Advisory Opinions - Chevron Is Dead, Long Live Chevron

Episode Date: June 28, 2024

We're not talking about Trump and Biden, but we are discussing something that could make double-hater voters less worried about the future of presidents and executive power: the final stake through the Chevron doctrine. The Agenda: —Chevron is overruled —Jarkesy decision —How "old think" plays out in the two above decisions —Sarah's offended by Sotomayor —The non-Trump January 6 case —Are homeless people being targeted by SCOTUS? No Show Notes: —Nick Kristof's piece for the Times —Ohio v. Environmental Protection Agency —Moyle v. United States Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to advisory opinions. The only podcast that will not be talking about the presidential debate today, which means you're a special kind of listener. This is what you're tuning into. I'm Sarah Iskir. That's David French. Oh, David, we got a lot to get to. Oh, we have so much. We have so much.

We can't even do preliminary stuff like the normal podcast chit chat. We just got to go. We just gotta go. We gotta go. So first of all, I'm keeping my stat pack updated. And so just the term so far, mind you, we're missing three cases. We're missing the Trump immunity case, the NetChoice social media case from Florida and Texas,

and the Cornerpost case, which is that fun statute of limitations case. But if you are not including those three, right now we have really quite a few of these ideological decisions compared to last term. Last term, about nine in 10 cases, about 90% had at least one liberal justice in the majority. This term with the ones that we've been getting this week, we're now at closer to frankly 80% of the cases having at least one liberal justice in the majority. So a substantial stop there. Also, in terms of which justices are most likely to be in the majority, the 333 court is really showing up here.

But again, not like last term. Last term, if you remember, justices Thomas and Alito were the least likely to be in the majority. This term, it is absolutely the three liberal justices least likely to be in the majority. The chief, very much likely, most likely to be in the majority, followed by Kavanaugh, then Barrett,

and then that Gorsuch, Thomas, Alito, triumvirate sitting in the middle. It's still 333. It's just which three is the middle three and the end three has switched. But we still have had a number of cases like, you know, we won't really talk about it, but the MTALA case, the abortion emergency medical treatment case, was about as perfect an illustration of the 333 dynamic as you're going to find. But yes, it's absolutely the case where we have seen more of the 6-3s with the sort of split that

a lot of court observers thought would happen immediately after Barrett was confirmed. Well, let's jump right into Chevron to start today's discussion. So this was a six, three decision along ideological grounds from the chief justice writing, although with a very fun Gorsuch concurrence that we'll talk about as well. Just let's do some reminders here. So first of all, Chevron, and I'll just read from the chief's opinion as he defines Chevron, after determining that a case satisfies the various preconditions that we have set for Chevron to apply, a reviewing court must first assess, one, whether Congress has directly spoken to the precise question at issue. If and only if congressional intent is clear, that is the end of the inquiry. But if the court determines that the

statute is silent or ambiguous with respect to the specific issue at hand, the court must, at Chevron's second step, defer to the agency's interpretation if it is based on a permissible construction of the statute. So if the agency has anything reasonable to say about how to construe this statute, that's Chevron deference. And here's the punchline on this case, again from the chief. Chevron is overruled. Courts must exercise

their independent judgment in deciding whether an agency has acted within its statutory authority as the Administrative Procedure Act requires. Careful attention to the judgment of the executive branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation while ensuring the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous. David, I actually got this great question from one of our colleagues over at the dispatch asking about, well, isn't this like helping Congress do its job, forcing Congress to do more? And my answer to that is no, that's

probably the wrong way to think about Chevron. Major questions doctrine, where, you know, if Congress hasn't spoken to anything, you, the executive branch, don't get to go run hog wild and do an eviction moratorium or student loan deferment or ban bump stocks. That's major questions doctrine and that's forcing Congress to do its job. Chevron deference is actually acknowledging that Congress cannot take every single situation into account when it makes legislation. So when there's a question or a gap in a totally acceptable piece of congressional legislation, who gets to decide what happens then? Is it the executive branch charged

with enforcing that statute that gets to define the scope of its own power? Or is it the courts? And so this is really, you know, if major questions doctrine is a fight between the executive branch and Congress, Chevron deference was really a fight between the executive branch and the courts.

And here the court is saying the court wins. Isn't that fun that they get they get to make that call, which they actually properly do constitutionally. But I would say there is one thing that the major questions doctrine and Chevron have in common, which is less powerful presidency. Correct. The executive keeps losing. Yes, yes. Now the funny thing is, so I was just, I'm at Chautauqua, New York, and I just gave a speech on the power of the presidency,

right as Chevron was being handed down. I mean, that's literally five minutes before I took the stage, Chevron is handed down. But it's interesting that we had the 6-3, because we're not going to analyze the debate. But I will tell you that there is a sense after the debate, amongst some people I've been talking to who would otherwise be fine with the executive power, that are like, wait a minute, how do we roll back presidential authority? And it is a very instructive moment when you have one ideological faction that is A, upset

that Chevron has been overturned, and B, absolutely petrified that Donald Trump might become president again. And I would ask those people who are in that category to take a few steps back and ask if a presidency is powerful enough to petrify you, should it be that powerful? And I think that Chevron is, Chevron major questions are all about putting the president back in the box. And the major questions, as you said, Sarah, is Congress do your job? But Chevron was really the Supreme Court

saying to the presidency, original Chevron was the Supreme Court acting like Congress saying, hey, president, there's stuff we don't want to do. You can do it. And so unwinding that, I think, is very important to the American experiment. Yeah, I mean, if you watched that debate last night and you're a double hater and you don't like

either of your choices, you should love Chevron being overturned. This should be your jam. Because this is not what's good for the Goose is what's good for the gander. I understand why this has generally fallen along ideological lines because in this sort of knee-jerk reaction that doesn't, I don't think, get revisited enough, conservatives think they're against the administrative state and liberals think they're for the administrative state. But I think if both sides would revisit where they are right now, I think conservatives are about to be a lot more into the administrative state as their sort of view of common good government or constitutionalism or just authoritarianism takes hold and vice

versa. If you don't like the president and you can't win all the presidential elections, like you said, David, maybe we should have a less powerful administrative state. There's a few other questions that this raises though before we get into sort of the nuts and bolts of the chief and Gorsuch's concurrence, which is one, despite what I just said about this not really being about Congress, remember that for the past 40 years, and maybe not 40 because when Chevron first comes out, nobody thought it was a very big deal of a decision actually. It took quite a few years for people to realize the import of Chevron deference. So let's say for the past 30 years, Congress has known that if they pass

ambiguous statutes or statues with gaps in it, that the executive branch will get to fill that in. I certainly have seen that affect lawmaking as well. I had a friend just go up to the hill the other day, and the friend's an attorney and was like, Hey, this is actually an ambiguous term. Do you mean this or this? And they said, Yeah, we couldn't agree. So we're just going to leave it ambiguous and let the administrative agency decide. So under Chevron being dead, I do wonder whether now that Congress knows that their friends in the administrative state are not going to get to decide the case and it will be a judge and they don't really know or it will be the Supreme Court and maybe they have thoughts for or against that.

