UNBIASED - The Uvalde Report, SCOTUS Says 'No' to Transgender Bathroom Case and 'Yes' to Homelessness Case, Non-Binding Resolution Condemns Biden Admin, and More.

Episode Date: January 19, 2024

1. DEEP DIVE: This Week at the Supreme Court; SCOTUS to Decide Whether to Overturn Chevron Doctrine; Not Getting Involved in Transgender Bathroom Debate; Will Hear Case Dealing With Homelessness (1:36)2. DEEP DIVE: DOJ Releases Uvalde Report (14:49)3. QUICK HITTERS: Congress Passes Stopgap Measure to Avoid Shutdown (21:33); House Passes Non-Binding Resolution Condemning Biden Admin Handling at Border (23:09); Judge Denies Daniel Penny's Motion to Dismiss Indictment (24:11); Appeals Court Strikes Down Pennsylvania Firearm Regulation (26:54)4. NOT EVERYTHING IS BAD: Good News of the Week! If you enjoyed this episode, please leave me a review and share it with those you know that also appreciate unbiased news! Watch this episode on YouTube.Subscribe to Jordan's weekly free newsletter featuring hot topics in the news, trending lawsuits, and more.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. I'm your host, Jordan, and I hope you enjoy the show. Welcome back to Unbiased, formerly known as Jordan Is My Lawyer. Today is Friday, January 19th. This episode was recorded yesterday, January 18th, around 4 p.m. Eastern time. I have four segments for you today. The first one is going to be a deep dive into some Supreme Court happenings, specifically one case that was heard, so oral arguments were had this week, and then two other

cases, one which was rejected, the other which was accepted. So the Supreme Court will hear it. Then we'll deep dive into the Uvalde report, which the DOJ just released yesterday. Then we'll touch on some quick hitters, specifically this continuing resolution that'll keep the government open, a non-binding immigration resolution out of the House, an update in Daniel Penny's case in New York, and a new firearm ruling out of Pennsylvania, specifically in appellate court. And then of course, it's Friday. So the last segment is not everything is bad. That's where I tell you one or two pieces of good news to just leave you feeling a little bit lighter going into the weekend. So before we get into the stories,

let me just remind you, as I always do, if you haven't already, go ahead and leave my show a review on whatever platform you listen on. If you are a YouTube watcher, just go ahead and hit that thumbs up button and subscribe to my channel. All of those things really help my show, help me get my name out there, all those good things. So without further ado, let's get into today's stories. The first is Supreme Court happenings. On Wednesday, the Supreme Court heard oral arguments in a case that may overrule 40-year-old precedent called Chevron Doctrine or Chevron Deference. What the Chevron Doctrine says is that courts must defer to a federal agency's interpretation of a statute rather than interpret the statute themselves so long as the agency's interpretation is quote-unquote reasonable. So currently, courts don't decide what the meaning of a particular statute is if federal agencies have the authority to implement that statute and give a reasonable interpretation. Now the reason that it's called the Chevron Doctrine, just so you know,

is because the case that originally set forth this idea, the Chevron Doctrine, is called Chevron versus Natural Resources Defense Council. So that name, of course, comes from just the name of the case. Now, at the time of the Chevron ruling, the decision actually wasn't too controversial, but critics have always said that the Chevron Doctrine decision actually wasn't too controversial. But critics have always said that the Chevron doctrine gives the federal government a little bit too much authority. And it seems that the Supreme Court may agree, or at least some justices may agree. So before we get into the arguments and the questions and concerns from the justices, let's address the question of what effect overturning Chevron would have on us, right?

Why does it matter to us? What effect does it have on every day? Well, mainly, it would give the Supreme Court more power to strike down federal regulations, right? And these are any, this is any type of regulation. So it could be healthcare, environmental, immigration, and really any other policy area that's administered by federal agencies. Now, the arguments that the court heard on Wednesday stem specifically from two cases that present the same issue, and the issue is this. The National Marine Fisheries Service issued a rule that requires the herring industry to bear the costs of observers on fishing boats. And by the way, you're probably thinking, what does that have to do with this? Because this is a perfect example of a case that is so niche, yet has much larger implications.

