to what he's already done as Secretary of Health and Human Services, is going to force all the members of this task force to do what?
N. Rodgers: Resign.
J. Aughenbaugh: Resign and he's going to appoint people that he and Trump like because he's already done that on the Health and Human Services vaccination Board.
N. Rodgers: The Liberals are going to rethink their position. They will then be crabby about this because stuff that will start to come out of that task force will be things that they don't think.
J. Aughenbaugh: That's right.
N. Rodgers: Are appropriate.
J. Aughenbaugh: But this is fascinating.
N. Rodgers: Thomas didn't like this.
J. Aughenbaugh: Oh, my goodness, no.
N. Rodgers: But he may like it in the future when it reflects Kennedy's vision for the AHHS. Or he may not. He may continue his argument. His argument, though, is very.
J. Aughenbaugh: He is a unitary executive argument. He is making an argument that his former colleague Scalia made when Scalia was on the Supreme Court, which is, if Article 2 of the Constitution says that the president should faithfully execute the law, how can the president faithfully execute the law when there are people who are making significant policy recommendations that are not controlled by the president. For Thomas, joined by Alito and Gorsuch, the members of this task force are not inferior officers. They have significant policy, if you will, implications because prior to this case, their recommendations were hardly ever overturned by the previous Secretaries of Health and Human Services.
N. Rodgers: They were essentially unelected secretaries, unelected.
J. Aughenbaugh: Yes. They didn't have to go through the appointment process laid out in the US Constitution.
N. Rodgers: Which Thomas would not care for. If you're going to be making policy, you should be.
J. Aughenbaugh: Under the control of the political branches. Congress just can't go ahead and Willy Nilly come up with this unusual, if you will, policy recommendation process, with appointed experts. No. These people are making significant policy, and per Article 2 of the Constitution, the president has to take care to faithfully execute the law. You can't do that if you can't fire these people. Now, let's be very clear. As we just discussed, what more than likely is going to happen by the end of this calendar year.
N. Rodgers: Force their resignations.
J. Aughenbaugh: Trump will tell Rob, Secretary Kennedy, get rid of these Schmos. They've been making too many recommendations that have had a huge impact on the health insurance industry.
N. Rodgers: Or Kennedy will just get rid of them because he doesn't like what they're proposing?
J. Aughenbaugh: Yes. Which could also be true, as we've already seen.
N. Rodgers: Although what's interesting is that he wants everybody to wear a monitoring device to help them keep up with things like their heart rate and it would be interesting if he put that into law because ACA would have to cover it.
J. Aughenbaugh: Yes.
N. Rodgers: Device your little Apple Watch may have to come from the government at some point. Anyway.
J. Aughenbaugh: I don't even wear an Apple Watch. Do you have one?
N. Rodgers: I have a way knock off. I do not have. I got you. An Apple watch because that's an investment that I have not.
J. Aughenbaugh: Last case we're going to cover this episode. Again, this case is a constitutional law, administrative law, excuse the expression.
J. Aughenbaugh: It's like our best case scenario. We live for these types of cases.
N. Rodgers: You're administrative law gobs. You have your things that come up that you're like, somebody break out the popcorn and the beer. We're getting show now.
J. Aughenbaugh: What was that issue here was, did Congress violate the Constitution when it authorized the Federal Communications Commission to set the amount that telecommunication providers must contribute to the USF, the Universal Service Fund, which is designed to ensure Internet service around the country. Basically, Congress wrote authorizing legislation for the FCC and allowed the FCC to come up with a system that would tax, telecommunication providers. That money would go into the USF, the Universal Service Fund, which was designed to build out Internet service.
N. Rodgers: To rural America.
J. Aughenbaugh: To rural America.
N. Rodgers: Because if you left it to AT&T and T-Mobile and Comcast and whoever else, they would focus on the cities and to the exclusion of people who live in rural parts of the country because it wouldn't be worth it to provide service to those folks. But if everybody has to chip in, all of those companies have to chip in, then money can be put aside to help build out that infrastructure.
