Advisory Opinions - Catching Up With SCOTUS, Ep. 1: The Saga Begins

Episode Date: March 2, 2023

Are you ready for a MOHELA good time? Sarah and David try to read the tea leaves as SCOTUS scrutinizes Biden's student loan forgiveness and the future of the Consumer Financial Protection Bureau. Also: terrorism on Twitter and cert grant update. The saga begins. Show Notes: -Biden v. Nebraska oral argument transcript -David Lat: On the need for diverse viewpoints -David Lat: More thoughts on intellectual diversity -Twitter v Taamneh oral argument transcript   Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. Opinions podcast. David, we have a bonanza, like so much of a bonanza from the Supreme Court in just the last 48 hours or so that we've made a long list and we're just going to start today and we're going to keep going till we get through it. I know this will at least take us through the next episode on Monday. It may take us past that. Who knows? So let me tell you what our list is. And as I said, we're just going to go until we're gone. We've got the student loan arguments. Those were two cases that were argued this week. We're going to talk about both the

standing and the merits and how hilarious universal vacature was to the court by the time they got punchy in hour three. We've got on the Google and Twitter arguments for last week. We didn't actually get to talk about the Twitter argument at all. So we're going to talk a little bit more about that. Then we've got two SCOTUS cert grants, one on the CFPP's funding mechanism. We talked about that a little when it came up through the fifth circuit, but also a really interesting one on the First Step Act and whether and means and or and means or. Then we've got opinions, David. The achievement case finally is here. We've also got an overtime case that also came up from the Fifth Circuit in kind of a feisty way, a bankruptcy case. And you guys know, I mean, I don't we don't talk bankruptcy on this pod unless it's sexy bankruptcy. And this is literally sexy bankruptcy, foreign bank accounts and the

rule of lenity. And then we've got a dissent from denial dealing with plea bargains and the trial penalty, which I think is worth dealing with as well. And that's not even all that there was, David. That's just the stuff that I was like, we have to, we have to cover this. Yeah. No way we're getting through all of this today. Like there's just no way. Anyone want to take bets on how far we get? Because it might be only the oral arguments. I know. And that doesn't even count the circuit court wildness, craziness. It's not that the courts are wild or crazy. It's that the cases, the cases that they're deciding wildness, craziness, including a student discipline case from the fourth circuit that there's no way we're

getting to today that we're going to get to on Monday that blew my mind. So really, this is a two-part series. Welcome to part one of our two-part extravaganza bonanza. So David, let's start with the first case. This was the state brought by six states. So what's funny about this is that even though the entire standing argument is really going to turn around Missouri, it's actually the Solicitor General of Nebraska arguing it. So you've got the U.S. Solicitor General, Elizabeth Prelogger, James Campbell, the Solicitor General from Nebraska, and they're all

going to be talking about MOHELA, the Missouri Higher Education Loan Authority. Nobody in the entire argument ever is going to say that again. So we're just going to call it MOHELA. And it was a MOHELA great argument. Yeah, David? All right. So it started with, you know, you've got in both of these cases, you're going to have the standing argument and then you're going to have the merits. And on the standing argument, I thought it was interesting because that even got divided into two parts. Is Mohela a government actor? Because Mohela is not the one who's bringing this case. It's Missouri and these other states. So why didn't Mohela bring the case itself? It's a separate independent entity, but it's created by Missouri. But Missouri had to use a public records request

to even get documents from Mohela. But as the Nebraska SG pushed back, yeah, but they're amenable to public records requests, which means they are a government actor. They're a state actor for constitutional purposes. They're a state actor for constitutional purposes. They can't discriminate or violate your First Amendment rights. The legislature can demand money from them. But, and this got a little confusing, but it appeared in the oral argument that if Mohela were to poof, disappear, the assets from Mohela don't just revert to the state. So a whole bunch of discussion over whether Missouri can sue on behalf of Mohella.

And then second, Missouri had a, or Nebraska, the state, that's going to get really confusing, but there was a second standing argument related to Mohella, which is that the state itself, Missouri, is hurt

by the student loan cancellation program because Mohella would lose 40% of its revenue and Mohella would lose 40% of its revenue and Mohella contributes to a loan program for Missouri students. But that got weird too because Mohella actually hasn't donated to the one program for 15 years. They keep getting extensions from the state and the state pushed back and said, yeah, but that's only because in exchange for the extension on the hundred million dollars they owe to the Lewis and Clark scholarship fund. We've given them that extension in exchange for sixty five million dollars to a different scholarship fund, basically. And regardless, the extension's up next year. They're giving money to this other program. And if 40% of their revenue goes away, Missouri is clearly worse off.

Just on the standing for Missouri, argued by the state of Nebraska, David, where do you think that the chips fell? I think standing might be 5-4, because I was very interested that Barrett seemed to really be intrigued by the standing arguments. And I have to confess that the standing argument was closer than I thought it would be. Uh, because you know, when, when you initially, when we initially covered this Mohella part of the government of Missouri, Missouri, seemed to be a straight line. No problem, right? No problem.

Then you find out, you dive into the details and you find out, problem. And the weird thing about it is that basically there didn't seem to be serious dispute, at least not serious enough to jeopardize the case that if Mohella had sued, Mohella would have standing. And there wasn't really a satisfactory answer as to why Mohella hadn't sued. In fact, his answer was that's a matter of state politics. What? Oh,

how interesting. If it's so autonomous, if it's so autonomous that it doesn't have to sue and can't be forced to suehella is and how much is it actually part of the state government of Missouri as a distinct entity? Well, not as a distinct, not distinct enough to be a separate part of the government. Yeah, that would have its own independent standing, but standing that couldn't transfer to other parts of the government. I don't know. I thought Justice Barrett was interestingly sympathetic to it. Obviously, I agree with, I believe it's Ilya Soman who said, well, if more justices, more

of the conservative justices were sympathetic, you think you would have heard more from them on the standing and less on the merits. But I will just say, Sarah, I thought the standing question was a lot closer, a lot closer than I thought it would be. So I agree that it was closer than I understood it going into the case because of Mohella's weirdness. However, I think they narrowly win on Missouri being able to sue

on behalf of Mohella because while you're right that Barrett was sort of into it, at one point she says, so wait, we'd have three different doctrines here. We'd have a standing doctrine for Mohe, where they weren't a government actor, a state actor doctrine for Mohela, where they were a government actor, and then a sovereign immunity doctrine for Mohela, where the U.S.

