This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Well, the one we're recording is good afternoon. Good afternoon, Nia.
N. Rodgers: I know it's weird. We're recording in the afternoon. I need a nap, because usually we record in the morning when I don't need a nap.
J. Aughenbaugh: I'm about ready to start, my long time listeners, if you're wondering, I'm about ready to start my second pot of coffee.
N. Rodgers: For long time listeners, they know that Aughie relatively soon will be entering summer hibernation.
J. Aughenbaugh: Yes, I will.
N. Rodgers: Which is when he covers himself in books and absorbs the words through his skin while he watches baseball games on TV and falls asleep on the couch.
J. Aughenbaugh: Yes, and watch a lot of old movies.
N. Rodgers: But right now in the summer of Scot is 2024, I don't think anything's happening. Nothing's going on, right?
J. Aughenbaugh: Absolutely. Nothing.
N. Rodgers: Nothing. It's the most boring thing in the world.
J. Aughenbaugh: I cannot understand why the media is leading off with stories about the Supreme Court.
N. Rodgers: Oh, my goodness. We are recording this June 27th, you won't hear it until July, because that's how we do summer Scots.
J. Aughenbaugh: Yes.
N. Rodgers: But we got slammed with five cases yesterday, but we are only going to talk about four of them, because we're trying to group them by subject areas. In fairness, Aughie does that because he loves me and because I'm a librarian, and I can't stand to just pig-peg mell talking about cases randomly. I like them to have some connection to each other. It's what my people do. We index things.
J. Aughenbaugh: There is going to be a connection.
N. Rodgers: There needs to be a connection of some kind.
J. Aughenbaugh: A connective tissue here.
N. Rodgers: But also, I've noticed that we are in the crabby stage of decisions where it is not 8,1,9,0. Those days are behind us now. Now we are in the crabby stages of 6,3,5,4. Because we have gotten to the more volatile cases. The ones that people have been waiting for, and the ones that I said to Aughie, we have a small bet going and we will tell you how it works out at some point. I said to Aughie that I believe that tomorrow, which will be the last day of June, that this court would be in session. He's like, oh, they're going to release in the morning. I'm like, no, they're going to wait till 459. Eight of them are going to be in cars already leaving the city, and John Roberts is going to throw a bunch of stuff out the window to reporters and then sprint to his car. We hope he doesn't fall because the last time he ran around he fell. Sprint to his car, leap in and be gone and it'll be like that afternoon drop, and Aughie is like, no, they'll be more dignified. They'll do it in the morning. We'll see. There's a case of water or a pot of coffee riding on this and it's not Aughie having to drink water or me having to drink coffee. It's a gift on the other side. It's not a punishment.
J. Aughenbaugh: Let's be very clear here. I'm not going to force Nia.
N. Rodgers: To drink a pot of coffee. That's not going to end well.
J. Aughenbaugh: Particularly, the coffee that I brew, which is very dark brown.
N. Rodgers: Hardcore and no cream milk, nothing in it. Aughie is like don't put stuff in my coffee. What are you doing?
J. Aughenbaugh: Folks who add cream and sugar, I don't trust them.
N. Rodgers: What I think they do is they add cream and sugar so that they don't have to taste coffee.
J. Aughenbaugh: Yes.
N. Rodgers: Then they just don't like coffee, and they don't want to admit it. But anyway, let's talk about the first case because the first case is one of those fun cases, Snyder v. US.
J. Aughenbaugh: Yes. What was going on in Snyder v. US was Snyder was the Republican Mayor of Portage, Indiana. After his term in office, he received $13,000 from a local trucking company after the city bought five trash trucks from the company and the total price of those five trucks. By the way, remember, listeners, we're talking about trash trucks. It's not like you can just go ahead and buy them off a lot.
N. Rodgers: Or on Amazon. Although that would be cool.
J. Aughenbaugh: Aughie was up late one night, he decided to get himself his own trash truck.
N. Rodgers: But is the thing you would do. Aughie is watching the baseball game. It's four o'clock in the morning and I decided, by the way, the population of Portage, Indiana is 37,926.
J. Aughenbaugh: That's right.
N. Rodgers: This is not a huge town.
J. Aughenbaugh: No, it was not.
N. Rodgers: Hence the bribe being so low.
J. Aughenbaugh: Yes. Only 13,000, right?
N. Rodgers: Right. That's practically pocket change.
J. Aughenbaugh: For somebody like the Koch Brothers or Warren Buffett.
N. Rodgers: Or VCU as a whole is larger than this town. I don't know if you could find $13,000.
J. Aughenbaugh: Yes. The city bought five trash trucks from this trucking company for $1.1 million in 2013. Federal prosecutors later indicted Snyder alleging that his payment of $13,000 was for steering business to the company. Snyder challenged the law or challenged the prosecution, claiming that the US Attorney's Office misinterpreted the federal bribery statute in question. Nia, how did the Supreme Court rule? Can he be prosecuted? No.
