#Chevron U.S.A. v. Natural Resources Defense Council

[dontmeantobepoliticalbut]

In the aftermath of the right-wing U.S. Supreme Court's potentially deadly rampage against federal regulators, its ruling in support of the criminalization of homelessness, and its decision to grant former President Donald Trump sweeping immunity from criminal prosecution, Sen. Bernie Sanders said late Monday that nation's highest judicial body is "out of control" and must be reined in before it can inflict even more damage.

"Over the years, among other disastrous rulings, this right-wing court has given us Citizens United, which created a corrupt, billionaire-dominated political system," Sanders (I-Vt.) said in a statement. "It overturned Roe v. Wade, removing women's constitutional right to control their own bodies. Last week, the court chose to criminalize poverty by banning homeless encampments in public spaces—forcing more poor people into the cycle of debt and poverty."

"With the Chevron case," the senator continued, "they have made it far more difficult for the government to address the enormous crises we face in terms of climate change, public health, workers' rights, and many other areas. And, today, the court ruled in favor of broad presidential immunity, making it easier for Trump and other politicians to break the law without accountability."

Such far-reaching and devastating decisions, Sanders argued, highlight the extent to which unelected Supreme Court justices—with the backing of right-wing billionaires and corporations bent on sweeping away all regulatory constraints—have arrogated policymaking authority to themselves with disastrous consequences for U.S. society and the world.

"If these conservative justices want to make public policy, they should simply quit the Supreme Court and run for political office," said Sanders. "At a time of massive income and wealth inequality, billionaire control of our political system, and major threats to the foundations of American democracy, it is clear to me that we need real Supreme Court reform. A strong, enforceable code of ethics is a start, but just a start. We'll need much more than that."

Sanders did not make specific reform recommendations beyond an ethics code in his statement Monday, but he has previously suggested rotating judges off the Supreme Court—which would effectively end lifetime appointments.

The Vermont senator's progressive colleagues floated a range of possible actions following the high court's presidential immunity ruling on Monday, including adding seats to the Supreme Court and impeaching individual justices.

"Today's decision, along with the court's decision to overturn Chevron, is an assault on the separation of powers under the Constitution," Sen. Elizabeth Warren (D-Mass.) said in response to the court's ruling in Corner Post Inc. v. Board of Governors of the Federal Reserve System.

"An extremist Supreme Court stacked by Donald Trump has snatched power away from an elected Congress and handed lawmaking power over to a few far-right unelected judges," Warren added. "This Supreme Court is undermining the foundations of our democracy; Congress must restore balance by adding more justices to the court."

The Supreme Court's recent flurry of rulings has already thrown existing cases into chaos and opened the floodgates to new corporate-backed lawsuits against longstanding federal regulations.

The Washington Post reported Sunday that "mere hours after the Supreme Court sharply curbed the power of federal agencies" by scrapping the Chevron doctrine, "conservatives and corporate lobbyists began plotting how to harness the favorable ruling in a redoubled quest to whittle down climate, finance, health, labor, and technology regulations in Washington."

"The National Association of Manufacturers, a lobbying group whose board of directors includes top executives from Dow, Caterpillar, ExxonMobil, and Johnson & Johnson, specifically called attention to what it described as regulatory overreach at the [Securities and Exchange Commission] and the Environmental Protection Agency," the Post noted.

The U.S. Chamber of Commerce, the nation's largest corporate lobbying organization, and the American Petroleum Institute were also among the big business groups applauding the fall of Chevron, fueling calls for Congress to codify the doctrine into federal law.

The American Prospect's Hassan Ali Kanu wrote Tuesday that the high court's latest term has "demonstrated how lacking our system is in terms of safeguards that can prevent or correct the Supreme Court when it oversteps its authority or engages in unjustified exercises of power."

"President Joe Biden's commission to explore Supreme Court reform produced a number of viable and sensible options," Kanu continued. "Congress could curtail or end judicial review, the power the court aggregated to itself to exclusively interpret the Constitution."

"Even more modest proposals could further democratize the Court and judiciary, like prohibiting them from declining to apply laws passed by Congress unless they have at least a supermajority vote; or implementing sortition, random assignment, and rotation into the process of appointing or assigning judges to the Supreme Court," he added. "At this point, when a six-member majority is literally declaring a former president who appointed three of them to be functionally above the law, against all prevailing opinion, scholarship, analysis, and experience, the case for court reform couldn't be clearer."

[virginiaprelawland]

The Implications of Overturning Chevron Deference: A Paradigm Shift in Administrative Law

By  Tommaso (Tommy) Ceccuzzi, Marymount University Class of 2023

July 5, 2024

In a landmark decision, the Supreme Court has overturned Chevron deference, a doctrine that has shaped administrative law since 1984. This blog explores the Court's reasoning, the immediate and long-term impacts of this decision, and the implications for various sectors, including healthcare and regulatory law.

Background on Chevron Deference:

Chevron deference emerged from the Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. It mandated that courts defer to a federal agency's interpretation of ambiguous laws it administers, provided the interpretation is reasonable. This two-step process significantly influenced the balance of power between agencies and the judiciary.

The Supreme Court Decision:

In Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, the Supreme Court reviewed whether Chevron deference should be overruled. These cases, decided jointly, involved federal regulations affecting the fishing industry, but their implications extend to all regulations interpreting ambiguous federal laws, including those in healthcare.

In a 6-3 decision, with Chief Justice Roberts writing for the majority, the Court concluded that Chevron deference should never have been used, overturning the precedent. The Court made several key points:

1. Independent Judicial Judgment: Courts must use independent judgment to determine the meaning of federal statutes and cannot defer to agency regulation simply because the statute is unclear. The majority opinion states that Chevron deference runs counter to the Administrative Procedure Act (APA), which mandates that “courts decide legal questions by applying their own judgement.”

2. Agency Expertise: The Court asserted that agencies lack special competence in resolving statutory ambiguities. While courts can respect agency expertise on technical issues, Congress expects courts to handle ambiguous statutory questions.

3. Stare Decisis: Although federal courts generally follow prior Supreme Court decisions (stare decisis), the majority opinion deemed the 1984 Chevron decision “flawed and unworkable.” The Court argued there is no reason to wait for Congress to correct this mistake.

4. Impact on Prior Cases: The opinion notes that prior cases relying on Chevron to uphold agency actions are still subject to “statutory stare decisis” and can be upheld even though the deference standard has changed.

The Dissent:

Justice Kagan, joined by Justices Sotomayor and Jackson, authored a 33-page dissent, strongly opposing the majority's decision. Key points from the dissent include:

1. APA Interpretation: Kagan argued that the APA does not specify how courts should review agency regulations, with or without deference. The dissent criticizes the majority for disrupting Chevron, which Kagan describes as the “cornerstone of administrative law.”

2. Stare Decisis Principle: The dissent rebukes the majority for subverting the principle of stare decisis without significant justification beyond disagreement with Chevron.

3. Future Implications: Kagan predicts that existing federal regulations, previously unchallenged under Chevron, will now face new challenges. She emphasizes that the decision grants the Court exclusive power over regulatory law issues, turning it into the “country’s administrative czar.”

Immediate Legal Impacts:

The Supreme Court's decision to overturn Chevron deference has far-reaching and immediate legal impacts. These effects are particularly pronounced in the areas of judicial review, agency authority, and the outcomes of pending cases.

Judicial Review:

One of the most immediate impacts of overturning Chevron deference is the change in how courts review agency interpretations of ambiguous statutes. Previously, under Chevron, courts would defer to an agency's reasonable interpretation of an ambiguous statute. This two-step process often meant that as long as the agency's interpretation was not arbitrary or capricious, it would be upheld.

With Chevron deference no longer in place, courts are now required to engage in independent judicial analysis of statutes. This means judges must interpret the law without giving substantially less weight to the agency's interpretation. The shift necessitates that judges delve deeper into the legislative history, statutory text, and context to determine the statute's meaning. This change could lead to diversity in judicial decisions, as courts will no longer defer to agency interpretations. However, it could also increase the complexity and length of litigation as courts take on a more active role in statutory interpretation.

Agency Authority:

Federal agencies have historically relied on Chevron deference to interpret and implement ambiguous statutes with a degree of autonomy. The ability to define ambiguous terms allowed agencies to adapt regulations to changing circumstances and specialized knowledge.