I do wonder if this will affect some legislating if and when legislating ever happens. Here's where I think it might affect legislating. So remember the Affordable Care Act. Remember how much contention there was about, and this is an example that long-time listeners will know about, but not everybody's a long-term listener. Welcome new listeners. That one of the most contentious aspects of the Affordable Care Act was the contraception mandate. The contraception mandate was not in the Affordable Care Act. That was in the- You have to pass in to find out what's in it.

in the Affordable Care Act. That was in the... You have to pass it to find out what's in it. Yes. That was an administrative interpretation of the Affordable Care Act. So I think what you... There is a Congress to your job element in which if Congress wants to effectuate its intent, it's going to have to be more precise about its intent. And I do think that that is both to Major Questions and to Chevron, I think that is absolutely relevant. Because one of the things that they're gonna want to make clear, since there isn't,

let's say, if a Democratic Congress, in the Affordable Care Act, a Democratic Congress passes a big bill with a Democratic president, there's a lot of confidence that the Democratic president, there's a lot of confidence that the Democratic president will articulate, explain, expand that statute in a way that is hospitable to the Democratic Congress's intent. Now, with independent judicial, much closer to what you would call truly independent judicial

review, if you're going to want to effectuate your intent, you're going to have to just write that stuff down, man. You're gonna have to fill in the gaps because if you don't, it's not gonna be the president filling it in. It'll be the judiciary interpreting it as was the rule before Chevron. The other piece of this though, David,

and some of this is all a little contradictory as we marinate on this decision, Chevron has been dead. We've been calling it zombie precedent for a long time. It hasn't been cited by the Supreme Court since 2016. And really, it was already a zombie well before they even stopped citing it. Arguably, it died in 2016 and it was a zombie for the 16 years before that as the court itself, the Supreme Court, was increasingly realizing how unworkable this was. For instance, after the Brand X case, which was about broadband interpretation, statutory

interpretation, the W administration had one interpretation. Then the Obama administration changed their interpretation, flipped it. Then Trump changed his, flipped it. Guess what? Biden flipped his too. And each time the courts had to defer to the agency's interpretation of the same law. So that's why I think Chevron had been dead at the Supreme Court level for some time, but it hadn't been dead at the district and circuit level. Which is all to say, I don't really know that this will matter, even for the people who were are like, yeah But the circuits were still really using it a lot

You think they're telling them not to defer to the agency will change the outcome or just change the reasoning? Because I think it may well change the reasoning But I don't think it's gonna change the outcome of a lot of these cases Chevron was simply an easy way to get to the outcome that they were gonna get to anyway, so This is a weird punchline after everything we've just said, but also maybe none of this matters. Well, there is absolutely the case that you can have a decision that is a doctrinal change

and is doctrinally correct without creating a big practical change. And I think that that's what we're facing because as you're exactly right, Chevron had been zombified a long time ago. And the other thing element, and this is, I guess, maybe how we transitioned to diving in, is that all the prior Chevron precedent stands.

So that's, I love your, I love your little one sentence summary you sent me, which I think is, should be the title of this podcast, Adam, hint, hint. Chevron is dead, long live Chevron. I almost tweeted that and then I was like, you know what? Then I'm just gonna have to explain it. I don't want to explain it.

I don't wanna explain it. I know, it'll be a thing. You might trend, it'll be awful. I already had my trending tweet during the debate where I said, forget this election. We're in 25th Amendment territory. Turns out people saw that tweet. That was the thing.

Okay, so yes. Man, amazing what happens when you post publicly. I know, weird. To your point, David, in the chief's decision at the very end, he says that they are not revisiting any of their past Chevron decisions, that even though those decisions, they're sort of changing, prospectively,

how they will decide such cases, it doesn't make those decisions wrong, sort of changing, perspectively, how they will decide such cases. It doesn't make those decisions wrong, first of all, but even if under this new way that they're doing it, those would be wrong, stare decisis would still apply to those decisions, which is going to get into a whole stare decisis conversation. And I think actually still underlines the point that this isn't going to change very much because even if you filed a new lawsuit, and even if you, you know, on the same statutory provision, and even if the courts agreed that in fact, the previous precedent was the incorrect interpretation, as in not just that Chevron shouldn't have

been applied, but that it actually led to the wrong conclusion if there has been reliance on that decision. They don't overturn cases just because they're wrongly decided. So it'll be interesting to see which of the previous Chevron decisions have been wrong enough, let's say, and not relied on enough. Now, the one interesting thing is, like I mentioned,

because each administration could flip their position, the reliance interest is going to get weird on some of these because if you keep flipping, you can't rely on the agency's interpretation. So the court's interpretation almost becomes moot every four years when a new administration comes in, which is all to say, hard to know exactly what's going to happen on all the previous, again, it's not really even 40 years of Chevron decisions, but let's call them, and there's the 10 years on the front end and then the 10 years on the back end that didn't exist, but there's like this 20 years of middle Chevron decisions, some of which are going to get revisited. Okay.

So with that, David, I want to run through the chief's reasoning and then get to Gorsuch's concurrence, which Gorsuch's concurrence is about so much more than Chevron. It's about Gorsuch. It's about Starydysisis. It's about the project of this fragile young republic. Okay. So first of all, the chief has the ultimate dad footnote. He, of course, is laying out the facts of this case and is talking about the two vessels at issue here, the relentless and the persistence. But they are the F slash V relentless and the F slash V persistence and footnote one is just a delight.

And it says, for any land lovers, F slash V is simply the designation for a fishing vessel. Thanks, dad, with your land lovers thing. F slash V is simply the designation for a fishing vessel. Thanks, dad, with your landlubbers thing. Love it, love it. Okay, so the chief is gonna start with Marbury versus Madison. In the foundational decision of Marbury versus Madison, Chief Justice Marshall famously declared

that it is emphatically the province and duty of the judicial department to say what the law is. But he's going to talk about some other cases shortly after the Constitution is ratified, where the court also explained that in the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law and were appointed to carry its provisions into effect is entitled to very great respect." That's all a quote from an early 19th century Supreme Court case. I.e., it says, if there's ambiguity in the law, we give the executive branch's interpretation great respect. All right. So here's the chief.

Respect, though, was just that. The views of the executive branch could inform the judgment of the judiciary, but not supersede it. Whatever respect an executive branch interpretation was due, a judge certainly would not be bound to adopt the construction given by the head of the department. Otherwise, judicial judgment would not be independent at all. As Justice Story put it, in cases where a court's own judgment differed from that of other high functionaries, the court was not at liberty to surrender or to waive it." Okay, so moving into the New Deal era, Congress then enacted the APA in 1946.

The APA was, as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices. The reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. It further requires courts to hold on lawful and set aside agency action findings and conclusions found to be not in accordance with law." This is the money line. You have the history at the founding about how ambiguity was supposed to be determined and how laws were supposed to be reviewed by the courts. Then you have the APA that pretty clearly makes this a job of the judiciary.

