Transcript of OA338: Nondelegation and the “Administrative State”

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 338, I’m Thomas Smith, that over there is P. Andrew Torrez, esquire.  How ya doing?

Andrew:         I am fantastic Thomas, how are you?

Thomas:         I am probably still stuffed with non potato skin mashed potatoes.

Andrew:         [Laughs]  

Thomas:         Just pure, directly into my arteries.  That’s another reason you don’t want the skins in there, ‘cuz it’s just going in your bloodstream, it’s just so much potatoes, just part of my circulatory system.

Andrew:         Yeah.

Thomas:         You don’t want the skins in there, it’s bad.  Bad medicine.

Andrew:         [Laughs]  Maybe we can do an entire patreon special on Thanksgiving leftovers.

Thomas:         [Laughs]  

Andrew:         But not on the main feed!

Thomas:         Okay.  Well today I’m excited because I think Andrew thought hey, let’s combine the fun of a Tuesday deep dive show with the depressingness of a Friday show! [Laughs]  I think that’s what we have today, am I right?

Andrew:         Yeah, that’s exactly what we have.  We have something that has slipped under the radar of mainstream press, it has not escaped the notice of eagle-eyed and eagle-eared OA listeners, but yeah it’s real, real bad and we’re gonna delve into it.

Thomas:         Awesome, that should be fun.  Can’t wait to be depressed.  If you wanna be any more scared just realize it seems like RGB, Ruther Gader Binsberg – what did I just say?  RBG.

Andrew:         [Laughs]  RGB, yeah.

Thomas:         Although Ruth Gader Binsburb… [Laughs]  

Andrew:         The old television sets, yeah.

Thomas:         But I think Ruth Gader Binsburg is a more, somebody draw that that!  Some meme-maker.  Ruth Gator Binsburg, it’s already out there I’m sure.  Anyway, Ruth Bader Ginsberg, she’s got some health scares and we’re one justice away from total annihilation so there you have it, I think we can all be suitably scared and depressed and talk about the non-delegation doctrine.  Couple of quick announcements I think you have before we get going?

Andrew:         Yeah, couple things.  So this deep dive on the nondelegation doctrine comes from a Brett Kavanaugh opinion that was written in connection with the Supreme Court orders that came out just last week, November 25th, right before Thanksgiving.  So as I’m going through – the order lists, by the way, are things like we granted cert in these cases, we summarily denied cert in a bunch of cases.  This is a case in which they denied cert and then Brett Kavanaugh decided to explain why and in the process of explaining why terrified me and so therefore I wanna terrify all of you.  One of the cases that the Supreme Court summarily denied with no explanation is Syed v. Maryland and that refers to Serial.

Thomas:         Hmm.

Andrew:         Adnan Syed. 

Thomas:         Yeah.

Andrew:         So god help me, I am going to cover Serial again, probably a week from today.  I’m going to explain what the Maryland Court of Appeals – that is the State Supreme Court of Maryland – decided in denying Syed’s request for a new trial and what it means that the U.S. Supreme Court let that decision stand.  Last time we waded into Serial I got, you know, called a racist and blocked on Twitter by Rabia Chaudry, so you know, we’ll see what happens this time.  It’ll be fun.

Thomas:         Yeah, that wasn’t great.  But that’s okay! [Laughs]  

Andrew:         That wasn’t great! [Laughs]  I stand by that episode but wasn’t great, got the most hate mail we’ve ever gotten.

Thomas:         She’s probably under a lot of – I dunno, she probably gets a lot of hate mail or something, but that was certainly unreasonable, but anyway.

Andrew:         That was not good.

Thomas:         Alright and then one more announcement I think?

Andrew:         Oh yeah, also making the rounds is a recent change in YouTube policy with respect to a 1998 law, the Children’s Online Privacy Protection Act, or COPPA.  We have a lot of folks who are active on YouTube, this has actually come up with some of my clients, there is a tremendous amount of disinformation about that, that is in the hopper and we will probably cover it.  Most of the stuff you’re seeing on angry YouTube channels is not right, which, you know, that probably won’t surprise you.

Thomas:         What?

Andrew:         [Laughs]  

Thomas:         No way.  I’m surprised. 

Andrew:         I know.

Thomas:         I get all my information from a guy in a truck on YouTube.

Andrew:         [Laughs]  

Thomas:         Top news source.  Trusted, most… anyway, okay well let’s get to the show, Tuesday episode, we begin with an Andrew Was Wrong! [Laughs]  

Andrew Was Wrong about Stock Taxes

[Segment Intro]

Andrew:         Yeah, these are my least favorite but most important segments for the show.  This is involving last Tuesday’s episode in which we broke down Elizabeth Warren’s wealth tax.  We got a lot of really good engagement on that in terms of the merits or demerits of the wealth tax, there’s a lot of discussion going on about that, but I said something that wasn’t true and wasn’t correct and I wanna clarify that.  We got a couple of emails on this.  So what I said that was not correct was I said when you take stock as compensation that does not trigger income tax.  That’s false.  That’s just a plain whiff on my part.  What I was thinking, which is true-

Thomas:         I feel like I expressed some amount of skepticism…

Andrew:         Yeah, you were – this is an Andrew Was Wrong and skeptical Thomas was correct.

Thomas:         [Laughs]  

Andrew:         [Sighs] I hadn’t written this part out and what I was thinking in the back of my head – there’s a reason why I’m not a tax lawyer – is back to my tax class that, and I think I even gave this example, but the preceding sentence I said “you’re not taxed on receiving stock.”  What I meant was that you’re not taxed on the gains.  So in other words-

Thomas:         Oh, until you sell it or whatever?

