Subscribe
Share
Share
Embed
Aughie explains many of the tests that the U.S. Supreme Court uses in deliberation to arrive at their case opinions.
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.
Announcer: 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 Aughe.
J. Aughenbaugh: Good morning Nia. How are you?
N. Rodgers: I'm excellent. How are you?
J. Aughenbaugh: I am good. I am particularly enthusiastic to continue our discussion from our previous podcast episode looking at tests used by the United States Supreme Court and by default, lower federal and state courts.
N. Rodgers: Yes, and I just want to note for the record, this is a Part 2. If you haven't heard Part 1, this one might not make as much sense. You should probably go listen to Part 1. Sometimes our Part 1's and Part 2's are separated and it's okay to listen to one before the other. Not in this case. Because we're going to reference some stuff that we talked about before.
J. Aughenbaugh: Yes.
N. Rodgers: Because we're going to get to the end, I want to finish the test parts, and then I want to talk to you about intent. Because a huge amount of this is based in the idea of intent.
J. Aughenbaugh: Yes.
N. Rodgers: But, you have in your notes something that I think is interesting. How does the government know when it has established a religion?
J. Aughenbaugh: Okay. The last episode finished with a discussion of the Miller test, which looked at freedom of speech, and in particular, the Supreme Court tried to figure out a way to give guidance as to protected speech, i.e. pornography. Pornography is protected by the 1st Amendment, but obscene speech is not. But there are other clauses of the First Amendment that are also particularly difficult to interpret and apply. One of which is the-.
N. Rodgers: Oh, sorry. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, rest of the amendment.
J. Aughenbaugh: Yes.
N. Rodgers: What I shouldn't say it like it's a blow-off, sorry, it is an important amendment, it's the first one for a reason.
J. Aughenbaugh: But nice reference to one of the famous catchphrases from the TV show Seinfeld.
N. Rodgers: Yes. That's where yada comes from for the young people who didn't see Seinfeld or you just say it as if it's habit, like I do. No law respecting an establishment of religion or prohibiting the free exercise thereof. That means if I'm reading correctly, which I could be wrong, that theoretically, the founders did not want a state religion, meaning a federal religion. They didn't want the federal government to say, and tomorrow we shall all be Catholic or whichever one. I'm not picking. I can't be Protestant or Scientologist or whoever. They also didn't want the federal government to say, no one shall be Catholic or Protestant or a Scientologist.
J. Aughenbaugh: Or religious in general. That's right because.
N. Rodgers: They didn't want the government to either make you all be something or make you not be something.
J. Aughenbaugh: Religion was a significant issue for many of the framers.
N. Rodgers: That's why they bailed out of England, right?
J. Aughenbaugh: Yeah, because a whole bunch of the colonists migrated from Great Britain, for a number of reasons. But one of the most prominent was religious freedom. Because in Great Britain at that time, you basically had to be a member of the Anglican Protestant faith. If you weren't, you could be prosecuted.
N. Rodgers: Insert Henry the 8th here.
J. Aughenbaugh: Yeah.
N. Rodgers: It's a long thing and we're not going to go into that history, but they had an established religion. They had a state-established religion?
J. Aughenbaugh: Yes. You had no choice. You had to participate in the religious life of the British Crown.
N. Rodgers: They had wars over whether you are going to be Catholic or Anglican?
J. Aughenbaugh: Yes.
N. Rodgers: Because they had various monarchs over the years that went back and forth.
J. Aughenbaugh: Forth. That's right.
N. Rodgers: Between the two.
J. Aughenbaugh: The difficulty for the former colonists was, on one hand. How do you make sure that there is not a national established religion? But on the other hand, how do you protect those who want to be religious?
N. Rodgers: Right?
J. Aughenbaugh: Now, let's look at that the first religion clause, the Establishment Clause. How does the government know when it has gone too far in regards to its relationship with religion?
N. Rodgers: When it has overprotected a religion? We're not talking about the federal government establishing a religion, meaning they make up their own religion. That's not necessarily what that means. It could just mean that they favor one religion over all the other religions.
J. Aughenbaugh: Or should the government be involved at all with religion? You know the classic example from the public education setting is. Let's say the federal government wants to give a whole bunch of money for K through 12 schools.
N. Rodgers: You and I have had this discussion before I know you.
J. Aughenbaugh: Yeah. Which the federal government has done a number of times. No Child Left Behind.
N. Rodgers: Right?
J. Aughenbaugh: The Elementary and Secondary Education Act from 1965.
N. Rodgers: Well, and free meals for kids in school.
J. Aughenbaugh: Schools all the time say, if we want to do a better job, we need more cash. The Fed step in and say, "Okay, here's a whole bunch of cash." But can that money be used?
N. Rodgers: That we found in a drawer somewhere.
J. Aughenbaugh: Yeah, right. But okay.
N. Rodgers: By selling oil reserves, see earlier episode.
J. Aughenbaugh: But can that financial aid from the federal government be used by private schools? Specifically private religious schools?