And in the beginning, of course, the courts were deferring to the agencies on findings of fact, but not questions of law because the APA very clearly says the court shall decide all relevant questions of law. And then you get Chevron in the 80s, where as you said, David, the court was just like, yeah, but what if we don't? And look, so after Chevron, then the court keeps kind of trying to revisit this, figure out what exactly Chevron is going to do for them. Again from the chief, eventually the court decided that Chevron rested on, quote, a presumption that Congress, when it left ambiguity

in a statute, meant for the implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency, rather than the courts, to possess whatever degree of discretion the ambiguity allows. But like, where did that come from? It's not in the APA. Congress never said that. So again, you've got the history. It's not in the APA. Congress never said that.

So again, you've got the history, then you've got the APA statutory language, it's pretty clear. And then all of a sudden the court in the late 80s, early 90s is like, but we just feel like Congress secretly wanted the agency to work out the ambiguities? The chief, perhaps most fundamentally,

Chevron's presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. Our attempts to continue to work on Chevron have only added to Chevron's unworkability, transforming the original two-step into a dizzying breakdance. Chevron accordingly has undermined the very rule of law values that starry decisis exists to secure. Rather than safeguarding reliance interests, Chevron

affirmatively destroys them. Under Chevron, a statutory ambiguity, no matter why it is there, becomes a license authorizing an agency to change positions as much as it likes, with unexplained inconsistency being at most a reason for holding an interpretation to be arbitrary and capricious. So that's the chief. David, feelings. I mean, yes. He's right. It's pretty persuasive.

Yeah. It's pretty persuasive. You know, look, I think here's one of the issues I have when I think through Chevron. I think, okay, in the Chevron doctrine, if you believe, if you're thinking, and this will get us to the Thomas concurrence, that the separation of powers is really an extremely meaningful part of the American Constitution, that there are relatively and should be relatively bright lines between these three entities, then I think that Chevron becomes sort of a natural, I mean, overruling Chevron is just a natural

and inevitable outcome of comprehensively thinking through the separation of powers. I feel as if some of the counter arguments have gotten to the point where essentially the pragmatism of technocracy is sort of seen as an independent factor in the constitutional decision making. That there's a kind of, wait a minute, you know, we have a continentsized, 330 million person democracy that has created comprehensive regulatory regimes governing and modulating many aspects of this impossibly complex society. And so therefore, there is going to be a need for people to have their lanes, their lanes of expertise.

And when someone is in their lane, they're entitled to some deference. That's a very pragmatic way at looking at our American democracy. The problem is, however, it's not necessarily a constitutional way of looking at our American democracy. And it turns out that there are actually,

as we are now learning, a lot of pragmatic reasons why the constitutional way was created in the first place. That it turns out that my lane on perhaps what is the proper parts per million for carbon emission, et cetera. That particular lane is not the same lane as what does a statute mean? Those are different lanes. And so I think that there has been a kind of a pragmatic, technocratic approach to this that isn't strictly a constitutional approach and that quite frankly Sarah is getting outdated because I do wonder how much the sort of reliance on a technocratic consensus will dissolve the instant you realize how

much a lot of the more left-leaning advocates of Chevron realize how much people of the right had decided advocates of Chevron realize how much people of the right had decided, okay, you want administrative law, you got administrative law. And this is, you know, some of project 2025. Like, this is actually bad news for project 2025 elements of this. Because a lot of the new right project. Yes, exactly. A lot of the new right has said, wait, we could just be our own technocrats. We can be our we can rather than beat them, join them. And and so I think that that's that's a change that I think an awful lot of people who think through this issue or

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is working because you look the same or is doing nothing because you look the same and whatever the heck red light therapy is, it's definitely not that. Don't overthink how you hydrate. Life's full of choices. Smartwater is a simple one. All right. So, Justice Thomas, who's actually the author of that Brand X opinion that the agency gets to flip-flop whenever it wants, he wrote a concurrence, sort of like ding-dong, the witch is dead. Sorry, I contributed to the witch's super pack. Is that like a fair? Yeah, that would be fair. I trained Darth Vader and now look at him.

Oops. And it's relatively short. He does give the shout out to Justice Gorsuch. And just in a footnote says how great he thinks Justice Gorsuch's concurrence is. Justice Gorsuch has a concurrence for the ages about what stare decisis, what respect for precedent is actually supposed to mean. And overall, his point is precedent is about vibes, not any one case. He walks through the common law that the point of the common law was a body of law, not a single case. There's this great little part about Abraham Lincoln versus Stephen Douglas in the Lincoln-Douglas debates.

Abraham Lincoln championed these traditional understandings in his debates with Stephen Douglas. Douglas took the view that a single decision of this court, no matter how flawed, could definitively resolve a contested issue for everyone and all time. Those who thought otherwise, he said, aimed a deadly blow to our whole Republican system of government. But Lincoln knew better. While accepting the judicial decisions absolutely determine the rights of the parties to a court's judgment, he refused to accept that any single judicial decision fully settled an issue, particularly when that decision departs from the Constitution. In cases such as these, Lincoln explained, it is not resistance, it is not factious, it is not even disrespectful to treat the decision as not having yet quite established

a settled doctrine for the country. Okay, so how is Gorsuch going to set out how we're supposed to think about precedent and stare decisis? First, a past decision may bind the parties to a dispute, but it provides this court no authority in future cases to depart from what the constitution or laws of the United States ordain?" Well, that would be a real shift for the Supreme Court in a lot of ways, right? Because that basically is saying that a wrongly decided case does get overturned. We're not doing these factors anymore that the Supreme Court had on reliance interest.

How wrong was it really as one of the factors? And he notes that back in the sort of Roe era, for instance, the Supreme Court was overturning on average about three precedents a year, and now they're overturning one to two a year. So there's not some runaway overturning train happening. But yeah, he basically says the court shouldn't rely on stare decisis if something departs from the Constitution or laws of the United States. Second, another lesson tempers the first. While judicial decisions may not supersede or revise the Constitution or federal statutory law, they merit our respect as embodying the considered views of those who have come before.

That are the Chesterton's Fence is number two. Maybe don't be so quick to overturn precedent. Maybe they know something you don't. Maybe they've gone through experiences that you haven't, and you should think hard about that part of any precedent that exists, especially where there's a lot of them. Third, it would be a mistake to read judicial opinions like statutes. Adopted through a robust and democratic process, statutes often apply in all their particulars to all persons. By contrast, when judges reach a decision in our adversarial system, they render a judgment based only on the factual record and legal arguments the parties at hand have chosen to develop.

A later court assessing a past decision must therefore appreciate the possibility, wait for it David, that different facts and different legal arguments may dictate a different outcome. I'm telling you, Gorsuch and Jackson, they're in mind meld. Amazing.