A decision here wouldn't just affect the fishing industry. It would affect nearly all industries and policies that the federal agencies oversee, right? But in these cases, both the Court of Appeals for the District Court of Columbia Circuit and the Court of Appeals for the First Circuit upheld the National Marine Fisheries Services rule because the courts found that under the Chevron Doctrine, the agency's interpretation of the rule was a reasonable interpretation, and therefore that stands. So these two fishing companies that challenged this rule took this case to the Supreme Court. And what they said is that the Chevron Doctrine undermines the duty of the courts to say what the law is,

and also violates federal law, which requires courts to undertake a fresh review of legal questions. Because the court, under the Chevron Doctrine, the court isn't even answering legal questions because it's just deferring to the agencies, right? So we have the fishing companies against the National Marine Fisheries Service, which is a federal agency. Those are the parties involved in this particular issue. The fishing companies argued that under the Chevron Doctrine, even if all nine Supreme Court justices agree that the fishing company's interpretation of the federal fishing law is better than the National Marine Fisheries Service's interpretation, the justices would still be required to defer to the agency's interpretation so long as that interpretation was reasonable.

And this, they said, is not consistent with the rule of law, and therefore the Chevron doctrine needs to be overturned. Now, the Biden administration, on the other hand, they want the, or it wants, the Chevron doctrine to remain in place, right? The executive branch, regardless of who's president, wants to hold on to their authority. So they're relying on the doctrine of stare decisis. Now stare decisis is the doctrine that comes into play when precedent already exists. And what it says is that courts will generally stick to precedent in making their decisions. The literal

translation, by the way, of stare decisis is to stand by things decided. Now, obviously, the Supreme Court can overrule prior precedent, but they just have to justify it through certain factors. So in this case, what the Biden administration argued is that the Chevron Doctrine has very deep roots in Supreme Court jurisprudence. It's been around for 40 years, and that the court would need a truly extraordinary justification in order to overrule it, which the Biden administration says does not exist here. Now, when it comes to the justices' questions and concerns, the court's three liberal justices, so Justices Kagan, Jackson, and Sotomayor, they all seemingly supported in one way or another keeping this doctrine in place.

Justice Kagan made mention that federal agencies are better suited than courts to resolve ambiguities in federal statutes given the agency's scientific and technical expertise. So she gave this example of artificial intelligence. And what she said is, let's suppose Congress passes a broad law on AI. And then she said, Congress knows that there are going to be gaps in that law because Congress can hardly see a week in the future with respect to the subject, let alone a year or a decade in the future. Now, does Congress want the courts or the agencies to fill in those gaps? And she said, what Congress wants, we presume, is for the people who actually know about AI to

decide these questions, meaning agencies, not the courts. Justice Sotomayor agreed with the sentiment and expressed some doubt when it came to leaving it to the justices, given that the justices often disagree on the meaning of laws. So she said, you know, when it comes to a tiebreaker, what would we do if we left this to the courts? Justice Jackson expressed similar concerns. What she said is that the Chevron doctrine gives these federal agencies the power to make policy choices like filling in gaps or defining terms in a statute. But if Chevron is overturned and the agencies no longer have that power, courts would have to make those policy decisions and then they

run the risk of becoming quote--unquote, uber legislators. Now, the other justices, so Justice Kavanaugh, Barrett, Gorsuch, Thomas, Alito, and Chief Justice Roberts, they saw things a little bit differently. Justice Kavanaugh said Chevron, quote, ushers in shocks to the system every four or eight years when a new administration comes in, end quote. He also said, quote, it's the role of the judiciary historically under the constitution to police the line between the legislature and the executive branch to make sure that the executive is not operating as kings, end quote. Justice Gorsuch had a couple of concerns himself. He expressed more concern for individuals rather than businesses. He said that even though