Solicitor General was like, yeah, yeah, they'd be a state actor for that purpose, too. And so it's like, OK, so the only thing they're not a state actor for here is for standing. I think that they might have lost Barrett on that one. But even if that one's close, I actually didn't think it was close that at the point that Mohella loses 40 percent of their revenue and they're giving 65 million dollars into the scholarship fund that helps Missouri students and that the legislature at any point can demand more money. Like Mohella at its creation didn't have to give any money to these scholarship funds. Then the legislature says, yeah, now you have to contribute any of your, you know, these profits or whatever you want to call them, fees assessed, et cetera, into the scholarship

fund to help Missouri students that clearly Missouri will be worse off. So I think they narrowly win on the government actor part. Also an interesting note, at one point they asked Elizabeth Prelogger, what about like the FDIC? The US government represents the FDIC all the time. And she's like, yeah, but we like don't bring suits on their behalf for standing purposes without the FDIC involved. It got kind of messy that basically, yeah, there's independent agencies at the federal level too. And we don't distinguish those. However, no question. It is a, a, the first time that the Supreme court will decide this independent agency and whether the state can bring an action on behalf of an independent agency. Close call on number one, but I think they win less of a close call on number two of whether Missouri is injured. And so I think they went on that as well. But

it was fun. Yeah. No, the standing argument was by far the more interesting part of the argument for me because the rest of it, once you get to the idea that the COVID pandemic, that the HEROES Act applies to the COVID pandemic, the COVID pandemic emergency was a causal relationship for financial hardship for the student loan borrowers, whether there's statutory authorization

for the cancellation, all of that seemed to me to be a quite straightforward argument, the standing part of it. And look, I mean, this was all forecast early on. The energy, the real intellectual, legal intellectual energy in the student loan argument from the day from day one has been overstanding. But can we talk about one philosophical point about the standing thing, David? Yes. For a long time, it's been conservatives who want to narrow standing doctrine. Right. And now conservatives are the ones like elbowing out and being like, maybe we could have a little more leg room here on standing doctrine. And in particular, I think Justice Alito has raised the point in previous opinions, concurrences, dissents from denial in particular, that his beef maybe isn't with standing doctrine should be shrunken or expanded, but his beef is consistency.

And I think that's something we really see in the second argument on standing doctrine is this sort of the messiness of consistency on standing doctrine, because it really feels like if the justices want to reach the merits of the case, then sure, the parties have been injured. And it's almost like a backward looking analysis in a bunch of previous Supreme Court cases that have led us to this point. I actually think the Mohela thing, like I said, is an interesting standing question on the merits without having to do that. But when you got to the second case, it got a lot more philosophical about what standing is. So maybe we can put a pin on that. Stay on the merits here for a second. Can I read

the line, the paragraph from the Chief Justice? Yes. So important to note that in the HEROES Act, it says that the secretary may waive or modify programs related to student loan debt. And so a lot of this is going to turn on whether canceling student loan debt is waiving or modifying an existing program. Even though the word cancellation is used elsewhere in the HEROES Act, it's not used in this section. It's only waive or modify. So we're going to have a lot of just sort of statutory interpretation. And here's the chief justice who, heading into this argument. It's funny, I wasn't quite sure where he would be. And as as someone who may or may not live in my house said, the chief justice is no friend of the administrative state.

And that proved correct. The chief justice is not a swing vote in this case. So let me read you what he said. Correct. The chief justice is not a swing vote in this case. So let me read you what he said. In an opinion we had a few years ago by Justice Scalia, he talked about what the word, quote, modify means. And he said modify in our view connotes moderate change. He said it might be good English to say that the French Revolution modified the status of the French nobility, but only because there's a figure of speech called understatement and a literary device known as sarcasm. We're talking about half a trillion dollars and 43 million Americans.

How does that fit under the normal understanding of modifying? The end. Like, you don't even need to listen to the rest of the three hours of the argument once you get past the standing, at least. Yeah, yeah, that that was that was a telling moment. I mean, this is one of those oral arguments that, again, talking about on the merits that if you're walking out of there and you're doing the obligatory press conference afterwards and someone has asked you, how do you, let's say you're challenging, you're Nebraska, you're challenging, and the reporter is asking you how you feel after the oral arguments, or maybe you're going back to your law partners and saying how you feel. You're going to say this, well, of course, you can't always judge from oral argument and you're not going to mean it because you're judging from. In this case, you can't, but you can't always. It's true.

You can't always. Actually, you can't always. But I would fall out of my chair in shock and not get up for an hour if they ruled for the student loan forgiveness program on the merits. Now, I would not be so shocked. I would still be surprised. I would be surprised, but I wouldn't literally fall down if they ruled against Nebraska et al. on standing. It would still surprise me. It would still surprise me. But I would literally fall out of my chair in shock if they ruled on the merits after that oral argument. So let's get into it a little bit, because the way that they're going to rule for

Nebraska and the states will matter for future cases quite a bit. So as I said, there's this just pure statutory argument about waive or modify and is canceling all of this debt simply waiving or modifying. I could count to five that waive or modify, that's a nope. And if that's the case, that could be a pretty, not narrow, but very specific to the HEROES Act decision. Now, interestingly, I'll note that I only could count to five, because Justice Kavanaugh seemed much more open to the possibility that waive or modify here, modify may be narrow, but waive is really broad, and that perhaps this did grant really broad authority under that idea. But then he has this interesting paragraph.

He basically says Congress could have put in cancellation language around the way we're modify regulation. Sorry, statutory language. And he said this is a familiar problem we've seen before. Quote, an old statute with kind of general language, Congress specifically considering the present issue repeatedly, but not, as you acknowledge, the U.S. Solicitor General, passing legislation that would authorize this specific action. And then in the wake of Congress not authorizing the action, the executive nonetheless doing a massive program. David, singing from my songbook, right? Because Congress

absolutely took action in the wake of COVID, multiple large pieces of legislation. It's not that student loans weren't contemplated. They absolutely were. And then they didn't do it. So then the executive just did it by themselves. Now, Prelogger had a decent answer to that, which is that there is student debt cancellation contemplated in one of those pieces of COVID legislation where it says that it won't be taxable. If you remember, that was a big thought about the standing, that you would have a tax liability and that would give people standing to get into court. So she was using that as an example where Congress was basically acknowledging the executive's ability to do something like this.