N. Rodgers: Kavanaugh confused me a little I have to say. But I do think that what he's saying is, I wasn't in office when I took the money. After that, it's just a gift because I'm such a great guy.
J. Aughenbaugh: Or it's a gratuity, not necessarily a bribe. The vote in the case was 6-3, and it was all six conservatives in the majority, all three liberals were in dissent and John Roberts assigned the majority opinion to Justice Brett Kavanaugh. The distinction that Kavanaugh drew here was, the federal bribery statute should be narrowly tailored to apply to bribes before somebody takes office. Say, for example, Nia, you're running for mayor.
N. Rodgers: The trucking company says, we'll give you $13,000 at some point. No for your campaign if you'll promise us that we can get this contract.
J. Aughenbaugh: Contract. That's right. Or while you're in office.
N. Rodgers: Either for your re election campaign or for some other purpose. We will magically $13,000 will appear for you, and you will give us.
J. Aughenbaugh: Yes, but he said, once a government official leaves office.
N. Rodgers: Yeah. This is where you confused me.
J. Aughenbaugh: It becomes a gratuity, and it's up to state and local government jurisdictions to decide whether or not somebody can receive a gratuity. Basically what he's doing is narrowly interpreting the federal law and basically saying that if what Snyder received is a problem for either the State of Indiana or the local government Portage, Indiana, then it's up to them, but according to the Conservatives, if they allowed this prosecution to go forward, " Would radically up end gratuitous rules" and turn the federal statute into another, "A vague and unfair trap for 19 million state and local officials."
N. Rodgers: Yeah. He gave the example. The examples are what threw me.
J. Aughenbaugh: Yes.
N. Rodgers: The innocuous gratuities such as a parent giving an end of the year gift to a teacher.
J. Aughenbaugh: Yes.
N. Rodgers: That would become unethical or even criminal.
J. Aughenbaugh: Yeah.
N. Rodgers: I put to you that teachers are some of the most powerless people in the world so I'm not entirely certain using them as your example is good, because teachers are forced to do all stuff that they would not normally do in the course of being regular adults, but also what they said to me about Kavanaugh, what his writing here said to me is that he doesn't understand how small towns work because in a town of 25 or 30,000 people, everybody knew the mayor. You either knew him personally or you knew him by reputation. Find a person on VCU's campus that does not know who doctor Rao is. They may not know him personally but they can pick him out of a crowd. They've seen his face a lot. They know him so if he called you up and said, hey, it'd be great if this contract went to these people. Like, you think that's not going to work? They would have had to go further and prove that that was actually the case, that there had been some coercion or some commentary or whatever.
J. Aughenbaugh: Kavanaugh's majority opinion in this case, Nia, reminds me of the infamous slippery slope argument, because what he's basically saying, Nia is that if we allow the feds to go after this former mayor, where does it end? That's what he said.
N. Rodgers: I guess I see that.
J. Aughenbaugh: Okay.
N. Rodgers: I don't know.
J. Aughenbaugh: And by the way, listeners, the ruling itself didn't really surprise me and most Supreme Court, if you will, scholars because this is the third in a series of rulings where the Supreme Court has said to federal government prosecutors, you all are attempting to use federal law in broad novel ways and unless Congress quite clearly gives you that authority, we're reining you in. [inaudible]
N. Rodgers: Yeah. Governor McDonnell of Virginia was accused of public corruption, I think and it was found to be like, no, that's not what happened. Overturned, I think.
J. Aughenbaugh: Yeah. His conviction was overturned. The second conviction where the Supreme Court overturned a corruption conviction was the infamous Bridge gate, which occurred in [inaudible].
N. Rodgers: Chris Christie.
J. Aughenbaugh: Yeah Fine State of New Jersey. Now, Chris Christie was not the target.
N. Rodgers: No. He had a bunch of minions who were like, You know what we should do? We should close the bridge and it snarled traffic for hours, and he did it on multiple days and oh, man.
J. Aughenbaugh: Chris Christie's subordinates, we're like, oh, so this mayor of this New Jersey town doesn't want to play ball with us. Well, let's see how well he likes not playing ball. If we go ahead and close the bridge between New Jersey and the state of New York, backing up traffic during rush shower.
N. Rodgers: Into his city.
J. Aughenbaugh: Into his city.
N. Rodgers: Right. I guess from that point of view, they're being consistent with this ruling.
J. Aughenbaugh: Yeah.
N. Rodgers: I hate to agree with Kavanaugh. Actually, I don't necessarily agree with Kavanaugh, but I do think there is something to be said for politics works through the grease of money.
