Advisory Opinions - Bad Facts for Chevron

Episode Date: January 19, 2024

Sarah and David appease a couple listeners’ requests before getting to the Loper Bright Enterprises v. Raimondo oral argument. The Agenda: —Words of the day: certiorari and conversion —Epic Games, Inc. v. Apple Inc. —Supreme Court humor —Congress (and the courts) do your job —Texas’ READER Act blocked by Fifth Circuit —Responding to listeners’ comments Show Notes: —Kisor v. Wilkie —Pierson v. Post Learn more about your ad choices. Visit megaphone.fm/adchoices

Whoa, what are you listening to this for? Wait, who's talking? You know you're driving a 2024 Ford Escape with available Alexa built-in, so you can change the music. Oh yeah. Alexa, change station to 99.2. See? Purchase a 2024 Escape ST-Line all-wheel drive with Tech Pack at 3.49% APR for 72 months with down payment. That's just $267 bi-weekly. Cash value of $40,294. Plus, eligible Ford owners get a $1,000 bonus. For details, visit your local Ford store or Ford.ca.

This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover 5 seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at Fizz.ca. If you need some time to think it over, here's five seconds.

Ah, do, da-da-dee-da, do-da-do-do. Certain conditions apply. Details at Fizz.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. Oh, and we've got special guest David French today. David, thank you so much for joining us. So pleased to be back, Sarah. Thank you so much for having me. I am recording from Concord, New Hampshire, where we had an amazing event

with the Josiah Bartlett Center up here. So many AO listeners came from New York, Connecticut, Maine, obviously New Hampshire, Vermont. Thank you all so much for coming and being a part of that. It was really fun to talk to everyone. But David, we got two requests that are very reasonable and that we shouldn't need listeners to remind us to do, but we do. So the first request is to actually explain the facts of a case before we just jump in and get so excited talking about it. Reasonable. We're overly enthusiastic. Yeah, pretty reasonable. The second, which I thought was a really fun idea, is to pick a legal term per episode and define it for our non-lawyer listeners and for our lawyer listeners who maybe haven't been in practice in a

while. A lot of former lawyers at this event, like you went to law school, you practiced for a few years, and now you've gone off to do other things, but you enjoy listening to the podcast because it kind of reminds you about the fun parts of law school without the bad parts of actually being in big law. Oh, and before we jump in, David and I will be at Vanderbilt Law School on Monday, the 22nd. We will be doing a live advisory opinions in Nashville, Vanderbilt Law School. Come on over if you're in the area. We'd love to have you. I believe the event is at 1230, but check local listings to make sure I'm right about that. So David, we have an exciting episode today because Relentless and Loperbright were argued at the Supreme Court. So we're going

to do a nice deep dive into Skidmore deference, our deference, Brand X, what was that? Chevron, all of the above. We'll really get into it. Also, though, we'll talk about an interesting case out of texas texas passes what i'll loosely call one of these you know book banning laws and trump appointee judge willett is going to strike that down more on that we got some great um listener emails after our last episode. So we'll end with that. But first, two interesting notes out of the Supreme Court. One, they granted cert. Can that be our word of the day, David? Certiorari? Certiorari? Sure. Yeah, let's do it. Yeah. So cert, certiorari. So David, tell us what cert actually means in real life. It's a writ, W-R-I-T. Should we define that? in real life. It's a writ, W-R-I-T, should we define that? Or order, let's just say order,

by a higher court to review a lower court's decision. And Sarah, you're going to have to tell me why we talk about certiorari for the Supreme Court and we never use the term certiorari for like the Court of Appeals, but the general view, the general definition of certiorari for like the court of appeals. But the general view, the general definition of certiorari is a writ by which a higher court reviews a lower court's decision. Oh, I'm going to tell you. But first, in Latin, it actually translates to, to be more fully informed, which is, I didn't know that until now. so already this new policy is coming in handy um there's a reason it's because uh it's discretionary like certiorari means to review with discretion so circuit courts do not have discretion to review lower court decisions but the supreme court except for those things in its original jurisdiction does does have discretion. And that's why they are accepting writs of certiorari in everything but their original jurisdiction cases.

So the Supreme Court granted cert in that Starbucks case, David. You may remember this. We've talked about it before. And in fact, we had the lawyers on our podcast, Lisa Blatt and Sarah Harris. Congrats to them on their cert grant. This is the case where the seven Starbucks employees are trying to unionize. And after hours, they open up the store and invite in some reporters for an interview in the store. Starbucks says that violates their policy and fires them. They go to the National Labor Relations Board, arguing that, yes, it is against policy to do that, but they don't fire people for violating that policy except when they're organizing a union. The National Labor Relations Board found for them and made Starbucks reinstate them as employees.

This case is actually going to be about the standard that the NRLB gets to sort of use their own little special standard while litigation is pending. So it's going to be kind of just a process question, but it'll have big implications for labor actions moving forward from the NRLB. Now, we don't normally talk about cases that don't get cert granted, because who cares, right? It's over. But there was a big surprise this week when Apple and Epic Games, who had both filed writs of certiorari at the Supreme Court coming out of the same case, they had each won some and lost some at the lower court, both went to the Supreme Court separately, and the Supreme Court denied both. This was over

Epic Games was arguing that Apple was committing an antitrust violation with its app store in-app purchases and sort of software development. In short, Apple gets to keep a bunch of their app store stuff. Also, though, once you're in the app, Epic Games can allow or facilitate going sort of outside the app to make in-app purchases. Big surprise that the Supreme Court didn't take that because it was such a, I mean, there's so much money at stake, like that would normally warrant review, but I guess they were happy with the lower court's decision in that. Yeah, that is very interesting. I'm actually surprised by that outcome. It's again, one of these cases that we talk about that isn't a culture war salient, like say the National