businesses are at issue in this case, they can take care of themselves. But individuals like immigrants, veterans seeking benefits, and social security claimants are the ones that are most affected by Chevron. They're the David and the federal agencies are the Goliath. But also, just to note, Justice Gorsuch, he's notoriously against Chevron. In 2022, he actually wrote that Chevron, quote, deserves a tombstone that no one can miss, end quote. So he's never really been in favor of the Chevron. Chief Justice Roberts suggested that the effect might be minimal, given the fact that the Supreme Court hasn't really relied on Chevron in years. The Supreme Court's actually avoided Chevron for the last eight or so years, but the Biden administration said that people would come out of the woodwork, in a sense, to challenge statutes if Chevron was overturned. The administration also suggested that rather than completely overturning Chevron, the court could also just clarify and articulate the limits of Chevron.

The fishing companies, on the other hand, countered the suggestion by saying that the justices should recognize that the fundamental problem here is Chevron itself and just overturn it completely. So it seemed that the majority of justices were in favor of either overturning or at least limiting Chevron, but we obviously won't know until their decision is issued sometime closer to June. In some other Supreme Court news, the Supreme Court declined to step into the fight over bathrooms for transgender students rejecting an appeal from a public school district in Indiana on Tuesday. So the Seventh Circuit Court of Appeals had upheld a lower court's ruling that said that transgender students must have access to the bathrooms and locker rooms that are consistent with their gender identities. And in ruling this way, the Seventh Circuit judge

actually anticipated the Supreme Court's intervention at some point. So she wrote in her ruling, quote, litigation over transgender rights is occurring all over the country. And we assume that at some point the Supreme Court will step in with more guidance than it has furnished so far, end quote. And the public school district appealed that Seventh Circuit ruling, but the Supreme Court declined to get involved. So what that means is that the Seventh Circuit ruling will remain in place. And in those states that the Seventh Circuit has jurisdiction over, so those are Illinois, Indiana, and Wisconsin, transgender students will be able to access the bathrooms and locker rooms that align with their gender identities. Now, it's worth mentioning that at

some point, the Supreme Court could decide to hear a similar case, but for now, it's holding off. A case that the Supreme Court did agree to hear is called City of Grants Pass v. Johnson. This case deals with how some cities address their homelessness problem. the enforcement of generally applicable laws regulating camping on public property constitutes cruel and unusual punishment, which is prohibited by the Eighth Amendment. So in other words, can laws that generally ban camping on public property apply to homeless people? Or does banning homeless people from public camping, given their involuntary homeless status, constitute cruel and unusual punishment. This is an issue that the Ninth Circuit Court of Appeals has dealt with for years, and now the Supreme Court is deciding to chime in. Here is where the parties

stand. The homeless individuals are the ones that are challenging this ban under the Eighth Amendment. Their argument is that they cannot help their homelessness, and just as cities can't punish someone for their status, for being homeless, cities also can't punish them for the conduct that arises from being homeless, which is camping in public places. The city, on the other hand, wants to be able to enforce this public camping ban, right? Because their argument is one, finding that the enforcement of public camping bans can't apply to homeless people under the Eighth Amendment has no foundation in the Constitution's original meaning or in our nation's history. And what they say more specifically is that the Cruel and Unusual Punishments Clause, as the name suggests, prohibits methods of punishment that inflict

unnecessary pain and have maybe become outdated methods of punishment over the years. But the clause has nothing to do with camping ordinances. So you can't apply the Eighth Amendment here. That's what the city says. Now, along similar lines, the city also argues that there's nothing cruel and unusual about a civil fine for violating commonplace restrictions. So even if the court were to find that the Eighth Amendment could apply, nothing is cruel and unusual about what's happening here. Part two of the argument is that without the ability to act, without the ability to punish homeless people for camping out on public property, these encampments in these cities have led to increased crime, fires, diseases, environmental harm, and record levels of drug

overdoses and deaths on public streets. And that if the Supreme Court sides with the Ninth Circuit, it will, quote, further hamstring cities at the worst possible time, end quote. This particular case stems from Grants Pass, Oregon, but other cities, states, and public officials such as the DA of Sacramento County, Governor Newsom of California, the Speaker of Arizona's House of Representatives, the City of San Francisco, the City of Phoenix, the State of Idaho. There's like 20 others that have filed supporting briefs with the court because they do not want the Supreme Court to ultimately say that they can't enforce these public camping bans on homeless people. This case will likely be heard sometime in April. We'll probably have a decision, or we will have a decision, I should say,

