Your humble contributor is an avid political enthusiast, science junkie, former small business owner, limited government, constitutionalist, and all around lover of liberty.
I make every effort to use logic and reasoning, not hate, ad hominem attacks, nor logical fallacy arguments.
Imagine a libertarian in the United States. It’s midnight, and he’s sitting at home in his underwear, binge-watching Better Call Saul reruns when he hears the door knob rattling. He spots the silhouette of a suspicious figure trying to gain entry. Is this person looking to rob the house, harm the homeowner, or who knows what?
So anyway, what does the libertarian do? He grabs his gun, which is basically required of all libertarians to own, and as soon as this miscreant steps an uninvited foot into our hero’s home, Captain Liberty turns him into Swiss cheese!
Libertarians are staunch supporters of the Second Amendment and the right to bear arms because they believe it levels the playing field in potential combat situations between individuals.
In the pursuit of freedom, people must have the means to defend themselves using the tools available to them. While it’s possible the intruder is a 120-pound weakling with no weapon and minimal combat skills, our libertarian homeowner, clad only in his underwear, can’t afford to take chances. He must prepare for the worst and ensure that he’s in the best possible position should a confrontation ensue.
As someone who identifies philosophically with libertarianism, I agree with this sentiment entirely. I own several handguns, which I have placed strategically in my home and cars in case someone hurts my feelings. I’ve never drawn down on anyone, but if me, friends, or loved ones are threatened, I’ll do my best to end the threat.
Contrast all this with another tenet of libertarianism—the peacenik. Someone who is staunchly anti-war. How can one support owning a gun as a right, but still be all about peace?
I’d like to think most people understand that being anti-war doesn’t mean anti-self-defense. Many reasonable libertarians agree the country should have a military prepared to defend our nation, in the same manner as they personally might be armed in such a way to defend their home.
The issue I’m raising here, is about being unprepared.
Today, we face potential threats from Russia, North Korea, and China, and the specter of a catastrophic conflict looms, especially if nuclear weapons come into play.
This scenario seemed very unlikely 10-15 years ago. Even President Obama seemed oblivious to the idea Russia could be a threat. Remember this debate where he degraded Romney’s opinion on Russia?
This issue is where I often find myself breaking with ideological libertarians, because as someone who places logic & reason over ideology, I think being prepared for the worst-case scenario, is the wisest thing to do.
I also oppose wars of aggression. We shouldn’t be attacking others who weren’t threatening us or our allies. However, it’s naive to assume that we won’t face a serious threat at some point. We must ensure we’re fully prepared. If attacked, we should respond with overwhelming force to swiftly end the conflict. Appearing weak and easily exploited is not a winning strategy.
Those who were around during the Reagan era, might recall the talk of a Strategic Defense Initiative (SDI) program, also known as “Star Wars.”
To say this program was ambitious, would be an understatement. I won’t try to explain how this system worked entirely, but it was multi-faceted, expensive as hell, and involved things like space lasers.
Reagan felt nuclear weapons were inherently immoral, and that eliminating the threat of them from Russia at the time, was in the interest of all mankind.
But as the Berlin Wall fell, and Russia became our BFFs, the need for such initiatives was considered obsolete. So spending on such technology was thought to be frivolous and wasteful.
Many libertarians go a step further and bash military spending almost entirely, using derogatory terms like “bootlicker” for anyone who disagrees with them.
Such insults hinder productive debate and reveal a lack of intent to discuss the topic fairly. We can acknowledge instances of wasteful military spending while recognizing the importance of maintaining a strong defense against existing threats.
While it’s true Russia and China were largely friendly to the United States between Reagan’s tenure and now, we find ourselves in a position of defending Taiwan and Ukraine, and in so doing, being under threat of nuclear attack from countries we thought were our friends.
Russian President Vladimir Putin, right, and Chinese President Xi Jinping pose for a photo during a signing ceremony foillowing their talks at The Grand Kremlin Palace, in Moscow, Russia, Tuesday, March 21, 2023. (Vladimir Astapkovich, Sputnik, Kremlin Pool Photo via AP)
But being anti-war should not mean cutting spending in such a way as to make ourselves vulnerable to an existing threat.
While China and Russia were becoming rather friendly with the US, they weren’t exactly eliminating their nuclear arsenal—the threat was there the whole time.
Ronald Reagan was right that the best thing we could do for the future of mankind, was to find a way to make such weapons “impotent and obsolete” as he put it.
Libertarians are correct to oppose wars of aggression. But just as they keep guns to protect themselves from unlikely threats—it would be hypocritical to think the US and our NATO allies shouldn’t advance technology to eliminate the threat of other nations, even from those we currently consider friendly.
The free world should understand that Oppenheimer and company opened Pandora’s box of human mass eradication, and working towards systems that can neutralize that threat is spending that shouldn’t be criticized nearly as much as it is.
Robert Oppenheimer 1956 by Yousuf Karsh
We are on the brink of human extinction from not one, not two, but two and a half dictators (I’m not elevating North Korea to the level of Russia and China). While they were friendly once, the threat never fully went away, it was just our resolve to prepare for it that did. That lax attitude could end us all.
Our current defense systems are thought to be about 50-60% effective at stopping such weapons from hitting their targets. That’s not good.
If we were to face a nuclear catastrophe at the hands of Russia and China, it might have been preventable had we stayed vigilant. Remember the old adage: Si vis pacem, para bellum – if you wish for peace, prepare for war.
In today’s world, a prevailing theme centers around the belief that everyone’s feelings are valid. The underlying message is clear: people are constantly grappling with emotional struggles, and the outdated advice to “suck it up and tough it out” is not only misguided but also detrimental to society’s collective mental well-being.
Things like clinical depression, and other depressive disorders can’t just be prayed or willed away. They are the result of something gone awry within the network of our minds, and should be treated with sympathy and science, not dismissive attitudes.
Families and friends alike should be more inclined to ask how their loved ones are doing. Not just out of politeness, but instead, out of a desire to help—to be an outlet for someone they care about.
But it’s important to do it in a way that’s helpful. It shouldn’t have a “suck it up” tone, nor should it be a deflection such as suggesting you both go get drunk. Let them know that you care about them, and you’re willing to listen and/or help—full stop.
This approach mirrors the fundamental principles of therapy practiced by psychologists, where empathy and understanding are paramount.
Yet, amid this push for acknowledging feelings, it’s essential to recognize the fine line between validating emotions and enabling harmful beliefs. Telling someone their feelings are valid implies that their emotional response aligns with the situation they are confronting, even when this may not be the case, especially for individuals dealing with disorders such as bipolar disorder.
The potential pitfall of validating feelings is akin to committing a logical fallacy known as the Strawman Argument.
A logical fallacy is an argument someone uses that suggests one thing MUST lead to another, when that isn’t true. This fallacy arises when an argument misrepresents someone’s position to make it easier to attack.
In the case of a straw man argument, an example would be if I say, “I like Coca-Cola.” Someone who hears this responds, “Oh, so you hate Pepsi? I can’t trust anyone who hates Pepsi.”
The issue should be obvious that in my statement, I didn’t even mention Pepsi. It’s entirely plausible I like both.
Yet the person arguing against me made an assumption that I hated Pepsi, and argued against that “straw man” of my argument, instead of my actual argument that I simply like Coke.
Make sense?
So why does this mean people’s feelings aren’t valid?
Imagine we meet someone who seems really depressing and cold to talk to. Our feelings might lead us to believe they’re a jerk. Now imagine, we find out this person just got news that they have terminal cancer. Do we still feel that they are a jerk, or do we now realize that we’ve misread the situation?
The fact is, too many of us make assumptions based on far too little information, because it’s uncomfortable feeling like we don’t know things. We think it would mean we’re stupid. So we make up our minds before having even remotely enough factual information to fairly do so.
Through these exercises of jumping to conclusions through false assumptions (the equivalent of straw men), we develop feelings that are often invalid. What’s worse is we often get those invalid feelings reinforced by a society that tells us our feelings are always valid.
We see this play out with people who have taken offense over something. If we are offended at someone, it should be based on the idea that they’ve been disrespectful to us or others.
But being disrespectful requires intent. It is an act of knowing someone wouldn’t like something, and yet doing it anyway. But what if the person who did the thing that offended us had no clue we’d find it upsetting. Maybe they thought we’d find it funny, or completely benign. Were they disrespectful to us? We shouldn’t be able to accidentally disrespect someone, that’s not how any of this works.
Hanlon’s razor is a good thought on this subject. It says,
The point being, next time we see someone on the internet upset about how disrespectful someone else was, we should first consider whether there’s an explanation that isn’t disrespectful, such as they didn’t know better.
It’s also important to consider if it’s really something to be bothered by in the first place. Society has become obsessed with having reasons for outrage. It makes sense, because the more upset we are about something, the more attention we’ll often get.
It could be because people already agree with us on other stuff, so they don’t want to disagree with us now.
As much as I hate to say it, maybe we’re attractive and people want to hook up with us, so they’ll support whatever nonsense we’re upset about.
I would bet at least $107, if you put an attractive woman on the internet, and have her talk about how all the hate that’s directed towards Nazi’s is wrong, you’ll have a thousand guys respond with an argument as to why they agree, Nazi’s aren’t that bad, they just have a different opinion than the rest of us, and people should be more kind to them.
The point of my post is this. Next time we find ourselves offended or upset by the actions of others, we should take a moment to consider whether there is a scenario where this was innocent. If we can think of at least one, then assuming it must be the worst scenario isn’t fair of us.
One option is to assume the innocent scenario, but that may also be wrong.
A better option is to ask questions of the person if we’re able. This isn’t always doable if the person is famous, but if it’s a friend or an acquaintance, making the effort to ask, “What did you mean by that?”, could be the difference between a fight versus an respectful and interesting discussion.
One of the biggest errors humans make, is the false dichotomy. The idea that there are only two sides and we have to choose one of them.
Maybe an interaction between a cop and citizen goes awry. If we think blue lives matter, we might assume the cop is in the right. If we think cops are bad, we might assume the cop is a serial rights violator. But there are at least two other options.
It could be that both of them behaved poorly. Maybe the cop was being a jerk, but instead of trying to deescalate the situation, the citizen decided to antagonize the cop and ended up making it worse.
The best reaction however, is to simply accept we weren’t there, didn’t see it all, we’re likely missing some context, and thus shouldn’t choose a side at all. Instead, being 100% ready to accept new information if it comes to light is the best way to think.
So next time we find ourselves with excessive emotions, unless a loved one has just died, or a national tragedy occurred, there’s a good chance our feelings aren’t as valid as we think they are. Especially if those emotions are us taking offense at something.
We are responsible for our emotions, not others. It’s up to us, to learn to let stuff go instead of stewing in a cauldron of rage which we lit the fire under.
Sometimes, we will benefit from just taking the time to analyze the situation with questions like:
Is this something I’m going to care about tomorrow?
If there another explanation for this that isn’t offensive?
Do I know this person intended to be disrespectful to me?
What role did I have to play in this situation going badly, and could I have handled it better? (Self-awareness)
Being full of rage requires a lot of concentration on that rage. The mere act of asking ourselves questions as I outlined above can often distract us from our rage, and push us onto a new set of train tracks from the rage train we were on, to one of emotional mastery. Not to mention the friendships we might save along the way, leading to happier and healthier lives.
Back in 2018, North Carolina, convinced they had a voter fraud issue, passed Senate Bill 824, their Voter ID law, requiring voters to present a valid government ID when attempting to vote in person, or by absentee ballot. If the voter does not have a valid ID, North Carolina provides the option to get an ID at no charge.
Their concern is that less than scrupulous people would go and vote more than once. For instance, let’s say Joe Voter, a Democrat, lives with his grandpa Dick Voter, a Republican, and both of them are registered voters. Sadly, grandpa is senile, and doesn’t remember to vote anymore. So Joe voter goes to a polling station in the morning, votes under his name, then hours later, returns hoping not to be recognized, claims he’s Dick Voter, and votes again, both times for a Democrat, even though he knows Dick would have wanted to vote Republican.