Association of Realtors case, but actually is real world salient in a pretty interesting way. So yeah, that's fascinating. It reminded me, I just thought they'd take it because it reminded me so much of the Google and Oracle case where it was just, it was so big. It involved so much money and so many people and everything that like they would just review it if nothing else to put their stamp on it. So I think that surprised a lot of people. Okay. But next up, the biggest thing happening at the Supreme Court, of course, Relentless and Loperbright were argued at the Supreme Court. Now, before we get in to all of this, we need to go back to 1944 and talk about how we got here before we get to the argument. Because we just keep teasing this as like, oh, they're going to review Chevron. But like,

you know, what is Chevron? How did we get to Chevron? So for lawyers and non-lawyers alike, what is Chevron? How did we get to Chevron? So for lawyers and non-lawyers alike, this would normally be a semester-long course on how we got to various forms of agency interpretation. And we're going to try to do it in 10 minutes. So if you feel like I'm leaving stuff out or lacking nuance, you can go take the semester-long course. All right. In 1944, that's when Skidmore is going to happen. So Skidmore deference is going to kind of feel like no deference at all. It's an agency's statutory arguments are entitled to respectful consideration. Basically, an agency's interpretive rules deserve deference if they're persuasive, which is sort of like how court cases work, one might argue.

But frankly, that makes it sound like that's no deference at all. But look, it was a little deference, right? We are going to hear the agency out. And if they're persuasive and there's all these factors about that, then that's entitled to some deference, just not much. So Skidmore deference will be the lowest form of deference that an agency can get. And let me fast forward then. Chevron's going to get decided in 1984. Chevron's going to say, if there's an ambiguous statute from Congress, then we're going to defer to the agency's reasonable interpretation of that statutory ambiguity. So then just the next year, in a case called Seminole Rock, the Supreme Court's going to hold, if the meaning of the regulation is in doubt,

the agency's interpretation would merit controlling weight unless it is plainly erroneous or inconsistent with the regulation. This is going to be a big deal. This is an agency getting to interpret its own agency rules and regulations. And that'll be called the Seminole Rock Deference until we get to our. So Skidmore Deference is this low level of deference. We just listen to agencies when they're persuasive. Seminole Rock, basically an agency gets a whole lot of deference if they're interpreting their own agency's rules and regulations that they wrote and created. Now, 1984, we get to Chevron. This says that when there's an ambiguous statute from Congress, we actually defer to the agency's interpretation of that ambiguity and which way it goes. Then 1997, they're going to really put their thumb down on that seminal rock deference called our

a u e r really annoying really hard if you're taking a class and the professor just keeps saying our deference because you have no idea um how that would be spelled so a u e r in 1997 this again is saying that we defer to an agency on their own regulation. And then in 2005, you're going to get this mess of a case called Brandax that Justice Thomas is going to write. And it's basically going to say that not only do we defer when an agency is interpreting an ambiguity in a congressional statute that gives it power, but you can reverse your interpretation of that maybe as much as you want. So here's what we're left with at the end of all of this heading into, let's say, the last five years, right? There's just huge deference for these agencies to decide all of this stuff. They get to decide the meaning of their own

regulations. They get to decide any ambiguity in congressional regulations. And Scalia and Justice Thomas have signed off on this. So Chevron is going to have three steps, though oddly, we say it has two steps, and then there's something called step zero. Okay. So Chevron step zero. Did Congress give the agency authority to issue a binding legal rule? Yes. Move on to step one. Is the statute ambiguous? Yes. Move to step two. Is the agency's interpretation reasonable, even if the court itself would have chosen a different interpretation? So when the court is faced with two interpretations, one of which is better than the other, it goes with the agency one if you fall under Chevron step zero and one. But then, David, there's going to be rumblings in the atmosphere, thunder looming on

the horizon because Justice Scalia and Justice Thomas are going to have a change of heart about this whole line of cases. Justice Scalia is going to regret Chevron, and Justice Thomas is going to say they need to revisit Brand X because it's a big old mess of a problem. And this is going to come about a bit that's going to be very, very relevant to our conversation today. In 2018, a case called Kaiser v. Wilkie. Now, this is only going to revisit our deference. Remember, that's agency interpreting agency rule, not agency interpreting Congress rule statute. And I'm just going to read some of this from Kaiser v. Wilkie. Basically, they're going to cabin our deference a lot, but it's going to be a very

split decision with Ginsburg, Kagan, Sotomayor, Breyer on one side, Alito, Thomas, Gorsuch, and Kavanaugh on the other side, and then the Chief Justice sitting right in the middle. I'm going to read you just a little from Gorsuch's, it's a concurrence, but for our purpose as a dissent. So the doctrine emerges, maimed and enfeebled, in truth, zombified. He's talking about our deference here. One can hope that the chief justice is right, and that whether we formally overrule our or merely neuter it, the result in most cases will prove the same. But means, not just ends matter,

and retaining even the stabilitated version of our threatens to force litigants and lower courts to jump through needless and perplexing new hoops and in the process deny the people the independent judicial decisions they deserve. All to what end? So that we may pretend to abide by stare decisis? To be sure, Justice Kagan, writing for the four liberal justices in the

majority, Justice Kagan takes a very different picture of our, asking us to imagine it writing to the rescue, only in cases where the scales of justice are evenly balanced between two equally persuasive readings. But that's a fantasy. If nature knows of such equipoise in legal arguments, the courts at least do not. That's interestingly a quote from Justice Scalia in one of his books on administrative interpretation. In the real world, the judge uses his traditional interpretive toolkit full of canons and tie-breaking rules to reach a decision about the best and fairest reading of the law. Yet when it comes to interpreting federal regulations, Auer displaces this process and requires judges instead to treat the agency's interpretation as controlling,

even when it's not the best one. So as you can tell, Auer deference basically died five years ago. It is, I mean, it's zombified, as Justice Gorsuch said. You know, Justice Kagan leaves it on the books. The chief has a two-paragraph concurrence in which he says, I write separately to suggest the difference between the majority and Justice Gorsuch is not as great as it may appear. The majority catalogs the prerequisites for and limitations on our deference. Justice Gorsuch, meanwhile, lists the reasons that a court might be persuaded to adopt an agency's interpretation of its own regulations. Accounting for variations in verbal formulation, those lists have much in common. Always the peacemaker, Chief Justice.