Look, not a zero argument for me. But I think that while you may lose Kavanaugh on the wave or modify just shutting this down from the get, what you're getting to there is something close to major questions doctrine. And then they do get to major questions doctrine. And in particular, the chief, again, all up in the major questions doctrine business. And he's saying this clearly is a major questions doctrine case. And remember, major questions doctrine. And we talked about this with Judge Rao, and she didn't love my distinction, but I think it's an easy, helpful distinction. If non-delegation is Congress can't give the executive the power, major questions doctrine is that they didn't give the executive the power. And so here the argument

would be, look, the HEROES Act might have some broad, vague language in it that you can shoehorn this program into in a technical sense. But when we're dealing with half a trillion dollars and 43 million Americans, if Congress had intended something like this, they needed to speak to it more specifically and more clearly, either with cancellation language or passing something in the wake of the actual emergency. the actual emergency. And there you had the chief, you know, basically that Elizabeth Prelogger's response to that was that major questions doctrine only applies to regulatory schemes, but this isn't actually an executive agency passing a regulation. This is just a benefits program, which was sort of a shocking argument to me in some ways, because

the whole problem here is that they didn't go through notice and comment. This wasn't a regulation. They just did it. It's worse. And she's saying because it's worse, they get more leeway. And the chief compared it to the dreamer stuff. And why I found that interesting is because if you remember in striking down the Trump administration's attempt to rescind the dreamers executive action by Obama, the chief joined with the liberals to do that. And that was a 5-4 decision.

And so by him saying, like, look, in the dreamers case, I reigned in executive action. So I'm definitely going to do that here, too. Question mark. Like, yeah, for sure. The chief is so far gone. He is leading the charge on this. I maybe not fall out of my chair, but I will stumble out of my chair if he's not actually authoring it. Yeah. Yeah. That's that's interesting about the chief is no fan of the administrative state, which also has some relevance to if we remember some of the in the Trump administration census case, for example, DACA and census are like these two big looming examples where the chief was like, nah, dog. Yeah, yeah, exactly. So I thought that was very interesting. But again, you know, when you're talking about this case, let's turn back a little bit to the merits of just what does the Heroes Act say? You know, it allows for some relief for any individual who, quote, suffered direct economic hardship as a direct result of a war or other military operation or national emergency.

Or national emergency. Or national, right. Which is not the same thing as saying, in the event of national emergency, you may dot, dot, dot. What it's saying is there is harm as a direct result of the natural, direct economic hardship as a direct result. So you've got two directs in there, Sarah, and there's just not evidence that what we're talking about here is a community of people who have suffered direct economic hardship as a direct result

of the COVID emergency at this point in time. Now, notice that this case is not about, for example, the loan deferments during the COVID era. Although that fascinatingly came up, Barrett pushes on that and says, so do you think that the secretary had the authority to defer loan payments, to pause loan repayments at the time of COVID? And the response from the Solicitor General of Nebraska was, that's not an issue in this case. And she's like, yeah, I know, but I'd like you to answer it, which is the fun of doing an oral argument at the Supreme Court. And his answer was interesting because he said, yes. And she's like, okay, well then is that continuing? When did that stop? How long does that go on? What's the limiting

principle? And there was some flim-flamming around there. For the purposes of this case, I thought he would say no. But I think the best answer, and by the way, this isn't me saying this was a bad oral argument answer. Again, but for the grace of God, go I, standing up there flimflamming around. But I get to listen to it at home and think about it overnight. It seems to me the answer is we know that the executive has certain powers in a national emergency until Congress has the ability to act. We've seen that throughout the United States history. And so certainly the executive, through the HEROES Act and probably just through some inherent powers, at the point that the entire economy was shut down due to a

worldwide pandemic, could pause student loan repayments until Congress was able to convene, consider, and pass legislation at all. Now, at the point they pass legislation and it doesn't include this, then we've got a problem. And it goes almost back to the Civil War era and Lincoln. And look, people can say Lincoln was acting unconstitutionally or extra constitutionally. And you and I talked about this a lot in COVID emergency land at the beginning of the pandemic and all the lawsuits that were brought then. The executive is going to be at its zenith of power in the immediate aftermath of a national emergency. We are two and a half years later. Yes. Two and a half years later, where the

national emergency is set to sunset, even by President Biden's judgment in just a couple of months, there really isn't that much evidence that COVID is actually burdening repayment now. of people who are economically better equipped to face the future than virtually any other community of Americans, period. People who've been to or have had some college or are college or graduate school graduates. I mean, these are people who are set up to do quite well in the economy. So in that event, they're essentially, as I read this case, essentially saying, if we have a national emergency, we have the ability, if their national emergency exists, we have the ability to waive, meaning cancel, loan debt because a national emergency exists, but that's not the statute. There's two directs in that language there, Sarah. Two directs. Direct economic hardship as a direct result. And we'll take a quick break to hear from our sponsor today,

