#if Chevron deference was protecting us as it was meant to then this should have been an open and shut case with a decision in favor of FDA

[woolandcoffee]

Another WOTUS decision from an activist judge, and I just can't stress enough how much the U.S. is captured by an activist, right-wing judiciary. If the courts were ever neutral arbiters who's only existence was to settle disputes and occasionally interpret the law, that time is long past. Our government is, in theory, set up on a system of checks and balances. Except that there is no realistic check upon the court system. At least, there is no realistic check upon the court system if the federal government refuses to act (either by ignoring clearly biased rulings, removing activist judges from the bench, or packing the courts with more moderate jurists).

Unless the judiciary is meaningfully reigned in, judges will continue to take more and more power. If judges continue to overrule federal agencies - who are empowered to act by Congress and the President, and employ thousands of experts to make informed decisions - for no reason other than that particular judge disagrees personally with the agency's decision, then we're effectively letting judges run the government. It doesn't matter who the President is, or what Congress does, it matters what some Harvard grad who wears a polyester robe to work and hasn't every worked an honest day in their life is. And that's a fucking problem.

[mostlysignssomeportents]

Tech monopolists use their market power to invade your privacy

On SEPTEMBER 24th, I'll be speaking IN PERSON at the BOSTON PUBLIC LIBRARY!

It's easy to greet the FTC's new report on social media privacy, which concludes that tech giants have terrible privacy practices with a resounding "duh," but that would be a grave mistake.

Much to the disappointment of autocrats and would-be autocrats, administrative agencies like the FTC can't just make rules up. In order to enact policies, regulators have to do their homework: for example, they can do "market studies," which go beyond anything you'd get out of an MBA or Master of Public Policy program, thanks to the agency's legal authority to force companies to reveal their confidential business information.

Market studies are fabulous in their own right. The UK Competition and Markets Authority has a fantastic research group called the Digital Markets Unit that has published some of the most fascinating deep dives into how parts of the tech industry actually function, 400+ page bangers that pierce the Shield of Boringness that tech firms use to hide their operations. I recommend their ad-tech study:

https://www.gov.uk/cma-cases/online-platforms-and-digital-advertising-market-study

In and of themselves, good market studies are powerful things. They expose workings. They inform debate. When they're undertaken by wealthy, powerful countries, they provide enforcement roadmaps for smaller, poorer nations who are being tormented in the same way, by the same companies, that the regulator studied.

But market studies are really just curtain-raisers. After a regulator establishes the facts about a market, they can intervene. They can propose new regulations, and they can impose "conduct remedies" (punishments that restrict corporate behavior) on companies that are cheating.

Now, the stolen, corrupt, illegitimate, extremist, bullshit Supreme Court just made regulation a lot harder. In a case called Loper Bright, SCOTUS killed the longstanding principle of "Chevron deference," which basically meant that when an agency said it had built a factual case to support a regulation, courts should assume they're not lying:

https://jacobin.com/2024/07/scotus-decisions-chevron-immunity-loper

The death of Chevron Deference means that many important regulations – past, present and future – are going to get dragged in front of a judge, most likely one of those Texas MAGA mouth-breathers in the Fifth Circuit, to be neutered or killed. But even so, regulators still have options – they can still impose conduct remedies, which are unaffected by the sabotage of Chevron Deference.

Pre-Loper, post-Loper, and today, the careful, thorough investigation of the facts of how markets operate is the prelude to doing things about how those markets operate. Facts matter. They matter even if there's a change in government, because once the facts are in the public domain, other governments can use them as the basis for action.

Which is why, when the FTC uses its powers to compel disclosures from the largest tech companies in the world, and then assesses those disclosures and concludes that these companies engage in "vast surveillance," in ways that the users don't realize and that these companies "fail to adequately protect users, that matters.

What's more, the Commission concludes that "data abuses can fuel market dominance, and market dominance can, in turn, further enable data abuses and practices that harm consumers." In other words: tech monopolists spy on us in order to achieve and maintain their monopolies, and then they spy on us some more, and that hurts us.

So if you're wondering what kind of action this report is teeing up, I think we can safely say that the FTC believes that there's evidence that the unregulated, rampant practices of the commercial surveillance industry are illegal. First, because commercial surveillance harms us as "consumers." "Consumer welfare" is the one rubric for enforcement that the right-wing economists who hijacked antitrust law in the Reagan era left intact, and here we have the Commission giving us evidence that surveillance hurts us, and that it comes about as a result of monopoly, and that the more companies spy, the stronger their monopolies become.

But the Commission also tees up another kind of enforcement: Section 5, the long (long!) neglected power of the agency to punish companies for "unfair and deceptive methods of competition," a very broad power indeed:

https://pluralistic.net/2023/01/10/the-courage-to-govern/#whos-in-charge

In the study, the Commission shows – pretty convincingly! – that the commercial surveillance sector routinely tricks people who have no idea how their data is being used. Most people don't understand, for example, that the platforms use all kinds of inducements to get web publishers to embed tracking pixels, fonts, analytics beacons, etc that send user-data back to the Big Tech databases, where it's merged with data from your direct interactions with the company. Likewise, most people don't understand the shadowy data-broker industry, which sells Big Tech gigantic amounts of data harvested by your credit card company, by Bluetooth and wifi monitoring devices on streets and in stores, and by your car. Data-brokers buy this data from anyone who claims to have it, including people who are probably lying, like Nissan, who claims that it has records of the smells inside drivers' cars, as well as those drivers' sex-lives:

https://nypost.com/2023/09/06/nissan-kia-collect-data-about-drivers-sexual-activity/

Or Cox Communications, which claims that it is secretly recording and transcribing the conversations we have in range of the mics on our speakers, phones, and other IoT devices:

https://www.404media.co/heres-the-pitch-deck-for-active-listening-ad-targeting/

(If there's a kernel of truth to Cox's bullshit, my guess it's that they've convinced some of the sleazier "smart TV" companies to secretly turn on their mics, then inflated this into a marketdroid's wet-dream of "we have logged every word uttered by Americans and can use it to target ads.)

Notwithstanding the rampant fraud inside the data brokerage industry, there's no question that some of the data they offer for sale is real, that it's intimate and sensitive, and that the people it's harvested from never consented to its collection. How do you opt out of public facial recognition cameras? "Just don't have a face" isn't a realistic opt-out policy.

And if the public is being deceived about the collection of this data, they're even more in the dark about the way it's used – merged with on-platform usage data and data from apps and the web, then analyzed for the purposes of drawing "inferences" about you and your traits.

What's more, the companies have chaotic, bullshit internal processes for handling your data, which also rise to the level of "deceptive and unfair" conduct. For example, if you send these companies a deletion request for your data, they'll tell you they deleted the data, but actually, they keep it, after "de-identifying" it.

De-identification is a highly theoretical way of sanitizing data by removing the "personally identifiers" from it. In practice, most de-identified data can be quickly re-identified, and nearly all de-identified data can eventually be re-identified:

https://pluralistic.net/2024/03/08/the-fire-of-orodruin/#are-we-the-baddies

Breaches, re-identification, and weaponization are extraordinarily hard to prevent. In general, we should operate on the assumption that any data that's collected will probably leak, and any data that's retained will almost certainly leak someday. To have even a hope of preventing this, companies have to treat data with enormous care, maintaining detailed logs and conducting regular audits. But the Commission found that the biggest tech companies are extraordinarily sloppy, to the point where "they often could not even identify all the data points they collected or all of the third parties they shared that data with."

This has serious implications for consumer privacy, obviously, but there's also a big national security dimension. Given the recent panic at the prospect that the Chinese government is using Tiktok to spy on Americans, it's pretty amazing that American commercial surveillance has escaped serious Congressional scrutiny.

After all, it would be a simple matter to use the tech platforms targeting systems to identify and push ads (including ads linking to malicious sites) to Congressional staffers ("under-40s with Political Science college degrees within one mile of Congress") or, say, NORAD personnel ("Air Force enlistees within one mile of Cheyenne Mountain").

Those targeting parameters should be enough to worry Congress, but there's a whole universe of potential characteristics that can be selected, hence the Commission's conclusion that "profound threats to users can occur when targeting occurs based on sensitive categories."

The FTC's findings about the dangers of all this data are timely, given the current wrangle over another antitrust case. In August, a federal court found that Google is a monopolist in search, and that the company used its data lakes to secure and maintain its monopoly.

This kicked off widespread demands for the court to order Google to share its data with competitors in order to erase that competitive advantage. Holy moly is this a bad idea – as the FTC study shows, the data that Google stole from us all is incredibly toxic. Arguing that we can fix the Google problem by sharing that data far and wide is like proposing that we can "solve" the fact that only some countries have nuclear warheads by "democratizing" access to planet-busting bombs:

https://pluralistic.net/2024/08/07/revealed-preferences/#extinguish-v-improve

To address the competitive advantage Google achieved by engaging in the reckless, harmful conduct detailed in this FTC report, we should delete all that data. Sure, that may seem inconceivable, but come on, surely the right amount of toxic, nonconsensually harvested data on the public that should be retained by corporations is zero:

https://pluralistic.net/2024/09/19/just-stop-putting-that-up-your-ass/#harm-reduction

Some people argue that we don't need to share out the data that Google never should have been allowed to collect – it's enough to share out the "inferences" that Google drew from that data, and from other data its other tentacles (Youtube, Android, etc) shoved into its gaping maw, as well as the oceans of data-broker slurry it stirred into the mix.

But as the report finds, the most unethical, least consensual data was "personal information that these systems infer, that was purchased from third parties, or that was derived from users’ and non-users’ activities off of the platform." We gotta delete that, too. Especially that.

A major focus of the report is the way that the platforms handled children's data. Platforms have special obligations when it comes to kids' data, because while Congress has failed to act on consumer privacy, they did bestir themselves to enact a children's privacy law. In 2000, Congress passed the Children's Online Privacy Protection Act (COPPA), which puts strict limits on the collection, retention and processing of data on kids under 13.