before the end of their term at the end of June. So that is what's going on with that case. But now that we are all caught up on some of the happenings out of the Supreme Court, let's move into our second deep dive, which is this newly released Uvalde report. The Uvalde report, which was written by the DOJ, was released yesterday on Thursday. It's the product of an analysis of more than 14,000 documents, more than 260 interviews. Basically, the DOJ was trying to nail down what happened and what went wrong. The full report is 575 pages. Did I read the whole thing? No, as much as I wish I was Superwoman. I am not, but I did read the executive summary, which basically summarizes the entire report into about 12 pages. So I think the best way to discuss this story is to go over the

executive summary together, not all 12 pages, but just the relevant portions. That way, if you have an interest in knowing even more and you do want to look into the full report, you can always go ahead and find that on my website and read it for yourself. But even if you don't read the full report, you'll at least still have a pretty good understanding of the report's findings just based off of this segment alone. So the executive summary starts with an overview of the factual observations. Now this is going to be a run-through of what happened on the day of the Uvalde school shooting. Then it gets into the analysis and where the DOJ feels that law enforcement went wrong. So first with the observations, because the factual observations are important to understanding the analysis,

I'll read through some of it. It starts by saying, at 11.33 a.m. on the morning of May 24, 2022, the subject entered Robb Elementary School equipped with a high-powered AR-15 rifle. He immediately started shooting and within a minute entered classrooms 111 and 112, which were connected via an interior door. school, 11 law enforcement officers from the Uvalde Consolidated Independent School District and Uvalde Police Departments, including supervisors, arrived inside the school. Hearing the continued gunfire, five of the responding first on the scene law enforcement ran towards classrooms 111 and 112. The other six did not advance down the hallway, including the Uvalde Police Department acting chief who was in the best position to start taking command and control and to start coordinating with approaching personnel. One of the officers said to, quote, line up to make entry, end quote, and within seconds,

shots were fired from inside one of the rooms. Two officers were hit with shrapnel, and all responders retreated to positions of cover. After three attempts to approach the classrooms, the focus of the responders shifted from entering classrooms 111 and 112 and stopping the shooting to evacuating other classrooms, attempting to negotiate with the subject, and requesting additional responders and equipment. With this shift from an active shooter to a barricaded subject approach, some responders repeatedly described the subject over the radio as barricaded or contained. It continues on and a couple of paragraphs later says, At 12.21 p.m., 48 minutes after the subject entered the school, the subject fired four additional shots inside classrooms 111 and 112.

Officers moved forward into formation outside the classroom doors but did not make entry. Instead, presuming the classroom doors were locked, the officers tested a set of keys on the door of a janitor's closet next to room 112. When the keys did not work, the responders began searching for additional keys and breaching tools. After another 15 minutes, officers found a second set of keys and used them to successfully open the janitor's closet. With working keys in hand, the officers then waited to determine whether a sniper and a drone could obtain sight of and eliminate the subject through the window. Those efforts were unsuccessful. At 12.48 p.m., 27 minutes after

hearing multiple gunshots inside classrooms 111 and 112, and 75 minutes after first responders first entered Robb Elementary, officers opened the door to room 111. A team killed the subject when he emerged shooting from a closet. The subject was killed at approximately 12.50 p.m., 77 minutes after the first officers entered the school, and after 45 rounds were fired by the shooter in the presence of others. So that is the factual background that then ties in to the analysis. And what the analysis says is this. Based on these facts, there were several critical failures and other breakdowns prior to, during, and after the Robb Elementary School response. The most significant failure was that responding officers should have immediately recognized the