So look, that third one is actually something that we spent a lot of time talking about on this podcast, which is all of these, we call them distortion doctrines, right? Batman Stays in Jail, the drug war distortion doctrine, where the principles in the case seem to point one way, but then if you sort of put yourself in that year and that culture in that moment, you see why the case turned out the way that it did. And this is Gorsuch's point. That doesn't deserve respect then as a precedent or a stare decisis because those judges were just deciding

the facts before them. They maybe lacked the imagination for where things would head, or they didn't see the larger principle exactly right or whatever. So in summary, in these ways, Chevron's fiction has led us to a strange place. One where powers authorities long thought reserved for Article 3 are transferred to Article 2, where the scales of justice are tilted systemically in favor of the most powerful, where legal demands can change with every election, even though the laws do not, and where the people are left to guess about their legal rights and responsibilities. So much tension with so many foundational features of our legal order is surely one more sign that we have taken a wrong turn along the way.

I mean, I like a lot of that. I like a lot of that. I like a lot of that. I think I'm, I am still, you know, in my, what was it, if I was a Justice, my name would be Neil Comey, Neil Coney Bersich. I have a lot of, I have a lot of Gorsuch in me and I have a lot of Amy Coney Barrett in me. But I think when it comes, I think the interesting question about that,

there's a lot that I liked, but I want to circle back to Roberts, and I want to circle back to the interesting way in which he handled this issue of reliance as a practical matter. Because what is really screaming to me from the majority opinion is they tried to accommodate reliance even as they overruled Chevron.

And the way they accommodated reliance was by saying, we're not touching the old Chevron precedent. So all of these actions taken, all of these actions taken on the basis of reliance on the Chevron precedent, we're not gonna go back and revisit that. And I think the Gorsuch opinion is fascinating, interesting, and it's also the part where I am most likely to depart from him with the,

because the concept of reliance and stability inherent in precedent, I think I value more than he does. Yeah, I think the reliance interest stuff matters. And I think it needs to be a real reliance interest. But when people have thought that something was lawful for however long, that should matter. And I think it comes up most often in something like Obergefell.

People have literally set up their lives, marriages, children. Yeah. That's an important reliance interest. And I don't see how that fits into Gorsuch's framework here. Yeah. Now, things like how a court decides something, like Chevron doctrine, has no reliance interest, none.

So that wouldn't factor in at all. And so maybe Gorsuch is just talking about Chevron here and giving examples of how it would work with something like doctrinally, how a court decides cases. So therefore Chevron, of course, doesn't get any sort of precedential deference. But yeah, we'll see how this kind of hits the road running. It reminds me of Gorsuch's explanation of major questions doctrine a few years back, where I was like, I don't know about this. But I really like when the justices have these philosophical concurrences that let us think about their judicial philosophies

and how they're thinking big picture outside of the facts of the case at hand. All right, David, speaking of administrative law, how about that jarkasy? So this was an administrative law judge case about the Seventh Amendment. I'll just read some fast facts here. Question presented, whether the Seventh Amendment entitles a defendant to a jury trial when the SEC seeks civil penalties against him for securities fraud and The Seventh Amendment for those who don't have that tattooed somewhere The Seventh Amendment guarantees that in suits at common law the right of trial by jury shall be preserved So a lot of this was going to turn on, what are suits at common law?

Okay, so this was another 6-3 ideological decision. And boy, there was a lot built in here, David. So a defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator. Rather than recognize that right, the dissent would permit Congress to concentrate the role of prosecutor, judge and jury in the hands of the executive branch. That is the very opposite of the separation of powers that the Constitution demands," wrote the chief justice. We're going to have a lot of chiefiness here at the end of this term. Boy, there was a whole lot in this decision, David.

Do you have high level thoughts before we dive into a little bit of how this all works? Yeah, you know, the one high level thought I had was that the response to it, and is it too soon to get to the response to it? Because this is really the, we talked about this at some length, and it was one of these cases that felt, it's one

of those, I'm trying to see the other side, I understand the other side, but this idea that it is somehow outrageous to say that how dare you require a jury trial before the imposition of substantial penalties. I struggled with that as a response, Sarah. I genuinely- Especially coming from the liberals who in all of these criminal cases have been very, in fact, they've been in the dissent when there hasn't been enough process,

including for instance, in that civil asset forfeiture case. So if the government is doing civil asset forfeiture, you need all sorts of due process, including more due process than is in the Constitution, for instance. Preliminary hearing for civil asset forfeiture is what that was about. But for the actual imposition of a civil penalty, you don't? It really, it was really interesting. And again, Sarah, I'm going to draw a line back to our discussion of Chevron. This is old think.

So old think, old think is this. Republicans want the government to have less power. Democrats want to have the government to have more power. So that means the government is sort of inherently the Democrats playpen and the private sector is sort of inherently the Republican playpen. And so if you're moving power from an administrative agency, there is this sort of zero-sum thinking that you're then moving it into an arena that is more of a conservative playpen, more of a Republican playpen. That is old think.

That is not the way the two parties are divided now. And so it was just weird to me to see a whole bunch of liberals say, oh my gosh, administrative agencies in the second Trump term, which may well happen guys, the administrative agencies in the second Trump term aren't gonna be able to establish their own substantial penalties on people. Heavens to Betsy, that's horrible. What are we, it is really interesting

how much old think still prevails as we talk through these disputes. Yeah, we should all want to cabin executive branch power at this point. Again, if you watch that debate, how could you not wanna cabin executive branch power? Okay, so by the way, and I got the, we sort of had gone into the oral argument saying

that this would be the outcome. And then we came out of the oral argument saying, ooh, I don't know, this is actually getting weirder, much weirder than we thought. And then it turned out the way that if we hadn't listened to oral argument, we would have gotten right, which is sort of interesting. This was a Fifth Circuit case.

I wanna mention two things that, by the way, the Fifth Circuit had decided that the Supreme Court punted on, which is gonna be important as we think about the future of what happens for these types of cases moving forward. So the Fifth Circuit had also addressed the question that Congress had violated the non-delegation doctrine by authorizing the SEC to choose whether to litigate this action in Article

Three court or to do it themselves. So sort of it was just up to the SEC to decide. And so that was an interesting one that will be saved for another day. The panel also found that the installation of the SEC administrative law judges from executive supervision with two layers of four cause removal protection

violated the separation of powers. I mentioned that because there are still gonna be things that administrative law judges absolutely can do and that don't need to go to article 3 courts. But check out these two problems, because those are the next cases coming up. Okay, so I want to talk about how it works at the SEC pre-jarkacy, how this case came about. And here I'll just be reading from the chief's decision. When the SEC adjudicates the matter in-house, there are no juries. Instead, the commission presides and finds facts while the Division of Enforcement prosecutes

the case. The commission may also delegate its role as judge and fact-finder to one of its members or to an administrative law judge that it employs. In these proceedings, the commission or its delegate decides discovery rule disputes. The commission or its delegate decides discovery rule disputes. And the commission or its delegates also determines the scope and form of permissible evidence and may admit hearsay and other testimony that would be inadmissible in federal court. When a commission member or an ALJ presides, the full commission can review that official's findings and conclusions, but it is not obligated to do so. Judicial review is also available once the proceedings have concluded, but this is so important David.