Now, there are two ways to think about COPPA. One view is, "if you're not certain that everyone in your data-set is over 13, you shouldn't be collecting or processing their data at all." Another is, "In order to ensure that everyone whose data you're collecting and processing is over 13, you should collect a gigantic amount of data on all of them, including the under-13s, in order to be sure that not collecting under-13s' data." That second approach would be ironically self-defeating, obviously, though it's one that's gaining traction around the world and in state legislatures, as "age verification" laws find legislative support.

The platforms, meanwhile, found a third, even stupider approach: rather than collecting nothing because they can't verify ages, or collecting everything to verify ages, they collect everything, but make you click a box that says, "I'm over 13":

https://pluralistic.net/2023/04/09/how-to-make-a-child-safe-tiktok/

It will not surprise you to learn that many children under 13 have figured out that they can click the "I'm over 13" box and go on their merry way. It won't surprise you, but apparently, it will surprise the hell out of the platforms, who claimed that they had zero underage users on the basis that everyone has to click the "I'm over 13" box to get an account on the service.

By failing to pass comprehensive privacy legislation for 36 years (and counting), Congress delegated privacy protection to self-regulation by the companies themselves. They've been marking their own homework, and now, thanks to the FTC's power to compel disclosures, we can say for certain that the platforms cheat.

No surprise that the FTC's top recommendation is for Congress to pass a new privacy law. But they've got other, eminently sensible recommendations, like requiring the companies to do a better job of protecting their users' data: collect less, store less, delete it after use, stop combining data from their various lines of business, and stop sharing data with third parties.

Remember, the FTC has broad powers to order "conduct remedies" like this, and these are largely unaffected by the Supreme Court's "Chevron deference" decision in Loper-Bright.

The FTC says that privacy policies should be "clear, simple, and easily understood," and says that ad-targeting should be severely restricted. They want clearer consent for data inferences (including AI), and that companies should monitor their own processes with regular, stringent audits.

They also have recommendations for competition regulators – remember, the Biden administration has a "whole of government" antitrust approach that asks every agency to use its power to break up corporate concentration:

https://www.eff.org/deeplinks/2021/08/party-its-1979-og-antitrust-back-baby

They say that competition enforcers factor in the privacy implications of proposed mergers, and think about how promoting privacy could also promote competition (in other words, if Google's stolen data helped it secure a monopoly, then making them delete that data will weaken their market power).

I understand the reflex to greet a report like this with cheap cynicism, but that's a mistake. There's a difference between "everybody knows" that tech is screwing us on privacy, and "a federal agency has concluded" that this is true. These market studies make a difference – if you doubt it, consider for a moment that Cigna is suing the FTC for releasing a landmark market study showing how its Express Scripts division has used its monopoly power to jack up the price of prescription drugs:

https://www.fiercehealthcare.com/payers/express-scripts-files-suit-against-ftc-demands-retraction-report-pbm-industry

Big business is shit-scared of this kind of research by federal agencies – if they think this threatens their power, why shouldn't we take them at their word?

This report is a milestone, and – as with the UK Competition and Markets Authority reports – it's a banger. Even after Loper-Bright, this report can form the factual foundation for muscular conduct remedies that will limit what the largest tech companies can do.

But without privacy law, the data brokerages that feed the tech giants will be largely unaffected. True, the Consumer Finance Protection Bureau is doing some good work at the margins here:

https://pluralistic.net/2023/08/16/the-second-best-time-is-now/#the-point-of-a-system-is-what-it-does

But we need to do more than curb the worst excesses of the largest data-brokers. We need to kill this sector, and to do that, Congress has to act:

https://pluralistic.net/2023/12/06/privacy-first/#but-not-just-privacy

The paperback edition of The Lost Cause, my nationally bestselling, hopeful solarpunk novel is out this month!

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2024/09/20/water-also-wet/#marking-their-own-homework

Image: Cryteria (modified) https://commons.wikimedia.org/wiki/File:HAL9000.svg

CC BY 3.0 https://creativecommons.org/licenses/by/3.0/deed.en

[rjzimmerman]

Environmentalists Have a Wish List for the Lame Duck Session. (Sierra Club)

Excerpt from this story from the Sierra Club:

Americans who care about public lands conservation, wildlife protection, and climate action are bracing for a grim future. President-elect Donald Trump has boasted about gutting key climate programs to appease fossil fuel interests. And right-wing lawmakers, who will control both houses of Congress, are sharpening their axes to cut funding for endangered species protections, aiming to rescind laws meant to curb greenhouse gas emissions, and even daydreaming about selling off public lands.

Environmental groups will be an essential check on the next administration. Leaders at groups like the Center for Biological Diversity, the Sierra Club, and Earthjustice are already preparing legal strategies to combat Trump’s policies, activating their grassroots networks and seeking legislators who will advocate for environmental protections. 

But there’s another antidote to the next administration’s antics—and that’s President Biden. Congress is in session for four more weeks, and the president has committed to working up until January 20. Environmental organizations have a list of suggestions that they’re urging the president to consider, and he and his team seem eager to continue at least some of their environmental work. The challenge for environmental groups and the White House now is to merge their ambitions. 

More national monuments

Conservation groups' biggest public lands priority is getting the president to designate more national monuments. These areas protect some of the country's most treasured public lands, and monuments often serve as a precursor to national park designation, one of the highest forms of preservation. Outdoor coalitions have prepared a list of outstanding areas they think are ripe for monument status. Establishing them should be an easy lift for the president—these lands are already public, there’s local support, and all that’s needed is his signature. 

Last month, at the United Nations biodiversity conference in Colombia, Native American tribes called on President Biden to create three national monuments in California. These areas include the Kw’tsán National Monument in Southern California, the Chuckwalla National Monument near Joshua Tree National Park, and the Sáttítla National Monument close to the Oregon border. While President Trump may threaten to downsize these areas if designated, just as he attempted with Bears Ears National Monument, it’ll likely be an uphill battle. 

Fill judicial vacancies 

Another significant step the president could take would be to nominate federal judges who have a strong grasp of environmental law. In recent years, federal judges have shaped American policy perhaps even more so than legislators. The most recent high-profile environmental decision ended the Chevron Doctrine, a 40-year-old legal theory that judges have cited when deferring to federal agencies to interpret ambiguous statutes. 

In the wake of the 2024 election, Senate leaders and the White House have hinted at ramping up nominations. Filling the 46 open judgeships, split between the US district courts and the courts of appeals, will likely mean the difference between protecting an endangered species and letting developers run roughshod over the National Environmental Policy Act and the Endangered Species Act.

New rules

At the administrative level, conservation groups hope two federal agencies will finalize long-overdue decisions before the next president takes office. The US Fish and Wildlife Department has been mulling over federal protections for grizzly bears for almost two years. The agency was supposed to release a decision back in the summer but punted to January at the last minute. Conservation groups want the agency to keep bears listed throughout their range, given that there are so few bears and limited connectivity between populations. Keeping the bears listed would make it harder for a future administration to delist them in the immediate future, said Bradley Williams, the deputy legislative director for the Sierra Club's Wildlife and Lands Protection campaign.  

Meanwhile, the Department of Energy is updating the studies it uses to assess pending and new LNG export applications. The agency announced a pause on new LNG exports in January while it conducted its analysis. Now climate advocates are hoping the administration will reject six pending requests to build new facilities, especially Venture Global's Calcasieu Pass 2 facility on the Gulf Coast. If completed, it would be the region’s largest LNG facility, pumping out the annual emissions of 51 coal-fired power plants. 

Action in Congress 

There is still work to be done by Congress. Lawmakers have until December 20 to pass a spending bill to fund the federal government. This package could be an opportunity to squeeze in funding for land-management agencies, like the National Park Service, or pass last-minute environmental legislative packages, such as the EXPLORE Act, which expands access to the outdoors. House lawmakers passed a version of the bill in the summer. Now it only needs to get through the Senate to reach the president's desk. 

Smaller lands packages, like the effort to preserve Black Wall Street in Tulsa, Oklahoma, or the Owyhee Canyonlands in Oregon, could also be included in the yet-to-be-passed National Defense Authorization Act. That bill, which sets annual funding for the armed forces, has typically had broad support and has been reauthorized every year for the past six decades. 

[tennesseeprelawland]

COVID-19 And Climate Change: Environmental Law Implications

By Teresa Xu, Vanderbilt University Class of 2023

May 31, 2020

In the wake of the COVID-19 pandemic, the Environmental Protection Agency (EPA) has released a new temporary policy in which the EPA will not seek penalties for noncompliance with routine monitoring and reporting requirements if companies’ noncompliance was found to have been caused by the pandemic[1, 2]. The new policy has sparked controversy and relates to broader questions about the impacts of COVID-19 on both US and international environmental laws.

Existing Environmental Laws in the US

The EPA was established and given the power to issue and enforce environmental regulations nearly 50 years ago under President Nixon’s administration, along with multiple laws that became the bedrock of US environmental protection and remain in place today[3]. The Clean Air Act of 1970 and the Clean Water Act of 1972 require the EPA to set standards for the release of toxic pollutants into the air and bodies of water, respectively, the National Environmental Policy Act of 1970 (NEPA) “requires the federal government to conduct a lengthy environmental-impact study every time it wants to build, approve, or renovate something,” and the Endangered Species Act of 1973 empowers the National Oceanic and Atmospheric Administration and the Fish and Wildlife Service to protect species at risk for extinction[3].

There is no explicit constitutional requirement for environmental protection, given that the concept of “the environment” was not socially acknowledged when the Constitution was written, but all the 1970s environmental laws rely on the Commerce Clause in Article I, Section 8[3]. The Commerce Clause gives the government the right “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” [4]. However, the federal government delegated this power to the EPA, which means EPA rules carry the force of law—though they can still be overturned by a Congressional law[3].