The removal of Chevron deference reduces the discretion and authority agencies have traditionally exercised. Agencies must now anticipate greater judicial scrutiny of their interpretations and may be more conservative in their rulemaking to avoid potential legal challenges. This could result in agencies issuing more detailed and less flexible regulations to ensure their interpretations are upheld in court. Additionally, agencies might experience an increased administrative burden as they justify their interpretations more thoroughly, anticipating that courts will no longer give them the benefit of the doubt.

Pending Cases:

The overturning of Chevron deference will have an immediate impact on pending cases that involve agency interpretations of ambiguous laws. Cases that were previously likely to be resolved in favor of agency interpretations may now see different outcomes as courts apply independent analysis.

For example, regulatory disputes in sectors like healthcare, environmental law, and financial regulation could be revisited under this new standard. Agencies defending their interpretations will now need to present more robust arguments to convince courts of their statutory readings. This shift could lead to reversals of agency decisions, modifications of existing regulations, and potential delays as courts take longer to arrive at decisions without the guiding framework of Chevron deference.

Moreover, litigants challenging agency actions might be emboldened by the Court's decision, leading to an increase in legal challenges against agency interpretations. This could create a more litigious environment where businesses, advocacy groups, and individuals are more likely to contest agency regulations in court.

Long-Term Implications:

- Administrative Law: This decision reshapes administrative law principles, potentially leading to increased judicial involvement in regulatory interpretations.

- Regulatory Environment: Agencies might approach rulemaking and enforcement with greater caution, anticipating stricter judicial scrutiny.

- Separation of Powers: The decision underscores a shift in the balance of power among the legislative, executive, and judicial branches.

Potential Challenges and Criticisms:

The Supreme Court's decision to overturn Chevron deference has raised several challenges and criticisms, highlighting potential issues in judicial and regulatory practices.

Practical Challenges:

1. Technical Expertise: Courts may struggle to interpret complex, technical statutes without agency guidance. Agencies like the EPA and FDA have specialized knowledge that judges typically lack.

2. Increased Workload: Judges will need to conduct more thorough analyses, increasing the judicial workload and potentially leading to longer case resolution times.

3. Consistency and Predictability: The absence of Chevron deference may result in less predictable and consistent court rulings, complicating compliance and strategic planning for regulated entities.

Criticisms:

1. Judicial Activism: Critics argue that the decision reflects judicial activism, as the Court is seen as overstepping by overturning established precedent without a compelling reason beyond disagreement.

2. Expertise Gap: There is concern about the expertise gap between judges and specialized agencies. Agencies possess the necessary background to interpret complex regulatory schemes effectively, a capability that generalist judges may lack.

Expert Opinions:

- Legal Scholars: Some legal scholars view the decision as a necessary correction, while others see it as destabilizing established administrative law principles.

- Industry Perspectives: Stakeholders in regulated industries, such as healthcare, express concerns about increased uncertainty and potential disruptions.

Conclusion:

The Supreme Court's decision to overturn Chevron deference marks a significant shift in administrative law. While it aims to restore judicial independence in statutory interpretation, it also raises concerns about increased judicial workload and potential instability in regulatory practices. As the legal community and regulated industries adjust to this new landscape, the long-term impacts will continue to unfold.

______________________________________________________________

- Legal Precedents: Chevron U.S.A., Inc. v. NRDC, Loper Bright Enterprises v. Raimondo, Relentless, Inc. v. Department of Commerce.

- Academic Articles: Various legal commentaries and scholarly articles on Chevron deference and administrative law.

- Official Opinions: Links to the majority and dissenting opinions from the Supreme Court decision.

[kesarijournal]

Understanding Chevron Deference and Its Overturning by SCOTUS

What is Chevron Deference?Chevron Deference originated from the 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. This legal doctrine mandated that courts defer to a federal agency’s interpretation of ambiguous statutes that the agency administers. The rationale was that agencies possess expertise in their specific fields and thus should be trusted to…

[chrisabraham]

Fuckers: "Chevron deference is a principle of administrative law established by the U.S. Supreme Court in the 1984 case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Under this principle, courts defer to a federal agency's interpretation of a statute that it administers if the statute is ambiguous and the agency's interpretation is reasonable."

[ailtrahq]

A US Supreme Court case has caught the interest of the crypto community, especially the XRP community, as it could significantly impact Ripple’s ongoing legal battle against the US Securities and Exchange Commission (SEC). The US Supreme Court is set to decide on whether or not to overrule the Chevron Deference Doctrine in the ongoing case of Loper Bright Enterprises v. Raimondo. How The Chevron Deference Doctrine Affects Ripple’s Case The doctrine provides that courts, in the case of ambiguity, could adopt a federal agency’s interpretation of a statute as far as it sounds plausible. This doctrine was formulated in 1984 in the case of Chevron U.S.A. v. Natural Resources Defense Council when the court reasoned that these agencies, as experts, were in a better position than the court to demystify these statutes delegated to them by Congress. As such, it is understandable why the Supreme Court’s ruling in the present Loper case is of interest to the XRP community, as the decision could determine what position the court will choose to adopt when the SEC’s case against Ripple goes to trial.  If the Chevron doctrine is overruled, the court in Ripple’s case isn’t compelled to consider the SEC’s interpretation of the Securities Act and how Ripple violated it through their XRP sales. However, suppose the Supreme Court decides to affirm the doctrine, the Judge in the case will likely have to be guided by the SEC’s interpretation, especially on areas it needs clarity. The SEC has continued to allege that all of Ripple’s XRP sales (including programmatic sales and other distributions) constituted investment contracts under the Securities Act, thereby making the XRP token a security. As such, it believes that Ripple violated the law when it failed to register XRP as a security before offering it to the public.  Many, including Ripple’s Chief Legal Officer Stuart Alderoty, have welcomed this development in the hopes that the Supreme Court will curb the excesses of these federal agencies, including the SEC.  For The Broader Crypto Industry The Supreme Court’s ruling in the Loper case will also undoubtedly affect the crypto industry, especially concerning the SEC’s continued enforcement action against the industry. Amid the lack of crypto-related laws, the SEC has swooped in and found a way to apply the Securities Act to the crypto industry.  Specifically, the SEC has continued to clamp down on crypto exchanges, alleging that they have violated the law by operating as an unregistered securities exchange. However, there is a general belief that this shouldn’t be so, as cryptocurrencies do not pass the Howey Test used to determine what can be considered security. This belief, alongside Judge Analisa Torres’ ruling, forms part of Coinbase’s argument in its motion to dismiss the SEC’s lawsuit against it. The crypto exchange argues that the SEC is acting outside its jurisdiction by bringing such an action as the exchange doesn’t offer securities.  XRP price at $0.507 | Source: XRPUSD On Tradingview.com

[technsavi]

Inventor and User Organizations Tell SCOTUS to ‘Confine’ Chevron so USPTO Can’t Escape Rulemaking Process

“The USPTO’s neglect of rulemaking procedure leads to regulatory costs that exceed $ 1 billion per year.” – USI/ PTAARMIGAN amicus brief One of the many amici who have filed briefs in a Supreme Court case asking the Court to overrule its precedent in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. told the justices last week that the United States Patent and Trademark Office…

[etiennekissborlase]