J. Aughenbaugh: Yeah.
N. Rodgers: And if you remove that grease at any point, like, you can never get of a politician any money in any way because it may benefit your company, you individually, anything like that, then that whole mechanism comes to a hard stop.
J. Aughenbaugh: Yeah.
N. Rodgers: I know that probably that's what McCain Feingold wanted to have happen. It was that the whole mechanism comes to a stop so that everybody has to rethink.
J. Aughenbaugh: Yeah, listeners, what Nia is referring to is a law that was passed during the Bush 43 administration, which would have reined in soft money in campaigns. Ultimately, the Supreme Court in the Citizens United decision, held that soft money expenditures and campaigns during elections, were a form of political speech protected by the First Amendment. Think what's really going on here is this is an area of law, and we're going to possibly talk about this in our next podcast episode in regards to administrative law, where a conservative majority of the Supreme Court is very skeptical of the decisions made by unelected federal government officials who use the broad power of the federal government to target behavior. No, they really want the United States Congress to clearly specify in law what the executive branch can and cannot do. Now, you can make an argument that's good in terms of the purpose of law. You know if one of the purposes of law is to clearly, if you will, announce what is or is not legal, that makes sense, on the other hand, that really does put the executive branch of the federal government into metaphorical straight jacket because let's face it, government officials like most of us are going to figure out ways to go ahead. If not break the law, bend the law.
N. Rodgers: I think the word you're looking for there is zhuzh. They're going to zhuzh the law. They're going to zhuzh around the edges of the law. I agree with you, and I think the court is in some ways. This is going to be an unpopular notion. I can't believe, why not? I say unpopular stuff all the time. It may be that there is a strain on the court that is like, You know what? We are electing on a regular basis, people who may need to have their power constrained.
J. Aughenbaugh: Yeah.
N. Rodgers: Not just at the federal level, although there's that, but also at the state and local. They may be sounding a low level Supreme Court alarm, which is like, because that's how they sound alarmed. They don't run around shouting fire like I would, but they may be saying Congress, if you don't put some breaks on some of these situations, you could be looking at dictatorship. You could be looking at an executive branch that you have ceded so much power to. That you cannot claw back and they may be trying to sound some sort of low level alarm or that maybe just that could be me also. We trying to find positive things.
J. Aughenbaugh: But I mean, we're going to see this in another case that we're going to talk about in this podcast episode, the SCC versus Jerkys case.
N. Rodgers: Let's go ahead and do that one. Since it is 632, but 63 also, not 632 because that would be weird and mathematically strange, so 63 decision as well.
J. Aughenbaugh: The case we're referring to next is Securities and Exchange Commission versus Jerkys. What was at issue in this case was the SEC basically since 2010, had begun to use in house legal proceedings to discipline companies or individuals accused of committing fraud, which is prohibited by various federal securities laws.
J. Aughenbaugh: A lower court ruled that the SEC's in-house administrative hearings, tribunals, if you will, violated the Constitution's Seventh Amendment right to a jury trial. Now, that lower court ruling also held that Congress exceeded its power in allowing the SEC to use such hearings, and that the job security of the administrative law judges who would hear these cases infringed upon the executive branches appointment powers. Well, the Supreme Court ruled.
N. Rodgers: If your job is dependent on how you rule what are the chances you are going to rule against your employer?
J. Aughenbaugh: For those of you who don't know this, pretty much every federal government agency has judges because they are asked to adjudicate disputes between the agency and the people who are regulated by the agency.
N. Rodgers: Sometimes between agencies, but yes.
J. Aughenbaugh: But those judges employed by those agencies are not appointed by the president and then confirmed by the Congress. They are known as Article I judges. Congress created them in the authorizing statutes for an agency, and the agency picks them and they don't have lifetime tenure or employment, like Article III judges of the US Constitution.
N. Rodgers: Article I judges have contracts. Could be two years, could be five years could be 10 years, but it will come to an end. Whereas Article III judges come to an end by dying, moving up or retiring.
J. Aughenbaugh: That's right.
N. Rodgers: That's it. There's three ways for them to no longer be a judge. Well, actually, technically, they could be impeached. How often does that happen? That's freakishly weird. First of all, people would have to know who you were in order for you to be impeached. That would be Step 1. But generally speaking, if they rule against the government, then everybody goes, well, we lost, and it's not like you then say, and now you don't have a job. But if the agency gets ruled against on a regular basis. Then I'm sure that somebody comes into your office and says, we'd like to know how come you never find in our favor. What's going on with that?
J. Aughenbaugh: How independent are you as a judge? If you know that if you consistently rule against the agency that employs you.