Beyond the EPA and Nixon-era laws, a second category of environmental laws control how the government uses federally-owned public land. The National Park Service Organic Act of 1916established the national parks system and a process for making new national parks; the Antiquities Act of 1906 allows the president to unilaterally allocate federal land for special cultural protection; and the Wilderness Act of 1964grants the government power to designate tracts of federal land as wilderness, which means that the land cannot be used in an economically productive way and should be left “untrammeled” by humans [3].

Supreme Court cases also set precedents that help outline the rights, obligations, and limitations of the EPA.Chevron USA., Inc. v. Natural Resources Defense Council, Inc. (1984) validated the EPA’s own interpretation of the Clean Air Act and established ���Chevron deference”,the idea that if a federal agency has a plausible legal case for its regulation, then a court should let it stand[3, 5]. Chevron deference has generally been used to alternately expand or weaken the EPA’s authority, depending on the administration[3]. Yet this idea was overruled inMassachusetts v. Environmental Protection Agency (2007), which challenged the EPA’s authority and held that the Clean Air Act required the EPAto regulate greenhouse gases[6]. Later, reinforcing EPA authority, American Electric Power Co., Inc. v. Connecticut (2011) determined that reduction of greenhouse gas emissions can only be implemented under the EPA, not federal common law [7].

International Environmental Agreements

The 2015 Paris Agreement was an environmental accord adopted by nearly all 197 countries to address the impacts of climate change, aimed at limiting the global average temperature to 1.5 degrees Celsius above pre-industrial levels—which requires all countries to substantially reduce greenhouse gas emissions [8]. Even before this, however, the 1987Montreal Protocol on Substances that Deplete the Ozone Layerwas an international agreement to regulate the production and consumption of nearly 100 man-made chemicals referred to as ozone-depleting substances (ODS)—chemicals that damage the stratospheric ozone layer, which protects Earth from harmful levels of ultraviolet radiation from the sun[9]. To date, the Montreal Protocol is the only UN treaty that has been ratified by all 197countries[9].

COVID-19 Changes and Implications

However, due to the pandemic’s significant economic and social disruption, previous environmental policies and agreements have been undermined.Because the EPA has also extended the deadline for when emitters need to report their 2019 greenhouse gas emissions, data which is relied on by both the EPA and outside stakeholders to assess the adequacy of existing regulations, the new policy may further restrict public access to climate data and progress and delay assessment of new regulatory proposals [10].

The EPA’s policy may also exacerbate socioeconomic inequalities and health problems across the US.Port Arthur, Texas hasa disproportionately high number of industrial polluters that must be reported to the EPA due to high toxicity—and there are many similar cases across the US[11]. A third of the population is African-American, and likely due to the significant industry, the inhabitants have higher rates of cancer, asthma, and cardiovascular disease when compared to state averages—disproportionate health concerns that will likely only be worsened by COVID-19, especially since a study has linked higher COVID-19 death rates to past exposure to air pollution [11]. COVID-19 and climate change can therefore intersect in creating health problems, and allowing polluters leniency may especially pose a risk to minority communities.

The EPA’s policy also has implications for the US’s neighboring countries, Canada and Mexico—it may violate treaties between the countries, related to cross-border environmental problems. The amended environmental agreement under the North American Free Trade Agreement (NAFTA) commits the three countries to ensure that their laws and regulations protect the environment and are enforced through measures that include compliance monitoring and reporting [12]. The Boundary Waters Treaty of 1909 between the US and Canada forbids either country from causing water pollution that will cause injury to health or property in the other country, and the companion Great Lakes Water Quality Agreement of 2012accounts for the shared Great Lakes ecosystem[12].The 1991 and later 2000 Canada-US Air Quality Agreement aims to reduce air emissions that cause acid rain and transboundary smog emissions[12]. Violating these treaties may worsen international relations.

At the global level, efforts to jointly confront climate change have essentially vanished[13].Although this was meant to be a “pivotal year” for climate change efforts, in which 196 countries were to introduce revised plans to meet the goals of the Paris Agreement, this year’s UN climate summit was postponed to next year, and nations have all but shut down their economies[13, 14]. Other international meetings related to the environment have also been disrupted, and many countries have, like the US, curtailed established environmental policies[14]. Indeed, this time of crisis may inflame nationalist tendencies, which would further impede global cooperation, whether towards address COVID-19 or climate change [13].

On a more positive note, lessons from the pandemic may improve policies and procedures. One is that COVID-19 can raise concern and prompt action addressing climate change: based on current evidence, the pandemic’s outbreak is linked to deforestation and human impacts on the environment[15]. COVID-19 is also creating worldwide structural shifts and economic investments with lockdowns and stimulus packages, revealing how the global community can unite to respond to a crisis if the issue seems urgent enough—actions that could be applied to the slower-moving, long-term climate crisis that is comparable in threat to COVID-19[15]. Thus, structural, legal, and technological changes can be made to combat the climate crisis as well. There are also implications for healthcare systems and income inequality—that healthcare needs to be strengthened andpeople need resources that can provide for their basic needs—and the COVID response suggests that we can indeedinvest in healthcare equipment and even renewable energy[16].Climate change wouldrequire governmental action in addition to a collective social response from citizens and workers in all occupations, but it seems from the COVID response that this is possible. Furthermore, to be best prepared,politicians would benefit from heeding scientific findings, independent from political or ideological convictions, as issues like COVID-19 and climate change seem to be worsened when they are politicized[16]. The pandemic may even raise awareness for environmental justice, given that people are increasingly aware of the disproportionate risk of COVID-19 infection among poorer and marginalized communities, a disproportionality that is also seen in environmental problems [11]. Overall, the pandemic exemplifies the mass social, health, and economic consequences of not being prepared for a crisis and the volatility of markets—which would suggest that if we can take action to mitigate COVID-19, we need to take action to mitigate climate change.

________________________________________________________________

[1] https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf

[2] https://www.epa.gov/newsreleases/epa-corrects-record-after-reckless-reporting-temporary-compliance-guidance

[3] https://www.theatlantic.com/science/archive/2017/03/how-the-epa-and-us-environmental-law-works-a-civics-guide-pruitt-trump/521001/

[4] https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/752

[5] https://www.oyez.org/cases/1983/82-1005

[6] https://www.oyez.org/cases/2006/05-1120

[7] https://www.oyez.org/cases/2010/10-174

[8] https://www.nrdc.org/stories/paris-climate-agreement-everything-you-need-know#sec-whatis

[9]https://www.unenvironment.org/ozonaction/who-we-are/about-montreal-protocol

[10] https://blogs.ei.columbia.edu/2020/04/02/epa-covid-19-climate-data/

[11] https://www.scientificamerican.com/article/covid-19-and-climate-change-threats-compound-in-minority-communities/

[12] https://cela.ca/us-relaxation-of-epa-covid-19/

[13] https://www.technologyreview.com/2020/04/10/998969/the-unholy-alliance-of-covid-19-nationalism-and-climate-change/

[14] https://www.hrw.org/news/2020/04/16/how-covid-19-could-impact-climate-crisis

[15] https://www.unpri.org/pri-blog/covid19-implications-for-the-inevitable-policy-response-to-climate-change-prepare-and-act-now/5696.article

[16] https://thehill.com/opinion/energy-environment/491964-lessons-from-the-climate-and-covid-19-crises

[benrleeusa]

[John K. Ross] Short Circuit: A roundup of recent federal court decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the podcast: Special guest Arthur Spitzer of the ACLU of D.C. joins the panel to talk about an American detained in Iraq, jury trials for petty crimes, and banning display of the First and Second Amendments. Click here for iTunes.

In 1958, New York banned "gravity knives," which were used by German paratroopers in WWII and are now quite rare. But NYC officials interpret the ban to apply to any knife that can be opened with a flick of the wrist, so tens of thousands of people (many, or perhaps most, of them minorities) have been arrested in recent years for carrying common folding knives, often for work. Second Circuit: The law isn't unconstitutionally vague. The possibility that the law is being selectively enforced is concerning, though; the other branches "may wish to give further attention" to the ban. (Gov. Cuomo vetoed reform in 2016 and 2017.) (We discussed an earlier ruling in the case on the podcast.)

Woman gets 163 messages over the course of a year from her cell phone provider, Time Warner, notifying her she has an overdue balance. Yikes! She's not in arrears; the calls are meant for some other customer. She explains the issue, but the calls continue. Did Time Warner violate the Telephone Consumer Protection Act? The Second Circuit says no; Time Warner isn't an autodialer as the statute defines it. The TCPA doesn't apply.

Man buys cell phone with reassigned number, receives a text message every time the prior owner of the number gets an email—27,800 of them over 17 months. He is unable to resolve the issue with Yahoo (which provided the text service the prior owner signed up for), so he sues. Did Yahoo violate the Telephone Consumer Protection Act? That sounds super annoying, says the Third Circuit, but Yahoo isn't an autodialer as the statute defines it; the law doesn't apply.

Illegal immigrant dinged for pot possession in 2002 in Wake County, N.C. gets no jail time or fines but must pay $100 court fees. Fast forward to 2015, and the feds move to deport him. Does the 2002 incident count as a "conviction" under the relevant statute, thus preventing him from applying to not be deported? No sir, says the Fourth Circuit; to count as a conviction, the statute says there must have been "some form of punishment, penalty, or restraint on the alien's liberty," and court fees don't count. He can ask not to be deported.

Allegation: Assistant principal at Houston middle school orders strip search of 22 girls after $50 goes missing from choir class. (The search turns up nothing). School district: Which was unconstitutional, but you can't sue the school district. District court: That's so. The district's failure to provide Fourth Amendment training to staff doesn't amount to deliberate indifference, and even if it did, you can't show such training would have prevented the searches in question. Fifth Circuit: Plaintiffs may be able to show both those things. The case should not have been dismissed.