Okay, so since that case, Kaiser v. Wilkie, we've basically been waiting for them then to get to Chevron, right? So they undo our and take that back to something like Skidmore deference. Look, if you're persuasive, we're listening. And then Chevron, here we are. So with all of that buildup, David, what did you think of the argument? Can I go back to the buildup a little bit and then tell you what I think of the argument? I found a lot of the coverage of this case pre-argument pretty frustrating. You know, there's sort of this, this is one of those issues that really breaks down on a, it used to be a pretty neat right-left divide, although I think the right now likes

agency action, parts of the right now like agency action more than they used to. They want to be the ones running the agencies as opposed to limiting the power of the agencies. But there are a lot of reasons for believing that Chevron is bad law short of the sort of coverage, which was, well, conservatives don't like the government and government action, and therefore they want to hamstring administrative agencies, which seemed to be sort of the real theme of a lot of this, when the reality is, as was described in the oral argument, whether even, let's suppose you're not skeptical of government action.

Let's suppose you want agencies to be regulating segments of the economy, especially when there's extreme issues of expertise agencies, what you are having is a situation in which every four years you're talking about an enormous swing in government control. If there's a change in the presidency, that is a change in government control far out of bounds with the intention of our system. So the intention of our system, remember, if you're a longtime AO listener, the intention of our system is that the most democratic branch of the federal government, that would be Congress,

has the most power. These are not co-equal branches of government. So the whole system is set up with the most democratic branch of government having the most power. That's Congress. Not uncheckable power, but the most power. Where we are now is that the president has the most power, by far, in our current government, in large part because of the control of the administrative

agencies. And so what Chevron essentially does, it does not enshrine, as a practical matter, Sarah, it's not enshrining or it's not protecting the power of unelected, though platonic experts to govern the economy. What Chevron actually does is it protects the prerogative of the president to govern the administrative agencies and the priorities of the president to govern the administrative agencies and the priorities of the president to govern the administrative agencies. And that's a different dispute. That's a different dispute than sort of a, you know, I don't know, white robed class of technocratic elites. What we're actually talking about in real life is giving presidents giant amounts of power, just giant amounts of power. And I wish it was

framed more along those lines. Although I do think there is an element here where you do have conservatives like me who don't love the whole technocratic idea, but the reality is, the core constitutional reality is, who has the that's the question here and i don't think that breaks down should necessarily that your answer to that should necessarily break down so neatly right left sarah well and interestingly it's exactly i mean just worth emphasizing your point maybe it used to break down that way but because of the realignment of the two political parties it absolutely does not under the new Republican Party, where you have now two parties that basically are happy to use executive power to vindicate their own side. I mean, this is the Newsom-DeSantis example that we keep giving over and over again. There's not a huge difference. It's just how they're using the power. a huge difference. It's just how they're using the power. They don't like the First Amendment.

They don't like free speech. It's just whose speech they don't like more. And that does break along left-right, but it's not a limited government versus more government. Can I read you Paul Clement's soliloquy from the argument? This is one of the longest areas I've seen where an advocate not get interrupted. And I will only be reading a very small portion of the four pages of uninterrupted aria from Paul Clement. But I'd like to emphasize its effect on Congress. This is Chevron's effect on Congress. Because honestly, I think when the court was originally doing Chevron, it was looking only at a comparison between Article 2 and Article 3. Article 2, the executive. Article 3, the judiciary.

And who's better at resolving those hard questions? I think it got even that question wrong. But it failed to think about the incentives it was giving the Article 1 branch. And that's what 40 years of experience has shown us. And 40 years of experience has shown us that it's virtually impossible to legislate on meaningful issues, major questions, if you will, because right now, roughly half of the people in Congress at any given point are going to have their friends in the executive branch. So their choice on a controversial issue is compromise and forge a long-term solution at the cost of maybe getting

a primary challenger or instead just calling up your buddy who used to be your co-staffer in the executive branch now and have him give everything on your wish list based on a broad statutory term. And my friends ask for empirical evidence. I think you just have to look at this court's docket. It's been one major rule after another. It hasn't been one major statute after another. I would have thought Congress might have addressed student loan forgiveness if that were really such an important issue to one party in Congress. I would have thought maybe they would have fixed the eviction moratorium.

I could go on and on on these issues. They don't get addressed because Chevron makes it so easy for them not to tackle the hard issues and forego a permanent solution. OMG, David, he's saying our grand unified theory, but maybe blaming it all on Chevron, which, you know what? He's got a great point. You ever see the video footage of a church where the preacher's preaching and you've got an old lady in the congregation waving a hanky in appreciation and shouting amen. That was me as you were reading that. Like I was, I was sitting here waving my hanky and shouting amen. Yeah, it's no fantastic.