But such review is deferential. By law, a review in court must treat the agency's factual findings as conclusive if sufficiently supported by the record, even when they rest on evidence that could not have been admitted in federal court. As in, they decide whether they can admit hearsay and what the discovery rules are, what they have to turn over. And then regardless, the federal court reviewing it has to also include or not include that evidence in their review.

So this is not just like a magistrate judge or something where it's like de novo review by the judge. Even if you think the judge wasn't going to dig into it or whatever else, this is actually much, much worse than that. To me, just really inexcusable about that. In the Jarkissi case in particular, there's all sorts of these evidentiary things that were a mess. Then the commission and their appellate, the commission gets to review it first, took six

years to review it first, took six years to review it. And in the meantime, of course, Jarkissi has this, you know, finding against him sort of the, you know, traitor death penalty, if you will. And by the way, Jarkissi may be a really bad guy. And if he gets tried in federal court, he may be found guilty and the same thing happens. But again, with sort of federal rules of evidence, federal due process protections, what in the world has been going on at the SEC? So, then you have the chief walking through how to decide this case. First, the Seventh Amendment.

The civil penalties in this case are designed to punish and deter, not to compensate. They are therefore a type of remedy, a common law that could only be enforced in courts of law. So that's your history of the Seventh Amendment. But there is an exception to the Seventh Amendment that is also historically grounded, called the public rights exception. The court has not definitively explained the distinction between public and private rights,

and we do not claim to do so today. As the court explains, that class has traditionally included the collection of revenue, customs enforcement, immigration, and the grant of public benefits. So what's interesting about this, David, is this has been a mess for roughly 240 years. And what you're kind of seeing here is they're going to text history and tradition this one

and kind of cabin public rights to what they were at the very beginning of the Republic. One of the first cases with this public rights exception to a jury trial was this revenue collector who collected the revenue and then didn't turn in the revenue. They took his house basically to get the money and he was not entitled to a jury trial. They were like, yeah, that's okay because you had collected this tax money and you owed that to the executive. The executive could then come basically get the revenue that you were supposed to be collecting

for the executive. That's the OG public rights. But then, of course, we're going to have two cases that the Supreme Court is going to grapple with. Atlas Roofing is the original precedent. The other one is Grand Financiera. It's a mess, right? Atlas Roofing is about OSHA is Grand Financiera. And this is, it's a mess, right? Atlas Roofing is about OSHA. Grand Financiera is about bankruptcy courts. And by the way, we will have a bankruptcy expert on after we finish the term to talk about the Purdue Pharma holding in which they held that bankruptcy courts did not have the power to release those claims from the Sacklers and we can even get into a little grand financiera but in short the court says look Atlas roofing is fine because OSHA was like a building code

the stuff that was in there whereas this is just fraud it's just regular old fraud right no the ALJs can't do that. Yeah. I mean, I keep going back to this is fraud. If you're gonna talk about common law, fraud and common law go together like shoes and socks. I mean, it's their part. Fraud is, when we're talking about fraud,

this is not an unusual, it is not novel, it is an old, very, very old classic cause of action claim for which if I was going to accuse somebody else of fraud, say fraudulent inducement in purchasing a house or a car, you know where I go? I go to court. You know what I get? I get a jury trial. And then to sort of create a parallel process where there's a possibility of fraud claims brought, oh, but not in court. And oh, but

not in front of a jury. But it's the same claim. And then, oh, yeah, look, look at all that monetary, those monetary damages of being imposed upon me. Yeah, this, this seems again. They don't go to victims. They're not, they doesn't go back to the parties that were injured. In fact, they don't even need to find that any parties were injured. Justice Gorsuch has an interesting point in his concurrence. During the period under study by one report, the SEC went about 90% of its contested in-house proceedings compared to 69% of its cases in court. Imagine that.

Well, gee, I wonder why that's happening. What in the world? And as he said in his concurrence, holding the government to the Constitution's promise of a jury trial, the dissent in CIS would impose constraints on what, in its view, modern-day adaptable governance must look like, all of which at bottom amounts to a little more than a complaint with the Constitution's revolutionary promise of popular oversight of government officials and with those judges who would honor that promise.

I mean, literally, David, the jury trial is one of the things we fought a war for. Right, right. And again, pragmatic technocratic pragmatism raises its head. And technocratic pragmatism, though, has to be cabined by the Constitution. And there are a few things that are more clear. Chevron, the standard of review for an agency interpretation is not something that is self-evident,

really, from the Constitution. The right to a trial by jury on these kinds of common law claims with even de minimis amounts of money at stake, it's just right there, man. You don't even really need a whole lot of history and tradition or tears of nothing. You got to just say, text. Text. Introducing TD Insurance for Business with customized coverage options for your business. Because at TD Insurance, we understand that your business is unique, so your business

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Oh, very flavorful. Yodeling with them. Yodel-a-yodel-a-yyodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel I need to read this one paragraph from Justice Sotomayor's dissent, again, joined by Kagan and Jackson, that I actually found offensive. I don't mean that in a hurt my feelings way. I mean, it's sort of like an American. The way that people who talk about the Royals really bother me, I find it offensive as an American.

I found this offensive as an American. It offended my patriotism. So, from the dissent. There are good reasons for Congress to set up a scheme like the SEC's. It may yield important benefits over jury trials in federal courts, such as greater efficiency and expertise, transparency, and reason decision-making, as well as uniformity, predictability,

and greater political accountability. Others may believe those benefits are overstated and that a federal jury is a better check on government overreach. Those arguments take place against the backdrop of a philosophical and perhaps ideological debate on whether the number of agencies and authorities properly corresponds to the ever increasing and evolving problems faced by our

society. This court's job is not to decide who wins this debate. There are policy considerations for Congress and exercising its legislative judgment and constitutional authority to decide how to tackle today's problems. It is the electorate and the executive to some degree, not this court, that can and should provide a check on the wisdom of those judgments. Make no mistake, today's decision is a power grab.

Once again, the majority arrogates Congress's policy making role to itself. It prescribes artificial constraints on what modern day adaptable governance must look like, and telling Congress that it cannot entrust certain public rights matters to the executive branch because it must bring them first into the judiciary's province. The majority oversteps its role and encroaches on Congress's constitutional authority. Its decision offends

the framers constitutional design so critical to the preservation of individual liberty, the division of our government into three coordinate branches to avoid the concentration of power in the same hands." What? That's literally the opposite. Like, you think, and by the way, the dissent sort of version of what public rights are becomes very circular.

It's basically if Congress passes a statute saying it's a public right, they can give it to the executive branch. So there's no limit whatsoever on what they can say doesn't get a jury trial, except for some reason they say criminal law doesn't. But I don't know why that follows. If there's nothing in the Constitution prohibiting this, why can't Congress put some criminal matters as public rights, because if public rights are defined as basically crimes against the public, that's the heart of what criminal law is. They're crimes against the public.