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four, two, three court that Barrett has moved over and that you really do have Kavanaugh on the chief now as the ones you want to focus on in any of these cases. The chief is not interesting in this case. He's all the way. I think he's writing it. Here is something Kavanaugh said, though, that I think will tell you where his head is at. Some of the biggest mistakes in the court's history were deferring to assertions of executive emergency power. Some of the finest moments in the court's history were pushing back against presidential assertions of emergency power. And that continued not just in the Korean War, but post 9-11 and some of the cases there. So given that history, there's a concern, I suppose, that I feel at least, about how to handle an emergency assertion. You know, some of the

amicus briefs, one of them from a professor, says this is a case study, an abuse of executive emergency power. So again, David, I think if you say the standing question is a close-ish call, but they get in on standing, which I think they do, and the merits question isn't a close call, which I agree with you on, there's still a lot of room on how the merits question is decided. there's still a lot of room on how the merits question is decided. Is it decided on a pure text basis, waver, modify? Is it decided on major questions doctrine? Is it decided on this, you know, abuse of executive power idea that Kavanaugh raised sort of towards the end? I think we're heading in the major questions doctrine direction, I think. I think you could have a concurrence from Kavanaugh, for instance, because he loves his concurrences. And that

we haven't had a ton of major questions doctrine. It's just blooming recently in this season of the Supreme Court. And that in and of itself will make new law as will the standing question. I also wonder if you might see, well, it's major questions and it's statutory interpretation. And all of the above approach? All of the above. And I'm sorry for being fixated on that double direct language. But just to put a pin in that, when we've had the debate about student loan cancellation leading up to this oral argument and the merits of student loan cancellation, all, and I feel pretty comfortable saying all, well, let me see, all's a big word. I have not seen any real debate about the way in which the student loan burden is enhanced by the COVID emergency. All of the public debate is about how costs in college are out of control and how,

you know, hey, Gen Xer, you can't judge millennials here because you went to college when college was a lot cheaper. Now it's a lot more expensive and it's a necessary sort of ticket of entry into the information economy. And there's all of these giant policy arguments about dealing with the cost of college, which are, they sound super Congress-y to me, Sarah, all of the big policy arguments about the financial burden of college and the necessity of taking on that burden as a ticket of entry into the modern economy, all of those are hugely important policy questions. But you know what they're not?

They are not an argument that there has been direct economic hardship as a direct result of the COVID emergency. And that's what it feels to me to be in the final analysis. Even if you're going to get past major questions, even if you're going to get past waiver modify, you still got to cross that hurdle. And where's the beef on that hurdle? There's just no beef on that hurdle. And, and so it just strikes me as a multiple pronged, not close question on the merits, which again turns us back to standing where I can't remember the last time we had a case involving such a major congressional or a major regulatory action where all of the real intellectual

energy was on the standing question and very little of the real intellectual energy was on the standing question and very little of the real intellectual energy was on the merits. Well, speaking of that, let's move to case number two. This is the case about the two borrowers, right? One borrows from a private lender, so they're not eligible for any student loan relief under the program as announced by the Secretary of Education. The other one is only eligible for $10,000, not the $20,000 because of the Pell Grant issue. And the second argument was only about standing, which is kind of a good way to know it's not going well, as opposed to the first one. Now, let me be clear. Because it was still the US Solicitor General arguing, she was getting questions on the merits as almost a holdover, if you will.

But all of the questions for the lawyer representing the borrowers was on the standing question. And just a fun note, by the way, because the person arguing for the borrowers was Michael Connolly of Consovoy McCarthy. So two things. One, I summered with Mike Connelly at Wiley Rhyne. We were co-summer associates and like super buddy summer associates. So much so that I definitely had like a small crush on Mike Connelly. He's like adorable and smart and wonderful.

Also though- So is this news to Mike Connelly when he listens to this podcast? It definitely is. All right, all right. I've told husband of the pod already. All right. Small crush. There's like big crushes that I've had. This isn't like a big crush. It was a fun summer. And Wiley does scavenger hunts around DC. And there's teams for that.

Obviously, my team won because forget billing hours or actually impressing anyone with my legal abilities. It was all about winning the end of summer scavenger hunt. I worked on it all summer, including you could bribe the judges. That was part of the rule. And it was a horror movie theme. And so I did ours as The Shining and bought hand mirrors, as The Shining and bought hand mirrors, shattered them, and wrote red rum on all of the mirrors and red nail polish with a bottle of rum attached. The judges said they weren't sure if it was a threat or a bribe, but they were accepting it. Sorry, that's a little bit off topic, but here was something fun. So Consovoy McCarthy, if the name sounds familiar, it should, uh, will Consovoy who passed away recently. And I,

I discussed that this is his firm and his namesake firm. Uh, David Latt pointed this out. Uh, when Mike Connolly of Consovoy McCarthy made his Supreme court debut this week in the big student loan case, It made him the eighth lawyer from the firm to argue before the high court, a pretty remarkable statistic, considering that the firm only has 20 lawyers. As David was saying, I'm hard pressed to think of a firm of any size where more than a third of the lawyers have argued before the high court. And just worth noting, that was really part of Will's legacy. Instead of hoarding Supreme Court arguments or circuit arguments, for that matter, to the famous partners that the clients really

wanted, he was all about training younger partners and associates and giving them these huge opportunities. And boy, is that reflected in that number where eight out of 20 of their lawyers have argued before the Supreme Court. So kudos to Mike. Well done, even if it was rougher on the standing question. Can we take a short timeout detour to talk about the legal profession for a minute? Absolutely. So I think this is really interesting because I was recently part of a tougher job of it or a tougher go of it finding employment in elite legal spaces? And there was some discussion as a part of that conversation of some individual incidents, say, for example, where a summer associate had been flagged because of their social conservatism, ultimately got a job, but even being flagged because of their

social conservatism wouldn't have happened a few years ago. And where I kind of came down on the discussion, which was really interesting, was that, A, I do think in some big firms, there is a burden that you're going to face if you are sort of a known social conservative trying to come up through the firm. But at the same time, there's an entire ecosystem of elite conservative law firms that didn't exist when I was coming out of law school. And so it's kind of a mixed bag. I do think that at some of the big firms, there has been some ideological sorting to

such an extent that I'm not sure you're going to get a fair shake if you are, for example, a Christian conservative lawyer coming out and that's all over your CV and your resume and all of that. But at the same time, there are other places that didn't exist many years ago. And while I'm glad that the legal marketplace has more options for lawyers who are at sort of that apex level of ability and credentials, I do think it is really negative to actually start to see kind of that ideological balkanization. So I think the negative thing isn't that you have fewer career prospects, because in some ways you don't. If you're, say, a social conservative, there will

be these conservative legal options for you. But the existence of balkanized legal options is itself a problematic development. So that's my cul-de-sac. And you know who's written about this so, so well is David Latt, who I was just talking about. So he had that op-ed about cancel culture in law firms. Not his title, by the way, not the headline he would have chosen. But then he followed up on his sub stack in sort of a faux Q&A with his critics, which actually I thought was so illuminating. I'm going to put both links in the show notes and maybe we'll have David on in a little bit to talk about that when things calm down because we've got so much to get to. Okay. So in the