In 2012, New Orleans officials detect code violations at city-owned property. Yikes! They commence enforcement action against a former owner (from whom they'd seized the house in 1998 over unpaid taxes). In 2015, officials sell the house to couple without mentioning the still-ongoing code enforcement proceedings. By happenstance, the couple catches wind, persuade officials to cancel the lien against the house. Yikes! Without warning, the city demolishes the house. The couple complains; officials send them an $11k bill for the demo. Fifth Circuit: Could be the couple have some colorable Fourth, Fifth, and Fourteenth Amendment claims.

Informant buys drugs at Grand Rapids, Mich. house from man with history of drug convictions. Police stop another man seen near the house; he has drugs. Several unnamed sources tell police they bought drugs at the house. A search of the home turns up contraband. An open-and-shut case? Not so, says two-thirds of a Sixth Circuit panel. Officers waited eight months after the controlled buy to apply for a search warrant; the application says the other man was seen in the area, not in the house, and the application doesn't give any indication as to the reliability of the unnamed sources. Suppress the evidence.

Drug addict is accused of pushing sexagenarian out of parked car, stealing the car in 2006. She dies of head injury. He asks for a lawyer; Shelby Charter Township, Mich. police interrogate him without one. At trial, prosecutors repeatedly characterize his failure to deny the crime during the interrogation as inculpatory. (He's convicted, sentenced to life without parole.) Michigan courts: Everything is on the up-and-up. Sixth Circuit: The Fifth Amendment protects against uncounseled interrogations after right to counsel is invoked, the Fourteenth Amendment means silence isn't inculpatory, and the Sixth Amendment guarantees him a lawyer who would have brought that up at trial. These errors likely influenced the jury. New trial or release him.

Judge McKeague of the Sixth Circuit cites Mark Twain's quip that "there are three kinds of falsehood: lies, damnable lies, and statistics," in reinstating guilty verdicts of an Ashland, Ky. cardiologist for health care fraud and making false statements to health care benefit programs. The doc led the nation in billing Medicare for angiograms and apparently performed quite a few unnecessary procedures.

Seventh Circuit: The district court should probably appoint counsel to a mentally ill prisoner who alleges Green Bay, Wisc. corrections officers deliberately disregarded his serious risk of suicide. Concurrence: We're getting a little too close to declaring "a presumptive right to counsel in some categories of civil cases."

In 2014, Montana man kills grizzly bear without a permit. (The authorities are none the wiser until months later when his ex-wife's boyfriend rats him out.) The authorities: Which is a federal crime. Ninth Circuit: But it's a petty crime (punishable by up to six months and a $25k fine), so the Sixth Amendment right to a jury trial doesn't apply. Still, his conviction is vacated because the trial judge ignored his subjective belief that he was acting in self-defense.

Woman is arrested on state charges in 2014 relating to murder. Shortly after, the feds indict her on a separate charge—but don't tell her. She pleads guilty to state charge, gets sentenced in 2016. Nine months pass, and the feds finally unveil the 2014 indictment. (She's duly tried and convicted.) A speedy trial violation? The Tenth Circuit says no. While the feds don't have a good excuse for the nine-month delay, she failed to show how it hurt her at trial, and, since she was serving her state sentence, it's not as though she were in prolonged pretrial custody.

Haitian man is convicted in U.S. court for taking American citizen hostage in Haiti. Man: I didn't know she was an American, I didn't have fair notice I could be dragooned to the U.S., and Congress doesn't have the authority to outlaw (this) crime beyond U.S. borders. Eleventh Circuit: Nope. The U.S. and Haiti are parties to an international treaty on hostage taking that puts everyone on notice and gives Congress all the authority it needs. And you needn't know the victim is American for the law to kick in.

Did a pair of Florida counties violate federal overtime pay requirements by requiring sheriffs' deputies to arrive at work in their uniforms and failing to pay them for time spent donning and doffing said uniforms and policing accoutrements? The Eleventh Circuit says no.

Low-IQ high school dropout posts ISIS videos on Facebook. Surprise! An FBI informant contacts him, befriends him, videorecords him dressing up as an ISIS recruiter, and persuades him to buy a (fake) bomb to detonate on Key West, Fla. beach. Eleventh Circuit: No reason to reconsider his sentence of life without parole. (Please enjoy some longform journalism on the case.)

Mesquite, Tex. officers arrest 110-lb. teen tripping on LSD. Officers tell him to calm down, but the teen repeatedly screams, thrashes, and bashes his head against the police cruiser. Officers tase him multiple times. One says, "motherfucker, I'm going to kill you." (Audio here.) The teen dies of head injuries. District court: Can't sue the officers for depriving him of medical help. But a jury might find one officer, who tased the teen in the genitals, used excessive force. (Click here for some longform journalism on the teen's parents' years long effort to get the video that made this case possible.)

Man charged with misdemeanor (touching a minor over her jeans) is denied a jury trial; the offense is considered petty, and the Sixth Amendment right to a jury trial applies only to "serious" crimes punishable by more than six months. He's convicted. Man: I'm an immigrant. I will almost certainly be deported. D.C. Court of Appeals: Which is a serious consequence. He gets a jury trial. Dissent: So now noncitizens can have jury trials for petty offenses, but citizens can't. Concurrence: D.C. officials could remedy that by restoring citizens' right to such trials (which was stripped by legislation in 1994).

Wisconsin judges shall defer to state agencies' interpretations of state law no longer, says the Wisconsin Supreme Court. The Chevron doctrine, which the state borrowed from federal law and which mandated such deference, violates the state Constitution.

California requires some semiautomatic handguns (generally models introduced after 2010) to be stamped with microscopic identifying information. Also, the guns must be equipped to microstamp bullet cartridges when the gun is fired. Plaintiffs: That technology doesn't exist; complying is impossible. California Supreme Court: California law "never requires impossibilities," but the microstamping requirement isn't invalid.

Georgia legislators recently approved a law requiring lactation consultants, who provide breastfeeding advice and support to new mothers, to obtain a license requiring years of college coursework and supervised clinical training. A salutary measure to protect public health and safety? Not at all! The law will serve only to enrich one group of consultants (who lobbied for it and who mostly already meet its requirements) at the expense another group of consultants. There is no evidence the second group provides anything other than excellent care, and indeed a state agency concluded in 2013 that licensing will not benefit the public. The law will create an instant shortage of consultants, particularly in rural, low-income, and minority communities. This week, IJ joined forces with Mary Jackson—who has trained doctors and nurses about lactation but may soon be out of a job—to challenge the law. Faced with a an injunction motion, the state has agreed to a stay of enforcement until the trial court can decide the case. Read more here.

[duaneodavila]

Judge Cabranes’ Zardo Concurrence: Just Do It

The Second Circuit could have dodged Zardo altogether. Donald Zarda died in a BASE jumping accident. His former employer, defendant Altitude Express, wasn’t fighting his claim that discrimination on the basis of sexual orientation was not covered by Title VII’s prohibition on discrimination “because of . . . sex,” but contending that his firing had nothing to do with this being gay. And the Second Circuit panel that heard the appeal of his partial summary judgment dismissal of his Title VII claim affirmed the district court.

Yet, the circuit took the case en banc anyway. One hundred and sixty-three pages later, only one thing is clear.

We now hold that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex,” in violation of Title VII, and overturn Simonton and Dawson v. Bumble & Bumble, 398 F.3d 211, 217–23 (2d Cir. 2005), to the extent they held otherwise.

Why? Chief Judge Katzmann writing for the majority offered myriad rationales, from the basic “law evolves” to a “but for sex” test that is broad enough to include sex with goats. The breakdown was thus:

KATZMANN, C.J., filed the majority opinion in which HALL, CHIN, CARNEY, and DRONEY, JJ., joined in full, JACOBS, J., joined as to Parts I and II.B.3, POOLER, J., joined as to all but Part II.B.1.b, SACK, J., joined as to Parts I, II.A, II.B.3, and II.C, and LOHIER, J., joined as to Parts I, II.A, and II.B.1.a. JACOBS, J., filed a concurring opinion. CABRANES, J., filed an opinion concurring in the judgment. SACK, J., filed a concurring opinion. LOHIER, J., filed a concurring opinion. LYNCH, J., filed a dissenting opinion in which LIVINGSTON, J., joined as to Parts I, II, and III. LIVINGSTON, J., filed a dissenting opinion. RAGGI, J., filed a dissenting opinion.

No one suggested that discrimination based on sexual orientation wasn’t a terrible thing, but that no amount of judicial activism, semantic gymnastics or over-stretched analogies was sufficient to overcome the conceded fact that when Title VII was enacted, the one thing clear was that the word “sex” was never meant to include discrimination for sexual orientation. Indeed, one of the most difficult hurdles to leap was that Congress had repeatedly rejected bills to modify Title VII to include sexual orientation as a stand-alone basis for a violation.

So what was the rationale for the holding? Who knows?

Which is why Judge Jose Cabranes’ concurrence would have best served the majority.

I concur only in the judgment of the Court. It will take the courts years to sort out how each of the theories presented by the majority applies to other Title VII protected classes: “race, color, religion, . . . [and] national origin.” 42 U.S.C. § 2000e‐2(a)(1).

This is a straightforward case of statutory construction. Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of . . . sex.” Id. Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.

That should be the end of the analysis.¹

¹ Cf. 1 Callimachus fr. 465, at 353 (Rudolfus Pfeiffer ed., 1949) (3d century B.C.) (μέγα βιβλίον . . . μ[έ]γ[α] κακ[όν]).

What, you ask, was that? In his thorough, well-reasons and, frankly, quite interesting dissent, Judge Gerard Lynch, former Vice Dean of Columbia Law School, characterizes it in a foot note:

[T]hat interpretation is so obvious and straightforward that nothing more need be said on the subject, and that we can dispense with the various arguments from precedent and principle that the majority opinion makes in support of its holding.