And so the idea that then Congress could decide because it might be, it might have important benefits over a jury trial like, and the first one is efficiency? No, that's the whole point. No. No. No. We don't want an efficient system. That's so offensive. It's why we did this, to not have an efficient system. Our entire system of due process is not efficient. That's the point. And so to say that Congress can choose to not have a jury trial because it

would be more efficient not to, more predictability, more uniformity, offensive. Now I know this is a civil, but just bear with me for a minute. Imagine if we said we have a massive problem with drugs. We are having the criminal system is clogged, the jury trials are gumming up everything. So we're now going to remove drug offenses from the jury trial system. And we're going to have an administrative

process imposing penalty. Now, again, I'm saying I'm using a criminal example for effect. This was not a criminal case, but I'm using it for effect, that this idea that in the civil law, which the Constitution protect, that it's a civil case, which the Constitution protects a jury trial right in a civil case, that you can abrogate that for efficiency's sake, it's a deeply troubling argument. Okay, we have to move on. We can't even linger. We gotta go to Fisher. Come on, Fisher. We're going to Fisher. So this is the January 6th case that is not about Donald Trump.

It was 6-3, not ideological. So the chief wrote the majority and Justice Barrett wrote the dissent joined by Kagan and Sotomayor. So yes, Jackson is in the majority here. She's going to write her own concurrence, which actually I found incredibly persuasive and well done. So we'll definitely get to that. But to rehash the facts here, the Sarbanes-Oxley Act of 2002 imposes criminal liability on anyone who corruptly alters, destroys, mutilates, or conceals a record document or other object or attempts to do so with the intent to impair the object's integrity or availability for use in an official proceeding or otherwise disrupts

that proceeding. So what's that otherwise doing there? And here the chief decides the government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceedings or attempted to do so. So first, this is important. This does not say that these guys can't be tried under this statute. And for what it's worth, they were actually convicted under this was not their only charge. I think it was one of five for Fisher himself. So they can still

go charge Fisher. It's just going to be a higher burden than they had before. And at least I've been told, although I need to verify this, there are some defendants that were only charged with this. So they will now have a higher burden to convict those defendants or for those who've already been convicted, they will have to retry them. So David, this is basically narrowing the statute that some January 6 defendants were charged under when they disrupted the counting of the certifications. But it's really about statutory interpretation. And the chief had these examples. And then

Jackson had examples. And Barrett had her example. So I'm going to use the football one and I'm gonna use all three's football examples. Please, those are good. We're gonna do the football one. Okay. So from the chief his reading of this, a football league might adopt a rule that players must not grab, twist, or pull a face mask, helmet, or other equipment with the intent to injure a player or otherwise attack,

assault, or harm any player. If a linebacker shouts insults at the quarterback and hurts his feelings, has the linebacker nonetheless followed the rule? Of course he has. The examples of prohibitive actions all concern dangerous physical conduct, and hurts his feelings, has the linebacker nonetheless followed the rule? Of course he has. The examples of prohibitive actions all concern dangerous physical conduct that might inflict bodily harm. Trash talk is simply not of that kind.

Okay, so now let's take Justice Barrett's dissenting view on how we use the football example. Hers is it like, no, no, that's not how the equivalent would look in the football example. Hers is it like, no, no, that's not how the equivalent would look in the football example. It would instead say, any player who one, punches, chokes or kicks an opposing player with the intent to remove him from the game or two, otherwise interrupts, hinders or interferes with the game shall be suspended. I actually think Barrett has a little bit of a better argument on how to correctly write the football analogy.

So then let's get to Barrett's version of the football analogy because hers is the most fun. So she cites the same as the Chiefs example and she said, I would add that it is likewise clear from the listed prohibitive acts that such a rule is also not addressing far more serious and unexpected conduct than the kinds of acts that the preceding examples describe, which can result in serious and foreseeable physical injuries during a rough and tumble football game. If a player were to shoot or poison another player, the rules drafters would

expect the police to be called not a referee. Thus, we conclude that the rule is best understood to be inapposite with respect to conduct at both extremes of the universe of harmful acts in which a player might conceivably engage. So Jackson's point is, yeah, that trash talk thing kind of bothers me because January 6th wasn't that it was so un-serious that the statute doesn't reach it. It's actually that it was so serious that the statute doesn't reach it. So instead of trash talk, how about the murdering another player example? And I actually really appreciated that because otherwise it could look like the majority was downplaying what happened in January 6

as just a way of getting to the statutory interpretation question. But David, given all these football examples and the interesting lineup with Justice Barrett and dissent, I went into this pretty strongly believing that or otherwise just simply couldn't capture all of the disruptions because otherwise it would be this catch-all obstruction charge and that Congress and its infinite wisdom buried in part two of a buried part of this Sarbanes-Oxley statute, had a catch-all obstruction even though they have all these other

obstruction charges that are actually, you know, listed out. And I found, I was very skeptical of that. And I found the chief pretty persuasive. But then when I read Barrett, and I'll just read this one paragraph from her, kind of came back to a coin flip for me. So here's the dissent. The court does not dispute that Congress's joint session qualifies as an official proceeding, that rioters delayed the proceeding, or even that Fisher's alleged conduct, which includes trespassing and physical confrontation with law enforcement, was part of a successful effort to forcibly halt the certification of the election results. Given these premises, the case that Fitcher can be tried for obstructing,

influencing, or impeding an official proceeding seems open and shut. So why does the court hold otherwise? Because it simply cannot believe that Congress meant what it said. Section 1512C2 is a very broad provision. And admittedly, events like January 6 were not its target. Who could blame Congress for that failure of imagination? She parenthetically said. But statutes often go further than the problem that inspired them. And under the rules of statutory interpretation, we stick to the text anyway. Yeah. Will?

I'm with Barrett on this one. I'm with Barrett on this one, but I have to say I'm with Barrett, but I'm not mad at the majority because it's a badly written statute. I mean, let's just be honest. It's a badly written- But also what about the rule of lenity idea? Like Barrett's right, that's what the text says.

But if you really believe that the text is so broad, that it's so unlikely that Congress meant to make it that broad, rule of lenity? You weren't given fair notice that it could be this broadly interpreted? Maybe? Maybe. That's why I say I'm with Barrett, but I'm not mad at the majority. It's a poorly written statute.