Andrew:         Until you sell it, yeah, right.

Thomas:         Yeah.

Andrew:         And that is true, but when you get, you know, stock at market value for nothing you do have to declare that on your W-2.

Thomas:         Right.

Andrew:         So reading from a couple of listeners, Jeremy Boyer writes “Stock or any other compensation that has value is taxed as income.  When you are distributed that stock and it vests (often you don’t get it right away)” also true “you have the option to pay taxes with the value of that stock, i.e. you sell 20 of your 100 shares in order to pay for the tax, or you can pay that tax out of your bank account.”  Then Kevin Graham wrote in to say that and also to add, in fairness to me (so that’s why I’m reading it).

Thomas:         [Laughs]  

Andrew:         “Of course, the core point Andrew made still holds.  If you have the financial flexibility and influence to choose when and how to recognize income it opens opportunities to structure your taxes advantageously, substituting publicly traded stock for cash based on compensation just isn’t one of them.”  So I appreciate that rehab effort there, Kevin.  He also corrected me first, he’s not just defending me, but no, that statement is incorrect but the general principle still stands which is often highly compensated executives aren’t accruing income in the same way that you or I accrue income.

Thomas:         ‘Cuz it’s still gonna be capital gains.

Andrew:         Yeah, exactly right.

Thomas:         Yeah.

Andrew:         So there you go, but nevertheless important to come clean.

Thomas:         Yeah.

Andrew:         And I’ve come clean, and it feels so good! [Laughs]  

Thomas:         [Laughs]  Accept your flogging!

Andrew:         [Laughs]  

Thomas:         Very minor, minor thing, the overall point still stands, but thank you for the emails everybody, we love to get good info from people who are usually like a professional in the area, that’s the benefit of having the smart listeners that we have, there’s always somebody who’s like “oh, I do this every single day for a living, here’s why Andrew was slightly wrong about something,” it’s nice!

Andrew:         Yeah!

Thomas:         It makes me feel better! [Laughs]  

Andrew:         No, I completely agree.  One of the things that both Jeremy and Kevin did was they included citations in their email, so we don’t have another fructose problem.

Thomas:         [Laughs]  

Andrew:         Yeah, we have great listeners who are smart and write in, so keep doing that, is how you reach us, the link is also in the show notes and thanks for writing in!

Thomas:         But please make it stuff that matters, not pedantic little corrections – anyway, so! [Laughs]  Let’s get on to our main segment.

Nondelegation Doctrine and the “Administrative State”

[Segment Intro]

Thomas:         Alright, I’m strapping in to be, I guess dismayed at our future.  [Exhales] Okay, preparing myself.  How are Republicans ruining my life today?

Andrew:         Yeah so let me give a little bit of a background here because this is an area that we have not discussed before other than occasional references. 

First, as a general principle, I think we’re gonna call the episode this, Republicans now, the hardcore far-right federalist society types who are running the judicial appointments in this administration, which is a point you made really well here and on your last appearance on CogDis, episode 498, those folks have, as their goal, demolishing the administrative state.  You’ve probably seen that, they’re not shy about this, they publish law review articles and write journal articles that say “it’s time to dismantle the administrative state.”  Neil Gorsuch has said that in his dissents, he’s said “we have lived without the administrative state before and we could do so again.” 

I wanna explain first why they want to do that. [Laughs]  Because I’ve had folks kind of write in and say “well, isn’t this a problem on both sides?  If you dismantle the administrative state then yes, Democratic presidents can’t do as much through executive agencies but neither can Republican presidents and look at all the bad stuff that Donald Trump is doing through administrative agencies.”  It’s really more pernicious than that, so it’s worth kind of unpacking that a little bit.

Dismantling the administrative state has two components to it.  The first is taking over the judiciary, the second is preventing government from doing stuff.  So let me explain both of those components.  Each of the three doctrines that we’re gonna talk about, two of them that we have discussed at great length in the show that I’m only gonna touch on a little bit:  Chevron Deference, Auer Deference, and finally the nondelegation doctrine.  Each of those are efforts by the judiciary to assert judicial review, de novo, that is as a matter of first impression in the appellate courts not constrained by any other thing over either congressional or executive decision making. 

So think about what that means – when you’ve taken over the judiciary that means if you’ve stacked the judiciary with right-wing activists that you can approve of stuff that the executive branch does that you like and you can disapprove of stuff that the executive branch does that you don’t like. 

Thomas:         Well thank god the judiciary’s not stacked.

Andrew:         [Laughs]  Right, exactly.  That’s why you saw, as we’ve discussed before, the original Chevron decision was a decision by a conservative Supreme Court allowing a conservative presidential administration latitude in interpreting EPA regulations as not protecting clean air and water.  The reason why the Supreme Court did not want to, or created [Laughs]  and reinforced the principle of deference to administrative agencies in the 1980s and wants to tear them down today is because the federalist society’s plan to engineer a widespread takeover of the judiciary is nearly complete. 

By the way, that’s not just liberal Andrew saying that, I’ve done hardcore mathematical analysis of this point, I have had to push it off to a future episode, but that’s coming on a Tuesday deep dive.  I’ve had to push it off because of time limits, obviously, we’re not Hardcore History here, people.  We try to keep this to around an hour!

Thomas:         [Laughs]  Yeah, and we come out more than bi-annually.

Andrew:         Yeah.  But no, so think about it.  If Republicans and Democrats trade the congress back and forth, which they do, and trade the presidency back and forth, which they do, but own the judiciary then you want to concentrate as much power as you can in the hands of the judiciary and that’s what they’re doing.

Thomas:         Mm-hmm.