N. Rodgers: You will be unemployed. Or if you just like money.
J. Aughenbaugh: Yes.
N. Rodgers: Or if you don't want to go back to working in a law firm. The grind is different. It's not worse or better, but it's different.
J. Aughenbaugh: It was 6-3.
N. Rodgers: J. Robb is the one who wrote the rule.
J. Aughenbaugh: The majority opinion. Once again, 6,3 conservatives versus liberals. What the Supreme Court held was that in house legal proceedings used by the SEC do actually violate the Seventh Amendment. The Seventh Amendment applies to civil trials. Not criminal but civil trials. In it, Roberts basically his opinion was just, this is rather straightforward. I don't even know why it's controversy. What the Supreme Court did not do was address the other two legal issues.
N. Rodgers: Wait, so in suits at common law, where the value in controversy shall exceed $20.
J. Aughenbaugh: That's right.
N. Rodgers: Which I would say is what, approximately 1,000% of the time. The right of trial by jury shall be preserved and no fact tried by a jury shall be otherwise re examined in any court of the United States than according to the rules of the common law.
J. Aughenbaugh: That's right and civil trials are rooted in British common law. Now, in many ways, listeners, you may be wondering, what's the big deal about this case? Here's the big deal. The SEC, basically, starting in the latter part of the Bush 43 administration, began to use administrative hearings, against companies and individuals that it claimed violated Federal Securities law. Now, they did this because one, it's much cheaper for the agency to do things in house. But two, they basically knew that the hearings would be presided over by judges picked by whom?
N. Rodgers: The SEC.
J. Aughenbaugh: The SEC. Companies and individuals began to complain.
N. Rodgers: How come, we're not getting a fair trial here. We're not getting a trial by peer.
J. Aughenbaugh: The card game was rigged. The agency is bringing the charges, and they have the fifth ace up their sleeve, so they would always lose.
N. Rodgers: I'm sure that in some cases they won because otherwise it would be openly a thing. But I personally am with J Robb on this. I'm not entirely certain that an agency should be allowed to hear its own cases and then decide its own cases with its own judge. That seems to be a little sas as some people would say, that's a little sas.
J. Aughenbaugh: Using the language of our young students.
N. Rodgers: Oh, no, that's a 10-year-old. That term, but yeah.
J. Aughenbaugh: But here's the other importance of this case, Nia and Sotomayor's dissent pointed this out. You can tell Sotomayor was upset by the court's ruling because she actually did the unusual. She read parts of her dissent from the bench.
N. Rodgers: I love it when they do that. When they release it, then one of the justices comes sit down and say, I want to say some stuff.
J. Aughenbaugh: You don't have the final word because I want to go ahead.
J. Aughenbaugh: That right. Oh no. You didn't.
J. Aughenbaugh: Right?
J. Aughenbaugh: Right.
J. Aughenbaugh: Sotomayor's dissent pointed out that though Robert's majority opinion said that the decision only applied to the SEC. Sotomayor said, well, the logic of Robert's majority opinion could also apply to other agencies. She said, though the majority says this is a narrow, simple ruling, she goes, there's nothing narrow or simple about this because this is the kind of logic. Again, listeners, for those of you not in the legal profession, I tell my students this all the time, lawyers love analogies. If the court uses a particular logic in one area of law, don't be surprised if lawyers practicing in another area of law, go ahead and say, well, if that logic works for that dispute, why should that logic not work with this dispute?
J. Aughenbaugh: Well, in fairness to Sotomayor, this court on a regular basis in the last couple of years has said when Congress says a thing, we all have to abide by the thing.
J. Aughenbaugh: That's right.
J. Aughenbaugh: They have regularly punted things to Congress and said, rewrite it so that it says what you want it to say.
J. Aughenbaugh: That's right.
J. Aughenbaugh: If the Congress said, we want the SEC to be able to judge its own cases, while the rest of us may think that's bonkers and bananas, Congress said that. I don't understand why Thomas is not with Sotomayor on this. He should have had a dissent not with Sotomayor because he would never join her for anything for any reason, except perhaps dinner.
J. Aughenbaugh: But I think the reason why Thomas did not sign on is that, in many ways, Robert's majority opinion was textual analysis.
J. Aughenbaugh: But it's not consistent with what they've been saying about what they want.
J. Aughenbaugh: But I think they're actually, the conservatives, are being consistent. They're saying to Congress. If you want agencies to be able to do what the SEC has been doing, then you need to rewrite the SEC's authorizing statute to specifically give the SEC the authority to do this. Otherwise, this seemingly violates the Seventh Amendment.