Perhaps that isn’t Judge Cabranes’ view at all, but that it was time to do what Congress refused to do, amend Title VII to include discrimination on the basis of sexual orientation because, well, it just was, and just make it happen. For all the gymnastics performed by Judge Katzmann, there is no rationale that overcomes the fact that homosexuality isn’t limited to males or females, such that discrimination on that basis had a disparate treatment of one sex versus the other.

Sure, the EEOC had, under President Obama, discovered that sexual orientation that wasn’t sex discrimination before was now sex discrimination, but the circuit already had precedent so it was under no Chevron deference duty. Rather, the en banc court just wanted Title VII to mean something it didn’t say, and was never intended to mean, and so it did.

So why not accept Judge Lynch’s understanding of Judge Cabranes’ rationale, that “sexual orientation is a function of his sex,” as being too obvious to be worthy of discussion?  Judge Cabranes is far too smart to actually believe such a silly rationale.*

What is far more likely is that Judge Cabranes understood two things: first, that the Second Circuit was going to do what a dysfunctional Congress refused to do, over and over, and fundamentally amend Title VII to mean something different than what it means because the court wanted it to.

The second thing is that Judge Cabranes understood Judge Katzmann’s Herculean efforts to provide a rationale for the holding would wreak havoc with the law. Much as it achieved an outcome with which the judges agreed, it did so by such mischievous methods that discrimination law in the Second Circuit would be upended for everyone, for every classification, for decades.

What other types of unmentioned, unintended discrimination would now be covered? How would this impact the scrutiny to be applied to enumerated classifications? It is now all a toss up, which is fine if your goal is to include discrimination on any possible basis imaginable, but makes it damn near impossible to know what will bring down the wrath of the law.

But will this decision stand? That’s what makes Zarda special, as it’s the perfect case for flagrant judicial activisim. Remember that the defendant, Altitude Express, never argued that Title VII doesn’t include sexual orientation discrimination, but that it didn’t fire Zarda because he was gay in the first place?** The court had to bring in a proxy to argue the point, but the proxy’s involvement was limited to the Second Circuit, and there is no standing to petition for certiorari.

Chances of anyone seeking Supreme Court review are slim to none, meaning that this will be the law in the Second Circuit until a case makes its way to the Supremes and is decided. By that time, it may well be sufficiently well-established because of Zarda that “sex” under Title VII means sexual orientation.

This goal may be important enough to ignore the gyrations necessary to achieve it, but even if that’s your position, the unintended consequences will be felt for a long time to come. If that’s the end game, then the court would have been far smarter to go with Judge Cabranes’ rationale. That should have been the end of the analysis.

*As Judge Lynch discusses in his dissent:

But what of a pool facility that requires different styles of bathing suit for male and female lifeguards? Judge Cabranes’s concurrence would seem to prohibit that practice, but I believe, and I expect Judge Cabranes would agree, that a pool that required both male and female lifeguards to wear a uniform consisting only of trunks would violate Title VII, while one that prescribed trunks for men and a bathing suit covering the breasts for women would not.

That Judge Lynch attributes this mischief to Judge Cabranes, but not to the majority opinion, is curious, as it readily derives from the laundry list of reasons offered by Judge Katzmann, but not from Judge Cabranes at all.

**Under the facts of the case, this seems to be a pretty persuasive argument, as the defendant knew Zarda was gay and didn’t care. They didn’t fire him until there was a complaint from a woman about an inappropriate touching.

Copyright © 2007-2018 Simple Justice NY, LLC This feed is for personal, non-commercial and Newstex use only. The use of this feed anywhere else violates copyright. If this content is not in your news reader, it means the page you are viewing infringes copyright. (Digital Fingerprint: 51981395c77d7762065ca2c084b63e47) Judge Cabranes’ Zardo Concurrence: Just Do It republished via Simple Justice

[studentofrhetoric-blog]

Wednesday, April 26th, 2017

International News:

--- "Pope Francis hopes to mend ties with Muslims on his trip to Egypt on Friday but faces criticism from church conservatives for meeting Islamic religious leaders after a spate of deadly attacks against Christians. In a video message to the people of Egypt on Tuesday, Francis said the world had been "torn by blind violence, which has also afflicted the heart of the your dear land" and said he hoped his trip could help peace and inter-religious dialogue. Security is a primary concern less than three weeks after 45 people were killed in attacks on Coptic Christian churches in Alexandria and Tanta, claimed by Islamic State, on Palm Sunday. But Francis has insisted on using an ordinary car during his 27 hours in Cairo, continuing his practice of shunning armoured limousines in order to be closer to people. Francis will meet President Abdel Fattah al-Sisi; Sheikh Ahmed al-Tayeb, the Grand Imam of al-Azhar, the world's most influential centre of Sunni Islamic theology and learning; and Pope Tawadros II, head of the Coptic Orthodox Church, who barely escaped the Alexandria bombing. Sisi declared a three-month state of emergency after the attacks. A main reason for the trip is to try to strengthen relations with the 1,000-year-old Azhar centre that were cut by the Muslim side in 2011 over what it said were repeated insults of Islam by Francis's predecessor, Pope Benedict...The Vatican says that Francis, who denounces the idea of violence in God's name, is convinced that Christian-Muslim dialogue is more important now than ever. Papal aides say a moderate like Tayeb would be an important ally in condemning radical Islam."

Source: http://www.reuters.com/article/uk-pope-egypt-idUSKBN17R1E1

--- "Venezuela said on Wednesday it was withdrawing from the Organization of American States, deepening the diplomatic isolation of the socialist-run nation that is already out of step with Latin America's steady shift to the right. Critics of President Nicolas Maduro have said Venezuela could be expelled from the group, accusing his government of eroding the country's democracy by delaying elections and refusing to respect the opposition-led Congress. Venezuela said the move was a response to a Washington-backed campaign against the ruling Socialist Party that is meant to trample on the sovereignty of Venezuela, the United States' principal ideological adversary in the region. "Tomorrow, as ordered by President Nicolas Maduro, we will present a letter of resignation from the Organization of American States, and we will begin a procedure that will take 24 months," Foreign Minister Delcy Rodriguez said in a televised statement. The announcement came after the OAS agreed on Wednesday to hold a meeting of foreign ministers to discuss the situation in Venezuela. Maduro had warned on Tuesday that Venezuela would quit the group if the meeting were called."

Source: http://www.reuters.com/article/us-venezuela-oas-idUSKBN17S330?il=0

Domestic & International News:

--- "U.S. lawmakers said high-profile briefings by the Trump administration on North Korea on Wednesday failed to provide the firm strategy they had hoped for dealing with what they described as a major national security threat. As a standoff escalated over the reclusive Asian nation's development of nuclear weapons and long-range ballistic missiles, President Donald Trump welcomed all 100 members of the Senate to a highly unusual meeting at the White House complex, with Secretary of State Rex Tillerson, Secretary of Defense Jim Mattis, Director of National Intelligence Dan Coats and Marine General Joseph Dunford, chairman of the Joint Chiefs of Staff...Vice President Mike Pence and the four officials later briefed the House of Representatives. That classified meeting took place in a secure auditorium at the Capitol complex."

Source: http://www.reuters.com/article/us-northkorea-usa-senate-idUSKBN17S0B9?il=0

--- "President Donald Trump has given the military the authority to reset a confusing system of troop limits in Iraq and Syria that critics said allowed the White House to micro-manage battlefield decisions and ultimately obscured the real number of U.S. forces. The Pentagon, which confirmed the move on Wednesday, said no change has yet been made to U.S. troop limits. It also stressed the U.S. strategy in Iraq and Syria still was focused on backing local forces to fight Islamic State - a tactic that has averted the need for a major U.S. ground force. But the shift on troop limits was another sign of the greater authority Trump appears comfortable giving his military commanders to make battlefield decisions and could allow for more rapid increases in troop levels in the future. The Force Management Level system was introduced in Iraq and Syria during Barack Obama's administration as a way to exert control over the military. Obama periodically raised FML limits to allow more troops in Iraq and Syria as the campaign against Islamic State advanced. But the numbers did not reflect the extent of the U.S. commitment on the ground since commanders found often less-than-ideal ways to work around the limits - sometimes bringing in forces temporarily or hiring more contractors. The force management levels, which are officially at 5,262 in Iraq and 503 in Syria, are believed to be more than a couple of thousands troops shy of the actual number of U.S. forces in both countries."

Source: http://www.reuters.com/article/us-usa-trump-military-idUSKBN17T03O?il=0

Domestic News:

--- "President Donald Trump on Wednesday ordered Education Secretary Betsy DeVos to review the U.S. government's role in school policy, which supporters cheered as the first step in creating more local control in education and critics worried could lead to lower quality schools in poorer neighborhoods. DeVos has 300 days "to review and, if necessary, modify and repeal regulations and guidance issued by the Department of Education with a clear mandate to identify places where D.C. has overstepped its legal authority," said Rob Goad, a Department of Education official, according to a transcript of a White House call with reporters...The Democratic National Committee, though, said the order was politically motivated, with Trump wanting something to show in school policy in his first 100 days. The head of the American Federation of Teachers union, Randi Weingarten, said the current education law, Every Student Succeeds Act, already reduces federal power over schools, especially when it comes to standards and teacher assessments. "What the new law doesn’t do is abandon the requirement for the federal government to protect the civil rights of our students, even if those rights run counter to what states and districts want to do," she said in a statement."