second case with these two borrowers, their argument was if the Department of Education couldn't have gone through the HEROES Act, they would have had to go through their sort of general authorization on the Education Act, and then they would have had to go through notice and comment. And under that process, these two people would have been able to advocate for their own interests under normal APA notice and comment rulemaking. And that while the agency's answer to that is that it wouldn't have changed anything, it would have been the same program, that that's always what agencies say when they want to get around notice and comment. And that's never been a way to get around notice and comment in the past. However, David, and I remember I said, this was more of the philosophical

standing question. What is their injury? Because for instance, if you knock out the Heroes Act, then nobody gets loan forgiveness, including these two. And their argument hinges on the idea that no, no, the Biden administration will still do loan forgiveness. They're still going to pursue this. They're just going to pursue it through notice and comment rulemaking. But that's pretty speculative. I'm not sure I agree that they'll do that at all. I think the whole thing may die because they already got the press release for wanting to do it. Why keep trying? And notice and comment rulemaking takes a long time. They probably don't have time left at this point to get through notice and comment rulemaking before the end of this term. Now he went the second term and blah, blah, blah.

So maybe they will start. I don't know. But that's what makes it all so speculative. So I'm very sympathetic, I think, to the process argument, which is sort of obvious, right? An agency can't just say, well, we didn't need to go through notice and comment rulemaking because we were very sure what we were going to do. No, the process does matter. But here, what is the redressability to the injury? You can't make the government now go through notice and comment rulemaking at all. And so the redressability is that nobody gets it. And so there might be pressure. That felt pretty speculative. What did you think? Yeah, it seemed very speculative. And if I had to map this out, it feels like to me, in this case, no standing, standing by a standing hanging by a thread in the Nebraska case, which was argued on behalf of Missouri's thing, which was brought on behalf of another Missouri thing. It's all so convoluted. But if I had to guess, you're looking at the Supreme Court sort of deal with the philosophical issue by not really opening the floodgates on standing,

which would be ruling for standing for these other plaintiffs, and then finding by a pretty narrow thread standing with Missouri and Mohella only, and then stampede straight, straight to the merits where it will be some version of a judicial slam dunk where they hang on the rim and taunt their prone opponent for some period of time. So that's my projection. I think that's probably pretty fair. There were clearly some votes on the standing question for the borrowers on the conservative side, and that's where it got philosophically interesting for me because conservatives for so long thought that standing helped liberal causes. Think about Mass VEPA. This was the special solicitude for states. Lujan, it was all these environmental wildlife cases that were these speculative or third party standing abortion cases had standing issues in the

past. And each time they seem to be liberals trying to get into court. And so you had conservatives on the outside, maybe in the court itself, pushing against expanded standing doctrine. And I think that's really changed as the administrative state has grown and felt like more of a threat to conservatives, that now they're like, no, now we'd like to be able to get into court for funsies. And so I think you'll definitely see some writing from conservative justices on standardization of standing doctrine, that what's good for the goose has to be good for the gander, and we just need to have better rules that are more clear. The injury and redressability are all great for law school

textbooks. But case in fact, they're all over the place in precedent, as again, as Alito has pointed out. So I think you're right that they'll lose on standing, but I think we're going to see some writing. But there was one other issue that came up that was not standing and it wasn't the merits. And as I said, they got pretty punchy in our three of the arguments. And there was a lot of laughter around universal vacature and a whole bunch of- As there always is. Always, right? It's a hilarious topic and it's fun to say. Yeah. And there was a lot of questions over why is universal vacature so funny?

So I'm going to try to do the thing you should never do, which is explain the joke. But let's start with what all happened here. So you have Gorsuch. And remember, Gorsuch is all about finding a vehicle to talk about these nationwide injunctions. Universal vacature and nationwide injunctions, like there's a lot of different terms that at some points are going to have some terms of art, but for our purposes here today, interchangeable terms. So here's Gorsuch raising it.

And I just want to give you another chance to talk about universal vacature with some of my friends here. Laughter. If you want to, and if you don't, that's fine. U.S. Solicitor General Prelogger, I will always take that opportunity. We did argue below that the district court didn't have the authority to enter universal vacature in this case. And, you know, the language that courts have relied upon and thinking that this is a permissible remedy under the APA. So that she goes on for a bit, because remember, the Department of Justice is never going to want nationwide injunctions because they're almost always against the Department of Justice.

So Gorsuch back now. I mean, talk about ways in which courts can interfere with the processes of government through two individuals in one state who don't like the program can seek and obtain a universal relief, barring it for anybody else anywhere. So, okay, we kind of know where he's at on that, but let me get to where, um, it got fun. So then Justice Jackson's going to jump in and she says, I understand, but would you have the same reaction to universal vacature if the claim on the table was about their particular entitlement to getting, let's say, more money under this plan? Would we be in a world, if you were right about universal vacature, in which every single borrower in the country would have to bring a lawsuit in order to vindicate a right that the court would say these two people have?

And by the way, this is the debate, right? Should you have to bring a case in every single court with every single potential plaintiff? No, that sounds silly. But at the same time, if you go into 50 district courts and they all say you lose, and then you find the 51st district court and they say you win and enter a nationwide injunction, then that makes no sense, right? All you have to do is win one time, and you can lose as many times as you want. Okay. So now the rest of the know, Gorsuch has had his say. Jackson has had her say. Here comes Justice Kagan. I recall that the last time we did this, every member of the D.C. Circuit, Justice Kavanaugh interrupts. Yep, this is going to take a while. Laughter. Justice Kavanaugh,

we can go into this if you want, but Kagan, I'm just going to change the subject if that's okay. But Kagan, I'm just going to change the subject if that's okay. Gorsuch, General, I'm sorry. Kavanaugh, actually, pre-logger, no need, Justice Kagan. And then Justice Kavanaugh is like, no, no, I'm going to come back to this. And then it finally ends with Chief Justice Roberts. Sometimes I need a gavel. Justice Kagan noting that there are many former members of the D.C. Circuit on the Supreme Court at this point, and this has always been a big fight around the D.C. Circuit and universal vacature. So you were having a bit of punch drunkiness. The justices knowing that this is not the case where they're going to resolve nationwide injunctions, universal vacature. And so like, this isn't really a good use of anyone's time, but Gorsuch getting into it because he loves it. And it's a hobby horse Jackson taking