J. Aughenbaugh: In agencies where they have put it in the finding documents in the agency.
J. Aughenbaugh: Then I don't see the court majority agreeing with challengers.
J. Aughenbaugh: So now I need to go find a case for the Supremes.
J. Aughenbaugh: Well, what Sotomayor pointed out in the example that she read from the bench was OSHA, the Occupational Safety and Health Administration. OSHA, all the time, does spot inspections, and if a company fails the inspection, then they are adjudicated within OSHA. Well, Sotomayor basically went ahead and put a big knee on sign over the top of OSHA's
J. Aughenbaugh: Somebody ought to use this to sue.
J. Aughenbaugh: Right. Which I don't think that that was her intent, but her larger point was that SEC was not the only one using it.
J. Aughenbaugh: Right. This could be, in fact, a giant can of worms.
J. Aughenbaugh: Yes.
J. Aughenbaugh: Speaking of cans of worms.
J. Aughenbaugh: In the Supreme Court wanting to avoid a can of worm?
J. Aughenbaugh: Which one do you want to talk about?
J. Aughenbaugh: I was going to go with Idaho v. the US.
J. Aughenbaugh: Okay. Oh, I think the other one is a can of worms too, so I think we've got two cans of worms left. Let's go with your worm first.
J. Aughenbaugh: Idaho v. United States. This is the case that arose after the Supreme Court's Dobbs v. Jackson decision, where the Supreme Court held, there is no federal constitutional right for women to have access to abortions. Basically, the court sent it back to the states. Well, in the aftermath, the Biden administration reinterpreted a federal law. The federal law is the Emergency Medical Treatment and Labor Act. It's known by its acronym, EMTALA, I just like saying. I love me a good acronym.
J. Aughenbaugh: Well, yeah, that's one of the reasons you're an administrative rogers.
J. Aughenbaugh: The Biden administration basically went ahead and said that EMTALA, now applies to states that ban late term abortions. Well, Idaho was one of those states post Dobbs that passed a state law that basically banned abortions, I think what, after the sixth week, right?
J. Aughenbaugh: It's five or six. I can't remember-
J. Aughenbaugh: Yeah. I think it's six weeks.
J. Aughenbaugh: Exactly.
J. Aughenbaugh: Basically, Idaho was claiming, thus Idaho v. the United States, that EMTALA, which required emergency room care for life threatening cases would force emergency room doctors in that state to perform abortions in violation of state law now.
J. Aughenbaugh: Well, that and they could not be punished for doing that. Because they are now falling under a different statute. As we know, federal statutes supersede state statutes.
J. Aughenbaugh: If the federal government can show that it has a constitutional authority to pass that.
J. Aughenbaugh: Right.
J. Aughenbaugh: A district court judge, in the Ninth Circuit ruled in favor of the Biden administration. That led Idaho to file an emergency appeal.
J. Aughenbaugh: Because basically Idaho is saying you are thwarting our state law.
J. Aughenbaugh: That's right.
J. Aughenbaugh: You just said that it was up to the states.
J. Aughenbaugh: After the district court judge ruled in favor of the federal government, Idaho filed an emergency appeal to the United States Supreme Court asking for an injunction to stop the enforcement of the district court ruling. What was surprising to a lot of us who follow the Supreme Court is that the court took the case, received written briefs, heard oral arguments, and then today decided in a five to four vote. Yeah, we're going to dismiss the case because we should not have granted the appeal from Idaho. But the vote was five to four. Which means that four of the justices wanted the Court to go ahead and issue an opinion that decides Idaho's challenge.
J. Aughenbaugh: Because four is the number, as we have talked about in previous summers of Scotus. It gets you over the hump of being heard by the court, then decided by the Court.
J. Aughenbaugh: But they heard the case and five of them said, oopsy.
J. Aughenbaugh: This is too complicated. No.
J. Aughenbaugh: No. But what's interesting here Nia is, there was no majority opinion explaining why five of the justices wanted to dismiss the case in the phrase that's used by the Court, improvidently granted. It's known as a dick. Dismissed because it was improvidently granted. We have no idea there. We do have a concurrence from Kagan. Kagan said, I did vote to dismiss because I think the court should have allowed the lower federal courts to hear the case, decide the issues.
J. Aughenbaugh: Rule on the case.
J. Aughenbaugh: Rule on the case. Then we would have, if you will, a record on which to weigh in on the dispute. Now, Kagan's concurrence was joined by Sotomayor, and then Jackson in just a little part. But there were two dissents.