N. Rodgers: Yes.
J. Aughenbaugh: In the 1950s and '60s, the court really struggled with how do we know when the government has established a religion or is too entangled with religion and would violate the Establishment Clause of the First Amendment? In 1971, in the case of Lemon v. Kurtzman, the Supreme Court created a three-part test. It became known as the Lemon test. An absolutely terrible name because for those of us of a certain age a lemon.
N. Rodgers: Is a bad thing.
J. Aughenbaugh: Is a bad thing.
N. Rodgers: Yeah. If your a car is a lemon.
J. Aughenbaugh: Lemon. It's a poorly maintained, broken down vehicle that somebody sold you.
N. Rodgers: Under false pretenses and you got a lemon.
J. Aughenbaugh: You got a lemon.
N. Rodgers: It's weird because the fruit itself is an innocuous, like what haves, put it on your face, put it in some water, and drink it, whatever.
J. Aughenbaugh: Yes.
N. Rodgers: Yeah. Join and do your thing. But this is a different kind of lemon because this is a person named Lemon.
J. Aughenbaugh: Yes, Lemon v. Kurtzman. The three-part test. The law or policy must have a secular purpose. This is going to tie back to your comment about intent. Your overall purpose of the law, the policy, the program is it has to be secular. Non-religious.
N. Rodgers: We're feeding kids, we're educating kids, we're doing something with, whatever it is.
J. Aughenbaugh: Yes.
N. Rodgers: That is to follow through with the school example.
J. Aughenbaugh: School example.
N. Rodgers: We're not teaching them religion. We are teaching them reading, writing, arithmetic and we're feeding them. All of which are secular activities.
J. Aughenbaugh: We're giving you guys millions of dollars for textbooks. These are not religious.
N. Rodgers: We're not to buy Bibles, but to buy math books.
J. Aughenbaugh: Math books, biology.
N. Rodgers: Okay.
J. Aughenbaugh: Second, its principle or primary effect does not advance or inhibit religion. The last part of that prong of the test was inserted to make sure that it didn't violate the Free Exercise Clause because you cannot inhibit religion.
N. Rodgers: Okay.
J. Aughenbaugh: You see where this gets really tricky?
N. Rodgers: Right.
J. Aughenbaugh: Then the third part cannot foster an excessive government entanglement with religion.
N. Rodgers: It can't look like it's championing.
J. Aughenbaugh: Yes.
N. Rodgers: Let's just say here, our school analogy, if they said, "We're going to give it to private Catholic schools, but we're not going to give it to private Muslim schools." Then you have both the inhibit clause.
J. Aughenbaugh: Part of the test.
N. Rodgers: The excessive entanglement.
J. Aughenbaugh: Entanglement.
N. Rodgers: Because it show no preference.
J. Aughenbaugh: But in application, this test was almost impossible to pull off, Nia.
N. Rodgers: Well, yeah.
J. Aughenbaugh: It is so subjective.
N. Rodgers: What if in your town, there is only a Catholic private school?
J. Aughenbaugh: Yes.
N. Rodgers: Right. Then it looks like excessive entanglement, but in fact, there isn't another school of a different faith to give money to, or you would do that as well. But if your town is small enough that the only private school is from one particular religion. I'm picking on Catholics because it's easy because the Catholic Church has a lot of schools. But let's say that it's Baptist, let's say it's wherever, you can get in trouble, you could get sued for doing what would look like excessive entanglement with a particular religion.
J. Aughenbaugh: The applicant.
N. Rodgers: Or advancing a particular religion.
J. Aughenbaugh: The application of this test lead to some really ludicrous Supreme Court if you will, cases, opinions, and discussions. My favorite was the Lynch versus Donnelly case, Nia from 1984. Which was a case concerning a nativity scene in a local government jurisdiction. The Supreme Court said that because the display put on by the local government had both religious and non-religious elements, it did not violate the Lemon test. The majority opinion written by Chief Justice Warren Burger, who by the way, wrote the majority opinion in the Lemon versus Kurtzman case, went ahead and said that the nativity scene was offset by the fact that there were also reindeers. You know Santa Claus and the reindeer?
N. Rodgers: The well-known shepherd who guided his reindeer at night.
J. Aughenbaugh: This became known as the reindeer element or the reindeer test. We're laughing about this, listeners, and this is serious. Because if you're non-religious or if you believe that the government should not establish a religion, then you're sensitive to the government seemingly showing a preference for religion or a particular type. But the Lemon test is so subjective.
N. Rodgers: Right.
J. Aughenbaugh: That eventually, most of the Supreme Court justices ended up repudiating the test. It actually led to one of my favorite Justice Scalia quotes. Scalia disparages the Lemon test as, "A goal and a late-night horror movie that stocks are establishment Claus church repetition."
N. Rodgers: A zombie that just keeps coming up. Just to ask a question about this, along these same lines, many courthouses used to have the 10 Commandments.