Andrew:         But there’s a second aspect, and that doesn’t require the right wing takeover of the judiciary.  That is the more that you constrain the power of government to act effectively at all-

Thomas:         Mm-hmm.

Andrew:         The more that buys into the Republican argument, the arch-conservative argument that government isn’t the solution to the problem, government is the problem.  So as you’re looking at this, it does not fall uniformly on both sides, most hardcore conservatives and libertarians would trade off being able to impose the conservative interpretation of the Environmental Protection Act, for example, for invalidating the Environmental Protection Act! 

Thomas:         Yeah.

Andrew:         Or any other governmental program, so if you can make it such that the President, you know, incoming President Elizabeth Warren does a bunch of stuff administratively, it all gets overturned in the court, she goes back and instructs those agencies to promulgate a bunch of new ruling, they get overturned in the court, that just feeds into the Republican narrative running against Elizabeth Warren’s first term of hey, look, I don’t know what happened.  She promised that she was gonna clean up X, Y, and Z, and look at it!

Thomas:         Yup.

Andrew:         That just goes to prove government can’t solve your problems.

Thomas:         Mm-hmm.

Andrew:         Well the reason is because you’ve sabotaged it.  So keep that in mind as the background principle, and keep in mind a second point, which is another originalist lie that we have targeted frequently on this show is the “look, our job is, we’re the judiciary, we just wanna call balls and strikes, and when it comes to making new laws we’re [Sarcastically] totally agnostic!  If the people wanna get together and pass new laws, well that’s what the legislature is there for.” 

The idea behind that is, and Antonin Scalia used to say this directly and he may have even believed some of this.  Neil Gorsuch and Brett Kavanaugh and Samuel Alito do not.   They know they are lying when they say this.  Scalia used to say, look, the reason for this kind of judicial modesty is I’m appointed for life to the Supreme Court, there’s nothing you can do about me, I’m not democratically accountable to you whatsoever and if you’re talking about things over which reasonable people can disagree, over which you might have a dispute of whether it’s a good idea or not, the place to hash that out is through your elected representatives and not through the unelected judges. 

Thomas:         Mm-hmm.

Andrew:         That’s not, as with a great many things that Antonin Scalia said, that’s not obviously wrong on face.  It is a situation where you get the kind of messaging appeal that that statement has.  I’m gonna show you how in their rush to dismantle the administrative state that the Gorsuch, Kavanaugh, Alito, Thomas, howler monkey wing of the Supreme Court is giving lie to that supposed principle of valuing democratic representation over non-democratic representation.  So the three ways, I’ve already previewed this, the three ways in which this Supreme Court is going to maintain an all out assault on the administrative state, two of them we’ve covered at great length. 

One, Chevron Deference, we’ve discussed this repeatedly.  Our biggest deep dives into that are episodes 40 and 136, which I’ll link in the show notes.  Cheveron Deference is when a congressional delegation of authority to an executive branch agency is ambiguous.  For over 30 years what we’ve done is defer to the executive branch agencies interpretation of that statute in order to decide whether they have the authority to do the things that they’re doing pursuant to that statute.  Again, that was a 9-0 decision by a conservative Supreme Court upholding President Reagan’s EPA. 

Think about what the impact of dismantling Chevron Deference is, it’s saying rather than allow the executive agency, which is semi-accountable, they’re at least appointed by somebody who’s elected, and dismissible at will.  You’re saying we’re not gonna defer to the executive agency’s interpretation, we’re gonna allow the courts, the totally unelected judges who serve for life, to determine de novo, without any deference to what the agency themselves determine, so if the judges determine it in a way that you don’t like you have zero recourse on that. 

If, when Trump’s EPA or Trump’s Department of Homeland Security interprets – excuse me, the authorizing statues in a particularly expansive way, if you don’t like that you have at least a form of indirect recourse. 

Part of what Elizabeth Warren is gonna run on in 2020 is “look at what Donald Trump has used his executive agencies to do,” to separate families at the border, for example.  That’s been a direct result of Donald Trump as President appointing his folks into executive agencies.  I’m pretty sure she’s gonna make an issue out of Bill Barr and the personalization and corruption of the Department of Justice.  All of those things.  So in other words, by opposing Chevron Deference the new brand of conservatives are trading in semi-accountable, semi-democratic representation for themselves. 

Thomas:         [Laughs]  

Andrew:         Yup.

Thomas:         Nice deal for them.

Andrew:         Yeah.  Point two is Auer Deference, A-U-E-R.  That came up later and we’ve discussed that in episodes 266 and 293 around the Supreme Court’s decision last term in Kaisor v. Wilkie, that’s a complex decision, you can go back and re-listen to those episodes but essentially Auer Deference is when it is clear that the agencies have the authority to act, there’s no question of congressional delegation.  Do we defer to the agency’s own interpretation of their own rules or do we get to impose a judicial interpretation on those rules? 

This was not quite a demolition of the Auer Deference doctrine, but it was a wholescale scaling back of Auer Deference and again, same thing.  The reason you want Auer deference is so when a new administration comes in and reverses course the Courts don’t say “oh look, this was perfectly fine when Barrack Obama did it, but definitely not fine now that Donald Trump is doing it” or the reverse.  You wanna say look, it’s an executive agency, we defer to them about how to interpret their own internal rules and the reason is because you’re at least semi-accountable, the President is elected and it’s his appointees and you can elect a new president and appoint new people. 

By scaling back Auer Deference you are now in a position, once again same impact, judges get to substitute their own determination for that of the executive branch shifting it from semi-electable to totally unaccountable, non-elected.  That paves the way for the nondelegation doctrine.  We have not discussed this in depth and I’m going to give you the punchline first.  By strengthening the nondelegation doctrine, by weakening the existing broad interpretation of what Congress can do, this is actually way worse than eliminating either of the other forms of Deference. 