the bait Kagan saying, well, if we're taking the bait, like, remember we're all from the DC circuit here and saying, so let's change the subject and cabinet going, no, no, I want back in the game. And Roberts throwing up his hands that he has no control over this court whatsoever. So that's the joke. Does that make sense? So Sarah, it all raises the question, with material this rich,

why hasn't Will Ferrell done a Universal Vacator movie yet? Actually, a Will Ferrell movie on the Supreme Court would be fantastic. True. David, are you ready to wrap, to go back to Section 230 and big tech? Yes. Yes. Yeah. Okay. I don't think we're getting through our list for today even. We're not getting through anything. I said that though. It was a disaster. All right. So to remember, the Google case is whether section 230 gives Google immunity from sort of the promotion and algorithmic choices on these ISIS videos. The Twitter case, the one that we haven't talked about yet,

is whether a terrorism statute, whether they violated a terrorism statute by promoting ISIS content on Twitter. And it's not that I want to spend a ton of time on the argument, but remember I said that the two cases were interacting in interesting ways. And here I'm going to read David Latt's summary because I thought he did a really nice job explaining how you're not sure which case they're going to punt, but it's almost certainly going to be one of them. So the justices could rule in the Twitter case that the plaintiffs have no case under the anti-terrorism statute because there's just not enough of a link between the platforms and the attacks, which could in turn resolve the Google case. Or, because if there's

not a link, then it doesn't matter, right? We're done. Or they might rule in the Google case that Section 230 broadly shields Google, Twitter, and similar companies from any liability flowing from third-party content, which in turn would resolve the Twitter case. Does that make sense, David? It makes total sense. Either case, the outcome of either one of these cases can actually resolve both cases. Yeah. And you saw the justices, A, struggling overall, right? You have the famous line from Justice Kagan that we're not the world's nine foremost experts on the internet. world's nine foremost experts on the internet. Good use of understatement. But you also had them struggling with which case to resolve. I think it is in some ways, safer isn't the right word. Narrower, less controversial to resolve it on the anti-terrorism part that there just

wasn't enough of a nexus rather than touching Section 230 and leaving that one for another day. On the other hand, you're going to get a million more Section 230 cases if you do that. So if they want to be done with Section 230, decide it on that, and you don't even need to get to the nexus question on the terrorism point.

No, I would agree with you. Obviously, the Twitter case is the narrower case that could resolve both of them. At the same time, though, the Google oral argument was one long exercise in sort of describing why Congress has to do this. That if you don't like Section 230, don't come to the court to sort of rewrite it because the language is pretty clear and very broad in Section 230. Don't come to us to narrow the statutory language. Go to Congress to narrow the statutory language because there were a lot of competing policy type questions when it came to Section 230. And so, you know, I honestly don't know which way they're going to go. But Sarah, I did find it really interesting in the Twitter Tomna case, how Justice Thomas's

hypo dominated the whole first part of the argument. And that it was an interesting hypo. And I'll just run it by the listeners. So this is an exchange between Thomas and Twitter's counsel. So, and I may have misunderstood your brief. So you would, I would assume, you would agree that if I had a friend who is a mugger, a murderer, and a burglar,

Waxman interjects, and says, hard to imagine that, to laughter. But other than that, a good guy, which is kind of funny. He's a mugger, a murderer, and a burglar. But other than that, a good guy. And I loaned him a gun, but not knowing and not wanting to know what he was going to do with it. Would that be aiding and abetting? Which is a really interesting question. And Waxman says, no, I think it wouldn't be. Thomas, why? Waxman, because while it would satisfy steps one and three of the Halberstam

legal framework, that is, it's meant to be a model for interpretive model for the statute, you also have to have a general awareness that you're assisting an overall illegal or tortious activity. And so the interesting question here was, how much concrete assistance can you give somebody you might have reason to believe is also a criminal without aiding and abetting if you don't know that the immediate assistance that you're going to give is going to be useful or going to be used for committing the crime. Right. So in this case, you know ISIS is bad. They're bad guys. They kill people. We know they kill people. But Twitter, of course, had no specific knowledge of the attack in question that resulted in the death of the American that gives rise to this specific lawsuit.

resulted in the death of the American that gives rise to this specific lawsuit. And so how close does it have to be that, you know, ISIS in general, super bad, and they definitely kill people on a regular basis. But you didn't know on, I'm going to get the date wrong, you know, on February 15th that they were going to commit this specific act of terrorism. Isn't this pretty similar to the Alabama basketball guy of late? Have you been following this? Yeah. So the Alabama basketball player gives a gun to another person who then uses the gun to commit a crime. And the Alabama basketball player is still playing basketball for Alabama. And playing very well. And playing very, very well. and playing very, very well.

Yeah. Although that's more of an NCAA, that's more of an eligibility is Alabama doing the right thing kind of circumstance than, although, you know, it depends on what did, of course, what was the state of mind of the Alabama basketball player when he's handing out the gun. But the hypo suddenly felt very close to home of like, what is aiding and abetting? And obviously we don't know what the Alabama

basketball player knew. I haven't seen at least what those text messages say. If the guy's just like, hey, bring me your gun, the end. Or if he's like, hey, bring me your gun because I'm definitely going to use it to commit a crime tonight. Yeah, probably somewhere in between. Right. Let me just offer a word of advice on gun loaning. Yes, yes, please do. So as a general matter, the answer is no. And if for some bizarro reason, the answer would conceivably be yes, one of the first things you're going to ask when someone wants to borrow a gun is why? What for? Why? Why do you want this thing? Yeah. But I thought that was an interesting

hypo. And it really played out over the course of a large part of the first chunk of the argument. And I thought it was one of the helpful hypothetical because unlike many kinds of hypotheticals, it actually had some salience with the real world. People do, as you just immediately pointed out to the Alabama case, people do this kind of thing. Yeah. And I think that also in the terrorism context specifically, you can imagine the reverse hypothetical here. I think it's fairly easy to feel sympathetic towards Twitter because, of course, they didn't know what ISIS was specifically planning. But imagine the reverse where the person is able to,