J. Aughenbaugh: It's right.
N. Rodgers: Put up somewhere, basically.
J. Aughenbaugh: Yes.
N. Rodgers: In part because a lot of American law comes out of the.
J. Aughenbaugh: Christian.
N. Rodgers: Right. The [inaudible] traditions.
J. Aughenbaugh: Yes.
N. Rodgers: People lost their minds and were like, "You can't have the 10 Commandments up." I have to admit that there's a part of me that wants to say to people, it's a piece of paper and if you don't want to read it, just don't read it. It's not establishing that we shall hold people to. It says Thou shalt not, and I think we can all agree. Thou shalt not murder other people because murdering other people is a bad idea. I'm a person who's very secular. I'm not a religious individual, and yet I'm not bothered by those things. I'm fascinated by people who are bothered by those things. Now, that being said, I have to admit that I struggled with the idea of giving private schools government money because private schools exclude students and I struggled with that. There's a lot of things to untangle there, and I'm not even going to get into the private school question because you and I have both covered that, and it could go on forever. But I do think this test is terrible. This is the same as the pornography. I don't know how to describe it, but I know it when I see it. That's a terrible test too, in the sense of what is pornographic to one individual may not be pornographic to another individual. Which one of the attorney's general or department heads, was it? I can't remember who it was. Put a drape over the Justice?
J. Aughenbaugh: Lady Justice.
N. Rodgers: Lady Justice who, by the way, has one breast uncovered because in the way of Roman statues, they didn't think of breasts as particularly sexual. They just thought they were body parts and they put them out there because they thought they were pretty, and because a lot of outfits, actually topless or partially topless or whatever, you should look at the side of a toga sometime if you want to look at that historical costuming. Do you remember what I'm talking about?
J. Aughenbaugh: Yeah. You're talking about Attorney General John Ashcroft.
N. Rodgers: Thank you.
J. Aughenbaugh: He was the first Attorney General in the Bush 43 Administration. When he took office as Attorney General for the United States, he had a drape put over Lady Justice because he was offended by the display of the breast and nipple. Yes.
N. Rodgers: Right. What he's struck him as pornography. The rest of people were like, you know that a statue.
J. Aughenbaugh: No. He thought it was obscene. Remember, pornography is protected by the [inaudible].
N. Rodgers: But obscenity is not. He thought that a breast was obscene.
J. Aughenbaugh: Yes.
N. Rodgers: Which I want to suggest may have had long repercussions in his life. But neither here nor there. I don't see statues and see them as sexual objects. When I see statues, and I go, a statue and I move on. It was something about the eye of the beholder.
J. Aughenbaugh: Yeah. Nia, I appreciate paintings. One of my favorite paintings is the Hieronymus Bosch painting, The Garden of Earthly Delights.
J. Aughenbaugh: But I recall opening up an art textbook in high school, in my very Catholic school and a nun looking over my shoulder and she was just aghast. But another nun said, but that's not obscene. That is a classic piece of art from a painter who was describing, and trying to, in very biblical terms, describe what he thought was going on in his society at that time. That's the difficulty with artwork and that's the difficulty with speech. But that's also the difficulty with trying to determine if the government is too involved with religion.
N. Rodgers: Yeah. Any involvement is too much involvement for some people.
J. Aughenbaugh: But others would go ahead and say, it's all right for the government to be involved with religion as long as they don't play any favors. That touches upon the two dominant interpretations, of the religion clauses of the First Amendment. You have some, like infamously, Thomas Jefferson, who believed there should be a clear wall between church and state.
N. Rodgers: These two things are not and should not come together at all.
J. Aughenbaugh: They should not come together at all. But you have others who argue, no, religion clauses don't prohibits the government from interacting with religion. It just prohibits the government picking which religion, yes, showing favor. That view is known as the accommodation or accommodation as interpretation.
N. Rodgers: Can I have both? The reason I say that is because I'm fine with treating all religions the same. If you establish that what you're dealing with is a religion. Except in one instance. I personally believe, and sorry listeners, if you disagree with me, feel free to write me hate mail, that's fine. I personally believe that the IRS should not recognize tax-exempt status for any religion, for any church.
J. Aughenbaugh: Okay.
N. Rodgers: They are not charities to me. I know some of you have charitable arms, that should be right. Some of them do charitable work and it's clearly charitable work, that should fall into the charity category. But ginormous religions that own huge amounts of land and property and get billions of dollars from their parishioners each year, show me how they themselves are charities because I don't believe they are.
J. Aughenbaugh: The United States Congress believing that Americans should have a spiritual life and that should be incentivized with giving tax breaks to religious organizations, you don't buy. Listeners, again, this is one of those times to where having a visual recording of us doing the podcast would have been really beneficial, because Nia just went ahead and stuck her tongue out at me.
N. Rodgers: Yes, I blew a raspberry. The reason I blew raspberry is because no. If you've to entice people to have religion, then that's not working. Religion is an end in and of itself. You should be happy to go to church because the church makes you happy. If I have to give you tax breaks to go to church, dude, that is the wrong kind of parenting as it were. Do you say to Mark, I will give you extra dessert if you do your homework? No. You're like do your homework because you need to do your own work because it's the right thing to do.