So I think that's spot on. Look, bottom line, you look at that Kaiser case that I mentioned, Kaiser case that I mentioned, Kaiser v. Wilkie that undid our. And remember that lineup, it was basically 4-1-4. Well, this is where court personnel changes actually are going to matter. I don't know how the chief justice is going to come down on this, but it doesn't matter anymore because it was pretty clear that Barrett is where Kavanaugh is, is where Gorsuch was on Kaiser v. Wilkie. So you've got five votes to at least end Chevron in its current form. But I want to steal me on the other side for a little bit.

At Real Canadian Superstore, our colleagues collectively speak over a hundred different languages and counting. We pride ourselves on items from different parts of the world. From hard-to-find specialties to tastes that'll remind you of childhood. So welcome everyone. Come shop the world right here in our aisles

with more ways to save at the Super Welcome Store. Real Canadian Superstore. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this

frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting AuraFrames.com to get $30 off plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Can we like set aside, I think, the horrible effects it's had on Congress laid out in that little bit that Paul Clement said, and there actually are going to be now hard things that happen in a post-Chevron world where you're not going to give any deference, or very slight deference, maybe that Skidmore deference such that it exists, to agency expertise, Congress can't go through and give

agencies every single tiny thing that they're supposed to do. That's why agencies have to promulgate rules and regulations. And so you have Kagan and Sotomayor and Jackson trying to point out, like, I get why y'all don't like Chevron, but there's very practical reasons that Chevron came into existence. on the right that Chevron has to go. And, you know, and part of it is because there is an actual appeal to the argument that says, okay, if we're talking about the Environmental Protection Agency, or you're talking about these agencies governing these highly technical fields, there are highly technical determinations regarding pollutant levels or other kinds, you know, in the climate area, you can go into all, there are all kinds of highly technical elements to that, that there is a certain surface appeal that says, wait a minute, is Congress ready?

Is Congress really ready to regulate or to legislate in that arena? But there are ways you can draft statutes, Sarah, that don't just create zones of ambiguity, but create zones of authority that grant actual authority, clearly grant actual authority, I think that can address a lot of these issues. interesting to me. And I'm going to go back to a seemingly completely unrelated case to help make this point. But this reminds me of the Harvard case in an interesting way. Yep. That's completely unrelated. I'm waiting. I'm interested. Totally unrelated. Okay. So hang with me for a second, Sarah, and tell me if you think I'm wrong. So a lot of these sort of technocratic kinds of arguments rely on sort of an argument from complexity that says, this is really, really hard stuff. We do this every day. And this is the best way that we can think of to achieve a very difficult goal through very complicated means. And if we're having a judge looking over our shoulder the whole time, we can't get this thing

done. And the Harvard arena, it was, how do you achieve diversity in higher education? That is an extremely difficult task. And how much are you going to want judges looking over your shoulder? extremely difficult task and how much are you going to want judges looking over your shoulder here there's always arguments in chevron about well there's this extremely technocratic thing that how can you possibly be qualified to figure this out and then you dive into the actual facts of the case okay the actual facts of the case and harvard were like yeah they were taking the super complicated thing and we're making it really not that complicated by just going ahead and discriminating against a bunch of Asian students. So you lift up the rock and it's not like super complicated stew being made. You're

just pouring out like big heaping helpings of discrimination. And then you go to the loper bright case and you're like technocratic elite elites are doing these really complicated things and how can you second guess them and you're like okay what are the facts of this case well the federal government is making fishermen who are barely scraping by to make a living pay the salaries of observers on their own boats, even though the statute doesn't require them to. Because I know there are reasons, but they're not complicated. This is not some sort of parts per million determination involving climate changes related to air currents over North America. This is, what? You need technical expertise for this? And so it gets harder and harder to sort of make that technocratic argument

when you lift up the rock and you see what the technocratic process is. And it's not something mysterious and ethereal that very few people are capable of accomplishing. And that's what I kept having this thought with Loper Bright, technical expertise, expertise. Guys, this is about who pays for an observer on a fishing boat. And so I feel like that kind of dynamic where the real world facts are really kind of gross for the government, that doesn't get enough attention in these cases because it always seems as if the commentary is about something else other than the actual facts of this case. Stretch, Sarah, or not a stretch?

Um, certainly in this case, the facts are not helpful. But like we've said before, the Supreme Court, because they get to pick and choose their cases, it may not be a coincidence that they picked the case where it's not really an expertise-y case. Yeah. Yeah. In fact, both cases, for those who are curious, are the same facts or the same statutory question about who pays for these federal observers on fishing boats, oddly. What are the chances, right? And it's like, oh no, the chances are pretty good if you want bad facts for Chevron. But I think it's interesting when I've talked to my very conservative Fed Psaki lawyer friends who have worked in highly technical administrative agencies,

they come out of that experience being much more Chevron-friendly than how they came in because the question really isn't, unlike major questions doctrine, for instance, where we need Congress to speak clearly to give the agency that authority. Here, it's really more about who's going to get to decide this question whatever it may be the agency or a federal judge and what you're going to end up having is there's one agency involved and there's a zillion federal judges across the country and you're going to end up with different interpretations of the same statutory provision then you're going to have circuit splits

and all of a sudden we're going to have a lot more cases that the Supreme Court's then going to have to decide on without that thumb on the scale of who's getting to decide. Now, on the flip side of that, I think what goes really wrong for the pro-Chevron side, and what I just didn't hear a great answer from Kagan Sotomayor Jackson team is what you do about the Brand X problem. Remember, Brand X is what allows these agencies to change their interpretation in every administration and then get deference each time. So they get to reread the statute and then it's still fine. That's not gonna work because then we're not really creating uniformity. We're not even creating a reliance interest at that point. So it's, I find it interesting because if you wanted to save Chevron from the left, what you needed to do