J. Aughenbaugh: We're talking about Internet services for schools, libraries and rural areas, low income communities and urban areas. Now, the Supreme Court held in a 63 vote that Congress did not violate the Constitution. What was at issue here, is a longstanding theory or doctrine, that has bedeviled administrative law, scholars, and the Supreme Court. It's known as the non-delegation doctrine. The basic idea of the non-delegation doctrine is, Congress can't delegate its lawmaking powers to other institutions. Why? Because the people approved the Constitution and specifically said, which branch is the lawmaking branch of our federal government?
N. Rodgers: The legislative branch.
J. Aughenbaugh: The legislative branch.
N. Rodgers: You don't get to get out of doing your job?
J. Aughenbaugh: That's right.
N. Rodgers: I don't get to say, Aggie, you're so much better librarian than I won't you do my job, and I'll just sit back here and eat some peanuts. That's not how that works.
J. Aughenbaugh: That would be like the president of VCU saying, I know that the Board of Visitors has given me the authority to go ahead and make recommendations about tuition. But, Aughie, you're a public administration geek. Why don't you go ahead and do that? No, the Board of Visitors would be like, why are we paying you the big bucks, President Ralph?
N. Rodgers: Exactly.
J. Aughenbaugh: We got Aughenbaugh here to go ahead and teach classes. That's it.
N. Rodgers: The theory behind the way the government is built is that if the legislative branch does not do their job properly, they can be held to account. Those are called elections. They can be removed from doing that job if they are not doing that job properly. Whereas, if they delegate it to agencies, who the heck knows who's actually making those rules and that we're all being expected to live by.
J. Aughenbaugh: What was interesting in this case, Nia is, what the FCC did was they created a nonprofit corporation to make recommendations. The FCC turned around and took its delegated authority and delegated to another body.
N. Rodgers: That seems like a terrible idea.
J. Aughenbaugh: But Kagan, writing for the majority, said that under the courts non-delegation precedents, "Congress sufficiently guided and constrained the discretion that it lodged with another institution, the FCC, with regard to implementing the federal program at issue." What she's basically saying here is, since 1935, when the Supreme Court used the non-delegation doctrine twice to overturn two FDR new deal programs, the court has basically signed off on Congress delegating its authority to the executive branch, as long as Congress gives guidance and principles that the agency has to follow. According to Kagan, there is nothing in this lawsuit to suggest that the FCC delegating its authority to this nonprofit corporation undermined what Congress wanted to achieve, which was to increase Internet connectivity and access, where?
N. Rodgers: In the rural areas. Mostly rural.
J. Aughenbaugh: Mostly rural areas, but also schools and low income areas within urban communities, however.
N. Rodgers: FCC gives a set of rules to this. As long as it gives a set of rules that fall within what Congress intended and what Congress gave, then this nonprofit is fine. They can do that.
J. Aughenbaugh: Like in our previous case Nia.
N. Rodgers: Can I hear Alito screaming from here about this?
J. Aughenbaugh: It wasn't Alito.
N. Rodgers: Really?
J. Aughenbaugh: It was Neil Gorsuch. Gorsuch writes a 38 page treatise as a dissent.
N. Rodgers: Thirty eight page. Let me start. Then 27 pages later, he says, then hama, and 31 pages. Then hama. That's a long descent. Usually descents are what? Three, 4, 5 pages. They're not usually.
J. Aughenbaugh: If they're really upset, it goes to 8-10 pages. He must have had three of his clerks work on this bad boy. Because this thing was 38 pages.
N. Rodgers: He had a whole pot of coffee before he started.
J. Aughenbaugh: Yeah. His conclusion was, "The majority opinion defies the Constitution's command that Congress may not transfer to another branch powers which are strictly and exclusively legislative." Now for administrative law geeks, what's fascinating is we could have bet the firm that after the Loper Bright decision where the Supreme Court said Chevron deference to agency interpretations of the law was no longer going to work. We would have thought that after that, this would be an ideal case for the court to go ahead and resurrect the non delegation doctrine. The majority said, ''We're going to pass on that, we're going to pass''. However, do note that for all of those groups that have been challenging Trump administration policies and executive orders that they don't like, and they were hoping to use the non-delegation doctrine, you might want to come up with a different argument because the Supreme Court was like, sorry, that ain't going to fly. If you want to challenge tariffs, reducing the federal government workforce, impounding funds, and you want to go ahead and say, this is legislative, not executive. This violates the non-delegation doctrine? Supreme Court said, ''Don't think so. You're going to have to come up with a different argument''.