J. Aughenbaugh: Sometimes I do pick the path of least resistance.
N. Rodgers: Okay, you coward.
J. Aughenbaugh: I bribe my kid.
N. Rodgers: Well, do your own way. We can have that discussion another time because it sounds like we should.
J. Aughenbaugh: We might want to have a podcast episode about how legislative bodies use the tax code to incentivize public behavior.
N. Rodgers: Okay. I'm happy to do that.
J. Aughenbaugh: Because this begs the question about the various tax breaks and tax credits that are found in most developed democracies' tax codes to encourage their citizenry to engage in behavior that some economists are like, but shouldn't the public be doing this stuff anyways.
N. Rodgers: I would argue that the tax code is overly complicated in order to entice people to either break the law or to not own anything so they don't have to go through all that. I'm just saying the tax code benefits accountants and tax lawyers.
J. Aughenbaugh: You're basically saying that legislative bodies complicate the tax code as a form of government entrapment?
N. Rodgers: Yes. That is what I am saying. Well said. That is exactly what I'm saying. We have two more that we're going to do. Can I suggest that we go ahead and tackle the right to privacy and the current existing right to abortion?
J. Aughenbaugh: Sure. Yes.
N. Rodgers: First of all, I would like to suggest to listeners, once again, Aughie and I are not here to debate the merits of abortion itself. We're not interested in having that discussion. If you want to have that discussion with us individually or together, but privately, we may or may not talk to you about that as people, but we advanced no position on that.
J. Aughenbaugh: That's correct.
N. Rodgers: As far as this podcast is concerned. Because it's none of our business. I think we both agree that neither one of us, I being too old and Aughie being a man, do not have a dog in that hunt as far as having opinions about the actual matter.
J. Aughenbaugh: I don't have a stake in that particular game, but there is going to be this year and there's already been a fair amount of discussion of how the Supreme Court, again tries to determine the extent to which the government may abridge a woman's right to privacy as it relates to the choice to have an abortion. For our listeners, we're recording this episode before the Supreme Court has finished its 2021/2022 term and is yet to announce a decision in its current abortion case, the Dobb's case, the Mississippi abortion law case. But you're going to hear a lot of discussion about test that the Supreme Court has used to decide whether or not a government regulation is unconstitutional. Now, when the Supreme Court, Nia, first declared that a woman has a right to choose as protected by the privacy right, that was announced in the Roe v. Wade case.
N. Rodgers: 1973.
J. Aughenbaugh: 1973.
J. Aughenbaugh: Now, in the court's majority opinion. The court made it very clear that a woman's right to choose is not absolute. Meaning the government could regulate the right.
N. Rodgers: It shows by length of pregnancy, not amount you are either pregnant or you're not. Length of pregnancy. How long you had been pregnant?
J. Aughenbaugh: At what point in the pregnancy?
N. Rodgers: Determines when a woman no longer has the right to choose to have an abortion. Because the baby is x far along or the embryo or however you want to refer to it.
J. Aughenbaugh: The majority opinion, written by Justice Blackmun, basically divided up a woman's pregnancy into trimesters, three-month discrete units. In the first trimester, the first three months, a woman's right to choose was pretty close to absolute. The second trimester, months 4-6, the state could regulate a woman's pregnancy, in particular to protect women's health. Third trimester is where the state's authority to regulate was much more expensive. Because at that point in time, in medical science, the fetus could be viable outside a woman's body.
N. Rodgers: At seven months?
J. Aughenbaugh: Yes. From 7-9 months. That was the test in evaluating government regulations of a woman's right to choose for nearly 20 years.
N. Rodgers: As a side note here, we need to think about the state of medical science at that point?
J. Aughenbaugh: Yes.
N. Rodgers: Like is that part of what they're basing this on? At seven months, you could primi deliver and a baby could survive. They were suggesting that at that point, it becomes much more complicated to engage in an abortion. Because it is much more in line with this is a living thing that could live outside the mother.
J. Aughenbaugh: That's where you get into competing natures, and the court acknowledged that in the last trimester.
N. Rodgers: There's an interest on the child's side?
J. Aughenbaugh: Yes. Now, the court in 1992, Jettison the trimester framework or test in the case of Planned Parenthood v. Casey. They replaced it with a new test, the undue burden standard. Which basically said that any government regulation, they've placed an undue burden on a woman's right to choose was unconstitutional. The new test or the new standard arose because the plurality opinion written by Justices O'Connor, Souter, and Kennedy said that medical science had made the trimester framework obsolete.
N. Rodgers: Because now you can actually grow a child all the way from embryo to child in a lab.
J. Aughenbaugh: In particular, a fetus in a woman's body could be viable earlier in the pregnancy. Now, the Mississippi law that is at the heart of the Dobbs case.
N. Rodgers: Wait. Undue burden standard.
J. Aughenbaugh: Is the current, if you will test.
N. Rodgers: What do they mean by undue burden, is that you can't prohibit abortion?
J. Aughenbaugh: They didn't say when in a woman's pregnancy. They just said, if it placed a substantial obstacle on a woman wanting to avail herself of the right to choose.