Is Ripple Like Chevron XRP Like Oil? Why The Chevron Doctrine Matters

Is Ripple Like Chevron, XRP Like Oil? Why The Chevron Doctrine Matters https://bitcoinist.com/ripple-like-chevron-xrp-like-oil/ The comparison of Ripple to Chevron and XRP to oil is already a few years old. Cory Johnson already claimed in 2018: “Ripple is like Chevron, XRP Is like Oil. You can buy all the oil you want and it doesn’t give you access to Chevron profits, and you can be a Chevron shareholder but you have no control over the price of oil.” And that comparison took on new relevance Monday. The Supreme Court announced it will address the Chevron doctrine, which gives federal agencies, such as the U.S. Securities and Exchange Commission (SEC), significant leeway in interpreting ambiguous laws. Supreme Court justices will decide in the next term whether to overturn the decades-old precedent. The 1984 Chevron Deference, named for the court’s decision in Chevron U.S.A. v. Natural Resources Defense Council, has become one of the most frequently cited precedents in U.S. administrative law. It established that, where a statute is ambiguous, courts should defer to the interpretation of the appropriate regulatory authority, provided that such interpretation is reasonable. Remarkably, shortly after the SEC filed its case against Ripple in December 2020, former U.S. Attorney James K. Filan made a prophetic prediction via Twitter: When it comes to SEC v. Ripple, and all the different federal agencies trying to regulate crypto, start thinking about the bigger picture, like Chevron deference, the major questions doctrine and our new Supreme Court makeup. Will Chevron Doctrine Review Help Ripple? Critics of the Chevron doctrine argue that it grants regulators overreaching powers and allows them to exceed the statutory framework, given by Congress. In the context of the Ripple lawsuit, the SEC may argue that XRP qualifies as a security under the Howey test, even though cryptocurrencies did not exist in 1946. According to XRP community attorney John E. Deaton, the Chevron doctrine “is a very dangerous approach because it involves unelected government officials who have extreme power.” The best example, he says, is Gary Gensler, chairman of the SEC, who can disregard existing law. “Even if the judge disagrees with the interpretation, if it is objectively reasonable, then the agency can define rules,” warns Deaton, who, however, sees no direct application to the Ripple SEC case. According to him, the Chevron doctrine is more important in other respects, as Ripple does not involve an unclear definition around an investment contract: So, the Chevron case is not directly applicable to Gary Gensler and the SEC and what they do with crypto. What they are doing is not interpreting a statute, they’re grossly expanding – unconstitutionally in my opinion – the Howey decision and the reach of the Howey test, applying it to the secondary market and the asset itself. Where the Chevron doctrine matters for crypto, according to Deaton, is the banking issue. With that in mind, the XRP lawyer believes Caitlin Long, founder of Custodia Bank, is fighting the “most important battle for crypto” by applying for a banking license. At press time, the XRP price was at $0.4603, remaining within the range it had fallen into on March 20. via Bitcoinist.com https://bitcoinist.com May 03, 2023 at 12:10PM

[bemusedlybespectacled]

What's the Chevron deference?

OKAY OKAY SO

Quick rundown on how the government works: Congress makes the laws, but the executive branch enforces them. Federal agencies are created to make that enforcement easier. The law that governs how federal agencies operate is called the Administrative Procedure Act. So, Congress passes a law that says "all cars must be electric," and the EPA creates regulations making that more specific (what counts as a car, whether it's just new cars or all cars, what "electric" means) according to the procedure laid out in the APA, and then they enforce those regulations.

It is assumed that the agency tasked with enforcing a law knows best how to enforce it, since they are (presumably) staffed with experts on environmental science or car safety or firearms or whatever. This is called Chevron deference, after Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which comes in two parts:

1) Did Congress already unambiguously address this thing? (For example, did they specifically say "a car is defined as a four-wheeled passenger vehicle" or something like that?) If they did, then we go with what Congress said.

2) If they didn't address this thing directly, if it was vague or left out of the law, does the agency's interpretation of what they meant make any sense? Like, if the EPA decided "cars" meant "things you use to travel over water," that would clearly not make any sense. But if there's any way for it to make plausible sense as an interpretation, then it's valid.

(Note that an agency's interpretation of their own regulations is basically always considered valid no matter how ambiguous it is. This is called Skidmore deference and it's a different thing.)

You can see how this is stacked in the government's favor: if any plausible interpretation is valid, then you basically either have to show that Congress explicitly said X and they're doing Y (which almost never happens) or that their interpretation of the law is so nutty that there's no plausible explanation for it.

But this isn't the end all, be all. Actions taken by an agency can't be "arbitrary or capricious" - basically, everything they do has to be backed up with something. You can't create the law out of thin air or interpret the rules however you want. An explanation – ANY explanation – as to why the agency is doing X instead of Y is fine, as long as it's within the bounds of plausibility. Doing something with no explanation, or an explanation so whackadoodle that it's clearly not conforming with reality, is arbitrary and capricious.

So, I'm a federal agency. Congress has passed the "Uniform House Colors Act," which says all houses need to be blue and creates an agency (me) to oversee all the house painting. I am interpreting "all houses need to be blue" that to mean that it includes any shade of blue; that is, you can choose if it's dark blue or light blue or blue-green or what-have-you. So I am going to promulgate a regulation based on that interpretation. All I need to do to make sure my regulation is nearly impossible to challenge is to do the following:

Make sure my regulation defines "blue" in a way that definitely only means "blue," and not "red" or yellow."

Have a notice and comment period on my new regulation, making sure to gather data about why it's better to have houses be many shades of blue instead of only one shade.

Make sure that when my regulation is promulgated, it comes with a report on that data.

Make sure that when I enforce the regulation (I fine everyone whose houses aren't blue $10), I'm actually enforcing it against non-blue houses and don't fine people for having, say, indigo houses when I said shades of blue, including blue incorporating another color, was fine. And when I do enforce it, I explain my reasoning ("Mr. Jones' house is very clearly a reddish purple, which, though it technically contains blue, is not considered a shade of blue").

Make sure that, if a later administration comes along and says that actually we're making all houses cobalt blue now and no other color, that we go through this whole process again.

Simple, right? But it's slow and kind of boring. You have to get people to actually gather data and shit and justify your decisions.

So, normally this makes the government's job incredibly easy: if you can give a reason, any reason, to make your regulation plausibly related to the law creating it, and can enforce it in a fair way (or at least, in a way where you can explain why you're doing the thing you're doing and your reasons aren't totally bonkers), you're good against anyone challenging it outside of constitutional stuff.

And this is why the Trump administration's process of deregulation is so fucking funny to me: they didn't follow the process at all. They'd just get rid of stuff without explaining it, or with clearly bonkers explanations. They either didn't know or didn't care about the Administrative Procedure Act, and so they just. kept. losing. The government is literally handed a shitload of relatively-unquestionable power so long as they follow a couple of basic rules, AND THEY DIDN'T. SO THEY LOST ALMOST EVERY SINGLE CHALLENGE TO THEIR REGULATIONS OR THE ENFORCEMENT OF THEM.

LITERALLY ALL THEY NEEDED WAS SOME KIND OF THING THAT SAID "THIS IS WHY WE ARE DOING WHAT WE ARE DOING" WITH LITERALLY ANY EXPLANATION OTHER THAN "BECAUSE WE WANT TO" AND THEY'RE GOLDEN. AND THEY DIDN'T, BECAUSE THEY WERE FUCKING INCOMPETENT ASSHOLES.

THEIR OWN IMPATIENCE AND INCOMPETENCE IN ENACTING POLICY CHANGES WAS EXACTLY WHAT SCREWED THEM OVER. THEY WERE SO BAD AT BEING EVIL THAT THEY ENDED UP LEGALLY FACEPLANTING NEARLY EVERY TIME THEY TRIED TO ACCOMPLISH ANYTHING.

THANK YOU FOR COMING TO MY TED TALK.

[maxwellyjordan]

Opinion analysis: The doctrine that dare not speak its name

A laid-off railroad worker goes head to head with the world’s fourth-largest publicly traded corporation over a $3,765 payment that — the worker says — is owed to him because the corporation’s negligence caused him to fall through a snow-covered drainage grate and suffer a severe knee injury. The Trump administration backs the corporation, while a trial lawyers’ group with close ties to the Democratic Party comes in to support the worker. The Supreme Court sides with the corporation, but only over a stinging dissent from two justices who warn that the court’s decision will allow railroads to stiff-arm their injured employees.

That storyline might not seem surprising to commentators who charge that the court under Chief Justice John Roberts is unusually friendly to business and hostile to workers. What’s rather more unusual is the alignment of justices. The majority opinion — siding with BNSF Railway, a subsidiary of Warren Buffett’s Berkshire Hathaway — is authored by the court’s “liberal lion,” Justice Ruth Bader Ginsburg, and joined by the three other Democratic appointees as well as Roberts and Justices Samuel Alito and Brett Kavanaugh. And the pro-worker dissent — joined by Justice Clarence Thomas — is authored by none other than Justice Neil Gorsuch, who was criticized during his confirmation for being insufficiently sensitive to the needs of transportation industry workers in wintry conditions.

