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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.
FEMALE_1: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. And now your host, 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'm X. How are you?
J. Aughenbaugh: Good, but I'm feeling a little offensed in.
N. Rodgers: Ah, see if I was going to say that I'm feeling like I want pickles and ice cream. Which is things that don't go together because we have no theme for today's episode. We have the other three cases, as we call them in the title, the last three that we wanted to talk about this summer, because they are important and because they will have some carryover into future, we think future cases.
J. Aughenbaugh: Yeah, again, this is an episode listeners as part of our Summer of Scots 2026. Previous episodes, we've gone through important Supreme Court decisions. And in those episodes, we tried to go ahead and pull together similar themed cases. But these ones.
N. Rodgers: They're just a Smorgasburg. They are a mixture of all kinds of things.
J. Aughenbaugh: Yeah, it's really hard to find the connective tissue, other than the fact, as Nia just pointed out, we think these are going to be important cases going forward. And these are cases that probably got lost in the media coverage of the Supreme Court's massive dropping of cases.
N. Rodgers: See earlier birthright citizenship and voting and things like that people just getting fired left and right or not getting fired left and right.
J. Aughenbaugh: Campaign finance and transgendered athletes, etc.
N. Rodgers: All of which are important. And we're not saying that those cases are less important. We're just saying that these cases don't really follow a huge theme, but we do think they need to be pointed out.
J. Aughenbaugh: The first one listeners, we want to go ahead and examine, is a case interestingly enough that arose right in our backyard, the Chatrie versus United States case. This case, and I'm going to jump ahead to the case facts because I've been asked about this case quite a bit by the local media. This is a case that arose when a man armed with a gun entered a federal credit union outside of Richmond, Virginia. He gave the bank teller a note demanding money. He made off with almost $200,000.
N. Rodgers: Because that's what you should always do if you're being robbed because money is never worth your life.
J. Aughenbaugh: That's right. So if you're being robbed in any situation, you should hand over whatever money it is that you have. Money is replaceable and you are not.
J. Aughenbaugh: And in particular, and you may have seen this listeners in various movies or TV shows. Banks have insurance. They are required by federal law.
N. Rodgers: Most businesses have insurance.
J. Aughenbaugh: Sure.
N. Rodgers: So if you're at your job and somebody jumps in there and says, Give me the money in the register, you should say, here, would you like me to put it in a nice bag for you? Like, you should be as friendly as you can and cooperative as you can, because you do not want a person with a gun to shoot you over the $200,000 in the tail, your life is worth way more than that.
J. Aughenbaugh: So after the bank robbery, local law enforcement officials did not have any leads, okay?
N. Rodgers: Yeah. They had no idea. They had no idea who did it. Which really, when you think about it, that's pretty good crime.
J. Aughenbaugh: Okay.
N. Rodgers: I'm not saying crime is a good thing, but I'm saying in this particular instance, this was not one of those dumb criminals that ends up on TV because they run from the bank to the nearest bar, and then they go, I just rob that bank. They start buying drinks for everybody, and then they wonder why they get caught. Like, that is not what happened here.
J. Aughenbaugh: Yeah, he didn't like sign the note to the teller and put his last name, right?
N. Rodgers: Right. Or drop his driver's license on the way out the door or something like that.
J. Aughenbaugh: Local law enforcement didn't have any leads, but one of the investigators came up with an idea. He asked for what's known as a geofence warrant and served it on Google, and he got the warrant from a judge, and geofence warrant basically directs a technology company, for instance, to provide location data for cell phone users. In this instance, cell phone users who were near the bank at the time of the robbery.
N. Rodgers: I guess tried that with different phone companies, but they went with Google because Google does all the phone companies.
J. Aughenbaugh: Yes.
N. Rodgers: So AT&T, Mobile all those guys, Google handles all that.
J. Aughenbaugh: Yeah. Now, the information that Google provided came in three trances, three bunches, if you will. First, Google gave law enforcement officials a list of 19 accounts, but without the names attached, linked to devices that were within 150 meters of the bank during the 30 minutes before and after the robbery. Second, based on this list of 19 accounts, the government asked for additional information about nine of these 19 accounts that were in the area during a two hour period. Third step, a detective asked for and received the names and information associated with three of the nine accounts. And for each of these steps, they got a judge to sign off on the warrant.
N. Rodgers: The new warrant?
J. Aughenbaugh: Yes. Which, by the way, to Google's credit, they required each of these warrants before they go [inaudible] .
N. Rodgers: Like the first time we'll tell you accounts, but we're not going to give you names.
J. Aughenbaugh: Names. That's right.
N. Rodgers: Like, they were trying to protect as much as they could the data of their users.
J. Aughenbaugh: Relying on this location data, law enforcement officials obtained another warrant to search two residences linked to Chatrie. At one of them, they found $100,000 of the stolen cash, a gun, and various demand notes.
N. Rodgers: Did he practice writing them?
J. Aughenbaugh: Yeah, he had drafted.
N. Rodgers: That's what I would do. If I was going to do a demand note, I would rewrite. I would wordsmith it so I didn't sound like an idiot.
J. Aughenbaugh: Yeah, and also probably reflecting our advanced degrees. Listeners, this probably doesn't come as a shock. Nia and I like, draft emails. In some cases, we even draft emails to one another, right?