was to actually get Brand X overturned. Because I think the argument for Chevron becomes much stronger if there's like a Chevron part negative one or part three, I guess, where you ask, how long standing is this agency rule? Are they changing it because of a change in administration, et cetera? Now, again, before we get all sorts of emails from administrative lawyers, yes, there's some argument that pieces of that were built in a little bit. For instance, is an agency changing its interpretation for convenient litigation purposes was sort of built into some of that

hour deference, for instance. But look, at the end of the day, the three-step Chevron dance is what it is. And with Brand X built in, it became unworkable. And it's why, as I think Justice Gorsuch pointed out during the argument, the Supreme Court hasn't been using Chevron in years. They haven't used Chevron since Kaiser v. Wilkie when they undid our deference. But the problem is the lower courts have been using Chevron. And, you know, I really want to drill down on this point because of the Brand X issue. We keep saying agency deference and that because the Brand X, that's

no longer really the proper way to say it. It's presidential deference. And because the reality is these presidents come in and dramatically shift, they dramatically shift course on complex issues with no change in underlying statutes. So, here's a great example, Title IX. Depending on who is president, Title IX means really different things as interpreted by the Department of Education. So, specifically in like the sexual assault, sexual misconduct arena, there are dramatically different regulations proposed for enforcing Title IX on college campuses, depending upon who is president of the United States, not depending upon the agency receiving all kinds of expert information saying this is actually the most effective way to protect due process while protecting women from sexual violence,

there are ideological changes that as a result of different presidents and under Chevron, there's identical deference to each different interpretation of the statute, even though the statute hasn't changed at all. The interpretation has just changed dramatically based on the presidency, not on expertise. And that's just the real world reality. By the way, there were a few fun moments in the argument. So at one point, Paul Clement is going after Brand X. He says, Brand X is a huge embarrassment for the government and the government's friends. I looked through the bottom side amicus. I counted 13 amicus briefs on basically the pro-Chevron side. That's bottom side. It's who is filing first on the top or bottom of the V, if you will, like A versus B.

Okay, so that's what bottom side means. I counted 13 amicus briefs on the bottom side, and only two of them cited Brandex. Because gosh, wouldn't it be nice for that decision to just go away, wouldn't it? Justice Barrett interrupts and says, sorry, Justice Thomas, because Justice Thomas wrote Brand X. It got a lot of laughter in the room. Maybe you had to be there. I don't know, but it was pretty funny. That's the kind of Supreme Court humor that you really have to be there. I guess so. Yeah. Okay, David, here was an interesting question that came up at the argument that kind of went unresolved because it doesn't need to be resolved, but it's interesting, I think, to determine what exactly Chevron is. And here's the question. Could Congress pass Chevron statutorily? I.e., could Congress tell the courts to defer to agency interpretations with that

two-step dance? That's a really good question, Sarah. My blink level reaction to that is probably yes. Probably yes, given the jurisdictional authority that Congress has over the federal courts. You've got a non-delegation problem there. Is it Congress- You do have a non-delegation. Delegating its legislative authority, too much legislative authority, because it's not delegating it in specific. It's just saying overall, where you think we've been ambiguous, we then delegate our legislative authority

to the executive branch. I don't think that they can, but I agree with you, it's actually a relatively close call. And it doesn't matter because they're not going to do it. But you see my point, it kind of goes to what exactly Chevron is. Because if Congress, first of all, if Congress could pass it, then it's very easy, I think, for the Supreme Court to just go back to one of the themes of this podcast, which is Congress, do your job. Congress, if this is how you want things interpreted, you do this. You tell us that that's what you want. But if Congress couldn't do it, that's also interesting because it probably means that Chevron shouldn't exist if it would be, if Congress can't do it because it would violate

the non-delegation doctrine, the idea that Congress can't give away its legislative power under the constitution, how can the courts do that? You know, so let me unblink my blink. I would say, my blink reaction, I would say a blanket statute reestablishing Chevron is going to run into those non-delegation issues. It's going to run into those structural issues. A specific statute on a specific regular regular or dealing with a specific regulatory regime sort of let's just i'm going to make up something here so have grace for this example

something that says the agency shall determine um the proper emission standard for coal-fired power plants on a parts-per-million basis by harmonizing the, you know, in essence, you're sort of harmonizing the overall emissions environment of a particular American region, and you're going to leave it up to the agency to say what portion could be, and again, I'm making this stuff up, guys, what portion can be from coal fired versus natural gas versus et cetera. I could say, I could easily imagine then Congress saying, and the agency's determination of the proper parts per million, you name it, shall, there shall be deference to or due consideration given, et cetera. But to say of all regulations everywhere, there should be deference, that's going to run into your structural constitutional issue. And I think it gets worse when it's like, if you find this ambiguous, then defer to the agency

versus your example where it's like, no, this isn't ambiguous, it's built in. It's built in, right. That the agency shall promulgate such regulations. Right. That's where I call it like a grant of authority, in essence. No, I think you're exactly right. So David, if there's a few themes to this podcast, certainly the number one theme is Congress do your job.