you know, send money to Osama bin Laden. Well, they don't know that it's going to happen on September 9th or that he's going to hijack airplanes. They just know that he has a declared war against the United States and is planning to, you know, make the United States unhappy. That's not that far off in some ways. And, you know, they clearly don't know the specifics, but they know bin Laden's a bad guy who kills people from time to time. And so I think you have to put yourself in both of those positions and say, if one isn't aiding and abetting, maybe the other one isn't either. And am I comfortable with that? And certainly in a post 9-11 context, I am not. Now, I think you can distinguish why Twitter is different than my funder of Osama bin Laden,

but you need to really think through what distinguishes it and what makes it similar. Yeah. And the other thing that was in Twitter's favor is Twitter was trying, was taking steps. So in other words, here you had an entity that was doing something to try to weed out ISIS-related accounts, but wasn't doing... They didn't want to help bin Laden, in my hypo. You're right. In the hypo here, it would be like, not only am I not wanting to help bin Laden, I have actual procedures in place designed to hinder bin Laden. Indeed, but I nevertheless know that I am helping bin Laden.

Yeah, right. That people are still jumping through those hoops well enough or our procedures aren't comprehensive enough to clean out all bin Laden aid. Yeah. I thought what jumped out at me about these two arguments over two days, I think a lot of us felt going into it that the court was ready to go, that they took these cases knowing that they wanted to resolve some shush. And coming out of the argument, the universal opinion seems to be, oh no, they had no idea. They are not ready for this. They do not want this. And that's why I think going in, I would have said they're going to resolve it on section 230. I would have said they're going to resolve it on Section 230. And coming out, I think they may resolve it on the Twitter Tamina case and not hit 230 because they're just not there yet.

Yeah. If I had to bet, I would bet along with you, but be sweating about it. Yeah. This is a low confidence bet, if you will. Because they don't want a million more 230 cases. They're going to have to take a lot more of them. But the arguments were muddled, not because of the advocates, by the way. Everyone, everyone felt very muddled. It didn't seem like an easy, clear way to resolve it. I mean, obviously, David, as you mentioned, there was the like, this is Congress's problem. You solve it. But they are going to have to write more than that. I don't know. It seemed like everyone was regretting taking the cases in the first place. case, including from Justice Thomas, who had written some interesting things in a dissent from denial of cert, sort of opening the door to judicial narrowing of Section 230 in a previous dissent. And even he seemed to be like, I'm not so sure right now, because you began to realize

that they did sense that they were opening Pandora's box, that the language of Section 230, which leaves a lot of people dissatisfied because it gives the social internet service providers a broad degree of latitude in regulating user-generated content, that if you began to put the government into those shoes to some extent, then you absolutely start to deal with not just the sort of policy-based questions surrounding Section 230, but you also get into market-based questions. So what kind of legal environment are you going to be judicially imposing onto Internet service providers, which may render their business model itself somewhat suspect?

Once again, this is classic case where to the extent that the Constitution allows for congressional regulation, it really is crying out for congressional regulation. Indeed. All right. With should we go just a few minutes long to do the cert grants and then we'll save all of the writing and opinions for Monday? Guide us through the cert grant, Sarah. Okay. So the CFPB case got granted. We have talked about this previously, so we don't need to spend a ton of time on it. This is whether the funding mechanism for the Consumer Financial Protection Bureau violates separation of powers, right? That Congress so shielded the CFPB from the appropriations process so as to be a no-no. And the CFPB has come up to the court now several times. Their leadership mechanism was already struck down that they have to have an at-will removable head of the CFPB. That was that Celia Law case. Am I mispronouncing that one? I

feel like I always do, and then people correct me, but I never know that I'm mispronouncing it in the moment. So yeah, I'm definitely mispronouncing that. Just don't send notes. I know it. And David, if you'll remember, that Fifth Circuit opinion started with a punch. Here's the opening of the Fifth Circuit opinion. An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced as that no one could transcend their legal limits without being effectually checked and restrained by the others. The Federalist, number 48. J. Madison, quoting Thomas Jefferson, notes on Virginia, 1781. In particular, as George Mason put it in Philadelphia in 1787,

the purse and the sword ought never to get into the same hands, the records of the Federal Convention of 1787. These foundational precepts of the American system of government animate the plaintiff's claims in this action. They also compel our decision today. This could be the end of the CFPB, David. It could be. In its operation in the real world would be a pretty consequential legal decision without question. But again, one of these issues where before you create a vast new bureaucracy using creative mechanisms for funding and governance, you might need to think twice as to whether removing this from the normal operation of American federal government is going to be consistent with separation of powers.

And this is Elizabeth Warren's sort of crowning achievement as a public official, is the creation of the CFPB. This is her brainchild. And so I'm going to be fascinated to see this case because the thing that's going to really interest me is not so much the technical legal arguments, because the technical legal arguments seem to me to be pretty clear. But whether the court blinks at the real world consequence of the technical legal argument. That's going to be interesting to me. And then David, there was a second grant that didn't get a lot of attention because of the CFPB grant, but I got to tell you, I'm almost more into it. I think the CFPB thing is interesting because the CFPB is funded by Congress, but through the Federal Reserve in this sort of odd way. But clearly, it'll have some implications for all of these independent agencies and any funding that Congress tries to do through a way that shields it from political pressure, if you will. So yeah,

that's fun and whatever. But I guess maybe because everyone else is into it, I'm like, yeah, yeah, that'll get plenty of attention. But David, the other case, Pulsifer, I think is kind of fun. So this is a question about the First Step Act that has come up through a ton of circuits. The specific case that got granted here came from the Eighth Circuit. So basically, you can qualify for a lesser sentence without regard to mandatory minimums if you meet section 3553F1. All right. And it requires the court to find that. Now I'm quoting because this is going to be really important on this language. One, the defendant does not have dash. A, more than four criminal history points excluding all of the one-point offenses. B, a prior three-point offense. Semi-colon and C, a prior