N. Rodgers: Right. I draft shopping lists. It's ridiculous, but yeah. So not surprised. But that's his handwriting with a demand note, that they can match to the demand note from the bank, and say, this is a handwriting analysis.
J. Aughenbaugh: Prosecutors charged Chatrie with bank robbery. He asked the trial judge to bar prosecutors from using the evidence that was obtained as a result of the geofence warrant arguing that the warrant violated the Fourth Amendment. Specifically, he argued that there was not enough probable cause. Now, for listeners, a real brief primer about the Fourth Amendment. The Fourth Amendment prohibits unreasonable searches and seizures by the government.
N. Rodgers: They couldn't just start shaking down everybody's house in the 50 mile radius saying, we're just going to start looking for that money wherever we can find it. You have to have reason to believe that that money is in John Aughenbaugh's and not in anybody else's house around him so that you can get a warrant to go in his house and actually look.
J. Aughenbaugh: The first part does not require a warrant if the search is reasonable. But you can get a warrant, this is the escape clause for the government in the Fourth Amendment. You can get a search warrant, but it has to be based on probable cause. So remember, there are three parts to the Fourth Amendment. The Fourth Amendment prohibits an unreasonable search.
N. Rodgers: Which is what I was talking about.
J. Aughenbaugh: Second part, what defines a search and seizure, which was not really at issue in this case. But then the third part was at issue in this case. Did the cops have probable cause to convince a judge to give them a search warrant? At the trial, the district court judge said the search warrant more than likely did not have the kind of probable cause and specificity that the Fourth Amendment required. However, if there was a violation, law enforcement acted in good faith. This is known as the good faith exception to the search warrant requirement.
N. Rodgers: They weren't trying to violate his Fourth Amendment rights.
J. Aughenbaugh: Yes. And if there was a problem with the issuance of the search warrant, the district court judge basically put it on the judge who issued the search warrant.
N. Rodgers: Not the cops.
J. Aughenbaugh: We aren't going to be excluding this evidence because the cops acted in good faith. They went through the process. The judge who issued the warrant, more than likely, according to the district court judge, should have rejected it. The evidence gets brought in.
N. Rodgers: Clearly, the jury finds him guilty at that point.
J. Aughenbaugh: Okay.
N. Rodgers: Well, he pleaded guilty because at that point, he was like, Oh.
J. Aughenbaugh: I'm screwed.
N. Rodgers: This is over. Because they've got the evidence. And if you rule that how they got the evidence was acceptable, then I might as well plead guilty. What he was trying to do is root of the forbidden tree. He was trying to get at the idea of, you would never have found that evidence if you had not used improper means to find me.
J. Aughenbaugh: Me. That's right.
N. Rodgers: You would not have been found the leading evidence.
J. Aughenbaugh: Listeners, what Nia is describing is known as the exclusionary rule. Chatrie was arguing that per the exclusionary rule, the gun, the cash, the draft notes all should have been thrown out.
N. Rodgers: Right. Because if you didn't have probable cause to go in there and find it, then everything that you find is not viable.
J. Aughenbaugh: Well, that's right. Now, he pleads guilty, as Nia points out. He pleads guilty, but he retained the right to appeal the district court's ruling allowing the prosecutors to use the evidence that was obtained through the geofence warrant.
N. Rodgers: I have to admit I like that. I will plead guilty, but I reserve the right to, if you throw out that evidence, change my plea.
J. Aughenbaugh: That's right.
N. Rodgers: Which is what he's basically saying. I did it, but if you can't prove I did it, I'm going to recant my admission that I did it.
J. Aughenbaugh: He did it. That's right. He gets 12 years in prison and an additional three years of supervised release. He appeals to the Fourth Circuit Court of Appeals, which, again, guys this is like right down the street in a courthouse from where Nia and I work at VCU,. Fourth Circuit Court of Appeals rules against him by a vote of 2-1. The majority reasoned that law enforcement officers had not conducted a search for the purposes of the Fourth Amendment because Chatrie could not reasonably expect two hours worth of location data to be kept private.
N. Rodgers: Because he used Google, which is a public service. If he had used some private location data service, he might have had that expectation, but Google is open to everybody. It's a public service.
J. Aughenbaugh: Yes. He appeals the Fourth Circuit Court of Appeals ruling to the Supreme Court, and the Supreme Court, by a vote of 6-3 sent Chatrie's case back to the lower court to consider whether, as the Fourth Amendment requires, the search was reasonable.
N. Rodgers: This will still be a fight. They haven't actually answered the question of geofencing. What they're letting the lower court do is fight out the question of geofencing. Is geofencing a reasonable search?
J. Aughenbaugh: That's right. Now, what's interesting here was the vote was 6-3, but it wasn't-.
N. Rodgers: Your normal three.
J. Aughenbaugh: Yeah. Six Conservatives versus the three Liberals. In fact, the majority opinion was assigned by Chief Justice John Roberts to Elena Kagan. And Kagan, writing for the majority, emphasized that "An individual has a reasonable expectation of privacy in records about his cell phones location, and police intrude on that constitutionally protected interest when they demand the information even though for only a limited time and from a third party tech company." In other words, what she's saying is, we want the lower courts to go ahead and address a number of salient issues in regards to geofence warrants.
N. Rodgers: What is the expectation of privacy?
J. Aughenbaugh: Do you give up that expectation of privacy when you allow a third party tech company to access your location? This came out during the oral arguments. Many Americans don't understand that their cell phone unless they disable it.