N. Rodgers: You can't close all the abortion clinics in a state, because that place is an undue burden.
J. Aughenbaugh: But you could place other regulations on them.
N. Rodgers: Okay.
J. Aughenbaugh: Other things that the Supreme Court said were not undue burdens, a 24-hour waiting period.
N. Rodgers: There was a case about a state hearing the sonograms?
J. Aughenbaugh: Yes. States can go ahead.
N. Rodgers: Require a sonogram.
J. Aughenbaugh: Yeah. Require that the woman be exposed to what she is carrying in her body before she makes the decision. Juveniles. Either had to get parental consent or consent from a judge in cases of incest.
N. Rodgers: A judge.
J. Aughenbaugh: A judicial bypass.
N. Rodgers: A neutral party.
J. Aughenbaugh: What the Supreme Court held pretty consistently, is spousal consent was an undue burden.
N. Rodgers: That's interesting.
J. Aughenbaugh: Because again, the logic was, your spouse doesn't control your body.
N. Rodgers: That's complicated. Because your spouse is also theoretically the other parent.
J. Aughenbaugh: But what if you ended up getting pregnant by somebody other than your spouse?
N. Rodgers: Or you were impregnated through violence from your spouse.
J. Aughenbaugh: From your spouse. That's right. There are any number of exceptions as to why getting your spouse to approve you're getting abortion.
N. Rodgers: Would be a terrible idea.
J. Aughenbaugh: Would be a terrible idea, would be an undue burden.
N. Rodgers: What is the new case proposed to do?
J. Aughenbaugh: The Dobbs case concerning the Mississippi law, would restrict women getting abortion after 15 weeks.
N. Rodgers: It almost goes back to the trimester framework.
J. Aughenbaugh: Yeah. Actually, the writers or the drafters of the law based it on a number of European nation laws.
N. Rodgers: But what I'm saying is, when people say that it's going to destroy Roe v. Wade, it actually uses the standard setup in Roe v. Wade.
J. Aughenbaugh: Yeah.
N. Rodgers: But it narrows the standard to now the first trimester, as opposed to the third trimester.
J. Aughenbaugh: Because there are now OB-GYNs who argue that a fetus can be viable as early as 18 weeks.
N. Rodgers: You can't be exactly certain when you may not have become pregnant?
J. Aughenbaugh: Yes.
N. Rodgers: I see.
J. Aughenbaugh: Yeah.
N. Rodgers: Okay. Do you think that the standard would change again?
J. Aughenbaugh: I think there are at least four Justices on the Supreme Court who would like to maintain that women have a right to choose, but might be willing to discuss changing the standard. I think there are at least three Justices who believed that a woman having a right to choose is not protected by the US Constitution.
N. Rodgers: Okay.
J. Aughenbaugh: If the Supreme Court upholds a woman's right to choose, there's probably going to be some changes in the standard.
N. Rodgers: Okay.
J. Aughenbaugh: Yeah.
N. Rodgers: It will likely be more restrictive, you think?
J. Aughenbaugh: I think it will be more restrictive and I think you will probably see quite a few references to what goes on in European nations where abortion in some cases or is restricted at 16 or 18 or 20 weeks with exceptions for the woman's health. Yeah.
N. Rodgers: Oh, okay.
J. Aughenbaugh: Yeah.
N. Rodgers: We might see an exception for woman's health as a negotiating place?
J. Aughenbaugh: Yeah. Again, that's the thing about tests. Because you're trying to balance competing interests.
N. Rodgers: Right, very complicated.
J. Aughenbaugh: It gets very complicated. The last test that we're going to discuss before we get to the issue of intent or purpose, really reflects how tests can be very complicated. We're going to shift gears to our listeners to a different area of law.
N. Rodgers: This is administrative law?
J. Aughenbaugh: This is administrative law and for those [inaudible].
N. Rodgers: Don't go to sleep because this is important.
J. Aughenbaugh: Don't go to sleep. By the way, please don't go to sleep because it would break my heart, because this is what I got my PhD in.
N. Rodgers: This is Augenbaugh's great love as administrative law.
J. Aughenbaugh: For those of you who don't know, administrative law concerns the body of law that is arisen in most countries, when countries develop their administrative state, their bureaucracies. What should guide the behavior of bureaucrats and agencies? Now one of the big questions in the administrative law is, the extent to which federal courts should defer to agency expertise and interpretations of law? Let's take our listeners back to a previous episode. Let's say Congress passes a law telling the EPA to clean up air pollution. The EPA goes through notice and comment, informal rule-making comes up with a regulation to clean up air pollution.
N. Rodgers: They're going to put giant filters at the edge of the country in both directions and suck in all the air in the earth and put it through a filter and pull out the particulate matter.
J. Aughenbaugh: They're going to force big corporations and states to pay for it.
N. Rodgers: Right.
J. Aughenbaugh: The big corporations and the states are like, "Hey, wait a minute here."
N. Rodgers: I didn't want to pay for your big stupid filters, I don't even know if that's going to work. Why do I have to pay for China's bad air, that blows over the United States?