Scenarios like this are certainly occurring, but the depth of such voter fraud is thought to be so minimal by Democrats, that it’s implausible to be affecting election outcomes. But many Republicans on the other hand, think it cost Donald J. Trump the 2020 election. Even those who think Trump probably lost, still think it’s a bigger problem than any data shows.
To be fair, it’s kinda hard to poll people on whether they committed voter fraud or not.
As a result of this law, the National Association for the Advancement of Colored People (NAACP), went into full race-baiting mode, declaring that this law is racist on the face of it, and aims to prevent black and Latino voters from casting a ballot. So they sued in federal court, to nullify the law on the basis it discriminates against protected classes—namely people of color.
You might ask if there is anything in the law about black or Latino voters, to buoy this claim. There is not. (I actually searched the law for any words of that nature to confirm).
The NAACP however, argues that apparently, black and Latino voters who have the wherewithal, motivation, and intellect, to make it to a polling location and vote, or request an absentee ballot and vote from home, somehow are too fucking stupid to go get their free government ID, if they don’t already have one.
Opinion: This page is obviously libertarian philosophically, and as such, tend to think both Democrats and Republicans are serial rights violators. We also believe Trump had his ass handed to him in 2020. But, that doesn’t mean there was no voter fraud.
It’s just that what fraud was discovered, was so minimal, that even if all the fraudulent votes went the other way, Trump still lost.
But all that being said, our opinion is that the NAACP’s argument is some of the most racist shit imaginable. It insults every black and Latino voter, arguing that somehow, they’re less capable of getting an ID than their white counterparts.
This is a clear case of two parties, opposed to each other, looking for any means possible, to attack the other. It’s pathetic and shameful by the NAACP, in my opinion.
There are so many real genuinely racist issues affecting minorities in this country that need to be fought vigorously. This isn’t one of them. The NAACP is wasting valuable resources on this, that could be better spent working to fix systemic racism issues elsewhere.
In North Carolina, since the NAACP is suing over the state law, arguing it’s unconstitutional, it’s up to the AG in the state to defend it. As you can imagine, the Republicans who passed it, don’t care for their Democrat AG Josh Stein, and assume he won’t defend it as vigorously as they would.
North Carolina’s congress is majority Republican, but their current governor is a Democrat. So while Republicans passed this voter law, as you can imagine, the governor, and the state attorney general (AG) he appointed, being Democrats, aren’t fans. The governor has vetoed the bill, which was overridden, and he has made several public statements against it.
In comes North Carolina Senator Phil Berger and North Carolina House Rep Tim Moore, both Republicans. They want to act as an amici in this lawsuit, supporting Josh Stein. AG Stein however, is like “I don’t want your fucking help. I don’t need your fucking help. I’ve got this. Now let me do my job.”
But congressmen Moore and Berger are like, “Listen you whiny fucking tree hugger, we know you don’t care for this law. You’ll do the least amount possible to defend it, and we both fucking know it. So whether you want our help or not, we passed this law, and we don’t trust you to defend it, so we’re interjecting ourselves whether you want us to or not.”
The question for SCOTUS is whether North Carolina’s constitution allows for them to forcefully intervene, if the AG can make a fair argument that they’re defending the law properly.
It’s worth noting that the NAACP sought an injunction to stop the law from going into effect, and AG Stein, defending the law then, quashed the injection, keeping the law in force. So he may have a valid point he is defending the law in earnest.
Phil Berger & Tim Moore
The AG’s side contends this violates North Carolina’s constitution. Even before the United States was a country, NC’s charter said that the states legislative, judicial, and executive branches shall be “forever separate and distinct from each other.”
As such, this means in their eyes, that these legislators have no business intervening on the AG’s job, as he is a member of the executive branch.
As oral arguments began, counsel David H. Thompson immediately raised issue with the AG, who answers to NC governor Cooper. He pointed out that Cooper has a long history of thinking this law is grade A unconstitutional bullshit. He goes on to point out that governor Cooper threatened for fire election officials if they enforced this ID shit.
Justice Sotomayor questioned the validity of his concerns when she proposed that since AG Stein defended the injunction successfully, clearly, he’s doing his job defending the law. So these petitioners interfering isn’t about him not doing his job, it’s just that they don’t necessarily agree with his tactics. Remember that the issue isn’t about strategy, it’s about whether the AG is defending the law properly, which arguably he is.
Counsel David H. Thompson
She went on to argue, what if the state senate and house were of different parties, and they each wanted to pose different arguments, or maybe different caucuses within the parties even. Before you know it, you have fifty fucking assholes with an axe to grind, wanting to be heard on the issue, and it’ll be dogs and cats living together! Mass hysteria!
She’s like, “I’ve got better shit to do than read a million fucking briefs, and so do the rest of the courts. So what the fuck, man?”
Justice Barrett chimed on, on top of Justice Kagan and Sotomayor to understand where the line should be drawn as to when state legislators can and cannot intervene in such situations. Counsel Thompson, after going through logic tests from Justice Barrett, basically agreed that if the AG and legislators were perfectly in agreement of the law in question, then legislators may be fairly prohibited from intervening.
Justice Breyer then chimed in, discussing Federal Rule 24 for civil procedure, which in part says, “On timely motion, the court must permit anyone to intervene who claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.”
He focused on that last bit, “unless existing parties adequately represent that interest.” He’s like, “generally we presume if they’re defending the law, and they’re qualified to do so, then they’re adequately representing the interest. Now you want us to write a new fucking rule of presumption?”
Associate Justice Stephen Breyer
Counsel Thompson responded:
The narrowest grounds to rule in our favor would be to say that this is a paramount interest of a state and it’s entitled under basic principles of federalism to have that federal interest vindicated by a representative who is exclusively focused on that. And they are not required, just because they’ve been sued under Ex Parte Young, to forgo having what they have in state court, which is a champion focused exclusively on winning the suit.
Justice Sotomayor, hearing all this, was still unclear about how he addressed her “fifty fucking assholes being allowed to intervene” situation. He the clarified that if 49 of those assholes are aligned and qualified, then #1 of 49 is the one allowed to intervene. The others can go pound sand up their asses. They were too slow.
Justice Sotomayor, not finished hearing herself speak, asked “What if they have overlapping interest. The fucking AG here is defending your fucking law. Just because you say that the AG and the Board of Elections only care about executing the election, doesn’t mean they don’t care about the integrity of it.”
But counsel Thompson was unamused. He channeled his inner McEnroe, and was like, “You can’t be fucking serious.”
A previous precedent often cited in this case was Trbovich v. United Mine Workers of American, from 1972, where SCOTUS ruled that labor union members could intervene on action from an employer, even when the department of labor was already fighting for them.
So counsel Thompson uses this as the main bedrock to his claim, since Sotomayor rightly points out the AG is defending his law adequately, which by law, should be good enough.
Official Portrait of United States Supreme Court Justice Sonia Sotomayor
Click for Biography
It should also be noted, that he argues since the AG and Board of Elections have different interests than he does. They care about running the election as a practical or procedural matter, but his interests are about the integrity of the elections, and defending his law against constitutional challenges. As such, even if the AG is defending it, he’s only defending it to the point of making sure they are able to execute it, not on it’s merits in a constitutional challenge. Remember, the law cited above mentions “unless existing parties adequately represent that interest.” So he’s creatively arguing that because they have different interests, it’s impossible they are adequately representing his interests, only their own.
Occasionally, I come up with questions I don’t see addressed. I try to be humble and assume it’s just that I don’t know better. But in this case, imagine the AG and governor were also Republican and thought the voter ID law was the best thing since hookers and blow. Would he still be seeking to intervene?
Surely not.
So then his argument about different interests due to their different branches of government, becomes entirely invalid, as those different interests would still exist in that scenario.
So I’d argue, it’s about opposing political parties, not different interests of the job positions they hold.
Next up for the NAACP, we have counsel Elisabeth S. Theodore, who’s suprisingly very white. She opened with this:
Counsel Elisabeth S. Theodore
Thank you, Mr. Chief Justice, and may it please the Court: From Rule 24’s inception through today, a single principle has guided interpretation of the adequacy prong.
When a proposed intervenor’s interest is identical to one that’s already represented in the case, we presume that the existing representative is adequate, and that common-sense presumption holds particular force when the existing representative is a state official charged ethically and legally with defending state interests. The presumption is further supported by the strong federal interest in requiring states to speak with a single voice at a time in federal litigation.
From the vantage point of federal law, there’s one state.
The state as a unified entity is what matters for federalism purposes, and it’s the state that has the sovereign interest in defending state law. Where one state representative decides to no longer represent that interest, like in the Cameron situation, then a properly appointed state representative can come in to vindicate the interest that’s no longer being represented. That’s the same way federal law requires the United States to notify Congress to enable intervention when it stops defending a statute. But where an authorized state representative is actively defending the law, Rule 24’s goals of ensuring coherent presentation and simplified litigation should prevail. And this case is the poster child for why federal law puts a thumb on the scale against intervention when a state agent is already there defending. Unlike in Cameron, there’s just no need for intervention here.
Petitioners explicitly seek to assert the state’s sovereign interest in enforceability and defense of state law, the exact interest the Attorney General is charged by statute with representing and is telling this Court he is representing.
And he’s not only representing that interest, but unfortunately for my clients, he’s winning. And then, on the other side of the ledger, allowing the state to speak with multiple voices at once would complicate litigation and draw federal courts into state law disputes, such as the substantial ones here about what state statutes in the state constitution mean.
So there’s substantial cost without corresponding benefit to accepting what Petitioners propose. I welcome the Court’s questions.
I chuckled a little when she rightly pointed out that the AG was defending their law, and winning. It’s not a silly argument. Hard to argue inadequate representation when my dude is fucking killing it in court.
Chief Justice John Roberts
Justice Roberts, first to chime in, was like, “what’s this requirement for one voice shit you speak of? We have amici falling out of our assholes here at SCOTUS. Hell, half our cases have more than one fucking voice. Clearly, we’ve decided it isn’t ALWAYS to be one voice.”
But as always, because it’s justice Roberts, he said it with politeness and a boyish smile.
She went on to argue that this is bullshit, because this is a state interest issue. In other words, the entire issue is about how North Carolina handles it’s elections. It should not even be in fucking federal court. The only reason it is here, is because of the constitutional issue raised. But surely SCOTUS isn’t in the business of telling states how to run their elections. So addressing the constitutional issue, should be done by whomever the state appoints to address these issues, and currently, that’s the fucking AG.
Again, Justice Barrett, trying to draw a line in the sand, attempted to come up with a scenario counsel Theodore would accept as a valid situation for these legislators to defend the law here.
She advised that they could pass a law saying that in such situations, the legislator shall appoint someone. But then the AG would be off the hook, and could work on other shit.
Associate Justice Amy Coney Barrett
Justice Breyer pointed out in Trbovich, that SCOTUS did allow the unions to intervene, even though the Secretary of labor was helping them, because despite them having the same end goal, the secretary cared about protecting labor laws, whereas the union cared about defending union members. So isn’t this a similar competing interests issue?
But counsel Theodore was like, “I can’t wait until you retire, you old bastard. No, it’s not the fucking same, because one is a public entity protecting their governmental interests, the other is a private company protecting it’s union members. Two different entities are being represented. In our case, we just have two state representatives, representing one fucking state. Do you really want amicus briefs galore up in this bitch?”
Justice Breyer was like, “Riddle me this, you battle axe. Call me fucking crazy, but why wouldn’t the state want fucking help? It’s pretty rare an amici does more harm than good. So why would the AG reject their help, if the AG is defending the law in earnest? Shouldn’t they want all the help you can get?”
Remember, counsel Theodore represents the NAACP, not the state. So this is a weird one, where the petitioner wants to defend a law they passed, one of the respondents doesn’t want them to intervene because then they’re fighting two people, and the other respondent supposedly is defending the petitioner’s position, but doesn’t want the petitioner to stick their fucking nose in and help.