N. Rodgers: Gives data location all the time.
J. Aughenbaugh: It's on.
N. Rodgers: To phone companies, to Google, to a variety of entities.
J. Aughenbaugh: And if your phone uses Google.
J. Aughenbaugh: To give you an example, Nia, my cell phone, the map application, is run by Google.
N. Rodgers: The Internet feature.
J. Aughenbaugh: Yes. Unless I disable it. Google always knows where I am.
N. Rodgers: Because on a regular basis, you hand your phone to your kid and say, Find a Thai restaurant near where we are. Google uses your location to do that. She puts in Thai restaurant, and then she says, Do you turn left at the next light? We're going to a Thai restaurant. Because it can figure out where you are. You like the convenience of that, which is fine. But it does mean that someone else has access to your data, and they can be compelled through a warrant; they will give up that data.
J. Aughenbaugh: Yeah. The lower courts haven't figured this out yet. The Supreme Court, in effect, punted this, but they gave Chatrie some hope. But for our purposes, listeners, what we want to point out to you all is this is yet another example of how the law is struggling to keep up with technology and how the public uses technology and how the public frequently doesn't pay attention to the underlying issues of when it uses technology.
N. Rodgers: Eighteen of the 19 people involved at the beginning of this case did not commit this crime.
J. Aughenbaugh: Yes, right.
N. Rodgers: Their data was soaked up as part of this initial search. They could have just as easily been accused of this crime if Chatrie had not been more obvious to the police for some reason. That's a scary proposition.
J. Aughenbaugh: Very good point, Nia, very good point. This is the reason why we wanted to flag this case, listeners.
N. Rodgers: This is going to boomerang. This is coming back.
J. Aughenbaugh: Yeah. This is going to come back.
N. Rodgers: Because they've been now using these geofence warrants to find people and do stuff. Part of me is like, do we know what the reliability of the information is? When you ask Google for that, how do you know that Google is giving you an accurate representation of the 19 people who were there or who might have been there or who might not have been there? I don't know. It's really scary. This is a scary case to me.
J. Aughenbaugh: Think about it after the first, if you will, tranche or wave of information given by Google, that was 19 different accounts. Let's face it, folks. It was a bank in a suburb of Richmond. What if we were talking about a bank in Midtown Manhattan?
N. Rodgers: Here's 685 people's information for the 10 minutes before and the 10 minutes after.
N. Rodgers: Or a sporting event like the Super Bowl or the World Cup. Give it up. There's 108,000 people in this stadium. Are you kidding me?
J. Aughenbaugh: All that information is being turned over to law enforcement. This is where it gets scary.
N. Rodgers: We already have a surveillance state concern in this country.
J. Aughenbaugh: Yes.
N. Rodgers: With track cameras and all kinds of stuff that find you when you think you're not being found. I hate to say that I think I might agree with Alito, Thomas, and Barrett. I do think that there is the potential for this to really upset the way that we view the Fourth Amendment and what constitutes reasonable and what constitutes.
J. Aughenbaugh: Probable cause for a warrant.
N. Rodgers: Do you really have the probable cause for those 19 people? I don't know. I feel really creepy about that.
J. Aughenbaugh: Yeah.
N. Rodgers: I just happened to be driving by at the time Miss Chucklehead is in there.
J. Aughenbaugh: Committee-owned robbery.
N. Rodgers: Right. Now I'm somehow swept up in all that when I wasn't even when I was just going to 7-Eleven down the street. I'm just going for slushy, people. I don't know what we're doing here. I don't understand. But somehow I'm involved in it. If the cops never come to a resolution, do they come to my house and pound on the door and say, We want to search your house because we think you might have been involved in a robbery? Huh? I was just getting a slushy. What are you talking about? Yeah.
J. Aughenbaugh: Think about the number of times I have told you that I've been someplace. I need a coffee fix. I type into my map application on my phone "nearest Dunkin' Donuts" or "nearest Wawa." For our non-Mid-Atlantic listeners, a Wawa is a convenience store that I think has really good coffee. There I am getting my coffee fix, the nectar of the gods. I get swept up simply because a guy across the street was robbing a bank.
N. Rodgers: You're like, dude. I was just getting coffee. To bring it to our campus, an assault happens in the dorm.
J. Aughenbaugh: Yeah.
N. Rodgers: Within 450 feet of that person is how many people? Could be as many as 50 people who had nothing to do with it. But now you're going to have to go through all those people with a fine-tooth comb and see who may or may not have been involved in this assault. I don't know. It just seems like that could get out of hand quick. I will be interested to see what the lower courts do with that, but I do agree with you that part of it is that technology gets way out ahead of where law enforcement is and where we are as a society and how we view justice in these cases. Because you want some guy to be found but you don't want a whole bunch of innocent people to be found and then be accused and have all that drama.
J. Aughenbaugh: Again, how many of us actually know how to disable the Google tracking on our phones? This came up during the oral arguments.
N. Rodgers: Google is making that harder and harder, too.
J. Aughenbaugh: Yes.
N. Rodgers: Because it's their business model. Then in our next case, we're going to talk about crazy business models, too.