Think about the difference if you flipped the order and instead of saying otherwise, you said including by. So you had the broad language and then you had the including by with some of the narrower language that doesn't necessarily, that's more minor than the broader language. But you're making it clear that this more minor articulation of obstruction is included and encompassed within the statute. If you flip the order and you say included by, including by, then it's an open and shut case unless you think the broad language is just so broad

that it's unconstitutionally broad. But by having it flipped, you could see the confusion, and the analogies illustrated the confusion, totally illustrated the confusion. And you would read one analogy, and you would say, yeah, I get that. And then you'd read the next one and say, I get that too. And so I'm with Barrett, but it's a soft,

at that too. And so it's I'm with Barrett, but it's a it's a it's a soft. If this weren't for January 6, and that this is applied to January 6, this would be one of those cases that people's emotional connection to it would be very remote. Because it's it's a tough one either way. Yes. And I will also say that I don't really blame anyone. Congress didn't mess this up. This isn't a poorly written statute. Oh, really? Look, as we all see now,

they could have written that better, but I don't know that in the moment you're writing this and you're writing Sarbanes-Oxley and like you're just focused on Enron, that you would realize how broadly you were drafting it, especially because of the very specifics of what this was drafted to deal with, which was that the person who actually destroyed the documents couldn't be charged only the person who directed the person to destroy the documents. And so it

just turned into this messy thing that Congress was trying to fix. So a failure of imagination on Congress's part. Sure. So yeah, I don't blame Congress. I don't blame the prosecutors for getting creative, although in general, I don't like creative prosecution. I don't blame the majority for holding that it doesn't fit here. And I don't blame the dissent for saying the text is what the text is. This is how textualism works. So, yeah, this is just one of those that you're right, if it wasn't January 6th,

we would probably cover barely and we wouldn't be covering it the day that it came out. All right, we're moving on to Grant's Pass. This was a 6-3 decision along ideological grounds written by Justice Gorsuch. This is the homeless encampment case. Grants Pass had a ordinance that barred camping on public sidewalks, parks, et cetera, and using something for that purpose, like a blanket, for instance. So the question was, is that punishing the status of being homeless?

And the court 6-3 says, nope, it doesn't punish status because it doesn't matter why you were camping. If you just wanted to like camp out and see the stars or you fell asleep with a blanket on you, it would still apply to you. So it was sort of one step removed from that status question. Remember, this was also brought under the Eighth Amendment. The Ninth Circuit had held that it was cruel and unusual punishment to enforce this law. And Justice Gorsuch saying, also, that makes no sense. This is, if anything, a due process claim. It's not a 14th Amendment claim.

What was interesting about this decision for me, David, there was the differentiating precedent from one another and sort of cabining a precedent that we'll talk about in a little bit. In some ways, this decision could have been incredibly short, a couple of pages from Justice Gorsuch, and instead it was very, very long, very empathetic towards people experiencing homelessness, all of the reasons that one might experience homelessness, but also empathetic to the Western states, and he did mention Western

states over and over again, which of course he was on the 10th Circuit, lived in Colorado, about how difficult and intractable this problem has been, and that when the 9th Circuit held that you couldn't have laws that punish homelessness like this under the Eighth Amendment. Homelessness has actually increased enormously in the states that were affected. The number of unused shelter beds has increased by, at least by one study, 40% since this decision because the decision held that basically you use the grand total numbers. If the total number of homeless people is greater than the total number of beds available, then no homeless person can be removed from public lands and put into shelter beds, which meant that every homeless person didn't want to use the shelter beds as it turns out,

which again, I think actually speaks to an even deeper problem. If people aren't wanting to use the shelter beds, maybe there's a problem with what we're doing here. Maybe the whole thing needs to be revisited. If it's that bad in the shelters that you would rather be in one of these encampments where murders and rapes and drug overdoses and death, diseases that we haven't seen for hundreds of years in the United States are popping up. If that is preferable, this isn't good.

So is this very long empathetic decision talking about how difficult this is as a policy problem? And very un-Gorsuch-like, very institutionalist in that sense, very consequentialist in that sense, saying you've got to give these states and political actors the tools that they need to figure this out on their own

and to be able to experiment with how best to address this crisis because it is a crisis. Very un-Gorsuchy to do that. And just to mention the two. Well, just one quick point on that. This is one of the rare Gorsuch cases where he's not siding with the criminal defendants in the sense, you know, he's, this is a more pro prosecution, but he's demonstrating the empathy,

I think, that undergirds an awful lot of his other jurisprudence, even as he is in this instance, siding with the prosecution in essence. He's demonstrating the, I thought it was very, in that one sense, I'm with you, it was not Gorsuchy in one way, and another way I thought it was pretty Gorsuchy. Let's talk about the two precedents that were at issue here.

We talked about this before and after rural argument, but Robinson is the big one. That's the one where California arrested someone for being a drug addict, not for currently being on drugs, not having drugs on them, but for being a person who was addicted to drugs, the Supreme Court held that that violated the Eighth Amendment. Then though, in Powell v. Texas, this was 10, 20 years later, the court had a different person trying to use a Robinson defense. This was a Texas statute making it a crime to get drunk or be found drunk, sorry, to

get drunk or be found in a state of intoxication in any public place. Mr. Powell argued that his drunkenness was involuntary, a byproduct of his status as an alcoholic. Yes, the statute required proof of an act, becoming drunk or intoxicated, and then proceeding into public, and perhaps some associated mental state for presumably the defendant knew he was drinking and maybe even knew he made his way to a public place. Still, Mr. Powell contended Texas law effectively criminalized his status as an alcoholic because he could not help but doing as he did.

The court gnawed dog that one. And David, I think that's where the court really cabin Robinson to its facts or at least to a sort of pure status as opposed to a status with an act of some kind. Because otherwise you get into this really weird, the court is now the arbiter of free will. Right? Because like, what if I couldn't help myself but murder that person? Because I'm a murderer. Now, I know that sounds extreme,

but I don't know. I don't know if you've ever read books on sort of modern thinking on genetics and on sort of free will in general and how science progresses. There's quite a bit of evidence that, at least under chaos theory, that no, there's no such thing as free will. Now, this would be a huge problem for our entire system of government and certainly for our criminal justice system. But the court can't do that. The system would have to just cease working.

We can't just have the court saying, well, yeah, yours is more involuntary than yours because being an alcoholic is different than being a drug addict. They don't want to get into that business. So here's where Justice Gorsuch is going to take on the dissent. To be sure, the dissent seeks to portray the new rule it advocates as modest, limited, and narrow, addressing only those who wish to fulfill a biological necessity and keep warm outside with a blanket when they have no other adequate place to go. But that reply blinks the difficult questions that necessarily follow, and the Ninth Circuit has been forced to confront. What does it mean to be involuntarily homeless?

What kind of adequate shelter must a city provide to avoid being forced to allow people to camp in parks and on its sidewalks? And what are people entitled to do and use in public spaces to keep warm and fulfill other quote, biological necessities? And this has all been litigated. And in the ninth circuit, of course, time and again, the city is lost. So on what does it mean to be involuntarily homeless?