Justice Alito then jumped in and asked, “What if the AG did the absolute fucking minimum? Like basically phoned it in. Refused to bring in experts and shit. Would that be considered inadequate?
Associate Justice Samuel Alito
Counsel Theodore was like, “If that were the case, which we think it certainly fucking isn’t, they could replace him under law. They’re the ones who wrote the law making the AG the person to represent them in these scenarios.”
Justice Roberts rightly pointed out that this seems like the NAACP, which counsel Theodore represents, is basically asking SCOTUS to help her pick who she will fight against, and handicap them by removing a party that really wants to win this fucking case. Remember, it’s not the AG who’s fighting Berger here, it’s the NAACP.
Last up, Sarah Boyce for the state of North Carolina.
She opened by saying, “How the fuck are they going to say we’re not adequately defending their stupid fucking law, when they have yet to identify one issue where their defense of it, and our defense of it is different? Not to mention, we’ve fucking won every single step of the way.”
Deputy NC AG Sarah Boyce
She went on to argue that they’d be happy to allow these assholes to help in the defense, but she takes umbrage with the idea that they’re required to intervene.
She argues that because they have the same arguments, and that they’re winning in each challenge, that clearly it should be presumed they’re providing an adequate defense of the voter ID law, which Federal Rule 24 says they should provide, if they’re not to be replaced as counsel in defense of it.
I have more questions:
Why does the AG give a fuck about this? I’m going to assume that they aren’t in love with the law. His boss is on record hating it. So why wouldn’t the AG be like, “Hey man, you want to defend this? Go right ahead. I’m out. It’s all yours, you whiny bitch.”
They could just use their time for other things, and hand it off to these Republicans legislators and let them fuck this pig dry.
Other than some principled reasons or pride, it seems to me, that maybe the AG and governor hatched a plan to tank it if they were to win here?
Associate Justice Elena Kagan
Justice Kagan, seemingly being skeptical of her own position asked if counsel thinks it’d be OK for them to fight for the specific legislative interest of the law, which everyone seems to agree, isn’t the interest of the AG who is charged with the execution of it.
Counsel conceded that if that were the case, she could see where that would be their right.
In rebuttal, counsel Thompson for the Republican legislators closed with this:
Yes, Mr. Chief Justice, just a few quick points. They claim they’re not trying to pick their opponent, but they are because they filed in federal court, not in state court.
If they had filed in state court, we would be there as defendants, number one. Number two, they invoked the prospect of intramural fights, but there are frequently instances, it happens all the time in 1983 litigation, that a plaintiff will name a variety, a multiplicity of state defendants, and they haven’t been able to point to a single example of when the multiplicity of state defendants in a 1983 suit somehow has created problems in terms of administration of justice. And that’s because of the presumption of good faith.
And they acknowledge at page 55 of their brief, candidly and forthrightly, that they have no doubt that if we come into this case we will work cooperatively with them, as we have done on many occasions before. They invoke the role of the attorney general.
But Rule 24 talks about parties, not lawyers.
And the party here is the State Board of Election, which has the responsibility for administering the election. They say that they prevailed in the Fourth Circuit.
The March 2020 primary was held without this law in effect, and the reason it wasn’t in effect is because they prioritized their administrative responsibilities over the merits and the Purcell violation. And then, finally, there was a discussion about, well, maybe this case will be rendered moot by the state court.
The briefing hasn’t been completed. There’s no argument.
We don’t know how the North Carolina Supreme Court will rule. And it could be capable of repetition yet evading review even if that proceeding ultimately one day did moot things out. Thank you.
In the end, the legislators prevail, in a 6:3 decision divided on party lines. The majority decided that if the legislator believe their interest won’t be represented adequately, they have every right to intervene. They agreed with the argument that the AG’s interests are not the same as theirs, and therefore it’s fair to assume they’ll only represent their own interests.
2022 Supreme Court of the United States
The Democrat-appointed minority, as usual, think the other six are just being assholes again. There’s been a lot of that lately.
Back in 1971, SCOTUS heard a case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. I won’t review that case here, but basically, some feds hassled a dude named Bivens by breaking into his house without a warrant and handcuffing him in front of his family. They went on to interrogate him intensely, and even strip-searched him. So Bivens, finding this less than pleasant, sued the feds for being constitution-violating pricks.
At the time, the law prevented people from being allowed to sue cops operating in the line of duty, but SCOTUS was like, “These prick feds aren’t above the law. If they’re clearly acting outside their duties in a way that violates someone’s rights, they can be sued. But, it’s on Bivens to prove damages.”
When SCOTUS made this ruling, it was limited to this exact situation. It was not presented as being a broad precedent applying to all federal officers committing any violation which may seem unconstitutional. So if there are major differences in the new case being compared to the Bivens precedent, they’d be considered an expansion of Bivens if applied.
Ever since, when someone tries to sue a fed, it’s called a Bivens suit. I guess that’s one way to have a legacy. Congrats, Mr. Bivens.
In this case, federal border agent Erik Egbert went to a quaint little US-Canada border B&B called the Smuggler’s Inn located in Washington, and approached a car with a Turkish passenger in it. Officer Egbert had spoken with the owner of the Smuggler’s Inn, Robert Boule, earlier in the day, and Boule had told him this person had come in from Turkey. Apparently Boule isn’t a fan of people from Turkey or some shit. I don’t know. For whatever reason, Boule decided to drop a dime on my dude.
But when Boule later saw officer Egbert show up to question captain Turkey, he cordially invited Egbert to get right the fuck off his property. Apparently he was unaware Egbert would use this earlier info to hassle his customer, or he had some odd change of heart.
Officer Egbert didn’t just decline his polite offer, he pushed Boule to the ground and was all like, “Yo, I’m a fed, bitch! Back the fuck up off me!”
Once it was confirmed that the Turkian, or Turkeyman, or whatever the hell you call a Turkish person, was confirmed to be here legally, officer Egbert and his other federal crips left with no further incident. The Turkey whatever did end up crossing into Canada illegally, so apparently, Egbert’s hunches weren’t wrong. But it was Canada’s problem, not ‘Murica’s
The Smuggler’s Inn
Supposedly, the Smuggler’s Inn had a reputation for attracting miscreants looking to come into the US illegally, and Egbert was presumably quite sick of this shit.
Smuggler’s Inn owner Boule, being rather displeased with officer Egbert’s behavior, called Egbert’s supervisor to complain. But no amount of Karening works on feds, and sadly Boule was not going to find the droids he was looking for.
Having just been majorly Karened by Boule, with apparently no disciplinary action taken, officer Egbert decided this prick Inn owner needed to be taught a fucking lesson in respect. So he hatched a master plan to make Boule’s life even worse. He suggested that the IRS investigate Boule and the Smuggler’s Inn, further antagonizing this poor fuck for just trying to get a nut. As luck would have it, turns out Boule has subsequently plead guilty to breaking some Canadian immigration laws, and he got time served. So he’s not exactly innocent in all this shit.
Egberts legal team argues that the Bivens precedent is bullshit. Fed’s, working in the line of duty, should be immune from suits. If they do something wrong, let the internal affairs assholes deal with it.
But even if SCOTUS isn’t prepared to overturn that shit, they believe this case is different enough that Bivens doesn’t apply, because unlike those cunts in narcotics, border patrol rozzers are a matter of national security, and as such, their issues potentially pose an immediate national security threat. So Egbert argues he should get more leeway than someone trying to prevent some poor fuck from getting high, because he might have to act hastily to prevent a national security problem, whereas some narc is just waging a stupid war on drugs.
Egbert’s team also seems to think that just because Boule complained about him, and he retaliated by sicking the IRS on him, doesn’t mean he violated their first amendment rights. So long as he had a legitimate reason to think there may be tax fraud afoot, he was duty-bound to report that whiny fuck and his little Inn of horrors.
Boule’s claim is twofold. They claim calling the fucking tax cunts because Boule Karened Egbert is penalizing him for free speech, a blatant first amendment violation. He also claims that harassing his Turkish guest was an illegal search, and thus a fourth amendment violation. I think the excessive force of pushing Boule on the ground like a little bitch, also falls under the fourth amendment.
Counsel Sarrah M. Harris
Counsel Sarah M. Harris opened for officer Egbert by basically arguing that even though Bivens is a landmark case at this point, with years of precedent, this case expands on it, and that’s not OK. She also points out that these days, with qualified immunity, it’s pretty fucking clear, Bivens doesn’t jive with how shit is done now.
Justice Roberts was like, “How is this not a similar fourth amendment violation to Bivens. It was an illegal search by a border agent, was it not? Did he have a fucking warrant? Are you really saying that simply because it was close to the Canadian border, that makes it totally OK?”
Counsel Harris was like, “Well, he was there investigating a potential illegal entry issue, which is his fucking job, yeah?”
Supreme Court of the United States Chief Justice John Roberts
But Justice Roberts was unimpressed. He was like, “So somehow the 4th amendment is different near the border than it is in fucking Des Moines or some shit?”
Counsel Harris was like, “Fuck yeah it is. Are you for real right now? They’re near the fucking border. So they’re going to have a lot more people committing crimes there, by virtue of the fact that crossing our border without permission is a fucking crime.”
They eventually congealed around the idea that the agents job, and proximity matter. Like an IRS agent at the border has no more leeway on the fourth amendment, because they’re just about collecting taxes. But a border agent at the border, by the nature of their job, needs to search a lot more people.
Justice Breyer, apparently wanting to show everyone how much he knew about federal agencies, started rattling off every one he could think of, asking counsel Harris if Bivens apply to them. He mentioned Federal prison guards, the FBI, ATF, the US Mint Police, and even the DEA which succeeded the FBN that were at the root of the Bivens case.
Counsel Harris, each time had the brilliant response of “it depends.” Her argument again, seems to hinge around putting the agency and the situation together, and examining whether those two are the same context as Bivens.
Next up, the US government represented by Michael R. Huston, supporting officer Egbert.
Michael R. Huston
Counsel Huston opened up by arguing, “Even if we think Boule is right in his bullshit claim that this was just retaliation for being Karened, and not because Egbert had reason to believe there was a tax crime being committed, if you side with this prick, you’re going to give the courts a shit-ton of work.
Because every fucking prick that thinks an officer was a dick to them, and that officer took more than one action against them, will be opened up for some retaliatory 1A claim. Are you ready for that fucking shitstorm, SCOTUS?”
As for the fourth amendment claim, his argument was again, basically national security. That somehow, border agents should have more power to violate the constitution. Sounds fucking shady to me, but that’s government for you.
Finally we get to counsel Felicia H. Ellsworth, representing Inn owner and chief Karening officer, Mr. Boule. She opened with this.
Mr. Chief Justice, and may it please the Court: Mr. Boule’s Fourth Amendment claim is materially indistinguishable from Bivens itself. A federal law enforcement agent entered private property without a warrant and used excessive force, just like the federal agents in Bivens, as the Court’s questions have indicated. The fact that the federal agent inquired about the visa status of Mr. Boule’s guest in the process does not make this case any different from the other instances of law enforcement overreach in the search-and-seizure context in which this Court has long recognized that a Bivens remedy lies. And this case has none of the foreign policy or extraterritoriality concerns that animated the Court’s decision in Hernandez.
Felicia H. Ellsworth
For the record, Hernandez was a case where agents shot across the Mexican border and killed a 15 year old Mexican, and so it was a little concerning that Mexico might not appreciate American bullets flying into its country.
Instead, this is a case like the Court observed in Abbasi, where Bivens has continuing force and even necessity. Mr. Boule’s First Amendment claim addresses conduct that is similar to the conduct that this Court assumed in Hartman versus Moore could be remedied via Bivens, but even if it is a new context, there is no reason to withhold the remedy here. There’s no national security considerations, no conceivable national security considerations with regard to the First Amendment claim, and no alternative administrative remedial scheme that exists. Awarding individual damages for federal officer misconduct has long-standing roots dating back to the founding and remains appropriate, albeit more limited, today. And as the Court has observed on several occasions, Congress in the Westfall Act preserved the availability of individual damages for constitutional violations.