J. Aughenbaugh: Yes. My goodness, yes.
N. Rodgers: Involving my favorite evil company. It's actually not my favorite evil company. What's the agriculture? Con Agg. That's my favorite evil company. But my second favorite evil company is Monsanto. Anytime I hear the word "Monsanto," I know that one, it's involving a legal case because they sue for people breathing air. Like they just sue for everything.
J. Aughenbaugh: They get sued because of their products.
N. Rodgers: People think there aren't companies that are everywhere. Monsanto is everywhere. Are you connected to geofence on Monsanto?
J. Aughenbaugh: Crazy. Our next case, listeners, is Monsanto versus Durnell. This is a case in regards to whether or not Monsanto can be sued in state courts. Because they failed to have cancer warnings on labels for their products that are pesticides that kill pests.
N. Rodgers: Yeah. If you're wondering which product, generally speaking, that's Roundup. Common users, sorry, regular people use. There's also agricultural ones that they do that are larger, coming out of planes and all kinds of stuff like that. But I'm talking about when you go to Lowe's; generally, what you're doing is you're buying a bottle of Roundup.
J. Aughenbaugh: Yeah. What's at issue here, in some ways, is a very arcane dispute based on whether or not Roundup can be sued in state civil court. Or because their products, and in particular, the chemicals used in their products are regulated by the federal government. May they only be sued in federal court, and in a large part of what's at issue in this Monsanto versus Durnell case is the claim made by Monsanto that the Food and Drug Administration, the FDA, even to this day refuses to require Monsanto put a warning label on their pesticides. Very clearly what we're talking about is Roundup.
N. Rodgers: Is that from the FDA or the EPA?
J. Aughenbaugh: Excuse me. It's the EPA. Though interestingly enough, the EPA does consult with the FDA in regards to whether or not the chemical causes cancer.
N. Rodgers: We'll make food bad for people or animals to eat.
J. Aughenbaugh: Yeah.
N. Rodgers: EPA has rules right about labeling and what you have to put on, and labels have to be standardized; their standardized language in label. A quick primer on federal government labeling. Yeah. The reason that federal government labels tend to use the same language, for instance, the same cancer warning is on every pack of cigarettes regardless of what company makes it, because they want you to use certain words to convey certain messages. If they left it up to companies, they would soften those words by saying, "could potentially cause harm, maybe." Because otherwise, if you say, My product will harm you; go ahead and drink it anyway," you would not do that. That's why they have standardization in labels.
J. Aughenbaugh: Yeah. The vote in the case was seven to two. The two justices, again, Supreme Court rulings lead to strange bedfellows. The two dissenters were Justices Ketanji Brown Jackson and Justice Neil Gorsuch.
N. Rodgers: Yeah, hardly ever did those two line up. When we do the Roundup with all the times they lined up, I would be willing to bet this was the only time that they lined up.
N. Rodgers: Or pretty close.
J. Aughenbaugh: Let's delve into the case facts, Nia. The court's ruling comes after decades of debate in litigation over the safety of a particular chemical, glyphosate. It's a highly effective and popular herbicide that is the main ingredient in Monsanto's Roundup weed killer. Since 1974, when the EPA first reviewed registered glyphosate-based pesticides, the EPA has repeatedly concluded that such products do not need to carry a cancer warning. The interesting thing here is the EPA makes this determination. That's fine.
N. Rodgers: Don't worry about it. It's not cancery.
J. Aughenbaugh: But in 2015, the International Agency for Research on Count on Cancer, which is a part of the World Health Organization [inaudible]. Yes.
N. Rodgers: Hang on a minute.
J. Aughenbaugh: Glyphosate is probably carcinogenic to humans. This report led to tens of thousands of lawsuits. Against Monsanto.
N. Rodgers: Big surprise, by the way that Americans heard that and went, "We are litigious. We shall sue."
J. Aughenbaugh: Yes.
N. Rodgers: Because we sue over molecules moving in the air. We sue over cracks in the sidewalk. When we heard, "It's possibly carcinogenic or probably carcinogenic," we were like, payday.
J. Aughenbaugh: Payday. Again we have Tort lawyers.
N. Rodgers: That's who I mean by we. I don't mean regular people. Regular people who actually have contracted cancer probably thought, "I may get some relief for all the bills that I have had to pay."
J. Aughenbaugh: Yes. All these potential plaintiffs, one of which was John Durnell, brought cases typically in state court, contending that the company was liable for failing to warn them about the alleged link between this chemical and cancer. Monsanto's response was, "Hey, wait a minute here."
N. Rodgers: EPA doesn't say we have to have a cancer warning.
J. Aughenbaugh: That's right.
N. Rodgers: We've only been doing what the EPA has told us to do.
J. Aughenbaugh: To do. Since Congress gave the EPA the authority to decide which chemicals need to be labeled and which ones shouldn't, are we legally liable for any harm that may have been caused? What's interesting to note here is that in the past decade, Monsanto has settled numerous cases. They paid billions in damages.
N. Rodgers: Can I say the name of the act?
J. Aughenbaugh: Yes.
N. Rodgers: It's while it was being clarified. This act is called the Federal Insecticide, Fungicide, and Rodenticide Act. FIFRA.
J. Aughenbaugh: Yes. FIFRA.
N. Rodgers: Notice it's federal insecticide, fungicide, and rodenticide, which authorizes the EPA to regulate the use, sale, and labeling of pesticides and which includes a uniformity requirement prohibiting states from imposing any requirements for labeling or packaging in addition to or different from those required "by the federal government."