Source: http://www.reuters.com/article/us-usa-education-trump-idUSKBN17S2U8?il=0

--- "Republican lawmakers launched the next round in their fight against federal regulation on Wednesday, helped by at least one Democrat, as the U.S. Senate began work on legislation to change nearly every step agencies take in creating and applying new rules. Republicans have said they deem lightening federal regulation, which they consider costly and burdensome, as much a priority as overhauling healthcare and rewriting the tax code...On Wednesday, Senator Rob Portman, a Ohio Republican, and Senator Heidi Heitkamp, a North Dakota Democrat, introduced a version of the act for that chamber. If it passes, the bill will be combined with the House version for Trump to sign into law. The bill would bring "our outdated federal regulatory process into the 21st Century by requiring agencies to use the best scientific and economic data available, strengthening checks and balances, and giving the public a voice in the process," Portman said in a statement...The bill diverges from the House version on what is known as the "Chevron Deference," based on a Supreme Court ruling that courts should defer to agencies' interpretations of statutes governing their rulemaking. The House legislation eliminates the Chevron Deference, while the Senate one creates a judicial review process where courts can decide if agencies comply with the law and then remand non-compliant rules to agencies. Courts would also review factual determinations used in drafting rules costing more than $1 billion annually. Environmental and labor groups said the Senate bill could block needed new regulations and weaken existing ones."

Source: http://www.reuters.com/article/us-usa-congress-regulation-idUSKBN17S33P?il=0

[newstfionline]

The administrative state is huge, and it’s only getting bigger

By Robert J. Samuelson, Washington Post, March 5, 2017

Just what White House chief strategist Stephen K. Bannon meant when he recently suggested “deconstructing the administrative state” is unclear. To critics, he would gut the whole superstructure of social and environmental safeguards, starting with the Environmental Protection Agency (which, say news reports, may face a staff cut of one-fifth). But regardless of Bannon’s meaning, the relentless growth of the administrative state is a reality that we can’t escape.

To be clear about vocabulary: The “administrative state” and “the regulatory state” are essentially one and the same. It is a gigantic enterprise. Clyde Wayne Crews Jr. of the Competitive Enterprise Institute, a free-market think tank, estimates that the costs of complying with federal rules and regulations totaled nearly $1.9 trillion in 2015, equal to about half the federal budget ($3.7 trillion in 2015).

A main rap against the administrative state is that, through its aggressive growth, the executive branch has usurped power from the other parts of government, mainly Congress. Agency regulations and various forms of “guidance” create new policies, rather than just implementing existing laws. The courts have not much curbed this, following a 1984 Supreme Court ruling--Chevron U.S.A. v. Natural Resources Defense Council--that judges should give “deference” to executive agencies’ interpretations unless their rules are clearly unreasonable.

When it suits their purposes, both Republican and Democratic presidents have resorted to expansive interpretations of their administrative powers. Frustrated by congressional inaction on climate change, the Obama EPA proposed regulations--the Clean Power Plan--requiring power plants to reduce carbon dioxide emissions. And the Trump administration has insisted it has broad regulatory powers to alter immigration policy.

Still, the phrase “administrative state” is used mostly by conservatives, who regard its growth as a loss of liberty and an undesirable increase in government’s powers. “The administrative state represents a new and pervasive form of rule, and a perversion of constitutional self-government,” writes historian Steven Hayward in the current issue of the conservative Claremont Review of Books.

Hayward dates the administrative state to the early 20th century and the influence of Progressives, particularly President Woodrow Wilson. Progressives had an unrealistic faith in experts to guide social progress, Hayward argues. This justified a new political order: “The public [could] speak about the ends of government, while the means would be left to the expert administrators.” The same philosophy prevails today, Hayward says.

Aside from excessive meddling, the other big complaint against regulation is that it hurts the economy. No one really knows by how much, but “there is ample evidence that regulation has expanded and that this expansion has limited economic growth,” as Ted Gayer and Philip Wallach of the Brookings Institution recently wrote. One study estimates that regulation has shaved 0.8 percent off the U.S. annual growth rate, which--if confirmed by other studies--would be huge.

There’s a paradox. Americans tend to like the effects of individual regulations and dislike the effects of regulations collectively. We like clean air and water; safer vehicles; effective drugs; honest financial markets; uncontaminated food; and much more. But we dislike the burden of collective compliance that is time-consuming and drowns us in paperwork.

In 2015, the Code of Federal Regulations totaled 178,277 pages in 237 volumes, reports Crews’s annual study. At the end of the year, there were 3,297 new rules in the pipeline; 218 were “economically significant,” meaning that they were projected to have an annual impact of $100 million or more.

Like it or not, we do have an administrative state. It isn’t going away.

[mavwrekmarketing]

Back in 1984, the Supreme Court ruled in favor of a huge oil company in a landmark case laying out how much deference courts should give to a federal agencys interpretation of the laws it enforces. The answer in nonlegal terms was a lot.

Ironically, that meant a major environmental group lost to President Ronald Reagans more conservative Environmental Protection Agency.

Some three decades later, the environmentalists are the ones vigorously defending the legal doctrine that is based on Chevron U.S.A. v. Natural Resources Defense Council. And the leading critic of so-called Chevron deference is Judge Neil Gorsuch, President Donald Trumps Supreme Court nominee and a man whose mother ran the EPA when the Chevron case first went to court.

Eliminating the Chevron doctrine would be a radical move today. Its a cornerstone of U.S. administrative law, so widely accepted that it was endorsed by the very conservative Justice Antonin Scalia (the man whose Supreme Court seat Gorsuch is set to take over).

The Supreme Courts ruling, written by then-Justice John Paul Stevens for a unanimous court, directs judges to respect an agencys interpretations of those laws its in charge of administering where Congress meaning in writing the law is not clear.Nixing the doctrine would give judges more leeway to second-guess agencies rules.

Environmental groups argue, in particular, that undoing Chevron deference would cripple the federal governments ability to enforce rules against pollution, even long after Trump leaves the White House. EPA regulations are based on extensive analysis of science to inform the legal standards set by Congress.

If you abandon agency deference, it really means that you want to ignore scientific and technical analysis and evidence in policymaking, Yogin Kothari, a Washington representative with the nonprofit Union of Concerned Scientists, told The Huffington Post.

The idea of undoing Chevron deference is a recipe for stymying science-based safeguards for public health, safety and the environment, he added. Chevron deference allows us to actually ensure that we dont have judges overriding scientific expertise and substituting their own views with limited information.

Gorsuch doesnt see it quite that way.

The Supreme Court nominee, who currently sits on the U.S. Court of Appeals for the 10th Circuit,made his views clear in August in an immigration case calledGutierrez-Brizuela v. Lynch. In a concurring opinion, Gorsuch wrote, [T]he fact is Chevron permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers design.

In other words, Gorsuch said, federal agencies have too much unfettered power.

Jonathan Ernst/Reuters

Supreme Court nominee Neil Gorsuch looks at a landscape painting in Sen. Dianne Feinstein’s Washington office as he arrives for their meeting on Feb. 6.

Although the 10th Circuit case was not about the EPA, Trump and his supporters in Congress would clearly apply that criticism to the environmental agency.

Trump put Myron Ebell, a once-fringe conspiracy theorist who rejects the widely accepted science on manmade global warming, in charge of the EPA transition team. He nominated Oklahoma Attorney General Scott Pruitt, who made his reputation suing the EPA 13 times, to lead the agency. A policy memo leaked to Axios outlined proposed cuts to the EPAs budget, including slashing hundreds of millions from grants to states and Native American tribes, climate programs, and environmental programs and management. Indeed, some environmental researchers took the memo as evidence that Trump wants to permanently cripple the EPA.Inside EPAreported that the administration was also planning to slash the agencys enforcement division.

At least two of the presidents strongest supporters in Congress seem to be on board with any anti-EPA push. Rep. Lamar Smith (R-Texas) held a hearing last week on Making EPA Great Again, at which three of his four witnesses were a coal lawyer, a chemical industry lobbyist and a libertarian scholar who recently accused the agency of regulatory terrorism. Meanwhile, Rep. Matt Gaetz (R-Fla.) introduced a billto completely abolish the EPA by the end of next year.

Although she led the EPA, Gorsuchs mother, the late Anne Gorsuch Burford,might well have agreed with the idea that the agency needs to be restrained. (She died in 2004.)

During her nearly two-year tenure at the EPA, described by The Washington Post as tumultuous, Burford gutted the budget, coddled the chemical industry, purged scientists from the agencys ranks and oversaw a sharp drop in lawsuits against polluters. Sheresigned in March 1983 (two months before the Supreme Court agreed to hearthe Chevron case) amid what some have calledthe worst scandal in the history of the Environmental Protection Agency. The opprobrium erupted after Burford refused to hand over documents relating to her handling of the $1.6 billion toxic waste Superfund. She was the first federal agency director to be held in contempt of Congress.

But environmental groups argue that Americans need the federal government to play a strong role in protecting the environment.

Whether Republicans like it or not, we live in a society that has a lot of administrative agencies trying to provide safeguards against all kinds of things, not just environmental, but consumer protection, labor and more, Patrick Gallagher, legal director for the Sierra Club, told HuffPost. This regulatory state arose over many decades, including following the Great Depression, because of a need to protect common people from the excesses of corporate greed, technology and industrialization.

Still, Gorsuchs skepticism of executive power could become a check on Trump as well. Gorsuch called the presidents attacks on a federal judge who had blocked his travel ban disheartening and demoralizing, in what may be the first case of a Supreme Court nominee publicly criticizing the White House.

I would imagine, based on Gorsuchs history and previous opinions, that he might strike down some of this executive power Trump is exercising right now, said David Kemp, a lawyer at the legal information site Justia. The [Gutierrez-Brizuela v. Lynch] opinion exalts judicial independence and separation of powers and condemns executive overreach. He might then stand up to executive overreach, even by President Trump.

Related…

The Only Way To Know What Neil Gorsuch Really Thinks About Gay Sex Is To Ask Him About It

Schumer: Gorsuch's 'Behind Closed Doors' Criticism Of Trump Is Self-Serving

Trump's Supreme Court Pick Came Of Age In A Very Different Republican Party

Neil Gorsuch May Miss Chance To Decide The Supreme Court's Biggest Case This Term

Trump Supreme Court Nominee's Newspaper Mocked Trump Run For President In 1987

How will Trumps first 100 days impact you? Sign up for our weekly newsletter and get breaking updates on Trumps presidency by messaging us here.