Although the reach of Bivens may be narrow, the need for the remedy persists, and the argument that the Court should not recognize a Bivens remedy in any new case flies in the face of this Court’s decision just five terms ago in Abbasi and also would contravene the historical foundations allowing individual damages to right a federal officer’s constitutional wrong. Mr. Boule’s case claims satisfy the framework set forth in Abbasi and should be allowed to proceed. I’d welcome the Court’s questions.
Justice Barrett, trying to figure out what needs to happen near the border like this, that wouldn’t be a Biven’s claim in her eyes, asked this:
So what would he have to do for Bivens not to apply? I mean, the—you know, Boule has been involved in smuggling activity in the past. His B&B is called Smuggler’s Inn.
Associate Justice Amy Coney Barrett
His license plate says “SMUGLER.” You know, there’s this Turkish national who’s staying and there’s suspicion that he’s going to, which, in fact, he did, cross the border into Canada illegally, and this is what Agent Egbert is following up on. What would have to be present? Can you give me a set of facts in which Bivens then would not apply?
Counsel Ellsworth was like, “Well, if he was a border agent enforcing someone coming across the fucking border, that’d do it.
A couple justices were curious as to why Boule told Egbert about the Turkish dude earlier. Counsel did not have an answer to this, but it was known at the time of the hearing that Boule was an informant for the border patrol.
Robert Boule at the Smuggler’s Inn
In a unanimous decision in part, and a split decision in another part, SCOTUS decided with Egbert. They were unanimous on the first amendment claim. Just because Egbert called the IRS on Boule after Boule complained about him, isn’t cause for Boule to sue him. Otherwise, everyone will sue if they say something cross to a fed, and that fed then does something else to prosecute them.
Where they disagreed was on the fourth amendment claim. The Republican appointees made up the majority, agreeing that national security concerns at the border, for border agents, protect these officers more, compared to other federal agencies, from Bivens suits.
The Democrat appointees are like, “Rights are fucking rights, you assholes. Just because they’re at the border doesn’t mean they get to wiper their ass with the constitution. This is bullshit!”
Hear oral arguments here at Oyez or read about the case here at SCOTUSBlog.
Marietta Memorial Hospital Employee Health Benefit Plan (MMHEHBP…this acronym sucks balls), is a health insurance company for employees of the Marietta Memorial Hospital in Ohio. It’s governed by the Employee Retirement Income Security Act (ERISA).
Marietta Memorial Hospital
Their opponents in this legal battle are DaVita Inc., which are a company specializing in dialysis.
The basic concept of the law around this shit, is that the Medicare Secondary Payer Act prohibits care plans from discriminating against people with ESRF. But the cheap-asses at MMHEHBP are like, “Woah, dude. These people with ESRF are milking us dry with their never-ending need for dialysis, and they’re gonna die anyway, so…”
As such, they launched an evil plan. They have a tiered system where tier 1 pays the highest percentage of total costs, at a rate that is industry normal. But that only occurs if the employee of the hospital seeks care within the hospital. Makes sense, as they can control their costs that way.
Then there’s tier 2, which is anyone out of their network. This is where DaVita comes in. People who go to places like DaVita get a lower reimbursement than those who get dialysis at the hospital or an in-network provider. Plus, for outpatient dialysis, they don’t pay the going rate, they pay the rate Medicare pays, which is significantly less, but Medicare gets away with it, because they buy in bulk, I guess.
It appears their hope was to push these people to pay so much for this shit, that they’d cancel their private insurance, and go straight to the swaddling arms of Medicare.
But Congress, trying to control costs of their own, made law to prevent insurers from pushing people off their private plans with shitty reimbursements, onto Medicare, with it’s limitless supply of money congress thinks it has.
So by law, for the first 30 months, the private plans are on the hook, and only after then, does Medicare kick in. Even if the patients are eligible for Medicare before the 30 months end, the private companies still pay for that first 30 month’s.
Just so we understand, insurance is like gambling. Insurance companies have a shit ton of statistics on how many people get what disease, and how much on average that costs. People called actuaries jerk off over crunching numbers like this, then come up with what they think the insurance companies should charge for premiums.
If the average medical expenses a person might incur is $1,000 a year, then they might charge $1,200. The $200 difference, if these actuary nerds did their math right, is the insurance company’s profit.
The government argues this is the risk the insurance companies took when agreeing to insure this person, so they’re on the fucking hook, even if it does break the bank.
But the insurance companies, trying to avoid going bankrupt because their actuaries screwed the pooch, are hoping to dump that shit on Medicare wherever they can.
MMHEHBP basically argue that under their plan, this company is a specialist of sorts which the client has opted to go see, and as such, are “out of plan” and get less reimbursement. As if somehow, they didn’t need this, or some shit.
But DaVita is like, “You’re specifically giving us a shitty reimbursement because we’re the fucking people helping ESRF patients. It’s expensive AF to do this shit, and you’re using this tier 2 bullshit to get out of covering the treatment they need. We’re not some overpriced specialists doling out rainbows and popsicles, we’re just the ones who provide the service these people fucking need. Now stop being cheap assholes.”
Because the law prevents discrimination against people with ESRF, this system by MMHEHBP appears to be a creative way to discriminate against them, without specifically discriminating against them.
Imagine legislators wanted to prohibit you from using your food stamps at McDonalds, but since they can’t just single out McDonalds, they prevent you from using it on any food that starts with the letters “Mc.” That’s basically what’s happening here.
MMHEHBP however says, “Listen, assholes. We cover dialysis at the same rate for everyone, whether they have end-stage renal failure or not, doesn’t change a thing for us. It’s not our fault it just happens to be our totally non-biased and creative rules only discriminate people with ESRF. You don’t see any mention of ESRF in our rules, do you? So obviously, we’re not discriminating, it’s just bad luck or something for these people.”
Patient receiving dialysis
While that may be true, let’s be clear, what they cover is pretty low. People without ESRF need minimal dialysis—few visits—done. They are going to just pay their “out of pocket” expenses and move on.
But people who have ESRF need significantly more dialysis—they need it for the rest of their life! Their kidneys don’t fucking work anymore. So either they get dialysis forever, get a transplant, or they die. It’s literally that fucking simple. So unless their last name is Musk, they probably can’t afford this shit, even with the insurance picking up a portion of the tab.
So DaVita makes a pretty strong case that MMHEHBP are effectively discriminating against people with ESRF, because it’s the only way in their mind, to keep their premiums at an acceptable level while still being profitable. No doubt that dialysis on the reg, is expensive AF. It’s not like you can just strap an oil filter to someone’s ass and send them on their way.
DaVita points out that Marietta typically pays at the “going rate” for most services, for outpatient dialysis, it somehow only pays 87.5% of what Medicare pays, which is already lower than normal. Since DaVita is king in this industry, their rate is assuredly going to be the average “going rate” for dialysis. So again, MMHEHBP seems to be singling out DaVita and people with ESRF.
Counsel John J. Kulewicz for the insurance company, opened with this.
Mr. Chief Justice, and may it please the Court: For four decades, the Medicare Secondary Payer Act has been a coordination of benefits statute.
John J. Kulewicz
It establishes that a group health plan must pay its benefits first during a 30-month coordination period when the plan and Medicare both cover an individual who must contend with end-stage renal disease. The plan must not take into account the Medicare entitlement or eligibility of an individual during that time or differentiate in the benefits that it provides between individuals with end-stage renal disease and other individuals covered by the plan on a basis that relates to that diagnosis. The Sixth Circuit has determined that there also is an implied mandate that dialysis providers occupy a specific position to be determined relative to providers who serve other vital healthcare needs of the 157 million American people who depend upon group health plans to defray the costs of their healthcare. When Congress requires a specific benefit or parity between benefits, it does so directly.
It did not do that here.
The Medicare Secondary Payer Act coordinates benefits.
It does not prescribe them.
The plan at issue in this case provides the same benefits uniformly to all participants and as primary payer during the 30-month coordination period. Respondents fail to state a claim under the Medicare Secondary Payer Act.
Because the alleged violations of the Medicare Secondary Payer Act are the express and only basis of their ERISA claims, Respondents also fail to state a claim under ERISA. The Court should reverse the Sixth Circuit and enter final judgment in favor of Petitioners on all remaining claims. I welcome the questions of the Court.
You’ll see mention of “Failure to state a claim.” This basically means, that even if everything the respondents say are accurate, it’s not cause for a judgement on their behalf. It’s like, imagine as a kid, you wanted part of your brother’s steak. Your mom asked why, and you argue it’s because he’s a poopyhead. Assuming your brother is a poopyhead, that still doesn’t justify that you should get some of his steak. Got it?
Justice Thomas started the questioning by insinuating their plan seems to target people who are poor, with ESRF, putting them in a position where they couldn’t possibly pay their portion.
Associate Justice Clarence Thomas
But counsel for MMHEHBP was like, “No way man. Under our plan, they’d pay way less. Like they’d pay $1800 per treatment under their bullshit, but they only pay $96 under our plan. So, are we done here? Everybody happy? Good, good.”
However, Justice Breyer was like, “Slow down, Spanky! Let me ask you this. Is your hospital one big building?”
Counsel confirmed it was.
So the Breyer asked, “Anyone going to your hospital under your plan, gets the tier 1 reimbursement, yo?”
Counsel confirmed again
Breyer then asked, “Do you offer this outpatient dialysis, bro?”
Counsel was like, “Woah, what’s with all the questions, man? Geez Louise! Who gives a fuck if we don’t offer it? I mean, we don’t. But in the immortal words of Hillary Clinton, what difference does it make?”
Justice Breyer’s point being, that while they act like this patient makes the choice to go to DaVita over their hospital, their hospital doesn’t fucking offer the service. As such, there’s no fucking way for them to get the tier 1 rate.
Associate Justice Stephen Breyer
Justice Sotomayor, smelling a rat, really pushed him on this idea that their tiered system for dialysis really does bias against people needing outpatient dialysis, when only people with ESRF need outpatient dialysis, effectively making it a bias against people with ESRF.
Justice Kagan jumped on counsel with Justice Sotomayor, and went on to ask, “According to the fucking numbers, 99.5% of people who have ESRF need outpatient dialysis, and 97% of people needing outpatient dialysis have ESRF. If those numbers were 100% each, then clearly, one is an analog for the other, because they’d be mutually inclusive, yeah? So is this pathetic little .5% and 3% really enough to say you’re not discriminating against ESRFs, asshole? Give me a fucking break with this noise.”
She later quite angrily chimed in with this:
You also can’t distinguish on the basis of the need for renal dialysis.
All right.
Now what does Congress mean when it says that? And it’s not particularly precise and it’s not particularly grammatical, but why is that there? It’s there because they know you’re going to do exactly what you’re doing.
It’s there because they’re saying don’t try to distinguish between those with end-stage renal disease and those without end-stage renal disease by finding the perfect proxy, which is the therapy rather than the condition.
Associate Justice Elena Kagan
So that’s why that’s there. And then the “in any other manner,” in case there’s a proxy that we haven’t thought of, don’t try that one either.
So all together this is basically saying you can’t distinguish between people with end-stage renal disease and those without.
You can’t do it directly.
You can’t do it by means of the fact that this group needs dialysis and this group doesn’t.
And you can’t do it by finding any other proxy that perfectly separates these two groups.
To say she was overly annoyed with counsel Kulewicz, would be a massive understatement.
Next up, counsel Matthew Guarnieri, representing the government as an amici, weirdly supporting MMHEHBP. This seems odd, as the government will end up paying more, if they side with him. But apparently, counsel Guarnieri is arguing on principle. He once worked with Justice Kagan, and she, despite thinking his side of the argument is whack, compliments him on adhering to principle, even when it cuts against the government he represents.