But there's a second theme or a part B to that theme, which is, and it's up to the courts to make it easier for Congress to do its job or even possible for Congress to do its job, to align the incentives for Congress to do its job. And the major questions doctrine, something we've talked about, fits under that category. But Chevron does too, because of this problem where why would Congress ever want to go through the lengthy, hard, miserable process of compromise in the first place if they don't have to? But also, why would they take the political risk of a hard vote? And I come back to that bump stocks example because I like having an example on the right. There were two bills

pending, one in the House and one in the Senate to ban bump stocks, but it was going to be, you know, potentially perceived as a, quote, anti-second amendment vote, which meant that all of those Republican members could get primaried from the right. Well, why make your team take that hard vote? So on the one hand, it's better Congress gets to say, hey, friends in the executive branch, why don't you just go ahead and get us everything we want by basically doing law by regulation. But on the flip side, the administration also gets to say, we want to protect our incumbents in the House and Senate. Why make them take a hard vote if we can take the political risk ourselves because no one votes for president on this one thing that was from three years ago versus members of the House who are up every two

years. So I think Chevron has to go for that reason, even though I think the agency expertise problem in some cases is a much closer call. I mean, there are cases where I think the agency expertise problem in some cases is a much closer call. I mean, there are cases where I think the agency expertise angle is far more persuasive than others. There's no persuasive application of agency expertise to just making a bunch of fishermen pay for a federal employee to be on their boat. But there's plenty that are. And Justice Kagan used the AI example, right?

How in the world is Congress supposed to pass statutes fixing AI that they clearly should be able to make a pretty broad statute and then a regulatory agency will fill in the gaps and then we're going to defer to that regulatory agency. That's an example where agency expertise could come in handy. I think an even bigger one is probably the FDA when it comes to drug regulations and what is a drug and what's a beauty product and what is regulated and what isn't, and to let the FDA determine whether that thing is a drug or a

beauty product, etc. But despite maybe some of those being close calls on the facts of whether you'd want to defer to agency expertise first of all they can still make their persuasive case that their reading is best and second of all i care far more about the structure of our government than i do any of those relatively small ball problems down the road and the structure of our government is in serious trouble right now so che Chevron's got to go make Congress great again. Amen. Amen to that, Sarah. Very, very well said.

And when I sit down and explain this to people who have not followed politics closely and they're not really all that interested in law, it is very interesting to see people's eyes kind of light up with, oh, I get it. If why we're so frustrated with politics when the most democratic branch of government is the least consequential and the less democratic branches of government are the most consequential. And like, let's say you're like me and you live in a very solidly red state in a very solidly red congressional district, you may end up never casting really a meaningful vote

about any issue that really impacts your life because of the way in which Congress has been so thoroughly neutered combined with the gerrymandering. It really is a profound issue that is draining Americans of confidence in their democracy. And so, yeah, Chevron has got to go. All right, David, will you introduce this Texas case to us? Texas case to us? Yes, indeed. Okay. This is a fascinating case. This is involving a Texas law that I believe, Sarah, we briefly addressed before. It's one of these laws that has a fun name. It's the Reader Act, which is short for Restricting Explicit and Adult Designated Educational Resources Act. They're really straining to get that reader acronym in there. And so what the Reader Act does is it requires, and then I'm going to be reading here some from the opinion,

requires school book vendors who want to do business with Texas public schools to issue sexual content ratings for all library materials they have ever sold or will sell, flagging any materials deemed to be sexually explicit or sexually relevant based on the materials depictions of or references to sex. And so essentially what happens is a book publisher is required to go through their own catalog and rate their own material. So rate it sexually explicit, sexually relevant, or no rating. These are the three ratings. And so each one of these, sexually explicit and sexually relevant, has a definition. So for of these sexually explicit and sexually relevant has a definition. So, for example, sexually explicit material means any communication, language or material, including a written description, illustration, photographic image, video image or audio file other than library material directly related to the curriculum that describes, depicts or portrays sexual conduct as defined by a different section of the penal code in a way that is patently offensive. And sexual conduct in the penal code is defined as sexual contact, actual or simulated sexual intercourse, deviant sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals and the anus, et cetera, et cetera. I don't need to go too much more into detail.

David's already turned red. He didn't mean to go this far. I'm turning red. I'm reading the statute and turning red. Anyway, and then it defends patently offensive is so offensive on its face as to affront community standards of decency. So the vendors rate the material, then they submit it to the Texas Education Association that goes kind of back over their work. So they submit their ratings. They have until April 1 of 2024 to submit the ratings. And then the vendors conduct a review yearly. 2024 to submit the ratings. And then the vendors conduct a review yearly. And then if Texas disagrees with the rating, they got to do it again. So once the vendors submit their ratings,

the TEA, Texas may review the material sold by a vendor that is not rated or rated incorrectly. So if the TEA reviews it and determines that a different rating or no rating should be applied, the agency shall provide a written notice to the vendor, which must include information regarding the vendor's duty. And then they've got 60 days to take more action. So the bottom line, Sarah, here is that essentially what Texas is saying to all of these book publishers is you have to rate your own books according to a statutory definition. We have the right to review the rating according to the statutory definition. If we don't like your rating, you have to redo this. And then you're

going to be eligible, able to be posted in the library. And so you have these book publishers who sued saying, wait a minute. I mean, this is compelled speech. You're asking us to rate our own material according to definitions that are malleable. A lot of judgment calls here. So this is compelled speech. Even if you come in and you tell us to change it, we're the ones who have to change it. This is compelled speech all the way down. There's vagueness issues here, etc. speech. Even if you come in and you tell us to change it, we're the ones who have to change it. This is compelled speech all the way down. There's vagueness issues here, etc. And Judge Willett, and for a unanimous panel of three, wrote an opinion and said, basically, yeah, this is compelled speech, guys. It's not compelled speech like commercial speech in the sense of requiring, say, a calorie count, which

is factual information that's non-controversial. These are judgment calls. You're requiring these booksellers, these trade associations, these bookstores, you're requiring them to make judgment calls about this speech according to standards that are not necessarily all that objective and yeah compelled speech sorry you lose so sarah that's the summary of the case this is interesting because of course we've seen other states pass want to have similar objectives at least if not similar laws most of the attention's been on the right, but you also have