N. Rodgers: Interesting. Everything that's based on DOGE is going to have to find a different argument, then this is not what Congress intended. Well, apparently, it is or as long as they have parameters.
J. Aughenbaugh: It's been fascinating reading my fellow scholars on this, because whole bunch of them don't like what Trump's been doing in his second term. They coalesced around a set of arguments. One of which was, we can dust off the non-delegation doctrine. This court might accept that logic. The court, in this case, said [inaudible] .
J. Aughenbaugh: Again, it's fascinating because, again, the vote here was 6-3. It was the three Liberals plus Roberts, Kavanaugh and Coney Barrett, and Kagan wrote for the majority.
N. Rodgers: Kagan is writing a lot these days.
J. Aughenbaugh: No, when we get to our last episode and we look at the stats, you will see that Kagan and John Roberts didn't write very much at all this term.
N. Rodgers: Just happens to be in these last couple of cases.
J. Aughenbaugh: Yeah, last couple of cases, but it was Gorsuch joined by Thomas and Alito that were like, No, congress could not delegate its explicit authority in this way.
N. Rodgers: I feel a little bit dirty saying that I see their point. I see the point of the founders intended for the legislators to legislate. They didn't intend for them to say, well, we can just pass that off to the executive. You and I have complained a great deal of the last hundred years, how much power has been ceded to the executive branch. That is slowly eroding checks and balances. I feel a little queasy, because those are not three justices that I normally agree with, but I do think that they have a point, which is a larger point of, okay, but every time we allow this slide to happen, you get further and further away from what the intent of the Constitution was, which was to have a system that checked each other, rather than everybody saying, well, let's just let the president do it.
J. Aughenbaugh: Kagan's majority.
N. Rodgers: No Kings. That's the point. That was the point back then. It's the point now. I saw a really great sign that said, fighting kings since in 1776. I'm like, I love that because, the more you delegate that into the executive, the more you're creating this grounds for a crown or at least a dictator.
J. Aughenbaugh: Well, and to me, this is just fascinating because Kagan's majority opinion was not wrong. The Supreme Court since 1935, has allowed this. Gorsuch's larger point is the one that you just described.
N. Rodgers: This slide has been going on since 1935.
J. Aughenbaugh: What? Again, this cuts both ways ideologically. Again, think about the Trump administration policies of this term, which a whole bunch of people don't like, but they're struggling to find constitutional legal arguments to challenge in federal court. The Supreme Court just said to them, well, one of the ones you were hoping to use, you can't. It's one that historically Conservatives have used, because this challenges the whole big federal government, big executive branch, the bureaucracy is too large. Congress needs to do more of its work.
N. Rodgers: Well, and also the Conservative point of view of less power to the federal government, more power to the state.
J. Aughenbaugh: States, yes.
N. Rodgers: But I'll be interested to see where it goes. The other thing for me that people need to keep in mind, at least in my opinion about this is you don't like Donald Trump's executive orders, but if you like Joe Biden's executive orders, then that's not how this can work. Either the president can, as Bill Newman and I once discussed, get rid of broccoli or he cannot. There isn't this thing, well, if I like the president and I don't like broccoli, I'm fine with it, but if I like broccoli and don't like the president, heck, no, you can't get rid of broccoli. Like, that's not how this can work if we want to continue to have elections. If we just want one president forever, a king, or a dictator. If we just want one and we want to complain vociferously about that person's orders, okay, but Americans, we have a tendency to not like things when one person does it and be okay with it when another person does it.
J. Aughenbaugh: In terms of history, remember we fought against the office of king or queen. Accumulating power over centuries. It didn't matter who was king or queen.