This is paving a way for the Supreme Court to declare whole categories of laws unconstitutional.  That is to substitute the directly democratically electable and accountable will of the legislature for the personal internal view of unelected judges who serve for life.  It is 100% contrary to everything Antonin Scalia ever said he stood for.  That’s because we now have a very, very conservative federal judiciary and Supreme Court. 

So what’s this about?  [Chuckles]  The nondelegation doctrine is a question of whether – remember we said that Chevron Deference is about whether the congress has ambiguously or unambiguously delegated to an executive agency the ability to implement certain aspects of the law, because Congress makes the law, in a modern industrial society it is not practicable to spell out all of the implementation of the law in the pages of the statute, so almost every law says “hey look,” and the example we have always used is in gun control, you can either say hey, we’re gonna ban the following 30 guns at which point the gun manufacturers turn around and are just like okay.

Thomas:         AK-48!

Andrew:         Right.  Or you can say we’re gonna ban these guns and any substantially similar guns as determined by the Secretary of the Bureau of Alcohol, Tobacco, and Firearms.

Thomas:         Right.

Andrew:         Perfect example of why you have to delegate.  But it’s obvious that the congress can’t delegate everything to an executive agency.

Thomas:         Separation of powers kind of thing?

Andrew:         Yeah, right.  Congress is still the body that makes the laws.  But for 83 years the Supreme Court has said look – and here I’m gonna quote from a Supreme Court decision I’m gonna talk about at some length.  “Congress may confer substantial discretion on executive agencies to implement and enforce the laws.  Accordingly the Court has held time and time again”  (I would add for almost a century) “that a statutory delegation is constitutional as long as Congress ‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to/is directed to conform.’”  Again, think about how that applies to the gun control situation. 

On the one hand you have a technical argument of we passed the gun control law, we say we’re gonna the AK-47 and any substantially similar weapons and the Secretary of Alcohol, Tobacco, and Firearms has the right to determine which weapons are added to that list.  In a sense you can say the Secretary of Alcohol, Tobacco, and Firearms is the person banning the AK-48.

Thomas:         Mm-hmm.

Andrew:         That’s not a preposterous argument on face, but it’s an argument that the Supreme Court has rejected for a hundred years that said yeah, but it’s really congress passing the general principle and it’s the Secretary of the executive branch of ATF here implementing that in a way that makes it feasible in a modern industrial society.  Makes sense?

Thomas:         Right, I could see that going too far, if they said that power allowed them to ban, I don’t know, like a knife or something.  It would be like, okay, clearly that’s a little outside of where you should’ve been delegated, but as long as it’s within that power that the statute specified I don’t see why it would be an issue.

Andrew:         Yeah, that’s exactly right.  So now we come to a case, a 2019 case from the past term, just decided this past Spring that was on our whiteboard to cover called Gundy v. United StatesGundy was about a 1994 law called SORNA.  SORNA was a sex offenders registration act.  Again, you see the pattern here with right wing judicial activism, which is laws that have been on the books for forever all of a sudden now we are challenging them now that we think we have a more favorable environment.  SORNA did a couple of things.  It was 34 U.S.C. § 20913, I should say it still does, it’s valid law, was held constitutional.  It sets up a bunch of sex offender registry requirements at the federal level. 

I wanna be really clear here, I am not, I have not done enough research to know whether it’s a good idea, our friends who run the Registry Matters podcast weigh in on these sorts of issues all the time, so I’m not saying that SORNA is a good idea, my question is whether if you think it’s a good idea is it constitutional for congress to have passed this law?  It seems plainly obvious that the answer is yes, and in fact I’m gonna read from that opinion. 

So SORNA set forth all these registry requirements and the last provision, subsection (d) said oh, and by the way, it’s 1994 the law applies prospectively as conditions of parole and everything else, but for individuals convicted of an offense before its enactment the Attorney General (quote) “shall have the authority to specify the applicability of SORNA’s registration requirements and to prescribe rules for their registration.” 

In other words, the congressional delegation was super clear, it was hey, we want to register all sex offenders.  Going forward we’re gonna promulgate this particular procedure and it’s gonna apply to everybody who is arrested after this law goes into effect – and convicted after it goes into effect.  But for people who were sex offenders before this went into effect we’re gonna let the Attorney General figure out the best way to get them on the registry as well.  Under that delegated authority the Attorney General issued a rule then specifying that the registration requirements applied (quote) “in full to all pre-Act offenders.” 

That’s what was challenged, and the argument being raised by the Petitioner, Gundy, he was a pre-Act offender and he says no, that subsection (d) (quote) “empowers the Attorney General to do whatever he wants as to pre-Act offenders, including exempting them from registration forever” (end of quote). 

Thomas:         Hmm.

Andrew:         And that that is too much like making laws, therefore the nondelegation doctrine applies.  This is something that congress could not delegate to the executive branch and therefore that provision of SORNA applying to pre-Act offenders is unconstitutional.  The four justice majority (put a pin in that one) said no.  This is a law and that interpretation is stupid.  [Laughs]  

Thomas:         [Laughs]  

Andrew:         That’s pretty much what they said!  Let’s turn to page 2129 of the opinion: “Now that we have determined what 20913(d) means,” (that’s the section I just summarized for you) “we can consider whether it violates the Constitution. The question becomes: Did Congress make an impermissible delegation when it instructed the Attorney General to apply SORNA’s registration requirements to pre-Act offenders as soon as feasible? Under this Court’s long-established law, that question is easy. Its answer is no.” 