It’s far from the only unusual aspect of BNSF Railway v. Loos, a case that involves a relatively obscure tax statute but that nonetheless tells us a lot about the court’s administrative-law jurisprudence going forward. The narrow question in the case is whether a railroad’s payment to an employee for lost wages due to an on-the-job injury is taxable “compensation” under the Railroad Retirement Tax Act. The answer for federal income tax purposes is clear: Compensatory damages for physical injuries are excluded from gross income under Section 104 of the Internal Revenue Code. But the RRTA is a separate tax scheme that imposes an additional tax on “compensation,” which it defines as “any form of money remuneration paid to an individual for services rendered as an employee” of a railroad. And BNSF argued that for RRTA purposes, lost wages paid to injured workers should be taxable.

The very fact that BNSF made that argument is surprising, because BNSF’s victory will raise the railroad’s federal tax bill. The RRTA’s “Tier 1” tax — like the parallel Federal Insurance Contributions Act tax that funds Social Security benefits for non-railroad retirees — imposes a 6.2 percent levy on employers and another 6.2 percent on employees on compensation of up to $132,900, with the revenues used to fund a special retirement benefit program for railroad employees. A “Tier 2” surtax on employers and employees with a lower wage cap funds additional benefits for railroad retirees that in most cases are more generous than Social Security benefits. (Railroads and their employees don’t pay FICA taxes to fund Social Security, and lifelong railroad workers don’t receive Social Security benefits in old age.) BNSF told the court that it wants for itself and its injured employees to pay higher taxes on lost-wage awards so as to bolster the solvency of the federal railroad retirement system.

Ginsburg’s majority opinion credits BNSF’s account of its own motives and grants the railroad’s wish for a tax hike. Along the way, it relies heavily on two of the court’s precedents: the 1946 decision in Social Security Board v. Nierotko and the 2014 ruling in United States v. Quality Stores, Inc. Both involve the meaning of the word “wages” in the Social Security context. Nierotko held that back pay awarded by the National Labor Relations Board to a wrongfully discharged employee counted toward the employee’s wage credits for purposes of calculating his Social Security retirement benefits. Quality Stores held that severance payments to involuntarily terminated employees are taxable wages for FICA purposes.

Ginsburg says that “[g]iven the textual similarity between the definitions of ‘compensation’ for railroad retirement purposes and ‘wages’ for Social Security purposes, our decisions on the meaning of ‘wages’” in Nierotko and Quality Stores “inform our comprehension of the RRTA.” The irony of the court’s reliance on its Social Security cases won’t be lost on close followers of its RRTA jurisprudence. Less than nine months ago, in Wisconsin Central Ltd. v. United States, the court held that compensatory stock options are not taxable under the RRTA — even though they would be taxable under FICA — precisely because the RRTA and FICA use different language to describe what they tax. Yet here, the fact that the RRTA’s definition of taxable “compensation” applies to remuneration for “services rendered” while FICA’s definition of taxable “wages” sweeps in “all remuneration for employment” is apparently of no import.

Although Wisconsin Central garners only passing mention from the majority, another omission is more glaring: Chevron U.S.A. v. National Resources Defense Council is the doctrine that dare not speak its name in the court’s opinion. This is not because Chevron has nothing to say on the matter. Chevron counsels courts to defer to an agency’s reasonable interpretation of an ambiguous statute within its bailiwick, and the Internal Revenue Service — which administers the RRTA — issued a regulation a quarter century ago that interprets the term “compensation” in the RRTA to include “pay for time lost.” But although Ginsburg quotes the 1994 regulation, she makes quite clear that Nierotko and Quality Stores, not Chevron, dictate the outcome. Indeed, her opinion studiously avoids any reference to Chevron whatsoever.

The dissent, by contrast, dances on Chevron’s grave. “In the past, the briefs and oral argument in this case likely would have centered on whether we should defer to the IRS’s administrative interpretation of the RRTA,” Gorsuch observes with apparent glee. “[T]he Chevron doctrine, if it retains any force, would seem to allow BNSF to parlay any statutory ambiguity into a colorable argument for deference to the IRS’s view,” he notes. “But nothing like that happened here.” Gorsuch — who along with Thomas has emerged as Chevron’s most scathing critic on the court — cheers that result. Though disagreeing with the majority on the merits, Gorsuch praises the majority for “buckl[ing] down to its job of saying what the law is” rather than yielding to the agency’s view. In Gorsuch’s view, “this is all to the good.”

Gorsuch is less pleased, however, with the rest of the court’s opinion. He suggests that BNSF’s “tireless campaign” to raise its own tax bill is motivated not by its “selfless desire” to protect the solvency of the federal railroad retirement system but instead by its belief that paying more in taxes here will ultimately allow it pay less to injured employees. As he notes, damages for pain and suffering and medical expenses remain exempt from tax under the RRTA, even as pay for lost wages is now taxable. This “asymmetric treatment,” he predicts, will allow railroads to “sweeten their settlement offers” to injured employees while actually paying out less. The railroads, he hypothesizes, will agree to “designate a small fraction (maybe even none) of the payments as taxable wages” if the injured employees “[f]orgo trial and accept a lower settlement.”

Gorsuch, who wrote the majority opinion in Wisconsin Central, goes on to blast the majority for focusing on cases construing the Social Security statutes rather than the RRTA itself. In his view, the RRTA’s words “remuneration for services rendered” cut strongly against BNSF’s and the majority’s interpretation. “No one would describe a dangerous fall or the wrenching of a knee as a ‘service rendered’ to the party who negligently caused the accident,” he writes. That view is bolstered, he says, by the fact that Congress amended the RRTA in 1975 and again in 1983 to remove earlier references to the taxability of pay “for time lost.” (Ginsburg, for her part, writes that she is “not so sure” that the 1975 and 1983 amendments reflect a legislative judgment on the question presented.)

The immediate implications of Monday’s decision are limited to a small number of railroads and railroad employees who are involved in workplace injury suits and settlements. The decision may also aid the IRS and the Justice Department in their efforts to collect FICA taxes on lost-wages awards for injured employees outside the railroad context. Even that result would have relatively limited practical effects, because most non-railroad employees are covered by workers’ compensation laws, and FICA explicitly excludes workers’ compensation payments from tax. (State workers’ compensation statutes do not apply to railroads and their employees.)

Looking to the bigger picture, Monday’s decision will likely go down as one more milestone on Chevron’s path toward irrelevance. It seems clear enough that Ginsburg, in order to cobble together a majority, had to steer clear of Chevron in her analysis. And if an opinion relying on Chevron can’t muster a majority, then the doctrine has been defanged, even if not overruled. Gorsuch and Thomas, the ardently anti-Chevron duo, may have lost the narrow battle over the RRTA. But Monday’s outcome leaves little doubt that they are winning the deference war.

***

Past cases linked to in this post:

Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984) United States v. Quality Stores, Inc., 572 U.S. 141 (2014) Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067 (2018)

The post Opinion analysis: The doctrine that dare not speak its name appeared first on SCOTUSblog.

from Law https://www.scotusblog.com/2019/03/opinion-analysis-the-doctrine-that-dare-not-speak-its-name/ via http://www.rssmix.com/

[msclaritea]

Charles Koch’s Big Bet on Barrett

For almost 50 years, the multibillionaire has been pushing for a court unfriendly to regulation of the market. He may be on the brink of victory.

Charles Koch has activated his political network to support Judge Amy Coney Barrett’s nomination, and to tip the scales on her nomination battle in the U.S. Senate. While much of the commentary about Judge Barrett’s nomination has focused on the real prospect that Roe v. Wade may be undermined or overturned, Mr. Koch has other concerns. Judge Barrett’s nomination is the latest battleground in his decades-long war to reshape American society in a way that ensures that corporations can operate with untrammeled freedom. It may be a pivotal one.

Since the early 1970s, Mr. Koch has sought to dismantle most federal regulatory institutions, and the federal courts have been central to that battle. In 1974, Mr. Koch gave a blistering speech to a libertarian think tank, called the Institute for Humane Studies, in which he outlined his vision of the American regulatory state, and the strategy he would employ over the ensuing decades to realize that vision.