He opened by basically arguing what MMHEHBP did. They didn’t single out ESRF people, so they’re not discriminating against them, as the law is written. He even goes on to say that the proxy argument Kagan put forth is “irrelevant.” Going to assume that stung her a little, since they’re former coworkers, and he basically called her a moron.
Justice Alito was concerned about the financial harm that might be incurred by the patient. If MMHEHBP agreed to pay the going rate, which is what DaVita charges, and is well above what Medicare allows, that means their 30% deductible will be 30% of the higher number, costing the patient more, even if it helps DaVita.
Counsel Seth P. Waxman, up next for DaVita, opened with this.
Mr. Chief Justice, and may it please the Court: Differential treatment of outpatient renal dialysis is most certainly differential treatment of individuals with ESRD.
Congress determined that, and it determined it because Congress understood in 1972 and in 1981 and thereafter that ESRD patients uniquely and utterly need outpatient dialysis for the rest of their lives. And a plan whose purpose as alleged here and effect is to move primary coverage of ESRD patients to Medicare is one that most certainly “takes into effect those patients’ eligibility for Medicare.” The reading urged by the Petitioners and the solicitor general by which the anti-discrimination provision bars only plans that single out ESRD patients by name and the take-into-account provision only applies to plans that reference Medicare eligibility expressly, renders both of these statutory protections utterly toothless. And in each respect, their reading violates the text of the statute.
Seth P. Waxmen
Take the anti-differentiation provision, which has occupied, I think, virtually all of the argument so far. That provision protects ESRD patients by prohibiting differential treatment either by express reference to ESRD patients or by proxy. The particular proxy codified in the statute and the one that is relevant here expressly prohibits differential treatment “on the basis of the need for renal diagnosis,” a treatment that Congress has long understood to be completely inseparable from ESRD itself. Ninety-nine and a half percent of all of DaVita’s outpatient patients, outpatient dialysis patients, have ESRD.
There is simply no reasonable argument for singling out outpatient dialysis as anything but differential treatment of individuals with ESRD. And as was noted, I think by Justice Sotomayor, even the Ninth Circuit in Amy’s Kitchen agreed, and I’m quoting from the opinion, “a plan would violate the MSP if it provided differential coverage for routine maintenance dialysis,” that is, dialysis received only by persons with ESRD, than for all other dialysis.
That is exactly what this plan does. Now, I know that I’m trenching on my two minutes, but I just wanted to reference the fact that as has been mentioned by several members of the Court, there is another provision that is on the basis of either ESRD, calling it out by name, or the need for renal dialysis or any other manner. And that’s because, as I think Justice Kagan’s question suggested, Congress understood at the time that other proxies for ESRD might exist or more likely might come to exist with medical advances. And so the statute also prohibits differentiation on any other manner, which, in context, should be understood to mean in any other manner that in effect singles out a treatment for ESRD. I want to clarify just a couple of, I think, errors that my friend on the other side made.
The notion that they are actually helping beneficiaries because they are limiting the amount of balance billing available is utterly wrong. One of the main reasons that renal dialysis is disadvantaged here is that the plan says unilaterally there is no in-network service for this.
If there were in-network service, as there is for virtually all employment group plans in the United States—this is an extreme outlier.
There’s no balance billing at all. If there was an in-network option — and this goes to, I think, Justice Alito’s questions about who’s harmed.
If there was an in-network option, there would be no balance billing and patients would have a right to treatment.
They would have a right to treatment by somebody who was in network.
Right now, they don’t. And as there are some really terrific and very knowledgeable amicus briefs filed in this case.
It is completely clear and Congress has understood that if this Court accepts the other side’s ruling, there is no reason on God’s green earth that UnitedHealth and AEtna and all the big health plans and big, big employer health plans, all of whom do not differentiate in any basis on the need for renal dialysis.
Justice Gorsuch, who up to now had been rather quiet, jumped in with a rather long exchange between himself and counsel Waxmen.
Associate Justice Neil Gorsuch
The plan only has this lower reimbursement amount for this out-of network dialysis. So justice Gorsuch was like, “If the plan also put people with congestive heart failure on this lower paying plan, would you lose your case?”
Counsel Waxmen agreed they would, because now it’s not singling out ESRF.
After this, Justice Gorsuch was trying to get in his question, when counsel Waxmen kept interrupting to make his point. After a few moments of this, counsel was reminded by Gorsuch who’s in whose courtroom. He sternly asked him to stop.
He finally got to answer this line of questioning with what was almost another opening argument:
Well, I think Mr. Guarnieri has told you in his argument that the government is on the other side because it feels some duty to defend one particular sub-provision of its regulations which, as our briefs explain, is inconsistent with both the statute and the provision that immediately precedes it. He has said in his brief and today here that the government is quite troubled by what this plan is trying to do and it acknowledges that there very likely will be an adverse financial effect on the Medicare fisc if the Court reverses and adopts the reading of the statute that Judge Murphy provided in dissent below. But here is—and I apologize if I was wrangling with you, but I was objecting to your suggestion, which I know you don’t mean, but I had heard it mistakenly, that the only people who are harmed here are possibly the Medicare fisc and my company or the companies. The harm here—and this is probably laid out as well as anywhere by the amicus brief of the dialysis patients coalition, which is 30,000 dialysis ESRD sufferers, who explain all the ways in which the provisions of this plan harm people. Now you can say that, you know, this is just a payment dispute, but it’s not. The core benefit that these plans provide is payment for medical services. And there’s real harm, number one, that uniquely, for this service, there is no in-network available.
So there is no provider who has agreed not to balance bill and who has guaranteed that you can get treatment. It requires higher co-pays and deductibles, up to $7,000 a year.
It doesn’t provide any relief whatsoever for the first three months in which there is no Medicare backstop. And you can say: Oh, well, this is the Medicare Secondary Payer Act, you can always enroll in Medicare secondary.
The government says that’s an extra $170 a month, which is, by the way, the minimum.
It is certainly not applicable to everybody. You pay Medicare $170 a month or $250 a month if you can get the secondary coverage. This is in addition to what these people of limited means and who are facing end-of-life worries are already paying to the group health plan.
And if they can’t reasonably afford to pay two sets of benefits, they do what Patient A did in this case
Justice Alito, chimed in with a completely different approach, where he seemingly argued DaVita has a monopoly, and as such, their rates probably aren’t fair market value—they’re inflated because they’re the only game in town.
Associate Justice Samuel Alito
He pointed out that the average cost for the service is around $270, but they charge over $1,000. Seems like one helluva markup.
In a 7:2 decision, SCOTUS sided with MMHEHBP. The way the law is written, MMHEHBP is not in violation of it. They seemed to agree it violates the spirit of the law, but they don’t rule on spirits, they rule on verbiage. MMHEHBP treat every person who needs dialysis the same, whether they have ESRF or not, and that’s enough to be compliant, even if their plan is clearly far less helpful for people with ESRF.
Justice Sotomayor and Kagan are like, “Are you fucking joking?” See my McDonald’s analogy above. They’re basically saying the same thing. In their view, MMHEHBP simply crafted rules to discriminate against people with ESRF, by lowballing dialysis as a whole, knowing for people without ESRF, it wouldn’t be a huge burden, but people with it, would be devastated financially.
But in the majority’s eyes, if they don’t like it, congress should have written the fucking law better. It’s not SCOTUS’ job to rewrite laws in a more intelligent way.
This is an important thing to consider when hearing a SCOTUS decision. I’m sure that if they were to be asked if they felt MMHEHBP was discriminating against people with ESRF, it would have been a 9:0 agreement that they were. But the Republican appointees tend to be textualists. They think it’s their job to interpret the law or the constitution as written, not to rewrite it as they see fit.
So I’m not joking when I say they may think that MMHEHBP are being pricks, but they’re not condoning that. This decision is more of an admonishing of congress for poor wording of the law they wrote. If they don’t like it, it’s their job to fix it.
Hear oral arguments and read about there case here at Oyez, or at SCOTUSBlog.
Y’all know everyone keeps talking about us being in an opioid epidemic, right? While I personally think some of this is unfair, true stories of bad actors, such as the Sackler family, who own and operate Purdue Pharma, the makers of Oxycontin, don’t exactly paint a wonderful picture of opioids. Their willful dishonesty and disregard for the lives of their customers, led to many addictions and overdoses.
The Hulu docuseries Dopesick is quite interesting, depicts their actions pretty well, and is definitely worth a watch if you’re unfamiliar.
I think the opposite side of this coin, is that many patients, know the dangers of opioids, but will doctor shop, getting multiple prescriptions, so that they can overdose themselves, or worse, turn to black market opioids like heroin.
People who argue as if it’s basically always the fault of doctors and pharmaceutical companies is the work of grade A assholes…and probably socialist anti-capitalism pricks, too.
While some SCOTUS decisions are legal nerdiness which will likely have little effect on most of us, this one, in the words of that great philosopher Biden, is a big fucking deal.
So this case revolves around Alabama pain management physician Dr. Xiulu Ruan, who is potentially just a piece of shit selling prescriptions for money. His job is to mitigate pain, and opioids are fucking GREAT at that. But it is fair to argue that he would at least prescribe more opioids than the average lab coat.
Full disclosure, for over two decades, I’ve used the opioid hydrocodone myself once or twice a month, to deal with neck issues that often trigger unbearable headaches. But because my pain is not chronic, and I rarely have to take them, mine tend to expire before I even use them all.
But Dr. Ruan likely has patients who do have chronic pain that just won’t fucking go away. Lower back pain, and other genetic conditions of that nature, are often well-managed by opioids. And if Dr. Ruan refuses to prescribe an opioid for them, they’ll likely take their business elsewhere and find a doc who will.
Dr. Xiulu Ruan
The aforementioned Sackler cunts poisoned opioids good name, by lying to physicians and their consumers, and saying their version, Oxycontin, was non addictive.
It was a big fucking lie. Not a mistake, a lie. The evidence presented in court showed they knew it was untrue, but simply wanted to sell more of that shit, so they lied.
Anyway, back to Dr. Ruan. The basic gist of this case, is that a federal jury convicted Dr. Ruan of racketeering and other related crimes, as they argued he was basically a “pill mill.” A euphemism for a doctor who just hands out opioid prescriptions for money.
You know, like some dude walks into his office, says his asshole hurts or his dick is broken, then winks and nods, pays the copay, and gets a prescription, while Dr. Ruan picks up a few hundred bucks for basically signing an autograph.
The jury agreed with the prosecution that the amount of opioids and other addictive pain meds he was prescribing, were outside of the norm for a doctor like him.
Dr. Ruan will of course argue, that he prescribed these medicines in good faith, and that he believed the drugs he prescribed were appropriate for the patients he had.
The Controlled Substances Act of 1970 (CSA) basically says it’s illegal to manufacture, distribute, or dispense a controlled substance, such as an opioid. One exception is for doctors, under rules put forth by the attorney general. Rule 21 C.F.R. § 1306.04, which gives doctors license to prescribe drugs like opioids if they are:
Issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.
I’ll look over the sexist verbiage that assumes the doctor must be a “he.” It was 1970 after all.
Former President Nixon and two other idiots signing the CSA.
The issue SCOTUS is trying to decide, is basically this. Does a doctor who believes an opioid is the best treatment for their patient, have carte blanche authority to prescribe it? The petitioners call this the “good faith” argument.
It basically means, as long as there’s evidence the doc thought what they were doing was right, it doesn’t matter if they’re prescribing way more opioids than the other doctors in their field. Maybe the other doctors are just biased against opioids, or aren’t prescribing them properly? Or maybe he or she is just a shit doctor. But, being a shit doctor isn’t a crime.
It’s essentially a mens rea argument. I think we’ve discussed mens rea before, but it loosely translates to “guilty mind.” A prime example would be Hillary Clinton’s email bullshit. FBI director James Comey said she definitely committed a potentially criminal act. But there was no evidence they had indicating she knew it was criminal. So without that mens rea, they declined to prosecute. Got it?