Then they read the law that I quoted to you from the beginning, which is basically congress gets to pass the general principles and then they can absolutely delegate the implementation of that to the executive agency.  Again, the criterion going back almost a decade is “is there an intelligible principle” (again I’m quoting from the decision) “to guide the delegee’s exercise of authority.”  Against this, I told you it was a four justice majority, against this is a three justice dissent. 

Roberts, Thomas, and Gorsuch, which says no, no, no, no, no.  We are going to greatly expand the nondelegation doctrine, we are going to prevent congress from delegating to the executive agency (quote) “the authority both to decide the major policy question and to regulate and enforce it” (end of quote).  So in other words, a court would then get to say, hey look, is this – the question is no longer “is there an intelligible principle,” the question is “is there an intelligible principle and is the decision-making over the major public policy issue still left with congress.” 

So what that opinion did was shift the inquiry from is there an intelligible principle guiding the executive agency, that’s what the law is right now and has been for the past 84 years, to is there an intelligible principle and does that principle not delegate to the agency the right to make decisions over (quote) “major policy questions” (end quote).  Who gets to decide what a major policy question is?  You guessed it!  The unelected members of the judiciary.

Thomas:         The courts?  Yeah.

Andrew:         Yeah, right.  So what this does is this gives, and I’m gonna say over pretty much every single law, the position articulated by the three justice majority in 2019 would give the judiciary the right to review the constitutionality of every single law.  Again, with some exceptions, but by and large this is how laws get done. 

If they decided, nope, they delegated a major question, then they could say sorry, we’re gonna strike out that part of the law and you know, if congress wants to fix it congress can get together and fix it knowing – and this goes back to the general principle I articulated at the beginning of the show – knowing that it’s very, very hard to pass laws in this era of divided government and not passing a law, not fixing it, reinforces the core message of conservatism that government’s broken, never minding the fact that they’re the ones who broke it.  You may have noticed that I keep saying “four justice majority” and “three justice minority.”  I think we need to take an ad break but I’ll fill in the rest of that mystery after the ad break.

Thomas:         Ooh, what a pro!

Andrew:         I’m learning from you, Thomas!

Thomas:         Wow!

Andrew:         I’m doing my best.

[Commercial –, get 30% off your painting and free shipping text “OA” to 64000]

Thomas:         Alright well I am on the edge of my seat.  Tell us about the four-three justice … whatever?  I’ve already forgot.

Andrew:         [Laughs]  Yeah, so Gundy was authored by the Supreme Court four remaining non-conservative justices and the dissent was authored by Gorsuch, Roberts, and Thomas.  You may wonder what the hell else happened?  The answer is this case was taken up after Brett Kavanaugh had been confirmed but the oral arguments were heard prior to Kavanaugh joining the Court, so Kavanaugh took no part in the consideration, which means that it would have been four to four had Alito joined with the minority, with the dissent.  In a 4-4 decision the lower court’s judgment stands anyway, which was the holding. 

So Alito wrote, and this is why I almost covered this back in the Spring.  Alito wrote, again not-so-coded language to hardline conservative activists as to why he was going to concur in the judgment.  It’s three paragraphs long and I’m gonna read it right here in its entirety, cutting out the internal citations, it’s gonna take about 15 seconds. 

“The Constitution confers on Congress certain ‘legislative [p]owers’ and does not permit Congress to delegate them to another branch of the Government.  Nevertheless, since 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to” (what he describes as) “extraordinarily capacious standards.” And, whatever, that’s fair. 

“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.  But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.”  So, again without saying this, under stare decisis (I’m adding those three words, now going back to Alito) “Because I cannot say that the statute lacks a discernible standard that is adequate under the approach this Court has taken for many years, I vote to affirm.” 

That is, of course, as activist as you could possibly get.  That’s saying hey, I know the law is X, I know the law has been X for almost a century, you guys want the law not to be X I am, quote! [Laughs]  “I would support that effort.”  (End quote).  But we don’t have the votes right now so I’m not gonna waste my judicial political capital signing onto a doomed dissent here.  Now flash forward to November 25, 2019 and I bet you can guess where this is going!  This was a cert petition brought by everyone’s favorite loony libertarian uncle congressman, Ron Paul.

Thomas:         [Laughs]  

Andrew:         Ron Paul v. U.S., the Supreme Court denied cert and in denying cert Justice Kavanaugh decided that he wasn’t super interested in continuing to respect stare decisis, so he says “I agree with the denial of certiorari because this case ultimately raises the same statutory interpretation issue that [we decided] in Gundy,” “I write separately because Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases.”

Thomas:         Hmm.

Andrew:         “Justice Gorsuch’s opinion built on views expressed by then-Justice Rehnquist some 40 years ago … In the wake of Justice Rehnquist’s opinion” (and I’m not gonna read the cite there) “the Court has not adopted a nondelegation principle for major questions.  But the Court has applied a closely related statutory interpretation doctrine: In order for an executive or independent agency to exercise regulatory authority over a major policy question of great economic and political importance, Congress must either: expressly and specifically decide the major policy question itself … or expressly and specifically delegate to the agency the authority both to decide the major policy question and to regulate and enforce.”  The opinions of Justice Rehnquist and Justice Gorsuch would not allow that second category.” 

I just explained that, the major policy questions.  “[C]ongressional delegations to agencies of authority to decide major policy questions—even if Congress expressly and specifically delegates that authority. Under their approach, Congress could delegate to agencies the authority to decide less-major or fillup-the-details decisions.  Like Justice Rehnquist’s opinion 40 years ago, Justice Gorsuch’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.”  This sort of goes to what we talked about, kind of contrary to the hearings of Justice Kavanaugh and Justice Gorsuch, in which Justice Gorsuch’s hearings were polite and professional and Justice Kavanaugh’s were him screaming and crying that he likes beer.