 On the list of government interventions he condemned were “confiscatory taxation, wage and price controls, commodity allocations programs, trade barriers, restrictions on foreign investments, so-called equal opportunity requirements, safety and health regulations, land use controls, licensing laws, outright government ownership of businesses and industries.” As if that list were not exhaustive enough, he added, “… and many more interventions.” In short, Charles Koch believes that an unregulated free market is the only sustainable structure for human society.

To achieve his goal, Mr. Koch has built an influence network with three arms: a phalanx of lobbyists; a constellation of think tanks and university programs; and Americans for Prosperity, a grass-roots army of political activists. And shaping the U.S. judiciary has been part of Mr. Koch’s strategy from the beginning. In that 1974 speech, he recommended a strategy of “strategically planned litigation” to test the regulatory authority of government agencies. Such lawsuits could make their way to the Supreme Court, where justices could set precedent. In the 1990s, he focused on lower-level judges, funding a legal institute that paid for judges to attend junkets at a Utah ski resort and Florida beachfront properties; the judges attended seminars on the importance of market forces in society and were warned against consideration of “junk science” — like specific methods to measure the effects of pollution — that plaintiffs used to prove corporate malfeasance. Mr. Koch also sought to influence the judiciary at the federal level. Between 1997 and 2017, the Koch brothers gave more than $6 million to the Federalist Society, a nonprofit institute that recruits libertarian and conservative judges for the federal judiciary, according to a tally by the activist group Greenpeace.

Mr. Koch’s efforts on the Supreme Court intensified after Donald Trump’s election, when a Republican-controlled Senate opened the way to install judges who could tip the court’s ideological balance. Americans for Prosperity undertook national campaigns to support President Trump’s previous Supreme Court nominees, Neil Gorsuch and Brett Kavanaugh. A.F.P. said the Kavanaugh campaign alone — fliers, digital ads and staff for phone banking and door knocking — ran into “seven figures.”

Now, Americans for Prosperity is doing the same for Judge Barrett. A.F.P. activists are pressuring U.S. senators in several states, with a particular eye toward vulnerable Democrats like West Virginia’s Joe Manchin. The group is also working in Alaska, where Republican Lisa Murkowski has given mixed signals about whether she is willing to vote on Judge Barrett’s nomination before the next president is elected.

Mr. Koch is selective about where he spends on politics, and the returns to reshaping the Supreme Court could dwarf the millions he’s invested. The court plays a pivotal role in determining how much regulatory power the federal government has over corporate America. The closest the Supreme Court has come to reflecting Mr. Koch’s vision for regulation is the  “Lochner era” of the early 20th century, during which an activist court struck down a wide range of federal regulations on business, turning the country into a free market free-fire zone.

A Supreme Court that has swung hard to the right could reverse earlier decisions and issue new ones that create something like a new Lochner era. In the world of corporate law, the lodestar legal case is Chevron U.S.A. Inc. v. Natural Resources Defense Council. This case, decided in 1984, created an important legal precedent called “Chevron deference.” It holds that courts should generally defer to an agency’s interpretation of a law enacted by Congress when the law is ambiguous (provided that the agency interpretation is reasonable). This helps empower agencies like the Environmental Protection Agency to operate complex regulatory regimes, even if some details are not specifically detailed in the law. The current Supreme Court has signaled a willingness to reconsider this precedent, a move that could dramatically weaken federal regulatory agencies.

Mr. Koch and the Trump administration are united in their desire to undo the Chevron decision. Mark Holden, a board member of Americans for Prosperity, has publicly decried Chevron deference as a tool of tyranny. “The administrative state is often fundamentally at odds with our carefully crafted constitutional order,” Mr. Holden, then general counsel for Koch Industries, wrote in a 2018 op-ed essay for The Hill. He said the legal precedent gave agencies like E.P.A. so much power that they consolidated the authority of all three branches of government under one roof: Passing rules, enforcing them and then handing down verdicts in administrative courts. At the White House, a former White House counsel, Donald F. McGahn II, said the Trump administration sought to appoint Supreme Court justices who would rein in the independent agencies. Justice Gorsuch, for example, wrote multiple appeals court opinions that echoed Mr. Holden’s views.

The Koch network apparently has faith that Judge Barrett will rule in concert with these beliefs. This is something of a gamble. She has been a federal judge for only three years, leaving a short paper trail of cases and academic work from which to deduce her views. Judge Barrett’s legal writings do point toward one important idea: She, like many judges, appears to believe that some precedents which the court has created with its decisions should be overturned. Judge Barrett has publicly said that her judicial philosophy is the same as former Justice Antonin Scalia. As Lisa Heinzerling, a law professor at Georgetown, told The Washington Post, what this signals depends on which version of Justice Scalia Judge Barrett agrees with. Justice Scalia was a supporter of Chevron deference early in his tenure, but became more skeptical of it over time as he defended the power of courts to undo or weaken acts of Congress.

The Americans for Prosperity campaign literature supporting Judge Barrett does not appear to mention the Chevron case, nor any other ruling about corporate power. One Facebook ad simply says that she is “committed to our Constitution, and that she won’t legislate from the bench.” Spokesmen for A.F.P. echo that line, emphasizing that the Koch network isn’t looking for policy outcomes, but for honest jurists who will follow the Constitution to the letter.

History shows that it is just as effective to legislate from the bench by striking down laws as by upholding them. The Lochner era proves that policy negation is just as powerful as creation, and it affects just as many lives. As Charles Koch has written and stated so often in the past five decades, there are many, many laws and programs that he would like to negate. With the nomination of Judge Barrett to the court, he appears to be closer than ever to achieving this goal.”

Christopher Leonard (@CLeonardNews) is the author of “Kochland: The Secret History of Koch Industries and Corporate Power in America,” and director of the Watchdog Writers Group at the Missouri School of Journalism.

[kristinhickman]

Prof. Hickman Featured in Documentary on Chevron Deference

DECEMBER 20, 2018

Prof. Kristin Hickman was one of five administrative law experts featured in a short documentary, entitled Chevron: Accidental Landmark, about the Chevron doctrine of judicial deference to agency legal interpretations, which developed from the Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[loyallogic]

BarHacker Hacksheet for Important Principles of Administrative Law

Find out the AIBE: Bar Hacker Course Hacksheet for the important principles of Administrative Law from our BarHacker Course if you are aiming for All India Bar Examination(AIBE).

  Click Here

PRINCIPLE

MEANING 

LANDMARK CASE/ ORIGIN

Administrative Deference

(Chevron Deference)

A principle of administrative law requiring courts to defer to interpretations of statutes made by those government agencies charged with enforcing them, unless such interpretations are unreasonable. 

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984) (W|L)

Administrative Discretion

refers to the flexible exercising of judgment and decision making allowed to public administrators

Goldberg v. Kelly, 397 U.S. 254,90 S. Ct. 1011, 25 L. Ed. 2d 287, 1970 U.S. LEXIS 80(1970)

Agency 

A relation, created either by express or implied contract or by law, whereby one party (called the principal or constituent) delegates the transaction of some lawful business or the authority to do certain acts for him or in relation to his rights or property, with more or less discretionary power, to another person (called the agent, attorney, proxy, or delegate) who undertakes to manage the affair and render him an account thereof. (Black)

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984) (W|L)

Audi Alteram Partem

“Hear the other side” (OR) “here both sides before a decision is arrived at”

Cooper v. Wandsworth Board of Works, (1861-73) ALL ER 1554

Delegated Legislation

“that which proceeds from any authority other than a sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority” (Salmond, Jurisprudence)

Queen v. Burah, 1878 3 AC 889

In Re Delhi Laws Act Case

1951 AIR 332, 1951 SCR 747

Doctrine of Necessity

Used to describe the basis on which administrative actions by the administrative authority, which are designed to restore order, are found to be constitutional

‘that which is otherwise not lawful is made lawful by necessity’

Federation of Pakistan v Maulvi Tamizuddin Khan 1954 SHC 81

Doctrine of Proportionality

Relates to the interpretation of statutory provisions maintaining fairness and justice; application of a given instrument to achieve a given object should not be unreasonable in its reciprocal relations. 

R v. Goldsmith (1983) 1 WLR 151

Droit Administratif

(French) a body of rules framed to determine the organization, powers, and duties of public administration (administrative agencies and officials) and regulate the relation of the administration with the citizens of the country

–

Estoppel

a legal doctrine that prevents a person from adopting a position, action, or attitude, asserting a fact or a right, or prevents one from denying a fact inconsistent with an earlier position if it would result in an injury to someone else.