Former FBI Director James Comey
On the other side of this, the principle Dr. Ruan was found guilty under in lower courts, was that the amount of opioids he was prescribing were through the fucking roof compared to other doctors like him. As such, the jury believed he was doing it because he wanted a new Ferrari and some top shelf hookers. Not because he thought it was good for his patients.
They feel that in general, if a doctor is doing something rather different from the norm, it’s indicative of malpractice, or some motive other than helping their fucking patients.
The other doctor who’s joined with Dr. Rual, even traded guns and shit, for his “medical services,” aka prescribing pills. So they kinda have a fucking point on these two assholes.
It’s also mentioned that both of them apparently had stock in the pharmaceutical companies that made the drugs they were prescribing. But even the stupidest doctor would know that their prescription pad alone isn’t going to move the needle all that much on the stock price. It’s just as likely they bought stock because they believe in the drug. This is what we call “shit evidence.”
I know I’m being potentially too polite to these doctors, because I believe in the principle they’re fighting. But it’s almost assuredly true that both of these fuckheads have broke bad, and are just doing this shit for the money, with little concern for their patients. They were convicted beyond a reasonable doubt of other related charges that aren’t at issue here. This is them just trying to reduce their sentence.
My bias is probably because the fight against opioids, and the laws that are passed that make it harder to attain them, harms people like me, who use them as directed. Because my usage is so sporadic, I’ll likely never face any addiction issues.
The doctors did agree, that they could have been more thorough in their prescription methodology, but they argue that even if what they did was malpractice, that’s a whole different realm than the criminal intent to distribute that they’re charged with.
The government however, thinks as the government always thinks, that it knows best. They believe they can come up with some sort of standard level of opioid prescriptions, and doctors who deviate from this, must be considered criminals.
But the doctors are like, “If you listen to these cunts, doctors will not prescribe things their patients actually need, just because they’ll be afraid of going to jail. They’ll be in constant fear of some dumb-fuck bureaucrat who decides they know more about medicine than we do. So next time you ask your doc for a med you need, but there’s concerns from congress about that drug, well fuck you. You ain’t gettin’ shit from us.”
They also contend that this could significantly thwart things like “off label” prescriptions. I’ll explain this shit, because it’s kinda interesting.
This is where a drug is FDA approved for one thing, but it’s prescribed to help with something else it’s not approved for.
This “off label” jazz is also somewhat of a big deal, but not always understood.
Remember during COVID when Trump and others were all gung ho about hydroxychloroquine for treating COVID? It all started because observational data suggested it might be effective, but then it was found ineffective under controlled clinical trials, and so most doctors stopped using it.
The reason they were on this path was because doctors, operating in good faith, had reason to believe, from those observational studies, it might work for COVID, even though it’s only FDA approved as treatment for malaria, lupus, and other shit. Thus, prescribing it is “off label.” Meaning, philosophically speaking, the label says it isn’t for COVID, its for that other shit. Make sense?
“Off label” may seem like a fucked up thing for docs to do, but it’s actually based on data. They are generally the product of observed side effects. I’ll give an example. Because not only do I use an opioid, I also have another drug I use off label. This whole case is up my alley!
The drug I use off label is colestipol. It’s meant for people with cholesterol issues, which is what it’s FDA approved for. But during clinical trials for its efficacy in treating people with cholesterol problems, it was noted that for people who routinely get the Hershey squirts, it seemed to make them more “regular.”
Do I really need to caption this?
So the makers of colestipol never bothered to do clinical trials to test it’s efficacy for people with an internal chocolate syrup fountain, but doctors can prescribe it for that condition, because they have data to suggest it might help. The reason drug makers might not seek FDA approval, are likely to do with the cost of doing separate clinical trials for the drug, not because they think it’s not good for that condition. Not to mention, doctors are allowed to prescribe off label, so the FDA approval, is really more about being able to make a fucking commercial for that shit.
Sorry, I keep getting diverted with my nerdiness. Back to the case!
One of the key phrases in the CSA that they argue over, is the phrase “knowingly and intentionally.” The doctors argue that there’s no fucking way on god’s green earth, that they knew beyond a reasonable doubt they’d harm their patients, or that they intended to.
But the government argues that the CSA uses that verbiage well after the part about exceptions for doctors prescribing such drugs, and therefore doesn’t apply to it.
Amici (other third parties) have also pointed out that when something is all over the news, we are some over-reacting mother fuckers. We turn it into a crisis, even if it’s not. Then we pass over-restrictive laws or regulations that we then have to walk back, once we realize we went too fucking far. The makers of South Park have made a living off this premise. The CDC has walked back some of their restrictive opioid rules as a result.
They also argue for people like me. That this could make it harder for us to attain medication that is helpful to us, and isn’t doing us harm, to attain the medicine we need.
Opinion: While my case is pretty mild, some people suffer a LOT, and opioids are a godsend to them. Government has no business making it hard for them to get what they need.
They also argued that when faced with an unusual case, doctors often have to try novel therapies, because the normal shit just won’t work. But if they’re afraid they’ll go to jail, for trying something out of the norm in good faith, they’ll be put in a fucked up position.
As I lay all this out, I think you can understand why, even if these particular docs were pill mills, the principles they argue for are pretty important. If they were just doing it for the money, may they both choke on a bag of dicks. That’s not OK.
As arguments began, counsel Lawrence S. Robbins for Dr. Ruan opened with this.
Thank you, Mr. Chief Justice, and may it please the Court: Dr. Xiulu Ruan’s jury was instructed that it could convict him of federal narcotics offenses if he prescribed “outside the usual course of professional medical practice.” The Eleventh Circuit sustained that instruction precisely because it “told the jury that good faith was a defense” as long as the appellant’s conduct also was in accordance with the standards of medical practice.
Counsel Lawrence S. Robbins
In other words, good faith is a defense in the Eleventh Circuit only for doctors whose prescriptions are already lawful. No lawyer will stand up before the Court this morning and defend either that instruction or the court of appeals’s rationale. And small wonder.
Dr. Ruan received little more than the instruction he would have gotten had this been a civil malpractice action in Alabama. So, in our view, Dr. Ruan’s case must be remanded, and on remand, the Eleventh Circuit should either dismiss this prosecution outright for want of sufficient proof of Alabama substantive standards or, at a minimum, order a new trial on all counts, this time governed by the correct scienter rule.
And that rule, we submit, which largely tracks the law in the First, Seventh, and Ninth Circuits, is that a doctor may not be convicted under Section 841(a)(1) unless the government proves that her prescriptions were made without a good-faith medical purpose. The good-faith medical purpose test makes the best sense of the statutory text, this Court’s case law.
It also accords with principles of federalism that are embedded in the statute itself, enables the jury to focus on the question of intent, as it always does in criminal cases, and affords an appropriate berth for doctors and patients to make the best choices for the individual care of what is often invisible and yet real and intractable pain. I’d be pleased to hear the Court’s questions at this time.
His opening point being that how the fuck can he claim “good faith” as they said he could, if that only applies to usages that are within the bounds of normal usage? None of those cases would ever go to court, and thus good faith is moot in that scenario. So basically, the other side are fucking idiots or assholes…maybe both. They do work for the government, after all.
Justice Roberts chimed in with a hypothetical where he asked, what if I know the speed limit is 55mph, but I’m in fucking Montana, and the roads are long, flat, and boring as fuck. So I decide it makes sense to do 70mph here. We all know your dumb ass gets the ticket. So what’s different here?
Chief Justice John Roberts
But counsel Robbins was ready for his hypo. He was like, “Dude, this isn’t some ‘line drawn in the sand’ drug law that’s like a speed limit. The are arguing the whole ‘good faith’ argument, which is about the doctor’s state of mind.” Not to mention, there is no “Opioid Limit.”
As Justice Sotomayor chimed in, attempting to understand the line he’s drawing, he clarified that his position is that the government must prove he did not act in good faith. We’re talking about some criminal shit here. So it’s not up to the doctor to prove he’s fucking innocent. This is America!
He went on to argue to Justice Sotomayor:
Oh, no, no, I’m sorry, Your Honor.
Nobody is going to tell you this morning that that burden somehow belongs to the defense.
Everybody will concede—if you ask my friend, Mr. Feigin, he will tell you that once the issue is put in play under 885, it then falls to the government to prove beyond a reasonable doubt, the absence of good faith. But I’d like to go back to where Your Honor began her question because you said the words “knowingly and intentionally must prescribe outside the bounds of medicine and without a medical purpose.” It is important for me to be clear that my client didn’t get that instruction.
His jury was told, if he was outside the bounds of medicine, you may convict him, full stop.
No good faith.
No knowingly or intentionally. None of that. So I want to be clear that the premise of Your Honor’s question is a premise under which our conviction should be reversed.
He makes a valid point, we can quibble about the law, but these fuckers were convicted when the jury was not advised properly about the law.
Justice Alito, apparently saddened that he studied law instead of English wanted to discuss the proper use of adverbs. Here’s the passage from the CSA they’re discussing:
§841. Prohibited acts A
(a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
Justice Alito’s argument was this:
We’re interpreting a statute, so we should start by looking at what the statute says, and it says, “except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally to” do a variety of things. As a matter of language, do the adverbs “knowingly” or “intentionally” modify the introductory clause “except as authorized by this subchapter”?
I think my old English teacher would say no, you’ve gotten that answer wrong.
Associate Justice Samuel Alito
There’s no way they can modify “except as authorized by this subchapter.” They modify what comes later.
But explain to me why they modify it as a matter of language, not as a matter of constitutional avoidance or something like that.
After they debated linguistics for what seemed to be 47 years, coming to no real conclusion, they moved on to Alito’s other question about section 885, which reads:
§885. Burden of proof; liabilities
(a) Exemptions and exceptions; presumption in simple possession offenses
(1) It shall not be necessary for the United States to negative any exemption or exception set forth in this subchapter in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this subchapter, and the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.
Alito’s argument was that this provision potentially reads that the government does not have to prove the doctor acted maliciously. That if the doctor wants to claim they didn’t, the burden is on the doctor.
So counsel’s beef that the jury in their trial was not instructed about the good faith exception, they were basically just told, if the doc is outside the norm, you’ve gotta convict, which is bullshit, in his legal opinion.
In an odd sort of exchange, Justice Gorsuch basically walked through Robbin’s argument, to make sure he understood it. In doing so, he basically made a more eloquent and simple version of counsel’s argument. Because “good faith” doesn’t appear in the statute, it’s basically their shorthand for the opposite of “knowingly and willfully” that is in the statute, and is just a general legal principle for shit like that.
In a moment of levity, when counsel went to add on to Justice Gorsuch’s explanation, Justice Gorsuch responded, “Be careful.”
Associate Justice Neil Gorsuch
The point was that, if he agreed Gorsuch made the proper argument, he shouldn’t elaborate for fear of changing everyone’s mind, after they already agreed with him. But all he added was that, because of the shitty jury instructions, he believes his clients deserve a new trial.
Next up, amici for the petitioners, Beau B. Brindley.
His argument was that, so long as the doctor believed they were helping their patient, then they were not trafficking drugs. It doesn’t matter if 100 other doctors think this doctor is an idiot. What matters again, is mens rea. Did they know it was wrong and do it anyway. The law is clearly meant to go after people trying to make a living off of peddling drugs, not people trying to help their patients in potentially unconventional ways.
He went on to argue, that if they were to adopt the government’s position, the DEA would become the new US medical board, deciding what is good and bad practice, as opposed to the AMA I’m guessing, which is a private entity.
Congress certainly never authorized the DEA to become Team America Hospital Police.
He argued that there may be extreme examples where no reasonable doctor thinks this is OK, and that’s different. But if it’s plausible this was medically valid, and the evidence suggests the doctor intended to help their patient, then they’re not trafficking drugs.
Justice Kavanaugh, concerned about this “extreme example” theory, jumped on Justice Roberts’ hypothetical with this:
On the hypotheticals, to pick up on the Chief Justice’s hypotheticals, the speeding example, suppose there were a statute that regulated speeding that, like this statute, folded the legal requirements into the offense, okay? If you come in and you—you’re going 35 in a 25 zone, and you say, oh, I thought it was 35 here, maybe a jury will believe that you really did think it was 35, not 25. But, if you’re driving, you know, a hundred in a 25 zone and you come in, oh, I thought it was actually a hundred, was the speed limit, no one’s going to believe that.