Read more: http://ift.tt/2kNWA59

    The post Trumps Supreme Court Pick Wants To Gut Legal Rule That Environmental Groups Rely On appeared first on MavWrek Marketing by Jason

http://ift.tt/2lJM38u

[stopkingobama]

A Closer Look at Neil Gorsuch, an Excellent Choice for the Supreme Court

Photo: 10th U.S. Circuit Court of Appeals (CC0)

Tuesday night, President Donald Trump announced his nomination for the Supreme Court vacancy left by the unexpected death of Justice Antonin Scalia last February.

Trump nominated Judge Neil M. Gorsuch of the U.S. Court of Appeals for the 10th Circuit. With this nomination, Trump held to the promise he made on the campaign trail to select a nominee from a list of 21 individuals.

Gorsuch is an eminently qualified and well-respected judge with a record that demonstrates he cares about religious liberty, the separation of powers, and the original public meaning of the Constitution and the laws he interprets. He would be a fine successor to Scalia.

Now, the confirmation process begins for Gorsuch. It can be a harrowing process for a nominee and his family as senators, the media, and others dig into his past—particularly looking for scandals and juicy details that might derail the nomination.

Let’s take a closer look at Gorsuch.

Background

Born in 1967, Gorsuch sits on the Denver-based 10th Circuit Court of Appeals, which has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. He received his bachelor’s degree from Columbia University, his law degree from Harvard University, and his doctorate of philosophy from Oxford University.

But Gorsuch is not the only credentialed member of his family. His mother, Anne Gorsuch Burford, served as the first female head of the Environmental Protection Agency, under President Ronald Reagan.

After serving as a law clerk to Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit and Justices Byron White and Anthony Kennedy of the U.S. Supreme Court, Gorsuch joined a prominent D.C. law firm, where he practiced for 10 years.

He then served as principal deputy to the associate attorney general and as acting associate attorney general (the third-highest position) at the U.S. Department of Justice.

In May 2006, President George W. Bush nominated and the Senate confirmed Gorsuch to the 10th Circuit by a voice vote just two months later. His former boss, Kennedy, administered the oath of office.

Before joining the bench, Gorsuch authored “The Future of Assisted Suicide and Euthanasia” (2006), a book that, as Princeton University Press described it, “builds a nuanced, novel, and powerful moral and legal argument against legalization [of assisted suicide and euthanasia], one based on a principle that, surprisingly, has largely been overlooked in the debate—the idea that human life is intrinsically valuable and that intentional killing is always wrong.”

After joining the bench, he co-authored “The Law of Judicial Precedent” (2016) with the highly-respected legal writer Bryan Garner (who co-authored several books with Scalia) and 11 other federal appellate judges.

Gorsuch has also critiqued the left’s increasing preference to resort to the courts instead of the political process to advance its policy goals. In a 2005 op-ed, he wrote:

American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary … As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.

Gorsuch has criticized the judicial confirmation process and decried treating would-be judges as “little more than politicians with robes.”

Approach to Judging

During the campaign, Trump pledged to nominate an individual who was “very much in the mold of” Scalia.

One recent study singled out Gorsuch as one of the top judges whose approach to interpreting the law was closest to that of Scalia’s approach. Gorsuch ranked second out of 15 judges in “Scalia-ness,” surpassed only by Utah Supreme Court Justice Thomas Lee.

When it comes to interpreting statutes and the Constitution, a Supreme Court justice must keep uppermost in mind that he did not write the text and should not attempt to rewrite that text through creative “interpretation” to mean something quite different from what was intended by its drafters, but which the justice personally considers more fair, wise, or just.

In other words, a justice should interpret the text and structure of a statute, or the Constitution, based on the original public meaning of that text at the time it was adopted, and should not, under the guise of statutory or constitutional interpretation, impose on the rest of society his own policy preferences based on his perceptions of contemporary values.

Gorsuch gives every indication that he will be just such a justice if he is confirmed by the Senate. He has demonstrated that he understands the proper, limited scope of the judicial power.

During his 10th Circuit confirmation hearing he stated, “The independence of the judiciary depends upon people in both parties being willing to serve, good people being willing to serve who are capable and willing to put aside their personal politics and preferences to decide cases and to follow the law and not try and make it.”

He has since written,

… donning a robe doesn’t make me any smarter. But the robe does mean something … It serves as a reminder of what’s expected of us—what [Edmund] Burke called the ‘cold neutrality of an impartial judge.’ It serves, too, as a reminder of the relatively modest station we’re meant to occupy in a democratic society. In other places, judges wear scarlet and ermine. Here, we’re told to buy our own plain black robes.

In a concurring opinion in 2016, Gorsuch wrote that the Constitution “isn’t some inkblot on which litigants may project their hopes and dreams … but a carefully drafted text judges are charged with applying according to its original public meaning.”

Gorsuch leaves his personal views at home. During his confirmation hearing, Sen. Lindsey Graham, R-S.C., questioned Gorsuch about how his views on assisted suicide and euthanasia would affect his judging.

Each case, Gorsuch said, deserves the “complete attention of the judge without being diverted by personal politics, policy preferences, or what you ate for breakfast.” He later added that he would “follow the law as written and not replace it with [his] own preferences, or anyone else’s.”

In a tribute to Scalia, Gorsuch wrote that “legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future,” but that “judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

He quoted Scalia, saying:

If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.

He also wrote that he was “an adherent to the view that outcomes (ends) do not justify methods (means).”

Notable Opinions

Gorsuch has written several notable opinions, some of which are described below, that are likely to be scrutinized during his confirmation hearing.

Gutierrez-Brizuela v. Lynch

Courts will typically defer to an administrative agency’s interpretation of an ambiguous statute if that interpretation is reasonable. Known as “Chevron deference,” this practice is controversial and often criticized by conservatives.

In 2016, Gorsuch authored a separate concurring opinion, explicitly calling Chevron deference into question. He wrote, “ … the fact is Chevron … permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

He added, “[m]aybe the time has come to face the behemoth.”

United States v. Ackerman (2016)

When an AOL filter identified what appeared to be child pornography in Walter Ackerman’s email, it forwarded the email to the National Center for Missing and Exploited Children (NCMEC) (a quasi-governmental body), which then completed an investigation and notified the police.

After being indicted by a federal grand jury for possessing and distributing child pornography, Ackerman filed suit, claiming NCMEC violated the Fourth Amendment when it searched his emails without a warrant.

Writing for the majority, Gorsuch determined that the Fourth Amendment applied to NCMEC since its “law enforcement powers extend well beyond those enjoyed by private citizens” and that NCMEC conducted a “search” within the meaning of the Fourth Amendment. The case was remanded for the district court to determine whether the search was nevertheless reasonable.

United States v. Carloss

In this 2016 case, the 10th Circuit held that police did not violate Ralph Carloss’ Fourth Amendment right to be free from unreasonable search and seizure when they walked onto his property to knock on the front door, even though there were four plainly visible “No Trespassing” signs.

Gorsuch dissented, writing that the signs revoked the officers’ implied license to walk onto the property and knock on the front door. He emphasized that under the majority’s bold view, “[a] homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn’t enough to revoke the state’s right to enter.”

Hobby Lobby v. Burwell

Gorsuch joined the en banc opinion in this 2013 case challenging the regulation issued pursuant to Obamacare that would force employers to pay for contraception and abortifacients as part of their employee health insurance plans—even if they had a religious objection.

The government argued that there were too many steps between the employer paying for coverage and the employee’s decision to use contraception for an employer’s free exercise of religion to be substantially burdened.

The court rejected this argument. Gorsuch concurred in the decision holding that Hobby Lobby was likely to succeed on the merits of its claim. He wrote that “it is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes ‘too much’ moral disapproval on those only ‘indirectly’ assisting wrongful conduct.”

Gorsuch also joined 11 other judges in dissent when the full 10th Circuit refused to rehear Little Sisters of the Poor v. Burwell, a similar case involving religious nonprofits. The Supreme Court heard the case last term and in an unusual opinion, agreed that the government could not force employers, such as the Little Sisters of the Poor, to violate their faith.

The consolidated cases were remanded for the lower courts to reconsider the claims brought by the Little Sisters of the Poor and others that the regulations violate their religious exercise in light of the government’s admission that it could indeed provide contraceptive coverage without the Little Sisters’ collaboration.

Also in the religious liberty context, Gorsuch joined a dissent from denial of rehearing en banc in Summum v. Pleasant Grove City, a case involving whether a city could put up a privately donated Ten Commandments monument in a city park to the exclusion of another proposed monument.

The Supreme Court ultimately reversed the 10th Circuit in an opinion by Justice Samuel Alito, relying in part on the dissent. Gorsuch has also dissented from denial of rehearing en banc in two other cases, criticizing the Supreme Court’s confused Establishment Clause jurisprudence.

Planned Parenthood Association of Utah v. Herbert

After national news broke alleging Planned Parenthood harvested and illegally sold the body parts of aborted babies, Utah Gov. Gary Herbert directed state agencies to stop the flow of federal funds to Planned Parenthood in Utah.

In 2016, the 10th Circuit granted Planned Parenthood’s request for a preliminary injunction and ordered the governor to fund Planned Parenthood.

When the 10th Circuit refused to hear the case en banc, Gorsuch dissented, criticizing the panel for applying the wrong standard of review and for relaxing Planned Parenthood’s burden of proof.

The Coming Fight

Gorsuch has a record that demonstrates his fidelity to the Constitution and a proper understanding of the role of courts.

In his announcement this evening, Trump noted that Gorsuch has “outstanding legal skills, a brilliant mind, tremendous discipline, and he’s earned bipartisan support.” Gorsuch is “a man who our country needs badly to ensure the rule of law.”

While Senate Minority Leader Charles Schumer and other Senate Democrats have already announced their intention to try to filibuster any nominee, it will be a hard case for them to make given Gorsuch’s impressive record and clear commitment to the Constitution and the rule of law.