Combe v Combe [1951] 2 KB 215

Exhaustion of remedies

The doctrine of exhaustion of remedies prevents a litigant from seeking a remedy in a new court or jurisdiction until all claims or remedies have been exhausted (pursued as fully as possible) in the original one. The doctrine was originally created by case law based on the principles of comity.

Prentis v. Atlantic Coast Line Railway 211 U. S. 210 (1908)

Hearing on record 

hearing on the record is a process for the orderly presentation of evidence and arguments by the parties

United States v. Florida East Coast Railway Co.  410 U.S. 224 (1973)

Judicial Control: Doctrine of Ultra Vires

An authority can exercise only so much power as is conferred on it by law; a basic test is to determine and consider the source of power which is relatable to the rule. 

Ashbury Railway Carriage and Iron Co. Ltd. v. Riche, (1878) L.R. 7 H.L. 653

Judicial Review 

A court’s authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles.

Marbury v. Madison, 5 US 137 (1803)

(Primary)Jurisdiction 

The doctrine of primary jurisdiction precludes the courts from resolving a controversy over which !jurisdiction was initially lodged with an administrative body of special competence. The doctrine of primary jurisdiction does not allow a court to arrogate unto itself authority to resolve a controversy, the jurisdiction over which is initially lodged with an administrative body of special competence. 

Bagonghasa vs. DAR

United States v. Aluminium Co. of America, 148 F. 2d 416, 443 (2d Cir., 1945)

Laches

refers to a lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, particularly in regards to equity; it is an unreasonable delay that can be viewed as prejudicing the opposing [defending] party

Costello v. United States 365 US 265, 282 (1961)

Limitation on right to be heard

When a relatively small number of people are impacted, it is perhaps practically necessary for hearings to occur where direct voices can be heard. But where everyone is affected, it is impracticable.

Bi-Metallic Investment Company v. State Board of Equalization

239 U.S. 441, 36 S. CT. 141, 60 L.ED. 372 (1915)

Locus Standi

Authority of a person who approached the court should show himself that he suffered a legal injury; right of a party to appear and to be heard before a court, or the right to bring an action before the court

R v Paddington Valuation Officer, Ex parte Peachey Property Corporation Ltd. (1966) 1 QB 380

Mala Fides of the Rule Maker

Where actual purpose is different from that which is authorized by law and the discretionary power is used ostensibly for the authorized but in reality for the unauthorized purpose. 

A rule may be challenged on the ground of mala fides of the rule-making authority; all powers should be exercised in good faith. 

Westminster Corporation Vs London & West Northern 1 Railway Company (1905) A.C. 426

Ministerial act

A ministerial act is a government action “performed according to legal authority, established procedures or instructions from a superior, without exercising any individual judgment.”

  Natural Justice

Implies fairness, reasonableness, and equality; Procedural process which every administrative agency must follow, in taking any decision, adversely affecting the rights of a private individual

–

Nemo Judex In Causa Sua

(OR) Nemo Debet Esse Judex In Propria Causa

(OR) Nemo Judex In Parte Sua

“No one should be made judge in his own case”

Frome United Breweries Co. v Bath, [1926] AC 586

Nondelegation Doctrine

The principle in administrative law that Congress cannot delegate its legislative powers to agencies.  Rather, when it instructs agencies to regulate, it must give them an “intelligible principle” on which to base their regulations.

J.W. Hampton, Jr., & Co v United States, 276 US 394, 409 (1928)

Ouster clause

a clause or provision included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping the courts of their supervisory judicial function

Anisminic Ltd V Foreign Compensation Commission

Polycentricity 

(Canadian Administrative Law) A polycentric issue is one which involves a large number of interlocking and interacting interests and consideration

Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 

Principle of Legitimate Expectation

expectation of benefits, relief/remedy that accrues from a promise or established practices, and give rise to locus standi to a person to seek judicial review of any action, of State or its subsidiaries, which are arbitrary, discriminatory, unfair, malicious in law, devoid of Rule of law and violative of the principles of Natural Justice

Sehmidt v. Secretary of Home Affairs [1969] 2 Ch 149; (1969) 1.All E.R. 904.

Procedural Due Process 

Procedural due process refers to the aspects of the due process clause that relates to the procedure of arresting and trying persons who have been accused of crimes. It also applies to any other government action that deprives an individual of life, liberty, or property. According to the principle of procedural due process, if a person is deprived of life, liberty or property, s/he is entitled to adequate notice, hearing, counsel, and a neutral judge. This principle follows the concept of fundamental fairness.

Londoner v. City and County of Denver 210 U.S. 373 (1908)[

Proportionality

The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between his particular goals and the means he employs to achieve those goals so that his action impinges on the individual rights to the minimum extent to preserve the public interest. This means that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred.

Enmund v. Florida  458 U.S. 782 (1982)

Solem v. Helm 463 U.S. 277 (1983)

Tison v. Arizona 481 U.S. 137 (1987)

Public Accountability

Refers to the process of holding persons or organizations responsible for performance as objectively as possible; transparency and being answerable to the public at large; includes openness in accounts of the administration and also public sector undertaking

Right to information is a tool for public accountability

A.G. Hong Kong v. Reid UKPC 36, 1 AC 324 (1993)

Qui Facit Per Alium Per Se

“He who acts through another does the act himself”

Stroman Motor Co. v Brown, 1925 116 Okla 36, 243

Res Judicata

“A matter (already) judged”

A cause of action will not be litigated again once it has already been judged on its merits

Jeter v. Hewitt, 63 U.S. 22 How. 352 352 (1859)

Respondeat Superior

“Let the master answer”

A party is (vicariously) liable for the acts of the agent

Hern v. Nichols 90 Eng. Rep. 1154 (1709)

Rule of Law

the principle that all people and institutions are subject to and accountable to the law that is fairly applied and enforced; the principle of government by law.

Introduction to the Study of the Law of the Constitution, Dicey, A.V., 1885

Separation of Power

(des pouvoirs)

The doctrine of separation of powers envisages a tripartite system. Powers are delegated by the Constitution to the three organs and delineating the jurisdiction of each.

Immigration & Naturalization Serv. v. Chadha 462 U.S. 919 (1983) (LEXIS)

De l’esprit des Lois (The Spirit of the Laws), Montesquieu

Substantial evidence 

Substantial Evidence refers to evidence that a reasonable mind could accept as adequate to support a conclusion.

Substantial evidence is defined as “more than a scintilla but less than a preponderance,” and consists of “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” 

Richardson v. Perales  402 U.S. 389 (1971)

Ubi Remedium Ibi Jus

“where there is a right there is a remedy”

Fundamental right to remedy under law

Ashby v. White (1703) 92 ER 126

Waiver 

voluntary relinquishment or surrender of some known right or privilege

Behram v State of Bombay AIR 1955 SC 123, (1955) 57 BOM LR 575, 1955 CriLJ 215, 1955 1 SCR 613

Basheshar Nath v. C.I.T commissioner 1959 AIR 149, 1959 SCR Supl. (1) 528

Wednesbury unreasonableness

A standard of unreasonableness used in assessing an application for judicial review of a public authority’s decision. Reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it. 

Associated Provincial Picture Houses v. Wednesbury Corporation[1948] 1 KB 223

Writ

A formal written order issued by a body with administrative or judicial jurisdiction

Habeas Corpus

Mandamus

Quo warranto

Certiorari

prohibition

  To  Study the trends from the previous three All India Bar Exams along with the analysis of the Tenth All India Bar Examination(AIBE) in AIBE: Bar Hacker Course. Kindly Click Here

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BarHacker Hacksheet for Important Principles of Administrative Law published first on https://namechangers.tumblr.com/

[marymosley]

The Life and Legacy of John Paul Stevens

Below is my column in the Washington Post Sunday on the legacy of Supreme Court Justice John Paul Stevens. With roughly 35 years on the bench, he was the nation’s second oldest and third-longest serving justice.

Stevens will lie in repose at the Supreme Court on Monday. On Tuesday his funeral will be held and he will be buried at Arlington National Cemetery. I expect he would have preferred center field at Wrigley but this is a strong second option.