J. Aughenbaugh: Well, there are four people who said no.
J. Aughenbaugh: That's right.
J. Aughenbaugh: There had to be at least one dissent.
J. Aughenbaugh: Well, there were two. The one dissent was written by Alito, and it was joined by his usual gang of three. By the way, I'm teeing up, if you will, something for our last episode where we talk about the stats and observations. There is a growing divide among the "conservative majority. "
J. Aughenbaugh: Alito, Thomas, and Gorsuch.
J. Aughenbaugh: Alito said the Court should have decided the case and issued an opinion for two reasons. One, there is a split between two of the Federal Appeals Courts. The Ninth Circuit Court of Appeals ruled in favor of the feds. The Fifth Circuit Court of Appeals ruled in favor of the states, so we have a circuit split. According to Alito, that's one of our jobs. We're supposed to settle when the lower courts are-.
J. Aughenbaugh: Crabby with each other.
J. Aughenbaugh: That's right.
J. Aughenbaugh: Everybody goes to their parents, which is the Supreme Court to get it settled.
J. Aughenbaugh: Then he said, the second reason why we should hear this case is because as we said in the Dobbs ruling, abortion now is a state matter. Not a federal government matter, a state matter. Therefore, any federal law that attempts to force the states to do something that they don't want to do per their police powers, violates federalism. That was one dissent.
J. Aughenbaugh: The second descent was issued by Justice Brown Jackson. First of all, she goes, we should have never taken this case. We should have let the Ninth Circuit do its thing. We should have followed the normal procedure, but since we did take the case, we should settle, and she said, "And all we did today is offer a temporary reprieve for women" because as she did the math, she said, "Three of the justices would have ruled against the federal government" and she suspects that the other three justices who were in the majority in the dabbed case would also rule against the federal government. She said, "We should decide the issues." But basically what the Supreme Court did was punt.
N. Rodgers: I was going to say they took this can and they gently laid it on the ground and then they kicked it. They went down the road, however long it's going to go at which point they will just be seeing this again, because it's not like Idaho is going to give up on this.
J. Aughenbaugh: Idaho is not going to give up on this. There's a whole bunch of states, for instance, within the jurisdiction of the Fifth Circuit, which covers Texas, Louisiana and Mississippi. You know they're not going to give up on this because all three of those states have passed rather rigorous abortion laws.
N. Rodgers: If Biden continues to be president, he's not going to give up on this.
J. Aughenbaugh: No.
N. Rodgers: Now, if Donald Trump wins the presidency, this case might go away.
J. Aughenbaugh: This case might go away because the Trump administration, they might not interpret EMTALA the way the Biden administration did.
N. Rodgers: But eventually, somebody's going to have to settle EMTALA.
J. Aughenbaugh: Whether not.
N. Rodgers: Somebody's going to have to settle whether that overrides the State's police power.
J. Aughenbaugh: Now, if it does get to that point, Nia, I'm thinking John Roberts is hoping he can cobble together a majority that says, EMTALA needs to be rewritten by Congress. If it wants to give the executive branch the authority to do what the Biden administration attempted. He won't even have to go ahead and touch upon the "abortion" states versus a federal government. He would go and say
N. Rodgers: I would be willing to bet that there's some level at which John Roberts wishes that his court was not the abortion court. He's become the guns and abortion court.
J. Aughenbaugh: I would add religion, but nevertheless, because as we've discussed in previous podcast episodes, this is a court that is definitely pushing the envelope in regards to allowing governments to interact with religion, but these are three controversial subjects.
N. Rodgers: Guns, God, and abortion. Those are the three topics people tell you that in polite company you did not discuss at dinner.
J. Aughenbaugh: That's right.
N. Rodgers: The only way this could be worse is if they brought in wealth in some way.
J. Aughenbaugh: Because you're not supposed to ask somebody how much they got.
N. Rodgers: About money either. Oh, my goodness.
J. Aughenbaugh: Now, the last case we're going to talk and I know Nia, you've been chumping at the bit.
N. Rodgers: Go ahead.
J. Aughenbaugh: Because you got some strong feelings on this. The name of the case is Harrington versus Purdue Pharma.
N. Rodgers: I feel like I have a personal win with this one. Can I just say that? Is not. Sorry.
J. Aughenbaugh: The basic issue in this case was the legality of a proposed bankruptcy plan for Purdue Pharma that would have allocated billions of dollars to help ease the nation's opiate crisis, but there was a provision in that bankruptcy plan and the provision would have shielded the family that owned Purdue Pharma.
N. Rodgers: Which is the Sackler family.
J. Aughenbaugh: The Sackler family. They would have been shielded from any future lawsuits.
N. Rodgers: Basically. Tell me if I'm wrong, Aughie, but what they're basically saying is, our company may be held responsible, but we as a family may not be held responsible. You could sue the company Purdue Pharma, but you can't sue us personally for our personal stuff for our family properties. Our personal wealth is out of the realm of being touched.