Commentary by John G. Malcolm, Elizabeth Slattery, and Tiffany Bates, the Daily Signal

[americanlibertypac]

A Closer Look at Neil Gorsuch, an Excellent Choice for the Supreme Court

Photo: 10th U.S. Circuit Court of Appeals (CC0)

Tuesday night, President Donald Trump announced his nomination for the Supreme Court vacancy left by the unexpected death of Justice Antonin Scalia last February.

Trump nominated Judge Neil M. Gorsuch of the U.S. Court of Appeals for the 10th Circuit. With this nomination, Trump held to the promise he made on the campaign trail to select a nominee from a list of 21 individuals.

Gorsuch is an eminently qualified and well-respected judge with a record that demonstrates he cares about religious liberty, the separation of powers, and the original public meaning of the Constitution and the laws he interprets. He would be a fine successor to Scalia.

Now, the confirmation process begins for Gorsuch. It can be a harrowing process for a nominee and his family as senators, the media, and others dig into his past—particularly looking for scandals and juicy details that might derail the nomination.

Let’s take a closer look at Gorsuch.

Background

Born in 1967, Gorsuch sits on the Denver-based 10th Circuit Court of Appeals, which has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. He received his bachelor’s degree from Columbia University, his law degree from Harvard University, and his doctorate of philosophy from Oxford University.

But Gorsuch is not the only credentialed member of his family. His mother, Anne Gorsuch Burford, served as the first female head of the Environmental Protection Agency, under President Ronald Reagan.

After serving as a law clerk to Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit and Justices Byron White and Anthony Kennedy of the U.S. Supreme Court, Gorsuch joined a prominent D.C. law firm, where he practiced for 10 years.

He then served as principal deputy to the associate attorney general and as acting associate attorney general (the third-highest position) at the U.S. Department of Justice.

In May 2006, President George W. Bush nominated and the Senate confirmed Gorsuch to the 10th Circuit by a voice vote just two months later. His former boss, Kennedy, administered the oath of office.

Before joining the bench, Gorsuch authored “The Future of Assisted Suicide and Euthanasia” (2006), a book that, as Princeton University Press described it, “builds a nuanced, novel, and powerful moral and legal argument against legalization [of assisted suicide and euthanasia], one based on a principle that, surprisingly, has largely been overlooked in the debate—the idea that human life is intrinsically valuable and that intentional killing is always wrong.”

After joining the bench, he co-authored “The Law of Judicial Precedent” (2016) with the highly-respected legal writer Bryan Garner (who co-authored several books with Scalia) and 11 other federal appellate judges.

Gorsuch has also critiqued the left’s increasing preference to resort to the courts instead of the political process to advance its policy goals. In a 2005 op-ed, he wrote:

American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary … As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.

Gorsuch has criticized the judicial confirmation process and decried treating would-be judges as “little more than politicians with robes.”

Approach to Judging

During the campaign, Trump pledged to nominate an individual who was “very much in the mold of” Scalia.

One recent study singled out Gorsuch as one of the top judges whose approach to interpreting the law was closest to that of Scalia’s approach. Gorsuch ranked second out of 15 judges in “Scalia-ness,” surpassed only by Utah Supreme Court Justice Thomas Lee.

When it comes to interpreting statutes and the Constitution, a Supreme Court justice must keep uppermost in mind that he did not write the text and should not attempt to rewrite that text through creative “interpretation” to mean something quite different from what was intended by its drafters, but which the justice personally considers more fair, wise, or just.

In other words, a justice should interpret the text and structure of a statute, or the Constitution, based on the original public meaning of that text at the time it was adopted, and should not, under the guise of statutory or constitutional interpretation, impose on the rest of society his own policy preferences based on his perceptions of contemporary values.

Gorsuch gives every indication that he will be just such a justice if he is confirmed by the Senate. He has demonstrated that he understands the proper, limited scope of the judicial power.

During his 10th Circuit confirmation hearing he stated, “The independence of the judiciary depends upon people in both parties being willing to serve, good people being willing to serve who are capable and willing to put aside their personal politics and preferences to decide cases and to follow the law and not try and make it.”

He has since written,

… donning a robe doesn’t make me any smarter. But the robe does mean something … It serves as a reminder of what’s expected of us—what [Edmund] Burke called the ‘cold neutrality of an impartial judge.’ It serves, too, as a reminder of the relatively modest station we’re meant to occupy in a democratic society. In other places, judges wear scarlet and ermine. Here, we’re told to buy our own plain black robes.

In a concurring opinion in 2016, Gorsuch wrote that the Constitution “isn’t some inkblot on which litigants may project their hopes and dreams … but a carefully drafted text judges are charged with applying according to its original public meaning.”

Gorsuch leaves his personal views at home. During his confirmation hearing, Sen. Lindsey Graham, R-S.C., questioned Gorsuch about how his views on assisted suicide and euthanasia would affect his judging.

Each case, Gorsuch said, deserves the “complete attention of the judge without being diverted by personal politics, policy preferences, or what you ate for breakfast.” He later added that he would “follow the law as written and not replace it with [his] own preferences, or anyone else’s.”

In a tribute to Scalia, Gorsuch wrote that “legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future,” but that “judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

He quoted Scalia, saying:

If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.

He also wrote that he was “an adherent to the view that outcomes (ends) do not justify methods (means).”

Notable Opinions

Gorsuch has written several notable opinions, some of which are described below, that are likely to be scrutinized during his confirmation hearing.

Gutierrez-Brizuela v. Lynch

Courts will typically defer to an administrative agency’s interpretation of an ambiguous statute if that interpretation is reasonable. Known as “Chevron deference,” this practice is controversial and often criticized by conservatives.

In 2016, Gorsuch authored a separate concurring opinion, explicitly calling Chevron deference into question. He wrote, “ … the fact is Chevron … permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

He added, “[m]aybe the time has come to face the behemoth.”

United States v. Ackerman (2016)

When an AOL filter identified what appeared to be child pornography in Walter Ackerman’s email, it forwarded the email to the National Center for Missing and Exploited Children (NCMEC) (a quasi-governmental body), which then completed an investigation and notified the police.

After being indicted by a federal grand jury for possessing and distributing child pornography, Ackerman filed suit, claiming NCMEC violated the Fourth Amendment when it searched his emails without a warrant.

Writing for the majority, Gorsuch determined that the Fourth Amendment applied to NCMEC since its “law enforcement powers extend well beyond those enjoyed by private citizens” and that NCMEC conducted a “search” within the meaning of the Fourth Amendment. The case was remanded for the district court to determine whether the search was nevertheless reasonable.

United States v. Carloss

In this 2016 case, the 10th Circuit held that police did not violate Ralph Carloss’ Fourth Amendment right to be free from unreasonable search and seizure when they walked onto his property to knock on the front door, even though there were four plainly visible “No Trespassing” signs.

Gorsuch dissented, writing that the signs revoked the officers’ implied license to walk onto the property and knock on the front door. He emphasized that under the majority’s bold view, “[a] homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn’t enough to revoke the state’s right to enter.”

Hobby Lobby v. Burwell

Gorsuch joined the en banc opinion in this 2013 case challenging the regulation issued pursuant to Obamacare that would force employers to pay for contraception and abortifacients as part of their employee health insurance plans—even if they had a religious objection.

The government argued that there were too many steps between the employer paying for coverage and the employee’s decision to use contraception for an employer’s free exercise of religion to be substantially burdened.

The court rejected this argument. Gorsuch concurred in the decision holding that Hobby Lobby was likely to succeed on the merits of its claim. He wrote that “it is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes ‘too much’ moral disapproval on those only ‘indirectly’ assisting wrongful conduct.”

Gorsuch also joined 11 other judges in dissent when the full 10th Circuit refused to rehear Little Sisters of the Poor v. Burwell, a similar case involving religious nonprofits. The Supreme Court heard the case last term and in an unusual opinion, agreed that the government could not force employers, such as the Little Sisters of the Poor, to violate their faith.

The consolidated cases were remanded for the lower courts to reconsider the claims brought by the Little Sisters of the Poor and others that the regulations violate their religious exercise in light of the government’s admission that it could indeed provide contraceptive coverage without the Little Sisters’ collaboration.

Also in the religious liberty context, Gorsuch joined a dissent from denial of rehearing en banc in Summum v. Pleasant Grove City, a case involving whether a city could put up a privately donated Ten Commandments monument in a city park to the exclusion of another proposed monument.

The Supreme Court ultimately reversed the 10th Circuit in an opinion by Justice Samuel Alito, relying in part on the dissent. Gorsuch has also dissented from denial of rehearing en banc in two other cases, criticizing the Supreme Court’s confused Establishment Clause jurisprudence.

Planned Parenthood Association of Utah v. Herbert

After national news broke alleging Planned Parenthood harvested and illegally sold the body parts of aborted babies, Utah Gov. Gary Herbert directed state agencies to stop the flow of federal funds to Planned Parenthood in Utah.

In 2016, the 10th Circuit granted Planned Parenthood’s request for a preliminary injunction and ordered the governor to fund Planned Parenthood.

When the 10th Circuit refused to hear the case en banc, Gorsuch dissented, criticizing the panel for applying the wrong standard of review and for relaxing Planned Parenthood’s burden of proof.

The Coming Fight

Gorsuch has a record that demonstrates his fidelity to the Constitution and a proper understanding of the role of courts.

In his announcement this evening, Trump noted that Gorsuch has “outstanding legal skills, a brilliant mind, tremendous discipline, and he’s earned bipartisan support.” Gorsuch is “a man who our country needs badly to ensure the rule of law.”

While Senate Minority Leader Charles Schumer and other Senate Democrats have already announced their intention to try to filibuster any nominee, it will be a hard case for them to make given Gorsuch’s impressive record and clear commitment to the Constitution and the rule of law.

Commentary by John G. Malcolm, Elizabeth Slattery, and Tiffany Bates, the Daily Signal