Associate Justice Brett Kavanaugh
Isn’t that the way to separate out the outlandish example?
Counsel effectively agreed with Justice Kavanaugh, but then Justice Roberts jumped back in and was like, “Even if a fucking jury totally believed you were thinking it was OK to drive 100 mph, you still get the fucking ticket. What the fuck are we even talking about here?
But as usual, Justice Roberts is like super nice, and said this with a smile…and maybe some softer language.
Justice Coney-Barrett, feeling left out from the party of hypotheticals, chimed in with this elaboration on Justice Roberts’ hypo.
Would this be a closer analogue to your example, to pick up on the Chief Justice’s hypothetical? Except as authorized by law, you must drive under 55 miles per hour.
And you say, well, I thought I was driving in a way that was authorized by law at a hundred miles an hour because I was trying to get my child to the emergency room.
And it turns out that you’re wrong, that that’s not an authorized, you know, exceeding of the speed limit. Is that what you’re trying to get at? That presence of the “except as authorized by law” is what distinguishes the Chief Justice’s hypotheticals from your position?
Counsel Brindley responded:
I think somewhat that’s true to some extent.
Counsel Beau Brindley
What I would say is that the thing that differentiates the — the Chief Justice’s hypothetical from our position is, in this situation, we have a — a situation where the very thing that makes the doctor’s — the only thing that makes the doctor’s writing the prescription improper or criminal is if he writes it with no legitimate purpose, not believing he’s curing a malady of any kind. And so, with respect to that, if he’s sincerely wrong about that, he lacks a culpable state of mind and he should not be convicted.
Next up for the government, we have Eric J. Feigin. He opened up with this diatribe:
Thank you, Mr. Chief Justice, and may it please the Court: Although Petitioners are trying to disclaim it as much as they can, they really are asking this Court to transform their DEA registrations, which are premised on the idea that they’re actually practicing medicine, into licenses to, at their own subjective views, violate the general rule that drug pushing is illegal. They want to be free of any obligation even to undertake any minimal effort to act like doctors when they prescribe dangerous, highly addictive, and, in one case, lethal dosages of drugs to trusting and vulnerable patients. That’s not what this Court said in Moore, where I think everyone agrees the Court implicitly adopted the jury instructions in that case, which distilled the statutory and regulatory requirements here to come up with an honest effort standard. If a doctor is trying, in Moore’s words, “to act as a physician,” he can’t be convicted under Section 841.
But a doctor can’t choose to be the kind of doctor who seeks a DEA registration because he wants to deal with the most dangerous drugs that we have with a recognized medical use and then decide that, notwithstanding the boundaries of that license, he can invoke it to shield all drug dealing that he’s running in the guise of a doctor’s office. There’s been some suggestion today that applying a knowledge standard, you know, what’s the difference? It’s all oblique, these are very oblique examples, and it’s never going to matter in practice.
And I’d like to—if I get a chance later, to explain exactly why this isn’t just a matter of hypotheticals. I can give you three examples, we have more, but three examples of cases, and these are admittedly stylized a bit, but they’re based in reality of why this really matters on the ground. Number one would just be the irrationally egotistical doctor, and these are the kinds of cases we have trouble even bringing, let alone convicting a doctor.
Solicitor General Eric Feigin
It’s a doctor who gets his license and his registration and he says, all right, you know, I think, at bottom, the Hippocratic oath, I just want to treat patients.
And he prescribes substances that any other doctor would say are crazy and lethal.
And he says, at bottom, we’re all doctors, and my subjective belief is, at the end of the day, if doctors see patients, they got to do right by those patients.
And that’s number one. Number two would be the absentee doctor, and one problem with their standard is it really rewards doctors for untethering themselves not only from the medical profession but from their patients.
It’s the kind of doctor, and I think you’ll see some resemblances to the doctors here, who doesn’t follow up on the background of his patients, doesn’t make sure they’re taking the medications, doesn’t even conduct physical exams, doesn’t check the database to see who else is prescribing opioids, and trusts nurse practitioners, who aren’t DEA registrants, aren’t allowed to do this, don’t have medical licenses, to do most of the prescribing.
Justice Sotomayor was quick to ask, “What the fuck is your burden, then? What do you have to prove, to get a conviction?”
Official Portrait of United States Supreme Court Justice Sonia Sotomayor
Click for Biography
Counsel Feigin responded:
So, Your Honor, we place our burden exactly where Moore did, which is an honest effort, which we interpret as some objectively minimal, reasonable effort to practice some recognizable form of medicine.
Call me crazy, but his wishy-washy statements are going to make it hard for the court to draw a distinguishable line, and as such, is making it real hard for them to side with him.
Justice Gorsuch, again decided to walk through his argument, step by step, starting with the now “Be careful” intro he’s apparently going to make his catch phrase.
First, he wanted to make sure that they agreed that it was the government’s burden to prove all the elements (elements is just a fancy word they use for all the the things in the law that make up the law’s requirements, or forbidden actions). Counsel confirmed they agreed.
So then step two was asking if they agreed on the “except” clause as an element.
Counsel Feigin was like, “Well, we’re already off on the wrong foot, my man.”
So Justice Neil “Golden Voice” Gorsuch, was like, “How the fuck do we disagree on this? The issue isn’t that he’s prescribing medicine, your issue is that he’s doing it outside what his DEA registration to prescribe it, says he should do, right?
Counsel Feigin was like, “OK, fair enough. I’m with you now, bro.”
So now Justice Gorsuch is like, “Alright, we’re back on track. So if we agree so far, then the government typically has to negate all the exceptions in any “except” clause, yeah?”
Associate Justice Neil Gorsuch
Counsel Feigin was like, “Woah, woah, woah, woah, WWWWOOOOAAAAHHH! I didn’t say that. We’re off on the wrong foot again, my man!”
Justice Gorsuch was like, “OK, maybe not always, but most of the time, or a lot of the time, or fucking some of the time…I mean, it’s not fucking out of the ordinary, right?”
Counsel Feigin was like, “OK, I’m with you again.”
So then justice Gorsuch was like, “We agree, it’s not just doctors, it’s also for pharmacists, veterinarians, pet owners, family members, et al. Like there’s a lot of people who have exceptions. And it’s pretty fucking hard to negate all of them, when many of them may not be part of the case, yeah?”
Counsel Feigin was like, “Yup.”
So Justice Gorsuch replied, “So then you’d argue that the doctor needs to prove he was acting in good faith to help his patient, yeah?”
Counsel Feigin agreed again.
So Gorsuch was like, “Well then if we agree on all this shit, isn’t it true that once he makes his argument that he was acting in good faith, it’s then government’s job to prove he wasn’t? You can’t just go back to the doc acting outside the norm, and say that’s all you need to prove.”
Counsel Feigin agreed.
So then Justice Gorsuch was like, “So it’s fucking mens rea, yeah? Why is this so fucking difficult? Is it because you work for the government, and you’re stupid?”
Counsel Feigin was like, “I’ll buy your mens rea presumption. That we assume this fuckhead doc intended to help his patient, until we prove he didn’t. But we think, when he just grabs the patients balls and tells him to cough, then gives him a gallon of Oxycontin, that no reasonable person would consider that practicing medicine.”
Associate Justice Amy Coney Barrett
Justice Barrett was like, “Where the fuck do you get that from? I don’t see anything in this law about some reasonable practice bullshit.”
I don’t know if Feigin was nervous, but god damn he fumbled all over his fucking words. He eventually spit it out that basically the FDA regulates such standards, and he therefore thinks that to prove the mens rea, somehow all he has to do is show this doc told the FDA and their standards to go fuck themselves.
Justice Roberts went on to ask:
An opinion from the Eleventh Circuit, it’s quoted at page 16 in Mr. Robbins’ brief, says that a physician’s good-faith belief that he dispensed a controlled substance in the usual course of his professional practice is irrelevant. Do you agree with that statement?
Counsel, being bruised and battered with all these questions argued that if there was some idiot who believed opioids should be taken every day along with their Flintstone vitamins, so he starts doling out Oxies on the street corner, we’d still call him a fucking drug dealer and lock his ass up. So there’s fucking limits to this good faith shit. And they believe that it’s limited to something close to fucking normal, within the medical profession.
In a unanimous decision, SCOTUS sided with the doctors, though. They ruled doctors cannot be convicted under the CSA, unless a jury decides that they did not act in good faith. They want to ensure that doctors feel free to act in the manner they believe will best help their patients, without fear of going to jail, because they were deemed as operating outside the normal standard of care.
While the doctors won on these points, it should be known, that they were scumbags of the highest order, and were convicted of racketeering, and taking kickbacks from drug makers, and will still end up spending some much needed time in a jail cell to think about what they’ve done.
So while good doctors have been protected here, these idiots are still criminals. They’re just less criminal than they were before they started all this shit.
As you may know, West Virginia is generally a low-income state. It’s not the place the rich and famous go to live. Part of the problem with West Virginia, is that its entire surface area is part of the Appalachian mountains—not a flat stretch of land in site.
So sure, it’s gorgeous to look at. But it’s not easy to farm and the roads are more crooked than a Russian politician. Plus, building anything meaningful, such as a factory or highway on a mountain, is expensive as fuck. Even if you do build something, because of the crooked roads and massive elevation changes involved in driving on them, it will make that journey very slow and expensive because of the fuel consumption and lost time.
Because of this, West Virginians don’t really have a whole lot of reasonable options when it comes to local employment. No big corporation is going to move there and build anything. So they work with what they’ve got. And what they’ve got is a shit ton of coal and cheap labor, since people are pretty poor there, and will take whatever job they can get.
As he went on to become president, he tried to make good on that premise by passing the Clean Power Plan, which sought to limit the amount of greenhouse gasses power plants could produce, which was like an atomic bomb thrown into the bank account of any coal-burning plants.
But after Obama, came president Trump, who was a friend of the coal industry, and living in a world of his own making, thought all this hubbub about climate change was a scam propagated by China. No really, he said that shit.
He later went on to say he was joking. Hard to say, but either way, he was much more friendly toward coal energy.
Obama’s plan basically gave each state a goal, put the onus on them to figure out a plan by 2018 on how to meet that goal by 2030. However, in 2016, SCOTUS were like, “Woah, dude. You can’t fucking do this.” and put his plan on indefinite hold—it would never see the light of day.
In 2019, then-President Trump told the EPA to throw Obama’s plan in the Thomas Crapper, and replace it with his plan, the Affordable Clean Energy rule. Trump’s rule was basically, “Hey man. You know your shit is dirty, right? Just clean it up a little, and tell us how you’re going to do it. We’re not going to impose some strict number on you, just make it better, OK?
Back in the day, congress passed the 1970 Clean Air Act. One of the sticking points of this case is section 7411, which gives the EPA the power to determine the “best system of emission reduction” for any business to reduce it’s contributions to the overall air pollution.
According to Trump and his minions, that rule only covered shit they could easily do within their business model. Like simple upgrades to their procedures, or even adding equipment to their facilities. What they called “Inside the fenceline” changes.
In their minds, they felt it did not include forcing them to change their whole fucking business model from a coal-burning plant, to a solar farm, for instance. That’s straight up bullshit!
Anyway, as you can imagine, environmental groups, not happy with Trump’s ideas, sued in a DC District court, who then obliterated Trump’s rule, and his repeal of Obama’s rule. Part of this case hinges around whether that ruling effectively reinstated Obama’s Clean Power Plan.
As you can imagine, the coal industry in West Virginia and other states were like, “What the fuck is wrong with you assholes? We’re trying to make a living here.”