The opinions of Justice Rehnquist and Justice Gorsuch would not allow that second category.”  I just explained that, the major policy questions.  “[C]ongressional delegations to agencies of authority to decide major policy questions—even if Congress expressly and specifically delegates that authority. Under their approach, Congress could delegate to agencies the authority to decide less-major or fillup-the-details decisions.  Like Justice Rehnquist’s opinion 40 years ago, Justice Gorsuch’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.”  This sort of goes to what we talked about, kind of contrary to the hearings of Justice Kavanaugh and Justice Gorsuch, in which Justice Gorsuch’s hearings were polite and professional and Justice Kavanaugh’s were him screaming and crying that he likes beer.

Thomas:         Mm-hmm.  Doing a keg stand and yelling.

Andrew:         Yeah, a review of their juris prudence is the opposite.  I describe both of those in describing our opposition to Justice Kavanaugh that here is somebody who has written thoughtful, scholarly non-sarcastic opinions for his entire judicial career in Brett Kavanaugh versus Neal Gorsuch writing, you know, open, sarcastic, full of himself opinions over the years at the D.C. Circuit level.  You see that difference here.  Justice Kavanaugh is not willing to be Samuel Alito in this-

Thomas:         Wow.

Andrew:         -in this decision.  He doesn’t say “hey, guys!  We’ve got ‘em now!” but that’s effectively what he’s saying.  When he says “Justice Gorsuch’s scholarly analysis raises these important questions” and pegs it to a Rehnquist concurrence from 1980 what he’s saying is hey, Sam Alito, when you said if a majority of this Court were willing to reconsider the approach we’ve taken for the past 84 years I would support that effort, this is Brett Kavanaugh saying yup, I support that effort too, you have your majority and it is an unmistakable signal, it is one the federalist society-

Thomas:         Can’t they just text each other though?

Andrew:         [Laughs]  

Thomas:         Why do they need to signal, send some runes that someone has to interpret in these rulings?

Andrew:         So they can tell each other-

Thomas:         Or do they also want to signal to other people?

Andrew:         But they want to signal to the federalist society, hey, bring your next challenge to the delegation of authority under a congressional statute that’s been working for years in which the congress has arguably delegated a (quote) “major decision, major question” to an administrative agency and by god we will reverse Gundy, we will reverse all of case law headed back to 1935.  That is the clear and unmistakable implication of this decision.

Thomas:         Cool.  Cool.

Andrew:         Remembering that Kavanaugh did not participate in Gundy whatsoever.  That’s where we’re headed, and the Supreme Court will be handing down that decision in its 2020-2021 term, because it takes some time to tee this up, just in time for President Elizabeth Warren to have implemented major change through executive agency decisions and a-

Thomas:         You keep pronouncing President Buttigieg’s name weird…

Andrew:         [Laughs]  We can talk about all that too!

Thomas:         Oh, sorry.

Andrew:         But look, this is a slow moving train wreck that all of us can see happening, playing out in front of us, and I want us as listeners to be ahead of that curve because when Supreme Court decisions come out you’re gonna see press reports a year from now of, like, “shockingly Supreme Court strikes down X law,” this is how they’re laying the foundation for the Supreme Court to declare laws unconstitutional.  This would be, again, an unprecedented, as much as we are the podcast of screaming about the importance of Chevron deference, and we are, and we have, and we will continue to do that, expanding nondelegation is so much more impactful, it’s so much more power in the hand of the judiciary that this is truly terrifying.  I’m gonna come up with the best ways we can try and fix it in future episodes, but I wanted to go through all of the history and flag this because not a lot of people are gonna be talking about this until it’s too late and it’s going to be a disaster.  It’s gonna be really, really bad.

Thomas:         I mean what could we do, though? 

Andrew:         Well that’s gonna require a lengthy deep dive.

Thomas:         Oh.

Andrew:         I have some ideas and it might be things that we can put into a future law review article and get that discussion going, it’s really, really important that this obscure doctrine that we engage on in both legal and nonlegal circles.  It’s big for the reasons I’ve described.

Thomas:         Alright well that’s ominous, can’t wait to talk more about the things we can’t do for that, but yeah, one reason I’m never gonna be a lawyer is that this all, we’ve got now three different things that all sound like the same thing but they’re somehow different, I don’t fully understand it.  One way or the other, we’ve got Auer deference, we’ve got Chevron deference – [Laughs]  Chevron Def-ronce is what I said – and then the nondelegation doctrine which all sounds like the court gets to be the government, but I don’t really know the differences, but I don’t know if it matters.

Andrew:         Let me try and give the quick shorthand summary.  Nondelegation invalidates acts of congress.  It says this law delegating authority to the-

Thomas:         Oh wow.

Andrew:         -executive branch is unconstitutional, beyond congress’ power.

Thomas:         So it takes out the whole thing?

Andrew:         Well it takes out the section of the law if it’s severable. 

Thomas:         Okay.

Andrew:         But it makes the law go off the books.

Thomas:         Wow.

Andrew:         The other two forms of deference do not affect the underlying law, they affect how that law is implemented.

Thomas:         Hmm.

Andrew:         So Chevron deference says oh, if you go back to the Environmental Protection Act it does not give you the authority to regulate X, and [Sarcastically] if congress wants to change that they can do that, which again, the Court knows full well that it’s very, very difficult to get laws passed through the congress.  So Chevron deference takes away an agency’s ability – getting rid of Chevron deference takes away an agency’s ability to say no we were authorized to act in this particular instance. 