J. Aughenbaugh: That's right. Basically what Monsanto was asking the Supreme Court to decide is if FIFRA Trumps supersedes any of these state civil liability proceedings, all of these cases.
N. Rodgers: Can you sue about this in state court? If you take Monsanto to state court and say your thing was improperly labeled, they're saying, wait. Doesn't FIFRA negate that?
J. Aughenbaugh: Yes, negate, or supersede what states are allowing you all to do to us as a corporation.
J. Aughenbaugh: The Supreme Court agreed with Monsanto. The court held that FIFRA expressly preempts a state law failure-to-warn claim against the company because such a claim would require the company "To add a cancer warning to Roundup's label that is not part of the EPA-approved label." This outcome, in the majority opinion, was written by Justice Kavanaugh, runs afoul of FIFRA's uniformity requirement. Nia, you just read that uniformity requirement. What's at issue here is what's known in constitutional law as the preemption doctrine. At the risk of raising Nia's Ire, the preemption doctrine is rooted in the Commerce Clause.
N. Rodgers: Of course it is.
J. Aughenbaugh: The Supreme Court created the preemption doctrine post New Deal to make it clear to states and businesses that commerce which crosses state lines is the constitutional domain of the federal government, no matter how Congress deals with, or the authority which it delegates to the executive branch. In this case, the EPA. Kavanaugh said, because of our preemption doctrine, once Congress delegated this authority to the EPA, then if you got a problem with Monsanto's Roundup, you need to persuade the EPA.
N. Rodgers: To declare a carcinogen and require that it be put on the label, potentially carcinogenic or whatever.
J. Aughenbaugh: Yes.
N. Rodgers: Or potentially or probably, whichever one.
J. Aughenbaugh: Yes.
N. Rodgers: I have a process question for you. Anything where Monsanto has paid.
J. Aughenbaugh: A settlement.
N. Rodgers: A settlement. Thank you. I was looking for the word. Will people have to pay that back, or will Monsanto just walk away because it would be worse pressed to try to beat these people up for money than it would be to just not have any more of these? Do they want to stop the hemorrhaging or do they want to backtrack and get money?
J. Aughenbaugh: Monsanto just indicated that they just want to stop all these lawsuits
N. Rodgers: They want to not pay going forward, not that they want to worry about going back.
J. Aughenbaugh: From what I read, Nia, most of the settlements were written by tort lawyers who were smart enough to go ahead and say, even if this future litigation indicates that these cases should be moved to federal court and not state court, Monsanto still agrees to pay the settlement. Then the settlements always have a non-disclosure agreement. I would be shocked if Monsanto tried to claw back the billions of dollars they've already paid out. What Monsanto wanted to end was.
N. Rodgers: Forward-going lawsuit. At the state level, if you want to sue us, you have to sue us.
J. Aughenbaugh: At the federal level.
N. Rodgers: Federal court. We need one case where it's decided. Wouldn't that be a class action thing?
J. Aughenbaugh: It would be a class action thing, but the problem is now Monsanto has seven justices of the Supreme Court that say it's basically the EPA's decision. Until the EPA says otherwise, as far as the federal government is concerned, there is not a link between Roundup and cancer. This is huge, by the way. Justice Jackson, in her dissent, went ahead and said the Supreme Court should have rejected the preemption argument, which is ironic because historically, the justices on the Supreme Court who liked the preemption doctrine have been the liberals. It was liberal justices on the Supreme Court that created the preemption doctrine, because they were tired of the states not holding businesses responsible for any harms that they created. They basically were like the federal government post-New Deal, much larger, generally more liberal, would go ahead and use the Commerce Clause to impose regulations on the behavior of corporations, because many state governments didn't want to impose regulations on businesses, because they would run the risk of the business leaving their state for another state that was more lax. In terms of rationality, state governments were like, we're not going to be regulating these businesses. We want these businesses. They provide jobs. They provide tax revenue, etc. If you got the Commerce Clause, let's be very clear, Roundup is sold all over the country. In fact, all over the world.
N. Rodgers: World. Yes.
J. Aughenbaugh: It's definitely commerce that is interstate and international. That's the domain of the United States Congress.
N. Rodgers: It exists in the world of commercial enterprise. Monsanto is not a nonprofit. It is definitely a commercial enterprise. What I think is she wrote from a very human point of view that Durnell cannot get a remedy.
J. Aughenbaugh: That's right.
N. Rodgers: Which I understand her logic in that. What Monsanto is saying is even if our chemical is killing people, the EPA says it's not killing people. Until the EPA changes their mind, we don't have to care.
J. Aughenbaugh: Yes.
N. Rodgers: Which is one, not a good look for Monsanto, but Monsanto doesn't care about its appearances, because it sells billions and billions of gallons of Roundup every year. It is the preeminent company that sells it. It sells that herbicide.
J. Aughenbaugh: If you know farmers can't farm without products made by Monsanto. If you know landscapers and people who cut yards and do landscaping, chances are their trailers, their sheds all have Monsanto, we kill pesticides, etc. To your point, Monsanto basically just wanted to stop spending so much time in court because here's the other thing many listeners don't understand. According to tax laws, these settlements paid out can be written off on a corporation's taxes. It's a business loss.