incident as an active shooter situation, using the resources and equipment that were sufficient to push forward immediately and continuously towards the threat until entry was made into classrooms 111 and 112 and the threat was eliminated. In addition to the overall failure to appreciate the active shooter nature of the situation, responders also failed to act promptly even after hearing gunshots around 1221 p.m., which should have spurred greater urgency to confront the subject but instead set off a renewed search for keys. There were also failures in leadership, command, and coordination. None of the law enforcement leaders at the scene established an incident command structure

to provide timely direction, control, and coordination to the overwhelming number of responders who arrived on the scene. Communications difficulties exacerbated these problems. The chief on the scene lacked radio. He discarded his radios during his arrival, thinking they were unnecessary, and although he attempted to communicate with officers in other parts of the hallway via phone, unfortunately, on multiple occasions, he directed officers intending to gain entry into the classrooms to stop, because he appeared to determine that other victims should first be removed from nearby classrooms to prevent further injury. And then it goes on to say that a lot of these problems, you know,

it stemmed from policy and training deficiencies, that a lot of the first responders that were there were from various departments who had never trained together, and that contributed to the problems. That is essentially what you need to know from the Uvalde report. Again, the full thing is over 500 pages, but it really just runs through the facts of what happened and then talks about a large analysis of what could have been done differently, what was learned from the Columbine shooting, what should have been implemented here that wasn't, and just how law enforcement really just failed in the entire mission to eliminate the shooter

and prevent as many casualties as possible. Let's now move on to quick hitters. The first quick hitter is this temporary stopgap measure that we talked about last episode, but yesterday the Senate voted to pass the measure and they did it in a 77 to 18 vote. As of the time this episode is being recorded, the bill has not yet passed the House, but it is expected to. One House Republican said that the House will be ready as soon as the continuing resolution comes from the Senate. He said, quote, we'll be ready and it's going to have to be bipartisan and it's going to have to be on suspension. I think we know all of those things, end quote. And he said that many, not all, but many Republicans would back the move because,

quote, we understand the realities of divided government, end quote. There's actually currently a snowstorm heading to Washington, D.C., so the lawmakers are apparently just trying to get this done and get out of town. The vote was originally the house supposed to be had on friday but they pushed it up a bit so it's very possible that it gets done after this episode is recorded but before it's released on friday morning and again remember if and when the house passes it it will get the president's signature and that will mean that the government stays open through the first couple of weeks of March. But sometime between now and then, Congress is going to have to work to get these necessary appropriations bills passed. If they can't,

they may try to push through another continuing resolution. There's no real limit as to how many continuing resolutions there can be. In the past, there have certainly been more than three or four, so it wouldn't be too crazy to see, but that is where things stand currently. Speaking of Congress, the House passed a non-binding resolution on Wednesday, which condemns the Biden administration for its handling of the southern border. This resolution passed in a 225 to 187 vote, with 14 Democrats joining all Republicans in its passage. The resolution, quote, denounces the Biden administration's open borders policies, condemning the national security and public safety crisis along the southwest border, and urging President Biden to end his

administration's open border policies, end quote. As I said, this was a non-binding resolution. What that means is it doesn't really have any effect. It's more just an expression of opinion from the House. It doesn't require the other chamber's approval. It doesn't require the president's signature. It doesn't have the force of law. Think of it in this case simply as a condemnation. Nothing more, nothing less, just a condemnation of the Biden administration's handling of the current border crisis. Quick hitter number three. A New York judge has denied Daniel Penny's motion to dismiss his charges stemming from the death of Jordan Neely in May of last year. You probably remember the

day in May when Jordan Neely died after he was put into a headlock by Daniel Penny, who says that he was acting to defend himself as well as all of the other subway passengers that day, and he did not intend to kill Neely. Penny's lawyers argued that the prosecutors in the case did not present sufficient evidence to the grand jury who ultimately indicted Penny, and therefore Penny's indictment should be dismissed. But the judge rejected that argument and allowed the charges to proceed. Now here's the thing, with a motion to dismiss in criminal court, there are certain, and for the most part states vary, but there are certain arguments that you can put forth for an indictment to be dismissed, one of those being that the