J. Aughenbaugh: But for administrative law, they're going to go and focus on the following. Does the EPA even have that authority? The EPA says, "Well, Congress said we're supposed to clean up air pollution."
N. Rodgers: Right, this is the best solution.
J. Aughenbaugh: It begs the question. To what extent should federal courts defer to the expert judgment of bureaucrats?
N. Rodgers: Well, I would think that the test would be whether it was clear what Congress see now we're getting into intent.
J. Aughenbaugh: But wait stop right there. You actually are tapping into the first part of the current test. In 1984, in the case of Chevron versus Natural Resources Defense Council, the Supreme Court was asked to decide to what extent should federal courts and federal judges defer to agency interpretations of the law. The court came up with a two-part test.
N. Rodgers: Of course, it's a multi-part test.
J. Aughenbaugh: It's a multi-part test, of course, it is. But you just went ahead and identified the first part of the test. The first part of the test is this. If Congress's intent with a law is clear, then both the agency and federal courts must honor that intent.
N. Rodgers: That makes sense. Because that's the will of the people.
J. Aughenbaugh: That's right.
N. Rodgers: The people elected representatives, which is theoretically the will of the people. Although boy, we could talk about that, but that's like 18 episodes of complaining that he could do at some point.
J. Aughenbaugh: Of democratic theory, of what goes on in election.
N. Rodgers: Actual politics.
J. Aughenbaugh: Okay.
N. Rodgers: There would need to be adult beverages involved in those that [inaudible].
J. Aughenbaugh: My goodness, yeah. Probably wouldn't be enough coffee for me.
N. Rodgers: To use your example, so if the Congress says to the EPA, sally forth and do this thing, and here's a bunch of money and we don't care how you get it done, get it done.
J. Aughenbaugh: Get it done.
N. Rodgers: Then EPA comes back and says, we've got this giant filter thing, that we're going to do and the Congress says fine, and they give them money, the court now knows that their intent is clear.
J. Aughenbaugh: Yes. But let's just say Congress's intent with the law is unclear.
N. Rodgers: Go clean up the air, how would you like us to do that? We don't care.
J. Aughenbaugh: Then a reviewing court must accept, "A permissible" or "Reasonable agency interpretation of the law."
N. Rodgers: Let's just use your example further. The Congress says to the EPA, go clean up the air and EPA says, great, we're going to shut down all industry in the United States and we're going to trade embargo every other country that doesn't shut down all their industry until the air is clean. That is probably one, not what Congress intended and two, way outside the reasonable standard.
J. Aughenbaugh: Yes.
N. Rodgers: Because that is not what Congress [inaudible] and goes to your original point of do they even have the power to do that? No, they don't.
J. Aughenbaugh: But nevertheless, for the first part of the test, Nia, how often is Congress clear with its intent in a law?
N. Rodgers: That would be never.
J. Aughenbaugh: Okay.
N. Rodgers: Well, not never but pretty rarely, because in the world we live in, you have to write things so vaguely to get enough people to sign on to agree to it. That it's written, okay, EPA, go fix air and EPA is like, could you vague that up for me? How would you like me to do that? What cockamamie Law Act is that? The Act of EPA will clean up all the air and EPA's like, what do you want me to do about it?
J. Aughenbaugh: Okay.
N. Rodgers: That's how those things get written for real, sadly.
J. Aughenbaugh: That's the reality.
N. Rodgers: That's because you need 435 votes on something, well, you need half of that. But to get half of that, you have to get at least bi-partisan support.
J. Aughenbaugh: We know they're studying legislative bodies. The more specific the clear a law is.
N. Rodgers: The less likely it is to pass.
J. Aughenbaugh: To pass, that's right.
N. Rodgers: Which frustrates people, because we would like for the laws to be very clear.
J. Aughenbaugh: Clear. Again, if one of the purposes of law is behavioral norms, well, Gee Louise, you know who he is?
N. Rodgers: Yeah, you're setting me up for failure. That's like when I used to leave the house when I was a kid and my mother would say be good. What does that mean? I'm sure your mom said that to you, be good.
J. Aughenbaugh: Yes, and there's a huge range of being good.
N. Rodgers: That range, I mean, if I come home and I'm like, I didn't kill more than four people today, is that good? By the way, I don't kill people, you know what I mean
J. Aughenbaugh: But my mom would say to me, what were you thinking when I came home and I had gotten in trouble? I was just like, but I was trying to be good.
N. Rodgers: Yeah. Be good. I can see where that you would want a reasonable agency interpreter. You wouldn't want the agency to say, "Well, then we'll just take all the right." This crushes my dream of running the Space Force and running roughshod over all the other agencies and everything in the United States.
J. Aughenbaugh: Because more than likely the federal courts would go ahead and say, congress didn't give you a lot of clear guidance, Nia? On the other hand, you wanted to go in and take over pretty much every federal and state agency that has anything to do with space? Is probably not a reasonable interpretation of what Congress had in mind when they passed the law.
N. Rodgers: But this applies only to agencies, right?
J. Aughenbaugh: That's right.
N. Rodgers: If I'm president, I can do all that? Back to being president. If I'm limited in my agency's ability to take over other agencies, then I may have to be president.