That was the big numbers thing, right? If there are more homeless people at total than beds at total, then you are involuntarily homeless. On the adequate shelter, one place said that you had to have nurses on staff for it to be adequate. Another said they set up this huge outdoor, basically an encampment, but run by the city that would be safe and have various facilities. And they said, no, that wasn't adequate. Adequate can only mean indoor shelter. And then, of course, the dissent tries to say that, well, it's a necessity to sleep

and therefore you have to allow for that necessity. But then they say, but no, we're not saying that you can defecate on the sidewalk or in public places. But that's a public, I mean, that's a biological necessity. So I'm with Justice Gorsuch that there's no good way to draw this line. And this is the most Gorsuchy part of it, David, to your point. The most Gorsuchy part. Gorsuch tells criminal defendants how to get out of their

prosecutions. He says, Oregon recognizes a necessity defense to certain criminal charges. It may be that defense extends to charges for illegal camping when it comes to those with nowhere else to go. Insanity, diminished capacity, and duress defenses also may be available in many jurisdictions, i.e. this is a tool that the cities can use to move people, but it actually may not be very effective in prosecuting people. Yeah, I think the necessity point really,

that really made, I think, an interesting difference as I was thinking through the case because that necessity defense is still there. It is still viable. It's also interesting how events often overtake cases or events change or sort of make you think through your assessment of cases. What are the most prominent encampments that exist since the Grants Pass case was argued? Well, homeless encampments for sure, but we've had a whole bunch of other kinds of encampments around the country lately, haven't we? You know, post October 7th. And it's interesting, this decision would also apply to circumstances like that as I read it. I find that somewhat interesting sort of from a legal standpoint going forward.

If you're talking about what communities or college campuses decide to do with the camping question, which is now salient for different reasons than it was salient or additional reasons than it was salient for before October 7th. So just a random additional thought. This case has the possibility to make a huge difference in what's going on in these Western states.

About that Gorsuch I think is just absolutely right. This is going to, it's going to allow cities and localities to take down these encampments that have proven incredibly dangerous. And as Justice Gorsuch points out, they tend to be in poor neighborhoods so that these families,

they lose all their property value, for instance, or now they're walking their kid around needles and drug use to get to school. And again, very Gorsuchy, as you mentioned, David, he mentions and if you're disabled in any way, it's hard to then move around the encampments and around those needles, for instance, if it's on a public sidewalk and now you have to go into the street, but you're in a wheelchair or something like that. So this adds an enormous number of tools into their toolkit. It will also add an enormous amount

of political accountability to those who have not solved the problem, because now they have these tools back. They could blame the courts before, that's done now. And I think that that is an unstated reason behind a lot of the majority's thinking. Like the courts had stepped in and made this problem impossible to solve and significantly worse

than when the courts had stepped in before. It's time to at least try to fix this problem. People are dying every day. Yeah, exactly. Exactly. And it is, this is not an unsolvable problem. My colleague, Nick Kristof wrote a great piece not long ago where he said, what's going on with some of these West Coast Democrats? And he was talking about there what's going on with some of these West Coast Democrats? And he was talking about there was a stark difference between some of the social problems in blue West Coast world and blue Northeast world. Both blue Northeast and blue West Coast were very much progressive.

They were very, you know, very much captured by the Democratic Party. But the West Coast is dealing with problems. Now, I know there are weather issues. I've already pre-read your comments, but there are differences in governance, and I feel like this can help shape up some of the governance issues that are happening out West right now. So,, it's, I think when you add in that necessity defense, that goes a long way towards what alleviating one of my concerns, which would be, wait a minute, if there's seven beds and 10 homeless people,

you're gonna prosecute the other three? That, that's a problem. That concerns me, but the Gorsuch necessity defense, I think helps ameliorate. And it, but the Gorsuch Necessity Defense, I think, helps ameliorate. And it's not the Gorsuch Necessity Defense, but the Necessity Defense that Gorsuch highlights ameliorates that concern. OK, a couple other cases.

I mentioned that we'll talk about Purdue Pharma and bankruptcy after the term's over. When we have a bankruptcy expert, I'll look around my household and see if I can find one. There might be one lurking somewhere. We'll see, David, if I can rustle one up from family of the pod. Also, though, we had the EPA decision. That was 5-4 with Gorsuch writing, Barrett and Descent with the three liberals. This was on one of the EPA's plans. It was about 23 states about air quality. After basically it didn't apply anymore to 12 states,

the EPA was like, yeah, yeah, but we're going to keep our plan that applied, that was based on all 23 states, the five holding that that was actually arbitrary and capricious at that point. Arbitrary and capricious when it comes to the EPA standard is a little like rational basis. It's really hard to lose on a rational basis. Something has to be irrational.

Similar with arbitrary and capricious, it's hard to just be arbitrary. So for the EPA to lose under the arbitrary and capricious standard was notable, I would say, David, but pretty fact specific. Yeah. Well, and also we have seen arbitrary and capricious bulk up in a Barry Bonds kind of way a bit in administrative law. So it is a little more robust than it used to be, but it is still not the standard that if you're a plaintiff challenging governmental action that you want on your side, that's not your standard.

And it is very notable that the EPA lost. And then last, of course, we got the official version of the unintentionally disclosed Idaho EMTALA abortion case. As you said, it was very 3-3-3. Although interestingly, there was a break where you had the Alito Gorsuch Thomas crew saying, we just should have decided this. Jackson agreed with that as well, which was an interesting Jackson Gorsuch affinity moment. But man, there were a lot of feelings on the page in this case.

And it was very interesting. They disagreed over whether they disagreed on the facts. I mean, it was disagreement all the way down. Yeah, and I want to put a pin in this one, in that I want to talk about this more because this case is far more relevant to the pro-life movement than people are talking about. And because it really exposes how untenable, legally,

the abolitionist wing of the pro-life movement is going to be, just untenable. And I think that is an important conversation to have. And let's put a pin in that one for July. Sounds good. I will note from a legal side as well, certainly it seemed, I've seen people on the right thinking that like they had this in the bag if only they had just decided it and the dig was the problem here.

Look, the court didn't actually have to let the district courts injunction against the Idaho law be the status quo moving forward in this litigation when they digged it. They did not let Idaho's law stand and they had a choice. So don't be so confident of how, for instance, the Texas litigation, which is now percolating and will probably be the next case on these only life exception statutes to come through. And it's slightly different. And again, as you say, David, we'll talk about that in July, but I wouldn't count your chickens, dear right people, because I don't think you got it. No, I don't think you got it.

And that's what, when I say the abolitionist movement, that's a very specific pro-life, pro-life intra pro-life movement language. There is a establishment wing of the pro-life movement that is more pragmatic and there's an abolitionist wing, which is the movement that wants to criminalize women who have abortions and who wants no exceptions, sometimes in some cases, not even for life of the mother. And this is this, you read the Barrett opinion, and please tell me where there is room for that abolitionist mindset in this Barrett opinion.

I'm not seeing it. I'm not seeing it. So anyway, but this deserves a longer conversation and I look forward to it. And we won't be able to have it Monday because we are going to get the Trump immunity decision on Monday. We're also going to get the two social media cases out of Florida and Texas. And we're going to get that statute social media cases out of Florida and Texas, and we're gonna get that statute of limitations case, which actually could have a huge impact on sort of commercial litigation in the country and administrative law,

and we probably won't get to spend a lot of time on it then. So per usual, David, we're gonna keep running out of room here, keep talking about the big cases, and then we'll come back. We'll swoop back in after the term's over. So we will have an emergency pod on Monday. So expect that in the late afternoon I would say on Monday and yeah the decision will come out 10 o'clock. Buckle in everyone. Oh boy. Buckle up.