Here is the column:

After 35 years on the court, John Paul Stevens remained one of the most difficult justices to interview. Stevens was old school, and tended to avoid public speeches and discussions of his legacy. In 2010, as rumors of his retirement were spreading, I tried every angle to land an appointment. I phoned his office and invoked the fact that we were both Chicago natives who attended the University of Chicago and Northwestern. No dice. We were both die-hard Cubs fans. Nope. I finally resorted to the lowest possible approach. When I saw Stevens at a legal gathering, I told him that I doubted that Babe Ruth really “called the shot” before his famous home run, into the bleachers, off Cubs pitcher Charlie Root in the fifth inning of Game 3 of the 1932 World Series. Stevens pounced, describing what he’d seen from the stands as if it were still Oct. 1, 1932, and he was that 12-year-old kid with his dad at Wrigley.

While some claim that the Babe might not have actually been pointing but was just swinging his bat, Stevens insisted that he “was pumping the bat” at his intended destination. I immediately relented, of course, and then asked, “Okay, now how about your retirement?”

I can’t say I got anything earthshaking out of that brief conversation, but my desperate bait-and-switch was not entirely random. Stevens, as I’ve written before, was the “uncalled shot” of the Supreme Court. Entering the court as a conservative appointed by President Gerald Ford, Stevens would finish his tenure as the indisputable leader of the liberal wing. He is an example of how a jurist can find not just his voice but his vision on the court.

While most Americans may not recognize Stevens’s name, he changed this country in fundamental ways with dozens of historic rulings. Those opinions were written in direct and unadorned language. He was also crafty. As the center of the court shifted to the right, Stevens repeatedly found ways to forge majorities or avoid review in critical cases.

Born into a wealthy Chicago family, Stevens was headed for an advanced degree in English before he took a detour into naval intelligence. He joined the Navy the day before Pearl Harbor was bombed and would receive the Bronze Star for his role in a code-breaking operation that led to the downing of the plane carrying the leader of that attack, Adm. Isoroku Yamamoto. When he returned to Chicago, he opted for law school and graduated with the highest average in the history of Northwestern University School of Law .

After a clerkship with Justice Wiley B. Rutledge Jr., he turned down an offer to teach at Yale and went into private practice, specializing in antitrust law. He investigated possible corruption in the Illinois court system, a complex enterprise that led to the resignation of two state Supreme Court justices. After Watergate, Ford wanted to appoint someone to the court with impeccable ethics and unimpeachable standing in the legal profession. He chose Stevens, who succeeded the liberal stalwart William O. Douglas.

Stevens left a legacy that transcends those of all but a handful of justices, and his shift from the right to the left of the court is one of the most striking in the institution’s history. He would come to regret some of his earlier votes, such as one reinstating the death penalty (in Gregg v. Georgia, in 1976). In 1978, Stevens wrote a strong dissent against affirmative action in University of California Regents v. Bakke . Yet he would finish on the court as one of the great supporters of the practice, upholding race as a criterion in university admissions in a series of cases. He would also emerge as one of the most consistent and strongest voices supporting abortion rights, gay rights and women’s rights.

His most consequential decision may have been in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984). There, Stevens laid out the standard for the review of agency decision-making, an opinion that would create great deference to administrative decisions. Stevens held that, when a statute is ambiguous and an agency acts, the only question courts must resolve is “whether the agency’s answer is based on a permissible construction of the statute” – a standard that largely insulates agency decisions from challenge. Chevron greatly magnified the role of agencies in U.S. governance and remains among the most-discussed court rulings.

His voice on the court became more distinctive and powerful as time went on – and this was particularly true after such towering figures as Thurgood Marshall and William Brennan left the court.

The style as well as the content of Stevens’s opinions evolved: His early decisions tended to be not just more conservative but also shorter and somewhat underdeveloped, in the vein of his appellate decisions. Years ago, Stevens and I flew to Milwaukee to speak at a judicial conference. He mentioned that he probably wouldn’t be able to attend my speech (which was frankly a bit of a relief since I was speaking about the Supreme Court). During the discussion, a judge asked about my proposal to expand the court and whether I would also support term limits for justices or mandatory retirement ages. I answered no, and said I could explain why in three words: John Paul Stevens. I said that Stevens’s early opinions were sometimes incomprehensible or incomplete, while his later opinions were profound and transformative. That is when I spotted Stevens. He later approached me with his signature grin and said, “Incomprehensible?”

The fact is that Stevens came into his own on the court. I disagree with some of his decisions – particularly one supporting sweeping eminent-domain powers ( Kelo v. City of New London , 2005). Yet he always wrote not out of hardened ideology but an innate sense of fairness, equality and inclusion.

He would truly emerge as a leading voice on the jurisprudential left a decade into his tenure. In his dissent to Bowers v. Hardwick (1986), Stevens vehemently disagreed with the upholding of a Georgia statute criminalizing sodomy between consenting adults. It was one of the worst decisions in the history of the high court, and Stevens denounced the analysis. His views would later prevail in the landmark Lawrence v. Texas (2003), which struck down anti-sodomy laws.

Stevens authored one of the most powerful defenses of the First Amendment in Reno v. ACLU (1997), writing the opinion striking down the criminalization of “indecent transmission” of “obscene or indecent” messages under the Communications Decency Act of 1996. The vagueness of the law was clearly incompatible with the guarantees of the First Amendment, and Stevens held that the law “threaten[ed] to torch a large segment of the Internet community.”

Stevens was also a critic of expansive interpretations of the Second Amendment. He wrote a stinging dissent to the decision in District of Columbia v. Heller (2008), which recognized, for the first time in U.S. history, an individual right to bear arms. He wrote a comprehensive account of the origins of the amendment and argued: “The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.”

Despite sharp disagreements, Stevens rarely used the kind of hyperbolic or dramatic language that characterized the opinions of some of his colleagues. But he was both direct and forceful in his dissent to the decision to stop the recount in Florida in the 2000 presidential election. In Bush v. Gore , Stevens warned that the court had crossed a dangerous line, putting its own legitimacy at risk. He expressed hope that “time will one day heal the wound . . . inflicted by today’s decision,” adding: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Likewise, Stevens was ardent, in 2010, in dissenting from Citizens United v. Federal Election Commission , which struck down limits on political contributions by corporations as an unconstitutional denial of free speech. “While American democracy is imperfect,” he wrote, “few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

Such opinions are like the man himself: impassioned yet direct; honest and unpretentious.

When I received the first call informing me of Stevens’s death, I was watching our Cubs play the Cincinnati Reds. I left the game on as I started to write about his exemplary life and work. The Cubs won in extra innings, with Kyle Schwarber hitting a long ball at Wrigley into the bleachers, the same area where Babe Ruth once made history in front of an awed 12-year-old named John Paul Stevens. Schwarber’s home run was no “called shot.” But some great players, like great justices, just make the play, without the fanfare or the theatrics.

is the Shapiro professor of public interest law at George Washington University.

The Life and Legacy of John Paul Stevens published first on https://immigrationlawyerto.tumblr.com/

[plusorminuscongress]

New story in Politics from Time: Retired Justice John Paul Stevens, a Liberal Voice on the Supreme Court, Dies at 99

Former Supreme Court Justice John Paul Stevens, the third-longest serving justice in history, died on July 16, 2019 at the age of 99.

“He passed away peacefully with his daughters by his side,” the Supreme Court said in a statement. Stevens, survived by two daughters, died at a hospital in Fort Lauderdale, Florida after suffering a stroke on July 15.

Stevens sat on the Supreme Court for 35 years, surpassed by only two other justices in history. “It’s not a particularly interesting achievement,” Stevens said with characteristic modesty in a phone call with TIME in May 2019. But, he quipped: “Justice Field stopped working full-time a couple months before he retired, so maybe I should be put in second place.”

Over the course of his long career, Stevens would have a role in shaping most areas of the law, influential in majority opinions and firm in his dissents, marked by a practical jurisprudence and an increasingly liberal sensibility.