J. Aughenbaugh: But listeners take a look at the last couple of tests we just discussed.
J. Aughenbaugh: Undue burden and the Chevron two-part test. This gets at what Nia has been talking about with both of these podcast episodes about judicial tests. Which is, a lot of these tests force judges to try to ascertain what was the intent of the government regulating a behavior?
N. Rodgers: Well, and going back to your imminent lawless action. What's the intent of the individual?
J. Aughenbaugh: Individual who's engaged in a seemingly protected constitutional behavior.
N. Rodgers: Right. If I'm standing in front of a crowd and I'm whipping them up, I'm dynamically speaking, I'm allowed to do that. Then I say, "Let's go to the library and burn it to the ground," which I would never do by the way, because that is heresy.
J. Aughenbaugh: I'm thinking Nia, that you just saying that hypothetically in this podcast episode.
N. Rodgers: Might get me fired. Please don't fire me Ripley.
J. Aughenbaugh: Is going to lead to some of your colleagues wanting to take away your membership in various professional associations.
N. Rodgers: No kidding.
J. Aughenbaugh: We don't joke about that kind of thing.
N. Rodgers: Because we don't burn books. We don't believe in burning books or taking books off the shelf and that's a whole another episode. Don't read it if you don't want to read it. But imminent lawless action is an intent thing. If I don't intend for people to actually go burn down the library, which I would never intend. What I intend for them to do is go yell at the library, like go stand outside and yell.
J. Aughenbaugh: Because you're rhetorically. This becomes so problematic. Nia, I think it was in a constitution day that you and I did a couple of years ago. We've talked about the right to protest. The Supreme Court has allowed the government to place, time, place, and manner restrictions on where people can exercise their First Amendment right to protest.
N. Rodgers: You can't stand in the middle of the street and protest because it's a danger to other people.
J. Aughenbaugh: That's the logic of allowing that restriction. Because that restriction is not designed to limit who can protest or what kind of protest. The purpose is to allow government to further its police power, to protect the citizenry from activities they may cause, automobile accidents, etc. On the other hand, let's just say you start your protest on a college campus.
N. Rodgers: It spills out into the street and you start walking up the street and you're yelling because you're going to walk to the Capitol. We've never heard that before. You are going to walk to the Capitol and you're going to yell at the Capitol Building about it.
J. Aughenbaugh: Was your intent when you started the protest to cause a public safety crisis? In other words, or in the language of Brandenburg vs Ohio, imminent lawless action. No. But it forces judges to ask why law enforcement may have arrested you. Was your intent to go ahead and squelch the protest? But then it also forces judges to get at your intent when you started the protest. Was the purpose of your protest the ultimate, if you will, outcome imminent lawless action? Now, if you've got a good attorney the good attorney will coach you to go ahead and say, "No, we just wanted to highlight this injustice."
N. Rodgers: How unhappy we were about x thing.
J. Aughenbaugh: Right. But again, the tests are designed to go ahead and provide clarity for both the government and individuals, interest groups, corporations, etc. But it does force judges to try to figure out what was the purpose of the law, or what was the purpose of the government action on one side. On the other side, it forces judges to go ahead and figure out, what was in the mind of 250 college students who were upset with tuition hikes?
N. Rodgers: Which is why you get into the question of police using tear gas or other things against protesters. Was there a danger of imminent lawless action that they were trying to prevent, and do the protesters intend to either give the impression they were going to be lawless or actually to be lawless? Because sometimes you're doing it to be threatening, but if you threaten people enough, then they're going to react. What I'm fascinated by is this idea of the judge having to figure out what's the intent on both sides, and whose burden is higher in terms of limiting constitutional rights?
J. Aughenbaugh: Then how do you figure out intent? I'll give you an example. You recall a few years ago, Nia, the Trump administration takes office. President Trump issues an executive order that bans travel from six or seven countries, the infamous travel ban, and the travel ban gets challenged for a number of reasons: racial discrimination, religious discrimination, etc. The cases go to federal court. You heard some federal judges saying, "Well, we know the purpose of the travel ban because when Trump was running for office, he exhibited racial and religious discriminatory intent." Do we want judges then to start figuring out intent based on what you may have said or done in the past? You see how complicated this gets.
N. Rodgers: Right. For listeners, I want to urge you to think about everything that you put online.
N. Rodgers: Because this is the kind of thing where intent could conceivably come back to haunt you 20 years from now.
J. Aughenbaugh: Yes.
N. Rodgers: Many of us wrote screeds when we were young about how awful the government is and how [inaudible] and if I could do this or that or the other thing, I would. Now, many of us are not taking the Unabomber approach of then blowing people up and trying to kill them over it because we're just not homicidal maniacs. But we have written those things and put them out there. They could conceivably come back to hurt you. In your example of Donald Trump is perfect and for those listeners to this podcast who are fans of Donald Trump, I'm sorry if this is going to sound insulting, but Donald Trump is a bombastic individual as a speaker. That's his nature as a speaker, and so it is unlikely that he was thinking long-term intent about most things that he said on the campaign trail. He gets verved up and excited and he starts talking and people say things that aren't necessarily their full intent. They just say things in the moment they're excited about it.