N. Rodgers: But you still have to pay for them.
J. Aughenbaugh: You still have to pay for them. You have to also pay.
N. Rodgers: Time and the lawyers' effort, and the bad press. Every time your name comes up with cancer attached to it in some way. Frankly, from Monsanto's point of view, it will be significantly harder for people to lobby EPA than it will for Monsanto to lobby against changing EPA's stand, because Monsanto has an inordinate number of lobbyists. Mr. Durnell has himself. Even if he gathered a whole bunch of people who had been harmed, the chances that they will outweigh Monsanto in an EPA lobbying situation are pretty low. Monsanto probably likes their odds with keeping EPA the way it currently is.
J. Aughenbaugh: Sure.
N. Rodgers: That will depend on administration, too. Who knows what will happen if there's a change of administration.
J. Aughenbaugh: What's interesting to note is even during the Biden administration, the EPA did not change its decision.
N. Rodgers: Or 74 would also include Clinton. That would also include Carter.
J. Aughenbaugh: Carter. Yes.
N. Rodgers: There were other opportunities. But anyway, Monsanto wins currently, but we'll see how that goes forward. We'll see if that spurs people to say, then we'll get the EPA to change the ruling. It may be that World Health Organization will also lend pressure to that from the outside of really? Because our studies show blah blah. We don't know where it's going to go.
J. Aughenbaugh: From a constitutional law perspective, the case fascinated me simply because of the preemption doctrine, because for decades, conservatives have hated the preemption doctrine. But what I found fascinating was most of the justices.
N. Rodgers: All six got on board, or five of the six got on board.
J. Aughenbaugh: Most of the justices are still using the preemption doctrine. I'm just like, I guess we're no longer debating the merits of the preemption doctrine. The preemption doctrine cuts both ways. States might not like the preemption doctrine, but hey, depending on who's in charge of the Congress and the presidency, the preemption doctrine may work for your policy interests. Now, speaking of if there was a connective, if you will, tissue to these three cases, it's how court cases can affect individuals, [inaudible] in regards to geofence warrants, Durnell in the Monsanto case. But our third and last case that we're going to look at is Landor versus Louisiana. The question was pretty simple. May a state prisoner, somebody in a state prison, sue prison officials who violated his religious freedom rights in federal law when they shaved his head? Now, if you guys didn't know the case facts here, Landor had three weeks left in his sentence when he was transferred to the Raymond La Bord Correctional Center in Louisiana. Landor was a devout Rastafarian who, as part of his faith, grew his hair for nearly 20 years without cutting it.
N. Rodgers: I could be wrong here, but I believe the original dreadlocks came out of Rastafarian faith. Old favs have a lot of prohibitions about cutting hair. That's why you see a lot of long beards in certain faiths and a lot of long hair in certain faiths.
J. Aughenbaugh: I was going to mention orthodox Jews. Yes.
N. Rodgers: Sikhs there's lots of people around the world with various religions that have prohibitions against cutting their hair.
J. Aughenbaugh: That's right. Now, in the two previous prisons where he resided, he had been allowed to keep his hair long, typically under what's known as a rastacap. You may see this with certain Rastafarians. When he arrived at the new prison, he told the prison guard conducting the inmate intake procedures. He was a practicing Rastafarian, and he gave the guard a copy of a ruling by a federal Appeals Court holding that Louisiana's policy of cutting Rastafarians' hair violated a particular federal law. The federal law in question are Lupia, which is Religious Land Use and Institutionalized Persons Act. The ruling also mentioned that other federal and state provisions regarding religious accommodations protect Rastafarians. The guard took the papers from Landor, threw them in the trash, and called the ward. The warden arrived, he ordered the correction officers to take Landor to another room where they handcuffed him to a chair, held him down, and shaved his head. At this point, Landor went to federal court in 2021, relying on a provision of this federal law that allows individuals to bring lawsuits against the government and government officials for appropriate relief. The lower courts, however, threw out his lawsuit, holding that the federal law does not allow private individuals to bring claims for monetary damages.
N. Rodgers: Remember, he's not a prisoner at this point. He's been released, because he was only three weeks out of his prison sentence. Basically, they moved him there to be released.
J. Aughenbaugh: Landor appealed the Fifth Circuit Court of Appeals ruling, and rather remarkably, with what's been going on in regards to review of the Fifth Circuit Court of Appeals, the Supreme Court upheld the ruling of the Fifth Circuit Court of Appeals.
N. Rodgers: In favor of the prison officials.
J. Aughenbaugh: In favor of the prison officials.
N. Rodgers: Mr. Landor lost his case. He was not allowed to sue the prison officials.
J. Aughenbaugh: Officials. That's right. The vote was six to three. It was conservatives versus liberals. The majority opinion was written by Justice Gorsuch. Gorsuch explained that when Congress enacted this law, they did so per its authority in the spending clause. This gives the federal government the power to spend money to provide for the general welfare of the United States. Now, Gorsuch acknowledges that this clause gives Congress the authority to put conditions on the money it distributes, in this case, to state prisons. But it can only impose sanctions for violations of those conditions if the recipients of the fund have knowingly and voluntarily consented to those sanctions. In other words, when Congress wrote this law, did Congress plainly state that when Louisiana prisons.
N. Rodgers: Take federal money.
J. Aughenbaugh: Take federal money, that they have legally obligated their officials to be sued for violating the federal law. Gorsuch said there is no plain language in that federal law that specifically requires or imposes a requirement that state prison officials can be sued for violating the federal law in question.