Auer deference takes away an agency’s ability to reverse course, to interpret its prior rules in ways that are consistent with a new administration coming in or a change in policy in that organization, so both of those are in fact a subset of the much greater universe of laws that we are about to hand over to the courts the ability to strike down some or all of pretty much some or all of our laws and I’m gonna talk about how some of that implementation goes into effect in the C segment. 

Thomas:         Oh, okay.  What another professional transition!  Let’s get to it, then!

Listener Input – LIHEAP

[Segment Intro]

Thomas:         We got a good listener comment on LIHEAP that I know you wanted to read, so let’s hear it!

Andrew:         Yeah, this comes from Roma Hicks who writes in and I love sharing this story and I thought that it illustrated well, again, how government is in fact the solution to the problem.  We talked about last Tuesday’s episode the Low Income Home Energy Assistance Program, or LIHEAP. 

Roma Hicks writes to say, “as a public official for a small local government, population of about 20,000 in the Midwest, I worked for five years in the building safety department.  Part of the duties of that department was ensuring that buildings and their occupants were not at risk from bad upkeep or bad practices.  Because rural communities tend to have greater concentration of those with low income it was not unusual to come across someone living in a house without electrical or gas service.  We would find generators running, extension cords running from friendly neighbor’s houses, people shorting the lugs at the meter and so on. 

It was always a difficult task to have discussions with these people because they tended to truly have no money to fix the issue and the city fining them wasn’t helpful, so it became playing a bit of social worker to get them in contact with aid organizations, or calling utility companies to waive reconnect fess.  Unfortunately, trying not to be the bad guy meant we didn’t take them to court, and they would just hide their unsafe means of electricity or heat.  But during those five years we had three home fires, two total losses, and one incident of a family being hospitalized due to carbon monoxide poisoning, thankfully there were no deaths. 

Generators can pose a threat to even those outside the home; if wired incorrectly they could feedback onto the grid and electrocute line workers or neighbors in their homes.  Additionally, no heat can lead to frozen water lines that burst and cost tens of thousands of dollars to fix.  Again, this affects people who are poor and tend not to have insurance, the economic costs are high.  So I thought I would illustrate some of the frequency of those issues that I had in just five years in a low population area, and it’s unfortunate that Trump and his administration have deemed this as unimportant.” 

So I wanted to share that story, I wanted to continue to illustrate the value of good government and of this program.  We talked about some of the implications of LIHEAP, but Ms. Hicks gives others that we hadn’t even thought of-

Thomas:         Hmm.

Andrew:         That came up in her experience, so I wanted to share that and again, more of just outstanding feedback from our fantastic listeners, so thanks!

Thomas:         I know, it’s like we talk about something on the show and it’s, you know, we try to contextualize it and make it real, but often it’s still just an abstract thing to some of us, to me, then you hear a comment like that and it’s just like oh my gosh!

Andrew:         Yeah.

Thomas:         These issues are real to people, and part of – I don’t know, I think you and I are certainly very privileged people and it’s awesome to be reminded of how real a lot of these issues are and why we care about trying to make the change that we advocate for. 

Andrew:         Couldn’t have said it better myself.

Thomas:         What a great comment, thank you so much for sending that in.  Alright well it is time to thank our top patrons, our hall of famers here on top patron Tuesday.  Of course that’s on, these are our top patrons, our hall of famer level, join their ranks, get the weekly shout out, change your name to something funny, we love it, it’s one of our favorite segments.

[Patron Shout Outs]

Andrew:         Thank you all so much!  You wanna join their ranks?  Yeah, head on over,, sign up, $5 bucks an episode and we will give you the weekly shout out as part of our hall of fame!

Thomas:         Sorry was that a Portal reference?  Much like the cake?  Or was that something I’m forgetting?

Andrew:         I have no idea.

Thomas:         I hope it was Portal, because Portal’s great.

Andrew:         I was hoping it was an oblique reference to your daughter Phoebe’s adorable “I get cupcake now?”

Thomas:         Yeah, that’s pretty good.  I don’t remember mentioning that on the show, but that is her – all these little kids do, they’re the best, we don’t deserve them, they’re too good for this world.  Constant comedy.  She figured out, okay, if I get everybody to sing “Happy Birthday” [Laughs]  Let’s sing Happy Birthday!  Okay.  Okay, I get cake now? [Laughs]  Gaming the system already, I love it.  If she can get everyone to sing Happy Birthday then cake materializes and she just gets to eat it even though it’s nobody’s birthday and nobody made cake.

Andrew:         Yeah! [Laughs]  

Thomas:         But it was worth a try!  She’s tried it a few times.  Raptor testing the fences.

Andrew:         I’ve heard worse arguments in Court.

Thomas:         Yeah! [Laughs]  Good times.  Alright, it’s time for T3BE answer time.

Andrew:         Yeah!

Thomas:         Very curious how this went, here we go.

T3BE – Answer

[Segment Intro]

Andrew:         So, T3BE, a landlord and a tenant orally agreed to a commercial tenancy for a term of six months but the tenant gets there and learns that the previous tenant didn’t move out.  The tenant then sued the landlord claiming damages for that portion of the lease period during which the tenant was not in possession.  Then it throws that fun – [Laughs]  well fun since I don’t have to take it – bar curveball because you’re reading it going, well yeah, obviously the tenant is going to successfully be able to sue the landlord.

Thomas:         Yeah, he should get the money back you’d think.

Andrew:         Yeah, yeah, of course.  Then it says if the landlord wins, what will be the most likely explanation?  Then you instantly ruled out C, that the tenant failed to timely vacate as required to sue for constructive eviction, and you said I don’t understand any of that and that seems crazy.  Good elimination.