that school district in Oregon that banned To Kill a Mockingbird, for instance. So again, this is becoming less, at least, of a left-right issue and more of just a, no, no, no, we all like having this power. It just varies widely in terms of how we'd like to use that power. We've talked a little bit about the library issues in the past. Someone has to decide what books are going in the library. I guess what I think is interesting about this one is, you know,

yep, someone's going to decide what goes in the library. That's for sure. But we're not going to do this on publishers all the way down to have compelled speech from them. Like, you're going to have to make these hard decisions yourself

and take the political consequences for them. Yeah, you know, there is a common theme of some really bad legal advice being given to a lot of these state legislatures over the last 18 to 24 months regarding free speech. And essentially the advice has been this, that if it's secondary education, if it's K through 12, legislatures, you have absolute

control. You can do whatever you want. And the reality is they have a lot of control. They have a huge amount of control over K through 12. It is not absolute. It is not unlimited. You have a lot of control over what kind of books you can put in the library. You do not have unlimited control over the books you put in the library. This goes back to the PICO case that we've talked about. This is an example even beyond PICO. You have a lot of authority. You don't have the authority to compel speech. And so rather than legislating from the very substantial base of authority that schools actually have and that

the state actually has over public education they've gone all in they've gone for the maximal level of control and that is leading to losses and cases that quite, when it would be easy to legislate a system, easy to legislate a system that restricts access to explicit material without violating the First Amendment. It wouldn't even be difficult at all, but they keep going so freaking maximal. All right, David. Well, we have two listener comments from the last episode that I thought were worth reading to the group. So first of all, Michael writes in to say, you and David gave me a huge adrenaline boost to start today's advisory opinions because you started with a mailbox being knocked over case. My job is quite literally handling mailbox damaged by insert appropriate agency here,

negligence claims. Well, not just mailboxes. Love it. Yeah. He says the long and short of my professional expertise is that the federal government does not own your mailbox. You do. You already know this. You probably know all of this already. Otherwise, you'd have no grounds to file a claim. It's also why those nice post offices never send anyone out to maintain or spruce up the thing. I'd also be shocked if living in a nice neighborhood in D.C., your mailbox were only worth $50, as David suggests. Good luck getting anything other than the cost of the box, i.e. labor and convenience hassle. You wouldn't get that from me, but perhaps the county is loosier gooseier. I love it. Thank you, Michael. I mean, I'm still so angry about my mailbox.

Next up, David, we had someone write in who lives in Grants Pass from the Grants Pass Sir Grant on the homelessness question. Huge fan of advisory opinions. Just listened to the dumb but constitutional episode. Oh, by the way, I do have a correction. The Scalia stamp read stupid, but constitutional, not dumb, but constitutional. I regret the error. Uh, he says I live in grants pass and was very excited to hear our own little town discussed. The problem of tented homelessness in our parks

is relatively new. I grew up about a stone's throw away from Longridge park. My mother still lives there. Once a cute, quiet park where I used to spend my childhood playing basketball and until recently, taking my niece to play on the swings. Lawn Ridge Park is one of many that has become overrun with homeless living in tents. P.S. David had mused as to whether there were very many beds offered by faith-based shelters in Grants Pass. And I can attest that there are many, but they are simply not used. For example, the Gospel Rescue Mission on Foundry Street has a huge men's shelter with many beds available. But because the Gospel Rescue Mission refuses to allow the homeless to bring drugs or alcohol into their facility, many homeless choose to instead set up their tents across the street at Debo Park,

around 100 feet away. Huh. Fascinating. You know, one of the reasons why I focused on religious beds is in Nashville, we have a program called Room in the Inn, which is a bunch of churches participate in from multiple different denominations that provides a room or not, it provides a bed and three meals, a hot dinner, a hot breakfast, and then a sack lunch. three meals, a hot dinner, a hot breakfast, and then a sack lunch. And it's a tremendous program and many, many, many homeless Nashvillians take advantage of it. So it just immediately struck me as an artificially deflating the number of beds if you're not including religious outreach. All right, David, I think we have enough time to talk about a case that I am so excited to tell you about. Oh, I can't wait to hear. Like, too excited. So a Second Circuit tipster sent this

one in. Here's the story. Haley is a wedding dress designer. She starts working at JLM Couture, a fashion company, in 2011. She opens an Instagram account under her own name and uses it to promote new dress designs and share photos of her adorable dog. She gains hundreds of thousands of followers, many of whom start messaging her about orders. Fast forward to 2019, contract negotiations go sour. Haley quits, locking JLM out of the Instagram account. JLM sues, alleging, among other things, conversion. We'll come back to that word. It'll be another word we'll define. The district court, applying a six-factor test it had just invented, says JLM owns the account and makes Haley hand over the

password. The Second Circuit flips the district court's decision, says, we've known how to decide property disputes for centuries and a six factor test ain't it. Go read Pearson v. Post from 1805 and try again. David, I love this case so much. The opinion is a delight. So first of all, conversion is just a fancy word for when someone takes something of yours. It's a property term, right? So there's different ways of, quote, converting something. But if you let me borrow your laptop and then I went and took it home, and I'm using it for my own purposes, and you're like,

can I have my laptop back? And I'm like, no, I think it's mine now. I've converted your laptop from yours to mine, if that makes sense. That's like the quick, the dirty version of conversion. Okay. But Pearson v. Post from 1805 is the first case that you will learn in property law in almost every law school in the country. I don't think this is like really mean because there's no way David actually remembers this from 60 years ago when he went to law school. Wait a minute. Do you even remember like what animal is involved in Pearson v. Post?