J. Aughenbaugh: Let me not even believe it, but they use hyperbole, they use rhetoric that is designed to go ahead and mobilize individuals to support their candidacy in the case of Donald Trump, right?
N. Rodgers: Exactly. That's a normal thing that politicians do. I'm not entirely certain that we want judges to be going back and reading something that is conceivably two or three or four or 20 years old, and saying, well, Augenbaugh, he's always been a rabble-rouser. I found in his high school yearbook where it said, most likely to break the law or whatever and see they were right.
J. Aughenbaugh: He's got quotes from communists. But again, that actually came up in the 1950s and '60s, with the communist witch hunts, which is McCarthy hearings, right?
N. Rodgers: It's why these tests can be somewhat scary.
J. Aughenbaugh: They can be scary and they can be subjective, right?
N. Rodgers: Well, the Miller test is wildly subjective.
J. Aughenbaugh: Yeah, right.
N. Rodgers: Does this give you scientific value? Does this give you cultural value? It's just pouring people calm down.
J. Aughenbaugh: Or the clear and present danger test. I mean, your definition Nia of clear might be wholly different than mine, but you've got a federal judge who was just like, I don't know that Defense Department officials seem to have a pretty good handle on the threats from so and so from this nation.
N. Rodgers: Right, and imminent. What does imminent mean? Does imminent mean in the next five minutes? Does imminent mean in the next 20 minutes? Does imminent mean in the next two weeks?
J. Aughenbaugh: Yes.
N. Rodgers: I am imminently retiring, but it's about 20 years from now. It feels some days when I look at my retirement funds, it feels pretty imminent because it's getting a little scary out there.
J. Aughenbaugh: Well, we're depending on how I feel when I wake up some mornings, I'm like, wow, maybe I should retire.
N. Rodgers: I just want to caution listeners is our last thing before we go. Again, I do not in any way trying to suppress your speech. I'm not in any way trying to suppress what you put online because you should feel free to put whatever you want to put online. You should be protected from other people putting stuff online about you that's not cool. Like this whole revenge picture thing that people put up sometimes. Wrong, wrong, wrong, wrong, wrong. I don't support any of that. That's terrible, and those things should be taken down. But I'm suggesting the things that you put up about yourself. If you are studying to be a lawyer or a doctor, or a public servant in some way where you could get tangled up in a court case where somebody could go back and look at your Facebook feed, I know nobody has Facebook feed anymore, or TikTok or whatever, just curated thinking not only about the now but also about the future. It's all am suggesting.
J. Aughenbaugh: Because these kinds of tests force government officials to go ahead and try to figure out, is this their intent? Is this what they believe, and it's now finally manifested itself into what they've been accused of doing. I mean, I still go back to the Lemon test. What is excessive government entanglement? A school district allows certain groups to use school property and facilities after hours because otherwise the buildings are not being used, but they've already been paid for.
N. Rodgers: Or prayer before school. They get to have a religious meeting before school.
J. Aughenbaugh: Is the intent to go ahead and establish religion, or is the intent just to go ahead and have kids actually do something productive either before or after school.
N. Rodgers: Are we going to charge these kids for the lights being on, and the door being open, for those costs are for the building. No. We're not going to do that because as long as we allow any group that wants to meet.
J. Aughenbaugh: Meet, and that's where sometimes schools get into trouble because then they start picking and choosing.
N. Rodgers: You should have all or none.
J. Aughenbaugh: At that point then judges start asking questions like, well, what's your purpose or intent.
N. Rodgers: Why are you favoring one group over another?
J. Aughenbaugh: Yeah. But I'm glad we did this episode because I get asked a lot of questions, particularly from non-academics. Well, how's the Supreme Court evaluating or judging this unlike, when they use tests. When I explain the test, a lot of times people are like, "That doesn't clarify things for me," and I say, nope. Then they're like, can you teach this?
N. Rodgers: Wait, how is that the answer? Sorry, that's just the answer.
J. Aughenbaugh: That's just the answer, and they look at you like a dog that doesn't understand a command. They cock their head and they're like [inaudible].
N. Rodgers: Exactly their ears go and even then they go [inaudible].
J. Aughenbaugh: Some of my favorite moments of Scooby Doo in that old cartoon was what Scooby was just like [inaudible] .
N. Rodgers: [inaudible] Thank you Aughe.
J. Aughenbaugh: Yeah, thank you Nia, I enjoyed it.
N. Rodgers: Me too. We'll come back and talk about this later, I suspect when the ruling from the Dobbs case comes out.
J. Aughenbaugh: Well, let's face it. I mean, when we do the Supreme Court term wrap-up, chances are there's going to be easily two or three cases where the court use some sort of test, you're going to be like.
N. Rodgers: Some sort of intent. What the heck were they thinking?
J. Aughenbaugh: Then you're going to be like, so they used what test?
N. Rodgers: We will revisit. Thanks Aughe.
Announcer: 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 Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.