J. Aughenbaugh: Well, particularly the wealth that the Sackler family accumulated during the time period of the opiate crisis. Because that was one of the big issues is, how do you go ahead and determine what Sackler family assets could be part of the mix.
N. Rodgers: Are game or not game.
J. Aughenbaugh: That's right.
N. Rodgers: It must be noted for the record, the Sackler family became inordinately wealthy from the sale of opiates and it has now been shown inaccurately described their opiates as non-addicting.
J. Aughenbaugh: Yes.
N. Rodgers: People will not become addicted to these. This is a new opiate. This is a slow release, is a time release, which they said prevented addiction. Doctors everywhere believed that, and wrote prescriptions thousands and thousands and millions of prescriptions, believing that it was a new opiate that would not be addictive, because the reason people didn't use to get opiates was because doctors said they were addictive, and they would kill you, eventually. That's why we stopped giving people bottles of morphine and stuff like that, once we realized that addiction was a real thing. The Purdue Pharma representatives, so I will not say the Sacklers because I don't know that they personally lied, but Purdue Pharma representatives presented these drugs in a way that made them seem less harmful than they actually are.
J. Aughenbaugh: That's right. The Justice Department of the Biden administration objected to this bankruptcy plan. They went ahead and argued that the plan should be thrown out. The case goes to the Supreme Court and the court in a five-to-four vote ruled that the bankruptcy plan was illegal. That it violated federal law and that they were going to send the bankruptcy plan back down to the lower court for further deliberation and revision.
N. Rodgers: I'm aware, by the way, that that is a mixed win, because it does mean that the families who have been harmed, will wait years more for the lawyers to hash this out and for the fighting to end and many of them will die without seeing a penny.
J. Aughenbaugh: Yes.
N. Rodgers: I'm aware that that is the down of this, but the up of this to me is that the Sacklers will not necessarily get to keep what I believe to be ill-gotten gains. For me, I hear people when they say, well, it's a mixed win because it is a mixed win. It's not a pure win, because if it were going to be settled tomorrow and they had to get back all the money into some account that was then get divided next year, that would be a win, but that's not how this is going to work. It's going to work through years of plan and fighting and what counts and what doesn't count and who was in the business when and what did they make? It's going to be years of paperwork. Is that why the four, you think voted against? Is that they were trying to get some settlement rolling now?
J. Aughenbaugh: One of the dissents went ahead and I think it was Kavanaugh, who wrote the main dissent pointed out that the attorneys representing those owed money in the bankruptcy plan. Most of the attorneys signed off on the bankruptcy plan, because they were concerned, as you just mentioned, that if they didn't, it would be years, if not decades until any of the victims families would receive a dime if they're still living.
N. Rodgers: Some of them may not live out the length of time.
J. Aughenbaugh: But in the vote, Nia, was very strange. The vote was five to four.
N. Rodgers: Is that strange?
J. Aughenbaugh: Well, who comprised the five and who comprised the four?
N. Rodgers: The bed fellows are strange.
J. Aughenbaugh: The majority was Gorsuch Thomas, Alito, Coney Barrett, and Brown Jackson. Those in the dissent were Kavanaugh, Robert, Sotomayor, and Kagan.
N. Rodgers: Kavanaugh and Kagan and Sotomayor.
J. Aughenbaugh: Along with Roberts.
N. Rodgers: Well, but Roberts he floats. That's interesting.
J. Aughenbaugh: But Brown Jackson, being in the majority with Gorsuch, Thomas, and Alito.
N. Rodgers: That's got to be weird.
J. Aughenbaugh: In Gorsuch majority opinion is a straightforward textual analysis. The bankruptcy statutes of the federal government lay out these variables. The judge who signed off on the Purdue Pharma bankruptcy plan did not follow these variables. There is no provision that allows individuals who are members of the corporation to avoid being personally liable. There was significant evidence to suggest that those assets would change the nature of the bankruptcy plan, etc.
N. Rodgers: Oh, it's bigger.
J. Aughenbaugh: It potentially is millions, if not, billions of dollars, more robust a bankruptcy plan.
J. Aughenbaugh: But Kavanaugh [inaudible]
N. Rodgers: That's why the Sacklers were okay with it because it would protect their
J. Aughenbaugh: Well, and Purdue Pharma would never have agreed to that bankruptcy plan if it did not shield the Sackler family.
N. Rodgers: I got you.
J. Aughenbaugh: That's the reason why the projection of those who are very familiar with bankruptcy law in the United States is that, again, the victims and the victim's families aren't going to see a dime for years because the Sackler family doesn't care about bad PR.
N. Rodgers: At this point, it's over for them PR wise. Their name has been taken off of lots of philanthropic things. They basically been shunned out of polite society, rich people society. They are persona non grata, as they were.