N. Rodgers: Does that mean that he could go back and sue the Louisiana prison system as a system?
J. Aughenbaugh: Yes, he could.
N. Rodgers: Rather than individuals?
J. Aughenbaugh: He could.
N. Rodgers: Well, that's what I would do. Seriously. Come on. Guys got three weeks and you're going to violate him in this way when you don't have to. What I don't understand is why they felt like his Rastafarian faith and his hair imperiled his three weeks in prison, what did they think he was going to do? Strangle people with his hair? Like, come on.
J. Aughenbaugh: Well, I get the fact that there are prisoners who hide contraband in hair, body parts, etc. I get all of that. But this federal law was passed in the 1990s. Louisiana, what they did to him was 2.5 decades later. This is a well known federal law. What they did here, they had to know that they were violating federal law. Hell, he even gave them.
N. Rodgers: The law, which they threw away.
J. Aughenbaugh: Which they threw away. Feelings.
N. Rodgers: I understand there will be people out there who will say prisoners have no rights. If you've committed a crime, you have given up your your rights. That is not true. They are still humans, and they are still allowed to have religious beliefs. They are still allowed to have personal beliefs, they're allowed to do all things that as long as whatever they're doing is not violating further law, which his hair was not doing, then this was done to be spiteful.
J. Aughenbaugh: To make it very clear, we're in charge.
N. Rodgers: Losing control. Just that I have feelings.
J. Aughenbaugh: Again, and when I say this in class, a lot of times students are just like, Wow, Aug, you're being really cold. I'm like, guys, these cases, Yes, are about particular human beings. In this case, Landor and his religious practices. There is a larger debate going on here among the justices that I think listeners might want to pay attention to, which is, Gorsuch writing for the majority is seemingly indicating that if Congress is going to allow individuals to sue government officials, the Congress will have to issue a very clear statement that if you accept federal money, you are also accepting the liability where you could be sued in court. This is known as the plain statement rule. Now, the plain statement rule, typically Nia, was used in regards to state institutions. For instance, if Virginia accepted money from the Department of Education, but then they turned around and didn't use the money appropriately or they violated.
N. Rodgers: They spend it on roads. No.
J. Aughenbaugh: Then parents and their children could sue because Virginia did not use the money appropriately. But they could sue the institution, not the state officials. That's where the plain statement rule was used previously. What Gorsuch is doing is extending the plain statement rule now to prison officials. In his majority opinion, he had a number of examples. By the way, these came up during oral arguments. Gorsuch wrote, for example, that it did not matter that they received paychecks from the Louisiana Department of Corrections, which had received federal funding. He said, Okay, that would be giving Congress 'effectively unbridled police power, ' and then he gave examples. This would require coaches at universities that receive federal funds to permit transgendered athletes to play women's sports or bar doctors at medical practices that accepted federal funds from administering certain vaccines to children. With the prospect that they could face lawsuits if they did not comply with those conditions. He said, Where in this federal law, did it say if state prison officials violated Landor's religious freedom beliefs, they could be sued individually in federal court. Because would a state be willing to accept that when they would have to turn around and tell all their employees, Hey, by the way, since you work here and we've accepted federal money, you could be sued if you violate federal law. On the other hand, as pointed out in the dissent, Ketanji Brown Jackson argued that no matter how clearly Congress speaks, all that matters is the response it elicits. State prison officials have an obligation to follow federal law. Without state prisoners being able to sue them in federal court, how can we make sure that state prison officials will comply with federal law?
N. Rodgers: 'Cause once it's done, they'll say, What are you going to do about it? Which I have mixed feelings about this. Part of me that believes in some level of immunity for individuals who are carrying out government functions.
J. Aughenbaugh: Particularly if it's discretionary. I see your point. But here, this was not discretionary, there was a rule.
N. Rodgers: There was a law, and they took it and they wadded it up and they threw it over their shoulder and they said, Now let's go cut your hair. There's a part of me that that is angry on Mr. Landor's behalf, and I don't know if he is African American. I don't know that for sure, but I know that Rastafarian as a faith is not treated with the same respect that Christianity is. Or Judaism or Islam, the big three. Once you get out of the big three that people can name, you start getting into these weird areas where people feel like it's okay to take off a Sikhs turban. They're like, No, no, no. You're not allowed to they're not allowed to be exposed. What's wrong with you? If a person tells you that this is their faith, then okay, what you say to them is, Okay, but every time I think you may have contraband, I'm going to go through your hair. I'm going to feel your hair in a different way, and you just have to put up with it. That's not great, he has to start over.
J. Aughenbaugh: Yes.
N. Rodgers: When he gets out of prison, growing his hair again and respecting his faith again. That's just a really weird. It's a weird power dynamic move. I think you're right that I find distasteful. You already own the keys to the very tiny little room in which he lives. You have plenty of power. You don't need to be cutting off his hair. You don't need to be disrespecting his faith in addition to that.
J. Aughenbaugh: You mentioned something a few minutes ago, Nia, that has always bothered me when I hear people say, Well, they're prisoners. They violated the law so we do not have to honor their civil liberties. I'm like, Well, wait a minute, here. Your elected officials in Congress passed a law that says prison officials do, have to recognize civil liberties.