N. Rodgers: We were grubby about the crown.
J. Aughenbaugh: Yeah, we were worried about the crown and the powers it had accumulated over the years. We are now at a point, as you just mentioned, okay, that it doesn't matter if it's Trump or Biden or Obama or Bush 43. They have been using powers that were adopted in previous century or previous decades. In some of those instances, we liked it. When FDR was playing fast and loose and basically was telling Congress, you're subservient to me many in the country were like, okay, fine. We're in a depression, and then we're in a war, and we needed a leader. Fine, but if that was good for FDR, then why wasn't it good for a next president or successive president. At that point use whatever metaphor you're comfortable with. The cat's out of the bag. Pandora's box has been open. The train has left the station. Well, at that point, the train has left the station.
N. Rodgers: Well done, cliche, man.
J. Aughenbaugh: Okay, it is around the corner, and the brakeman decided to take a coffee break. It's but are you willing?
N. Rodgers: Well, but is the argument that we find ourselves making over and over is when does powerful become too powerful? That's the argument we're having now, and I suspect that's because we're an adolescent country. We're at that age where we're trying to figure out when is power enough? When is it too much? But we'll see what happens with the lawsuits. Some of them side note listeners, like the federal workforce firings, reductions, whatever you want to call it. Some of that has to do with labor law that will be argued in the basis of, oh, no, their contracts said a certain thing and you can't do things outside those contracts. There have to be negotiations, there have to be blah-blah. Not all of that is immediately dead in the water, but the court is eroding the amounts of arguments that can be made.
J. Aughenbaugh: Listeners, you're going to hear an acronym with the example that Nia just used. I think it's worthwhile to understand what the acronym means. You're going to hear RIFs, reduction in force, and that's what R-I-F means, reduction in force cuts.
N. Rodgers: States can do it as well as federal government.
J. Aughenbaugh: This is going to be as Nia points out, there have been a whole bunch of lawsuits. Most of the district court judges who have heard them have suspended them. Though as we will discuss in our next podcast episode, they might not be able to suspend them as in total or as effectively as they may have hoped, but nevertheless, you're going to hear that acronym, RIF what it stands for is reduction in force. These are the infamous dose cuts. All right, Nia.
N. Rodgers: Although North Carolina has done that when I was an employee there, there were RIFs. States do it when they run into financial difficulties, they can RIF out some of the employees, and there's all rules about how you do that and everything.
J. Aughenbaugh: I remember not so fondly. I was in Virginia. Governor Wilder, Doug Wilder was the governor. The state had a budget shortfall, and he ordered across the board spending cuts, and universities were not exempt, and many universities like many state agencies, reduced their personnel because for many state agencies, and this is particularly the case for state and local governments, a huge driver of budgets are personnel costs. Nia and I know this first hand at VCU. We've seen estimates from the VCU budget office where well over 90% of VCU's budget costs are tied to personnel, salary and benefits.
N. Rodgers: When you have to cut, you have to let people go?
J. Aughenbaugh: Yes.
N. Rodgers: There's always something to be aware of when you work for the federal or state government.
J. Aughenbaugh: Yep. That's this episode. Next episode, listeners, we're going to take a look at the remaining Supreme Court decisions of Note. We got some big ones and some controversial ones. Thanks, to Nia.
N. Rodgers: Thank you, Aughie. Then if we're planning out ahead, and then the one after that will be the last one, which will be our wrap up episode. Our wrap up episode is things where Aughie tells me who wrote the most and who wrote the least and who said the most and who said the least and all that other stuff, which I think is cool and fascinating because it's just gives you a snapshot of the members of the court. Then he will guide us through what the next term is that we know of, because with Donald Trump, all things are possible, including lawsuits we didn't see coming.
J. Aughenbaugh: Also be aware that at this point of the summer when we were recording, the Supreme Court's only filled roughly about 30% of its docket for its next term.
N. Rodgers: They'll take lots more cases.
J. Aughenbaugh: Cases. That's right. Thanks, Nia.
N. Rodgers: Thanks Aughie.
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