J. Aughenbaugh: Their goal was to protect the generational wealth for future generations of the family. Again, I'm not wealthy. I don't have that concern, but from what I've read, that's part of the calculus of wealthy individuals. No matter what you think of me and how I made my wealth, I will be giving it to future generations. That became part of the bankruptcy plan. Because otherwise-
N. Rodgers: The kids would be protected and your grandkids.
J. Aughenbaugh: Yeah. This was a big one and in reading the oral arguments, it did not surprise me the vote was five to four, because the justice has really struggled with how do we ignore plaintiff's attorneys who signed on to the bankruptcy plan. How do we ignore them?
N. Rodgers: They basically took and agreed to thing and said,.
J. Aughenbaugh: We are blowing it up.
N. Rodgers: You may have agreed, but this is a bad idea. I would assume that in part, what the justices are also doing is firing a warning shot across the bow of other family owned businesses to say, we will not shield your personal wealth. I'm thinking in terms of Walmart, the Waltons, own Walmart or Jeff Bezos owns everything or whatever. This idea of your personal wealth if you do these things. Part of it is that they have admitted publicly that they did it, too.
J. Aughenbaugh: Well, it's also a warning to bankruptcy judges.
N. Rodgers: To be more careful with, what you agree to and what you sign off on.
J. Aughenbaugh: Yeah. The years, if not decades of federal courts showing deference because you have managed complex bankruptcy cases is possibly over.
N. Rodgers: New sheriffs in town.
J. Aughenbaugh: I wouldn't be shocked if lower federal courts began to show much more skepticism over some of the more controversial bankruptcy plans that get negotiated in the future.
N. Rodgers: Where were these people with BP? Hello. It's still leaking. What is it California power?
J. Aughenbaugh: California gas and power.
N. Rodgers: PNG, power and gas.
J. Aughenbaugh: Yes, power and gas.
N. Rodgers: Which regularly sets fire to California. Hello. Anyway, sorry. Corporate misbehavior on another episode of criminal over civil discourse. I can't be civil about that. What I'm choosing to take away from it, even though the families will suffer and will not get the money that they should be getting. What I will take away from it, the hope in the future is that don't make promises like that. Don't make promises like this is not addictive or this is not dangerous, or this is not whatever. Don't say that stuff to people and millions of people die. It's not been a small number of deaths. It has been a large number of deaths of opioid deaths since this whole.
J. Aughenbaugh: If you think about the use of bankruptcy as a way to shield corporate malfeasance and wrongdoing.
N. Rodgers: That's appalling at every level.
J. Aughenbaugh: This sends a pretty clear message that bankruptcy may not necessarily be the panacea for a corporation that engages in years of bad behavior. Because that's the idea of bankruptcy.
N. Rodgers: You get to say, sorry, my bad, here's some money. I'm done.
J. Aughenbaugh: Yes.
N. Rodgers: No, you or not. It's not going to be that easy.
J. Aughenbaugh: Speaking of bad behavior in our next episode, as we get closer to finishing. This will probably be our next to last episode in regards to the summer of Scotus. We will be looking at the bad behavior of protesters on January 6th, 2021. Former President Trump's role in those riots and whether or not he deserves absolute immunity.
N. Rodgers: I have to admit I'm looking forward to the social media cases. Not because I'm not interested in the others. It's really important to me about whether Donald Trump gets pure immunity or not pure immunity. But I'm fascinated by the social media by the net choice and the Moody cases where they're talking about should social media remove certain posts? Is that acceptable. I find that fascinating and I think listeners may find that fascinating because, of course, that directly affects their lives in the sense of how many people are on social media these days.
J. Aughenbaugh: Of course, for me, the administrative law geek that I am, the Loper Bright and relentless cases on whether or not one of the chief doctrines that has dominated American Administrative law since the 1980s, whether or not the Supreme Court actually has the guts to overturn it, or do they water it down, or do they say it's dead, but we just don't have the guts to bury it?
N. Rodgers: Is that the Chevron?
J. Aughenbaugh: Yeah, that's the Chevron [inaudible] .
N. Rodgers: We still get some fun stuff to look forward to and then don't forget folks we will also have a wrap up episode, which will give all the stats for this year. Then Aughie will give us a look forward as to what's coming next?
J. Aughenbaugh: Yes.
N. Rodgers: Because they've already started taking cases, haven't they for next round?
J. Aughenbaugh: I think there are now over 20 cases accepted for the various fall sittings of our next Supreme Court term.
N. Rodgers: Their work is never done and neither is ours.
J. Aughenbaugh: We have a lot to look forward to. Thanks, Nia.
N. Rodgers: Thank you, Aughie.
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