N. Rodgers: Hello, isn't that what separates one like civilized people from non civilized people is how they treat their prisoners and their children. It's the most vulnerable, your elderly, your children, and your prisoners. How you treat them tells the world who you are.
J. Aughenbaugh: When we put them in prison, we are accepting an obligation as a society. We're going to take care of them. Yes.
N. Rodgers: Clothe them, provide them with covering out of the weather.
J. Aughenbaugh: Shelter, etc.
N. Rodgers: Right.
J. Aughenbaugh: At the same time, if, again, our elected officials say in federal law, like they did in this particular case, that you have to honor their reasonable religious practices.
N. Rodgers: My religion is child sacrifice, so when you just provide me with babies from here on out so that I can sacrifice them every Saturday? No, thank you. We are not recognizing that as a religion. But I need my hair to be grown out. You and a whole bunch of other people are fades.
J. Aughenbaugh: There is an accommodation here, and you mentioned it. Well, Landor probably would not appreciate prison officials on a regular basis. The last three weeks he was in prison.
N. Rodgers: Searching his hair.
J. Aughenbaugh: Searching his hair. I understand.
N. Rodgers: He probably would have preferred that.
J. Aughenbaugh: That instead of his hair being cut off. I understand why prison officials do searches of prisoners' bodies because they do hide stuff in their bodies. We know this. But at the same time, there is an accommodation, and the federal law requires it. What Gorsuch is saying, and Brown Jackson's dissent really emphasizes this is, are we now going to require Congress with its spending to issue such plain statements which will more than likely lead to these laws never being passed. Because you can't get agreement in Congress to issue plain statement. I'm sorry. Right. That's like, Nia, you and I, in our department committee meetings trying to get plain agreement. We may agree on stuff, but we have six or seven different interpretations of what we actually agreed to. Are you serious?
N. Rodgers: This one was really hard.
J. Aughenbaugh: I wonder how far the court's going to take what Gorsuch is pushing. Because Gorsuch also mentioned this in regards to the transgendered athlete cases. Because he went ahead and mentioned coaches
N. Rodgers: Can coaches be sued individually for not allowing a transgender girl onto a women's team?
J. Aughenbaugh: Yes. He was just like if Congress.
N. Rodgers: Wants transgender woman onto a women's team.
J. Aughenbaugh: If Congress wants this and they're spending money they give to the states for educational purposes.
N. Rodgers: They're using money to control it.
J. Aughenbaugh: Yes. 'cause think about Title 9 in regards to high school and collegiate athletics and opportunities for women. Is Title 9 a law that will allow somebody to sue a coach or an athletic director for not giving certain opportunities required by law? Well, according to Gorsuch unless Title 9 explicitly says that, those lawsuits should be prohibited. Because there is not a plain statement that these individuals are allowing. That's right.
N. Rodgers: I guess on the other hand.
J. Aughenbaugh: Yes.
N. Rodgers: I don't know how much the intake guy at the prison makes.
J. Aughenbaugh: Yeah.
N. Rodgers: But that's the other thing, too, is a lot of these questions would apply to people who don't make very much money. It's not like they are presidents of universities who are pulling down $1 million a year. Who could take a lawsuit or two without too much personal damage. These guys are making 30, 40, $50,000 a year, 40 or $50,000. They're not pulling down enough money for a lawsuit to be.
J. Aughenbaugh: I always like to joke in Nia. You heard it.
N. Rodgers: It would be life altering for somebody at that financial situation.
J. Aughenbaugh: If Landor wanted to go ahead and really send a message, suing the individual prison officials more than likely is not going to lead to a huge financial windfall.
N. Rodgers: But what he should do is go back and sue the entire Louisiana prison system and say, you were obligated to train your people better so that they knew the law and did not violate my rights. You have not met your obligation of training, and I was punished by that, so I want retribution. I want financial, whatever. That remuneration. That's the word I'm looking for. That's what I would do if I was I'd be like, right, then I'll sue them for not training these guys better.
J. Aughenbaugh: I would definitely look at the state civil court system, for that lawsuit.
N. Rodgers: Well, we'll keep an eye out then.
J. Aughenbaugh: In our last episode, listeners, just to give you a little foreshadowing, our last episode for our summer Scots, we look this is a favorite feature of both Nia and I. We look at the statistics, trends on the court, and we also note upcoming cases that the Supreme Court has already accepted for its docket for the next Supreme Court term, so that will be our last episode for the Summer students.
N. Rodgers: What we'll spend next June being on Tender Hooks about?
J. Aughenbaugh: Exactly.
N. Rodgers: We're going to know about them now, but we won't hear answers for another year. Aughie. Well, I'm looking forward to that, and then we'll wrap up and take a tiny little break for a few weeks while we both go. Then we'll begin in the fall. I'm looking forward to our wrap up. I'm looking forward to hearing all the statistics. I love that part. I love the part of how many people agreed? How many times did they agree? Who most agreed? Who least agreed. Who wrote the most words?
J. Aughenbaugh: Who spoke the most? Which lower courts in state courts got stuff back.
N. Rodgers: It's always fascinating.
J. Aughenbaugh: See you Nia.
N. Rodgers: Thank you. You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the workshop for technical assistance. Music by Isaac Hobson. Find more information at guides.library.vcu.edu/DISCOURSE. As always, no documents will harm to the making of this podcast.