two-point violent offense. All right, David. So does that mean you have to have A, B, and C? Or does the and mean or? And let me tell you the results of this because there used to be a little colloquial rule with some judges, we'll just say, some circuit judges, bad man stays in jail is the name of the rule. What statute is that language? Yeah. So sometimes you may want to review a case for in which way, when we decide this does bad man stay in jail, that canon of interpretation. stay in jail, that canon of interpretation. Okay. So here, the criminal defendant does better if and means and. Because if he has all three, that means he doesn't get the safety valve. He is then sentenced under the mandatory minimums. But if and means or, it's pretty bad for the criminal defendant because any one of these means he doesn't get the safety valve. But here's the problem, David. I mean, we've talked about rule of lenity and if there's a question, you construe a criminal statute against the government,

not against the criminal defendant. However, there's other canons here like absurdity. So for instance, since B and C are three and two points, those equal five, which would make A superfluous. Surplissage. Is that how you pronounce that word? Yeah. I hate pronouncing that word. I only like writing that word. I don't know. Yeah. Have we not established that we do not ask me about pronunciation? Surplicage. I think surplicage maybe sounds more Texas. But you get the point, right? So if you have to meet all three, then why is A included at all? Because it's four and B and C equal five. And this gets really fun, I think. It sort of depends how you read it. Do you read it

as the criminal defendant does not have A, B, and C? Or do you read it as the criminal defendant does not have A, does not have B, and does not have C, which because it's a double negative, reads more like an or. Anyway, really interesting, textual, texty text case. I'm going to love the oral argument because it's going to be really hard to follow the transcript because all of the ands and the ors are going to really be in quotes and it's going to be impossible to read it. So that's a listen only oral argument in my view. Yeah, that's going to be fascinating. And as I've said, because this issue, does and mean or, has come up a number of times on this podcast and I get to always repeat my story. I had an entire case turn around

whether did and mean or back in my days in commercial litigation. And I'll have you know that at least in the state of Kentucky in the 1990s, and meant and it did not mean or. My first reaction to this is and should mean and both because that's what it says. And also because of that rule of lenity idea. But it seems pretty obvious to me that if it makes an absurd result, that that takes away some of the ambiguity that's there. And the rule of lenity requires some amount of ambiguity. So I'm curious where the different justices fall. I'm so pumped. This isn't going to get argued till next term, unfortunately. So you've got a long time to wait for our and is and, and is orn, Einhorn is Finkel, Finkel is Einhorn.

I will note for the record, once again, that I was on the winning side of the and means and argument back in the day. And I can't remember if my brief began with the sentence, words have meaning or not, but if it didn't, it should have. I wouldn't read the briefs in all these cases too, because I was sort of curious how they addressed the superfluousness argument. And look, A, I liked their first argument, which is not our problem, like hashtag, you know? But the second one was a little bit more technical of like, well, maybe it's not superfluous if you read it this way. And I was like, no, no, no, just not my problem. That's Congress's problem. They wrote a bad statute. Not my guy, you know? But the and means or would be the bad man stays in jail outcome. So you're going to have sort of

texty textualism versus bad man stays in jail canon. Yeah, it's going to be and I'm looking forward to it. All right. So as we said, this is going to be really a two part episode because we have got all of these decisions that got handed down from the Supreme Court. It's cheatment, overtime, bankruptcy, foreign bank accounts, dissent from denial on plea bargains. And we've got that Fourth Circuit opinion. We at some point need to get to the Kazmeric case on abortion drugs that is pending down in Amarillo and all of the controversy around forum shopping. That gets back to our nationwide injunction conversation as well. Does that grand juror make any difference to the actual indictments coming down in Georgia? So much, David, and we're just going to have to wait until the next episode. And we have a second circuit case about whether or not a crisis

pregnancy center can be required to hire or retain an employee who had an abortion. Wow. Lots of stuff. So tune in. If this was Avatar, Monday is Avatar the Way of Water. So it's the very elaborate long sequel. Was that just as good as Avatar 1? Was Avatar 1 good? I don't even... I liked it. I liked it.

But you know what? To my undying shame, Sarah, I have not seen Avatar 2. Wow. Hey, we watched The Menu last night. You know, there's like this whole string of eat the rich movies and TV shows. Oh, yeah. White Lotus, Triangle of Sadness, The Menu, The Parasite. So we've been watching all of the eat the rich movies. And that is a rich conversation for another time on why the eat the rich movies. And that is a rich conversation for another time on why the Eat the Rich movies are suddenly popping up everywhere all the time now, why they're so popular and which ones are actually any good. So here's my question. Have you seen Rectify?

No. Interesting. So we're just about to finish season two of four, and it's about a person who is released from death row because of DNA results that didn't clear him, but were sufficiently ambiguous to lead to a potential new trial if prosecutors could come up with sufficient evidence. So hovering over this is both the question of did he do it and watching somebody come out of 20 years of death row into a small traumatized community. And it is a compelling television and be extremely difficult to watch. So difficult. We don't even call it rectify.

We call it traumify because it's like a multi-season exploration of human trauma. And I, I'm, I don't know whether to wholeheartedly recommend it, but my goodness, it's compelling television. Yeah, this has not been leading me to watch this show. Although I worked on a very similar factual premise when I was at the Fifth Circuit, where the DNA evidence was from a different crime, but they had connected the two crimes, the robbery to the murder. And so when the DNA evidence for the robbery was the wrong guy and got thrown out 20 years later after being on death row, they threw out the murder as well, even though it didn't, the murder was totally separate. It wasn't in the same, you know, string of events or

anything. So same idea, right? We know this person didn't commit the robbery, but actually we don't really know whether he committed the murder. We just know that the evidence was used and therefore it had to be thrown out to begin with. Also, the evidence was suppressed and there were some other problems. Yeah, no, it's actually a quite realistic sort of legal scenario.

Yeah, I kind of wonder if they went through some of that case to get some of it. Yeah, it's fascinating. It's fascinating. It's fascinating. So anyway, if listeners, if you have watched Rectify, so we're about to finish the season two tonight, love to hear your thoughts without spoilers on it, because it's one of the more thought provoking series that I've seen. And to this moment, I don't know if he did it, which is two seasons in. I don't know if he did it which is two seasons in

I don't know if I don't know if he did it alright well part two coming up