I'm just going to guess a horse. No. Sorry. I'm sorry. Property was my favorite class in law school. It wasn't David's. So Pearson v. Post is this famous case where Mr. Post is a very wealthy person in town, maybe the wealthiest guy in town, and he's on a fox hunt and he spots his fox and he's in pursuit of the fox. Mr. Post is a subsistence farmer, right? He needs that fox to like eat and have fur and stuff. It's not a fun, you know, game for him. He sees that Post is pursuing the fox and he kills the fox and takes the fox. Oh, that's right. So whose fox is it? So this case goes all the way to the Supreme Court. And the Supreme Court basically says that you don't have a

property right in a wild animal unless you've done something to affect the wild animal beyond simply chasing it. You've injured it. You've trapped it somehow. Then maybe you have some property interest over the wild animal. Otherwise, it's a wild animal and it's doing its wild animal stuff. And there's so many great lines in Pearson v. Post. I'll read a couple, okay? First of all, this is one line. Puffendorf defines occupancy of beasts, phara naturae, to be the actual corporeal possession of them. And Binkershoke is cited as coinciding in this definition. It is indeed with hesitation that Puffendorf affirms that a wild beast mortally wounded or greatly maimed cannot be fairly intercepted by another, whilst the pursuit of the person inflicting the wound continues. Here's another. If the first seeing, starting, or pursuing such animals without having

so wounded, circumvented, or ensnared the animal so as to deprive them of their natural liberty and subject them to the control of the pursuer should afford the basis of action against others for intercepting and killing them, it would prove fertile course of quarrels and litigation. So you may be wondering what this has to do with an Instagram account. But the question that the Second Circuit has now sent back to the district court is, whose account was it first? And so yes, the metaphor is actually, Instagram is like a wild beast. Who maimed the beast first? And basically the Second Circuit saying, by all accounts that we're seeing here, it's quite clear that Haley maimed the beast first. And basically the Second Circuit saying, by all accounts that we're seeing

here, it's quite clear that Haley maimed the beast first. So congrats. I love this case. I don't know why. I'm just so into this idea that it's actually to your point, David. It may be new technology. It may be a novel factual scenario scenario but there's not a whole lot new under the sun don't create new legal doctrines they're very very rarely necessary go back and find the appropriate analogy to that new technology that being said david i bet you wouldn't have guessed that a fox was the technological analogy for Instagram. No, I would not. And I love the parenthetical. See Pearson v. Post,

determining original owner of a fox. And the reason why I said horse, so ever since you sent me this opinion, I have been surreptitiously doing some Googling. And I didn't know this, Sarah, but we've just stumbled across something that has apparently been a big deal for a while in like the wedding dress world. And so I'm going to bet that we have people who have followed this legal dispute who are AO

listeners as obsessively as they may have followed like the Amber Kerr, Johnny Depp trial. as they may have followed like the Amber Heard, Johnny Depp trial. So we may get some interesting details in addition, but this is one thing I ran across, and this is why I said horse. Haley Page Gutman, the former wedding dress designer for Haley Page Bridal, has changed her name to Cheval amid a legal fight with her former employer, JLM Couture, over the rights to her bridal designs and social media identity. The former Say Yes to the Dress star

announced her new name on Monday on Instagram. This is at 2022. Moving forward, I'll be officially identifying as Cheval, the designer wrote about her new name, which means horse in French. The last two weeks have been a whirlwind and then some, but I've been basking in some truly creative and meaningful ideas. So yeah, so this is a dispute so intense, Sarah, that it's led to a name change. Oh, Haley, you've made a

huge mistake. Obviously your new name and business should be named after a fox because that's what will harm you, your case. Oh, Haley, come talk to us. We can fix all of this for you. Footnote, David, you know, we talked about that January 6th case that's going up to the Supreme Court about what corruptly means and sort of what to do when you have a long list of things and then the word, you know, and otherwise similar or whatever. Exact same thing happens here. In her contract, the company said that all, quote, designs, drawings, notes, patterns, sketches, prototypes, samples, improvements to existing works and any other works conceived or developed by Haley in connection with her employment belongs exclusively to JLM. So the district court held that any other works included the Instagram account and the Second Circuit saying, the ordinary meaning of general terms at the end of a list must be interpreted to embrace only objects similar in nature to those

objects enumerated. And clearly, all of those other objects are quite different and similar to each other, but not to an Instagram account. Designs, drawing notes, patterns, sketches, prototypes, samples. Those are not like an Instagram account. So just noting that for our future statutory interpretation cases, in this case, a contractual interpretation case, but it's still a canon of interpretation on lists and catch-alls at the end of the list. I like this case, Sarah. I like this controversy. There's even a contempt finding at one point. I mean, there's so much. This was drama.

This was some real... It's amazing. It's amazing. But you're right. I mean, Cheval, she should be La Renard. Like, that's the French for fox. And it reminds me of a classic line, Sarah, in Wayne's World, 1992.

Wayne Campbell, Cassandra, she's a fox. In French, she would be called La Renard and she would be hunted with only her cunning to protect her. That was actually a pretty good Mike Myers impression. I do remember that line so well. I heard, I saw his face as you were reading it. He does that thing where he upturns one side, as he says, with only her cunning to protect her. Only her cunning to protect her. Yes. That's in the same monologue where he says, if she were president, she'd be Babraham Lincoln. Well, David, lots to talk about on the next episode. We may revisit some of those other Supreme Court oral arguments from this sitting.

But David, here's my tease for next time. We have a clerk out in Indiana that has this year started putting up his clerk tips. I agree with some. I disagree with some. We'll pick out a few to go over next time on Advisory Opinions.