prosecutors presented insufficient evidence to the grand jury. Now, the bar is very low, which we will get into, but here are some other little tidbits of legal knowledge that are important for this discussion. Daniel Penny was charged with manslaughter in the second degree and criminally negligent homicide. Neither of those charges require intent. Manslaughter in the second degree in New York is where someone recklessly causes the death of another person. It's not intentional. Criminally negligent homicide is very similar, but it's when someone causes the death of another through criminal negligence. So one requires recklessness, the other requires criminal negligence, but neither

require intent. If you're wondering what the difference is between criminal negligence and recklessness, you are certainly not alone. They are very, very similar, but some legal experts have defined the difference between the two as recklessness involving a risk that you were actually aware of, whereas criminal negligence involves a risk that you should have been aware of. And manslaughter in the second degree actually comes with a little bit harsher of penalties, but again, very similar but also different charges. However, for the purposes of this conversation, what you need to know is that neither charge requires intent. So now, knowing what you know, that neither charge he's facing requires intent and the motion,

the bar for a motion to dismiss is very low, it's not that surprising that the ruling went the way that it did. And even Daniel Penny's lawyer acknowledged that after the fact. He said that, you know, while they disagree with the court's decision, they understand that the legal threshold to continue even a, quote quote ill-conceived prosecution is very low. So what this really means is that Penny will have to face his charges at some point in the future whenever a trial date is officially set. And that takes us to our fourth and final quick hitter, which deals with a firearm ruling out of Pennsylvania. On Thursday, the Third Circuit

Court of Appeals ruled that a Pennsylvania law, which bans 18 to 20-year-olds from carrying firearms in public during a state of emergency, is unconstitutional. Per usual, let me know your thoughts on this. Here is what the issue was. Under Pennsylvania law, individuals must be at least 21 years old or older to apply for a license to carry concealed firearms. Now, typically, even unlicensed individuals can still carry guns openly in Pennsylvania. But there was one particular law that prohibited people from carrying firearms on public streets or public property if a state of emergency was declared unless they had a license or fell into some different category of exceptions. So because you have to be 21 to apply for and therefore obtain a license, under this law,

if a state of emergency was declared, obviously those under the age of 21 wouldn't be able to carry a gun in public because they're not able to apply for a license yet. The ruling from the appellate court was two to one in striking down this law. One dissenting justice argued that the Second Amendment does not apply to individuals under the age of 21. The final segment, it's a Friday, so we're going to finish things off with not everything is bad. The first piece of good news I have for you is that 2023 was one of the safest years in aviation history. How does one determine that, you might ask? I'm happy to tell you. The fact that there was not one major fatal accident involving a large turbofan-powered

commercial aircraft made it one of the safest years on record. There were, of course, smaller incidents throughout the year. There were even some fatal crashes in 2023. But those involved non-jet powered airlines and private aircraft. So those incidents actually were not included in this data set. And just as an FYI, this data set also does not include turbulence related injuries or runway accidents.

So aviation safety is a relative term, but we're still putting this in the good news category. Okay. And good news number two, second piece of good news, is that at the start of 2023, the Department of Veterans Affairs launched this new program that allows veterans in need of emergency suicidal care to seek help from any VA or non-VA facility free of charge, no cost. Thursday marked one year since that program start, and on Thursday, the VA announced that in the 365 days that this program has been up and running, 49,714 veterans

took advantage of the program. That is an average of 136 veterans per day. Now, this program does apply to all veterans, even those not enrolled in the VA, and even some former service members who don't meet the technical requirements to be considered a veteran, and it covers not only the cost of care, but also transportation costs and follow-up care. If you haven't heard of this program, but you are interested in learning more, I've included some more information in the sources section for this episode, which you can always find in the episode description. You just click the hyperlink, scroll all the way down on that webpage, and you'll see the links at the bottom. That is what I have for you today. I hope you enjoyed this episode. Thank you so much for being here. As

always, I hope you have a great weekend. And if your favorite football team is in the playoffs, I hope that it works out well for you I'm a Detroit Lions fan so you already know I'll be cheering them on on Sunday but I hope you have a great weekend and I will talk to you on Tuesday