Thomas:         Oh thank god!

Andrew:         So constructive – here’s what constructive eviction is, the way to think about it.  Constructive eviction is when the landlord doesn’t actually kick you out of the house but the landlord controls the utilities so turns them off in the summer or in the winter and it’s 105 in your house or it’s 20 degrees.  The landlord does stuff such as to effectively evict you from the premises.  That’s why it’s a constructive eviction. 

So in other words, the law recognizes that in some cases the landlord may make it intolerable for you to stay in the premises and that that counts as an eviction, it’s the same as if he’d showed up and changed the locks.  In some jurisdictions you are required, to sue for constructive eviction, to actually move out to demonstrate that yeah, this was so bad that I had to move out and as proof that it was that bad, I moved out.  None of that has anything to do with what happened here.

Thomas:         Okay, that’s what I thought.

Andrew:         Good elimination. 

Thomas:         Cool.

Andrew:         And you eliminated the tenant had not notified the landlord before bringing the eviction action.  Good elimination because that’s not a requirement.

Thomas:         Okay, yeah, and it didn’t even really make sense but, sure.

Andrew:         Yup!  So you were between A, what struck you – and I will be honest with you, struck me (this is a preview) as the most honest, straightforward answer that election of remedies was what applied here, that because the tenant sued the previous tenant for possession he elected that remedy in lieu of a suit against the landlord.  That leaves us both eliminating B, the landlord delivered the legal right of possession to the tenant, which you described as kind of formalistic and not making a lot of sense.

Thomas:         I mean it was still my second most likely answer.

Andrew:         It was your second choice, it keeps Thomas’ Second Chance Bar Exam correct, because B is in fact the correct answer.

Thomas:         Wow.  Brutal.

Andrew:         I wanted to concede with you, this is another one that I would’ve gotten wrong.

Thomas:         Alright.

Andrew:         Because what you’re trying to do is work backwards in the unlikely event-

Thomas:         Mm-hmm.

Andrew:         -that the court finds for the landlord it would say that the reason is because the suit against the landlord will be unsuccessful because the jurisdiction follows – and I’m going to insert the phrase here – the minority view.  It’s gotta be an extreme minority view. But because the jurisdiction follows the view that the landlord need deliver only legal possession to the tenant and not also actual possession on the first day of the lease term.  I don’t remember that principle from law school at all, it’s clearly one of those things you memorize in studying for the bar.

Thomas:         God, that doesn’t even make any sense though.

Andrew:         And the way to remember that is, you know, this is 13th Century Saxony law, so clearly at some point in time the landlord’s responsibility was just to deliver legal title to you whether you could practically get it or not.

Thomas:         Then you can like challenge whoever’s there to a duel.  It was your responsibility to… [Laughs]  If there’s somebody squatting in the premises you have to swordfight them because it’s 13th Century Saxony.

Andrew:         Yup, yup!  So the bar prep materials say “The landlord granted the legal right of possession to the tenant, which means that neither the landlord nor anyone holding of the landlord prevented the tenant from going into possession at the commencement of the lease term.  The previous tenant’s lease term had ended before the new lease term began.  The previous tenant then became a trespasser and was not holding of the landlord.”  So the way that I put that together is, again, if this were 1274 you would sue the tenant and also have to sue the tenant for the damages.

Thomas:         Yeah.

Andrew:         So you can sue the tenant to possess and also be like, dude, you’re trespassing on my premises.

Thomas:         That’s funny because I said that same thing for A, though. 

Andrew:         Yeah.

Thomas:         For the answer A, I was like … yeah.

Andrew:         Yeah.  But as it turns out, most jurisdictions – I have to think almost all jurisdictions now – shift that burden appropriately to the landlord.

Thomas:         Yeah.

Andrew:         Right?  And say you have to deliver not just legal title but actual possession.

Thomas:         Yeah, you gotta check that your thing is inhabitable I would think.  That’s weird.  Those questions sucked.

Andrew:         But apparently some jurisdictions you don’t.

Thomas:         So that’s just testing the knowledge that-

Andrew:         I would have gotten this wrong too.

Thomas:         -in some places the law is whacky?  Alright, fine.

Andrew:         Yeah, exactly right.

Thomas:         Fine, you win bar.  Alright that answers the question whether or not this was just gonna be the straightforward, easy source.

Andrew:         [Laughs]  Yeah!  I like how you extrapolated from one question, you’re like “pfft, I’m gonna get 95 of these!”  [Laughs]  

Thomas:         Yup!  It quickly, quickly dispelled that notion, so there you have it.  Alright, well I lost!

Andrew:         Well we’ll see how we do on question 3. 

Thomas:         Let’s hop in the time machine and find out who our big winner this week is!

[Segment Intro]

Andrew:         Alright Thomas, well as befitting this difficult question almost nobody got it right.  A handful of people – I actually thought we were going to have to award out the never ending fame and fortune among the handful of people who sent us messages like “I wasn’t paying attention to the question but I’m gonna go with B” or “I haven’t listened to T3BE yet but I’m gonna guess B,” but there was one person who transcended total dart throwing monkeydom, and that was Josh Hoku, that is @JoshuaHoku on Twitter, who writes “B, because common law is weird.”  Yeah!  Common law is weird, and congratulations Josh, you got this week’s insanely hard T3BE correct and enjoy your never ending fame and fortune!  Everyone give @JoshuaHoku a follow on Twitter.

[Segment Outro]

Thomas:         Alright, thanks so much for listening everybody!  We will see you on Friday.

[Show Outro]

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