Stevens was nominated to the Supreme Court by President Gerald Ford in 1975, after the country was rocked by the Watergate scandal. “You’re coming out of such turmoil, my understanding is the objective of President Ford and his staff was to find somebody who was as apolitical as possible and above reproach in terms of integrity,” says Jeffrey Fisher, who clerked for Stevens in 1998-1999. “Those were the justice’s two calling cards all the way through his career.”

Bettmann—Bettmann Archive/Getty Images Then-Supreme Court nominee Judge John Paul Stevens at home in November, 1975.

Indeed, Stevens was known for being unfailingly courteous — to his clerks, his colleagues and to the lawyers who came before him, often asking them politely if he could interject with questions in oral arguments. Born to a privileged family in Chicago in 1920, Stevens had “a very Midwestern style,” says Eduardo Peñalver, who clerked for the justice in 2000-2001. “He’s just incredibly plainspoken and down to earth, and it lulls you into a comfort, and then he’ll dazzle you with something that displays his intellect.”

That intellect — and apolitical stance, as described by Fisher — led Stevens to evolve over the course of his more than three decades on the bench, from being nominated by a Republican president to being considered a leading liberal justice at the time of his retirement. Stevens, former clerks say, would argue that he didn’t change so much as the court became more conservative around him. “As the court shifted to the right pretty dramatically over the course of Justice Stevens’ career, he kind of intuitively shifted a little bit just to try to stabilize the court,” says Peñalver.

But Stevens’ own views did move on key issues, in particular on affirmative action and capital punishment. He became more in favor of affirmative action during his years on the court, and more opposed to the death penalty. “This is a guy who very clearly learned and processed information and processed ideas over time,” says Gregory Magarian, who clerked for him in 1994-1995.

Stevens was never one to write sweeping opinions, but he helmed the majority in crucial cases during his time. In 1984, Stevens wrote the majority in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., establishing the principle that when federal law is ambiguous or silent, courts should defer to federal agencies’ interpretations of the meaning. “Chevron deference,” as it is now known, has become increasingly controversial, and the Trump Administration has sought judges skeptical of the doctrine. Stevens told TIME in May that he thinks Chevron was his most significant majority opinion.

In his 2019 memoir The Making of a Justice, Stevens cites 2000’s Apprendi v. New Jersey as what he views as another of his most important majority opinions. In Apprendi, Stevens held that any fact that could increase a defendant’s criminal sentence needed to be found by a jury beyond a reasonable doubt. “In terms of consequences for the legal system, especially the criminal justice system, I think that might have had the most reverberations of any criminal law opinion, certainly [that] he wrote,” says Fisher.

While Stevens was collegial and not prone to stinging dissents or a sharp-tongued writing style, he was known for a few dissents in cases that had an enormous impact on the country.

In the 2000 decision in Bush v. Gore that resulted in George W. Bush winning the presidency, decided 5-4 along ideological lines with Stevens joining the liberals, Stevens wrote in dissent, “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Read more: John Paul Stevens on the Worst Decision of His 34 Years on the Supreme Court

And in his final years of life, Stevens became increasingly vocal about what he viewed as the court’s gravest error during his tenure, the 2008 decision in District of Columbia v. Heller, which held that the Second Amendment protects an individual’s right to bear arms. Stevens dissented. “As history has demonstrated in recent years, the tragedies are multiplying one after another,” he told TIME of the decision. “And the decision of the court in Heller has contributed to that.”

Stevens was a tennis player and a licensed pilot who was never caught up in the Washington, D.C. social scene. After retiring from the court in 2010, Stevens kept busy, even when he could no longer fly or be as physically active. He spent five years writing a more than 500-page memoir — published in 2019 — after he was inspired to reflect on his life when his wife threw him a 94th birthday party. By the time he was 99, he told TIME he occupied his time by remaining an avid reader. “There continue to be good books to read,” he said, “and I continue to try to find the best.”

But when asked to reflect on his nearly century of life, and what legacy he hoped to leave from his 35 years on the Supreme Court, Stevens’ signature humility reined. “I just tried to do my best all along,” he said. “That’s a goal that every judge should seek to achieve.”

By Tessa Berenson on July 16, 2019 at 10:11PM

[stopkingobama]

These 3 massive bills will drain the swamp

Photo: Gage Skidmore/Flickr (cc by-sa 2.0)

Over the past eight decades, Congress has gradually relinquished its lawmaking role and left it to the administrative state, said a conservative senator at a Capitol Hill event on Wednesday.

“Many Americans now feel that they are not in control of their own government,” Sen. Mike Lee, R-Utah, said during an event hosted at the Federalist Society’s fifth annual Executive Branch Review Conference. “The administrative state is designed to be insulated from the will of the people.”

The Utah senator said that one way he is working to combat this phenomenon is through an initiative he has started called Article One Project.

“Our goal is to develop and advance and hopefully enact an agenda of structural reforms that will strengthen Congress by reclaiming the legislative powers that have been ceded to the executive branch,” Lee said.

Lee said that lawmakers are to blame for the shift in power.

“We are not, in fact, the victims, we are the perpetrators,” Lee said, adding:

We have done this willfully because it makes our job easier. It is a whole lot easier and less politically risky to have somebody else do the lawmaking than it is to do the lawmaking yourself.

There are several pieces of legislation, Lee said, that could help address executive overreach.

1.) REINS Act

The REINS Act, which has passed the House but has yet to pass the Senate, would make progress in regaining ground Congress has lost, Lee said.

This proposed law would require both congressional and presidential approval of major rules, which “have an economic impact of $100 million or more,” Rep. Doug Collins, R-Ga., wrote in a recent op-ed.

“Under this law, the specialized know-how within each agency would still be allowed to contribute to the regulatory process,” Lee said.

“But ultimately, Congress would be responsible for every major regulation that went into effect. This would make it easier for American voters to know who to blame for bad policies. As things currently stand, lawmakers can have it both ways.

2.) Separation of Powers Restoration Act

The second piece of legislation Lee suggested to help restore congressional authority is the Separation of Powers Restoration Act, which has passed the House in 2016.

In a 2016 op-ed in The Hill, Rep. John Ratcliffe, R-Texas, warned that “The practice of administrative agencies engaging in de facto ‘lawmaking’ was exacerbated by a 1984 Supreme Court decision, [Chevron U.S.A., Inc. v. Natural Resources Defense Council], which determined that courts must defer to agencies’ interpretation of ambiguous laws as long as their interpretation is deemed ‘reasonable.’”

The Separation of Powers Restoration Act, which Ratcliffe has introduced in the House again this year, would “[reverse] the 1984 Supreme Court decision that established the ‘Chevron doctrine,’ placing the power to determine ambiguous laws back into the hands of the judiciary.”

“The bill would end the dysfunctional status quo that tilts the legal playing field in favor of bureaucrats who pass the legislation to [place] federal law in the hands of legislators and the power to write and judges power to interpret just as the Constitution,” Lee said.

3.) Agency Accountability Act

The third piece of legislation, the Agency Accountability Act, will do exactly what its name implies, Lee said, and will hold agencies accountable.

The act, which has been introduced in the House, would “make federal agencies accountable … by directing most fines, fees, and unappropriated proceeds to the Treasury instead of letting federal agencies keep the money and then spend it as they see fit,” the Utah senator said.

Right now “agencies have the ability to use funds received through fines, fees, and proceeds from legal settlements without going through the formal appropriations process, thus avoiding congressional oversight,” according to a report from The Heritage Foundation’s Justin Bogie, a senior policy analyst in fiscal affairs.

If signed into law, this legislation would help restore Congress’ role in overseeing how money is spent, Lee said.

“You see the Constitution has this pesky little provision that … Congress has the power and the responsibility to direct spending of federal dollars. The power of the purse is one of Congress’ most potent tools for controlling bureaucracies,” Lee said.

While Lee said that many Americans feel like they have lost control of their government, legislation like the Agency Accountability Act would be a remedy.

“Passing the Agency Accountability Act will go a long way in putting Congress, and by extension, the American people, back in charge of the federal bureaucracies and specifically, the way they spend money,” Lee said.

Lee urged Congress to act.

“If we are able to pass even one of these legislative proposals … then we will have made real progress toward listening to the people and making sure that our government itself has to listen to the people,” Lee said, adding:

If we can pass all three bills, it would constitute a fundamental, generational shift of power in the country, a shift of power back to the people.

Rachel del Guidice, The Daily Signal