Historic Photo of West Virginia Coal Miners
So on to the Supreme Court they went. SCOTUS was happy to listen to their arguments, but in steps now President Biden. He was like, “Hey my SCOTUS friends. Did I ever tell you how nice you guys look in those robes? Can I smell your hair real quick? Anyway, fuck Obama and Trump. We’re not using either one of their stupid acts. We’re going to come up with something new and better. So if you could just chill, I think we’re going to make this case moot.”
SCOTUS however was not keen to “chill.” They decided to hear the case. This would potentially put up some guardrails on the EPA, before team Biden can come up with something new. Such rulings can be controversial though, because SCOTUS is not an advisory committee. They’re supposed to right the wrong of an injured party, not lay framework to prevent future harm.
So that’s a major part of this case, as West Virginia’s side thinks they are going to be harmed, and have been already, whereas the other side are like, “These regulations aren’t even in force yet. How the fuck were they harmed?”
Also at the heart of this, is the “Major Questions Doctrine.” This isn’t a law or anything, it’s just a principle SCOTUS currently seems to live by, which suggests that because agencies like the EPA, who were created by congress but act at the pleasure of the president, are not elected. So their scope should be rather limited as to what regulating they’re allowed to do.
The law creating the EPA gives them a directive, but it doesn’t mean they can just write some massive fucking regulation that affects everyone in the United States. For something like that, congress should be writing those as laws.
The point being, if we let these agencies write such regulations that affect everyone, we’re essentially giving the president, who these agency-heads report to, the same power congress has in writing laws, since regulations carry the same weight as laws, allowing the president to have a significant advantage in the balance of power between the three.
While the Biden administration think SCOTUS should moot this case and dismiss it, while waiting to see what new regulation they write, the states like West Virginia contend that Biden was Obama’s fucking VP. He’ll assuredly write similar legislation. They were basically besties. Although I’m not sure Biden ever got a chance to give Obama a reach-around while smelling his hair.
So the opponents are asking SCOTUS, under the principles of the major questions doctrine, to put up some strict limits on what the EPA can do, and what it can’t.
Now, on to the arguments!
Counsel Lindsay S. See for West Virginia opened with this:
Mr. Chief Justice, and may it please the Court: In Section 111 of the Clean Air Act, Congress directed EPA to partner with the states to regulate on a source-specific level, which means identifying measures particular buildings can take to reduce their own emissions. The D.C. Circuit gave EPA much broader power, power to reshape the nation’s energy sector, or most any other industry for that matter, by choosing which sources should exist at all and setting standards to make it happen. No tools of statutory construction support that result.
First, electricity generation is a pervasive and essential aspect of modern life and squarely within the states’ traditional zone.
Yet, EPA can now regulate in ways that cost billions of dollars, affect thousands of businesses, and are designed to address an issue with worldwide effect.
This is major policymaking power under any definition. And though Respondents argue EPA can resolve these questions unless clearly forbidden, this Court’s precedents are clear that’s backward.
Unless Congress clearly authorizes it, Section 111 does not stretch so far, and Congress hasn’t done so here. Second, the words Congress did use in the context where it placed them confirms Section 111’s traditional scope.
Read together, key statutory terms like “the requirement standards before individual sources” and “focused on their performance” show that Congress did not green-light this transformative power. And, finally, standing is no reason to avoid the merits.
We’re injured by a judgment that brings back to life a rule that hurts us and that takes off the books a rule that benefits us.
Respondents’ arguments sound in mootness, and it’s their burden to show that EPA’s voluntary cessation and a — and a stay are enough to end the case.
They’re not.
Counsel Lindsay S. See
We’re asking for the classic appellate relief of undoing what the court below did, and this Court has full power to give it. And the weighty issues at stake confirm that it should.
In contrast to EPA’s important but environmentally focused role, Congress and the states are able to weigh all of the competing factors and constituencies in play.
The lower court was wrong to short-circuit that process here, and the Court should reverse. I welcome the Court’s questions.
Justice Thomas, being the most senior member always gets to go first, so he opened by point-blank asking if she loses without the “Major questions” doctrine.
Knowing that this is a guiding principle for the Republican appointees, but not so much for the Democrat appointees, she was like, “No dawg. We think the language in the Clean Air Act law that Obama’s regulation is guided by didn’t authorize this shit explicitly. It’s a fucking stretch at best.”
She was invoking a separate doctrine, the “Clear Statement Rule.” It’s often deemed as synonymous with the Major Questions Doctrine, but a little different. Basically, it’s saying the courts should take laws at their word. Not stretch them and contort them to fit an agency’s desired regulation. If the language isn’t very clear and specifically authorizing such a regulation, then that regulation should be deemed invalid. The major questions doctrine sort of relies on the clear statement rule, but a clear statement rule is not always a major question. It could be some petty shit.
Justice Breyer was concerned that her interpretation of the Clean Air Act basically requires that the EPA look at each individual power plant, and regulate them based on what they’re currently doing, and how to improve upon what they have. But, the EPA, was authorized to devise the:
…best technological system of continuous emission reduction.
So in his mind, a “system” is more about the EPA creating a framework to reduce greenhouse gasses, and all power companies should operate within that system. Therefore, he thinks congress specifically did give the EPA that power, and even if it is a major question, the law that is written, specifically authorizes them to do it, which overcomes the “Major Questions” hurdle.
Associate Justice Stephen Breyer
Justices Sotomayor and Kagan both pushed on the idea that the EPA was tasked with reducing carbon-dioxide emissions, which counsel Lee agree was correct. So to them, these measures the EPA wants to regulate do that, and congress clearly gave them the directive to do that, so what the fuck is the problem?
But counsel Lee was unmoved by their short-sighted line of questioning.
She was like, “Listen, you idiots. Congress authorized the EPA to find ways for existing plants to update their equipment and processes to lower their CO2 emissions. At no point, did congress authorize the EPA to write regulations that a coal burning plant isn’t allowed to be a coal burning plant anymore. That’s not improving their emissions, that’s putting them out of business and improving emissions vicariously. Are you so fucking stupid you can’t see the fucking difference?
Justice Sotomayor then pushed her on the meaning of the word “reduction.” The law from congress gives them the task of reducing CO2, and this regulation does that, so why is it not OK?
Counsel Lee responded to that with, “It says ‘reduce’ not eliminate, moron. They use the word ‘eliminate’ elsewhere in the statute, so clearly they know the fucking difference. If you force a coal plant out of business, you’re not reducing their emissions, which implies they still produce them, just less. You’re eliminating it altogether.”
Justice Gorsuch chimed in about the “mootness” claim that Biden and company suggest. He didn’t so much have a question, as he was just like, “Um, you want to opine on that shit before your time is up?”
Associate Justice Neil Gorsuch
Counsel Lee explained that while many states had already reached the goals, well before Obama’s Clean Power Plan ordered them to, there were twenty states that didn’t. So if Biden’s new rule is anything like Obama’s, it will surely fuck up those states. It’ll definitely fuck up our beloved state of West “By God” Virginia. So we’re asking you to put up some fucking rules before Biden fucks us square in the asshole with a carbon-neutral dildo.
Justice Sotomayor continued to press on the idea that she’s asking the court to be an advisor of sorts, by creating a precedent before Biden even makes his new fucking rule, and that SCOTUS typically doesn’t do that. As such, this shit sure seems moot to her.
But counsel Lee responded, “The old Obama rule is technically in effect, even if it’s on indefinite hold. So this shit isn’t moot unless we can be ensured the old rule is gone for good, and we won’t be harmed by this new rule Biden’s peeps are going to implement. Got it?”
After counsel Lee was done with her arguments for the great state of West Virginia, in comes Jacob M. Roth for the companies who burn the fucking coal. He opened with this:
Mr. Chief Justice, and may it please the Court: On our reading of Section 111(d), the EPA’s power is a bounded one.
It takes an existing pollution source as a given and asks what emissions rate is achievable for that source. Respondents, however, want to divorce the EPA’s best system of emission reduction from the particular source that’s being regulated. That would allow the agency to effectively dictate not only the technical details of how a coal plant operates but also the big-picture policy of how the nation generates its electricity. What is the right mix of energy sources for the nation and, for that matter also, how the nation uses its electricity? And the same would go for every other carbon-emitting industry.
Counsel Jacob M. Roth
That immense authority cannot be reconciled with the statutory text and structure, let alone with the major questions doctrine. With that, I welcome the Court’s questions.
I was thinking about explaining this in plain language, because that’s what I do here, but he kinda does it so well I’m not sure I need to. He’s got a pretty good point. The EPA doesn’t get to set our nation’s energy policy. They can’t just tell a coal company, they need to become a windfarm or some shit. That’s fucking ridiculous.
Justice Breyer was taking counsel Roth to task on the idea that producing less energy means reducing emissions, and as such, it’s what congress intended with their law.
But counsel Roth was like, “Listen you old bastard, aren’t you retired yet? Less production certainly does reduce emissions, but that’s clearly not the point of the fucking regulation, or it could have just been one sentence that capped the amount of energy they may produce.
It’s fucking obvious to any idiot that isn’t you, that the point of this is to say if we produce 100 megawatt hours and 1 ton of CO2 doing it, they want us to produce only 1/2 a ton of CO2 in the future for every 100 megawatts we generate. Reduction, not elimination. Capiche?”
He went on to smack down Breyer’s argument with this statement:
Well, it says standard of performance.
So let me give you an example, Justice Breyer. We talk about standards of performance all the time when we’re talking about fuel, fuel performance standards for cars, right? When we use that phrase, what we mean is, you know, I can get 30 miles a gallon, I can get 35 miles a gallon.
We don’t mean I can take the bus.
We don’t mean I could stay home.
You know, yes, you’re using less fuel that way.
That’s not a standard of performance. I think the same is true here.
Sure, we can shut down the coal plant, and it will emit less, but it is not performing better.
It’s a pretty powerful argument for sure, and I think Justice Breyer was just too stubborn to admit it.
Counsel Roth closed with a response to Justice Barrett asking about why this gets overturned under the major questions doctrine:
Associate Justice Amy Coney Barrett
So, actually, Justice Barrett, I think it is a mismatch and it’s pretty much the same way because I think, if you look at the Clean Power Plan and that interpretation of the statute, the agency really isn’t regulating emissions.
It’s regulating industrial policy and energy policy, right, that is going to have downstream emissions consequences. It’s not actually saying here’s how you can reduce your emissions.
It’s saying, well, we can do the market differently in a way that we won’t need you at all, and then, yeah, sure, you won’t have the emissions from the plant.
I think that is just taking it on up to — to, again, a fundamentally different level in just the same way as — as Brown & Williamson and those precedents.
After he completed his arguments, it was time for Biden’s team to respond, and an amici representing power generation companies that want these regulations to be made.
Veteran SCOTUS Counsel Elizabeth B. Prelogar started off for the government with this opening rant:
Mr. Chief Justice, and may it please the Court: This case is not justiciable, and Petitioners are wrong on the merits in any event. On justiciability, the D.C. Circuit’s judgment leaves no EPA rule in effect.
The agency action challenged here wasn’t the Clean Power Plan; it was the decision to replace it with the ACE Rule.
The D.C. Circuit vacated ACE but chose not to reinstate the CPP, so no federal regulation will occur until EPA completes its upcoming rulemaking. Petitioners aren’t harmed by the status quo and can’t establish Article III injury from the D.C. Circuit’s judgment. Instead, what they seek from this Court is a decision to constrain EPA’s authority in the upcoming rulemaking.
That is the very definition of an advisory opinion, which the Court should decline to issue. If the Court reaches the merits, it should affirm.
No one seriously defends the ACE Rule’s view that the statute restricts states and power plants to inside-the-fence-line measure.
That restriction is unprecedented and would threaten to disrupt an industry that has long relied on measures like trading and averaging to reduce emissions in the most cost-effective way. Nor does the statute limit EPA to inside-the-fence-line measures in identifying the best system of emission reduction. Petitioners claim that interpretation is necessary to prevent the EPA from restructuring the entire industry or shutting down all coal plants. We agree that EPA cannot do those things, but that’s because of the express constraints that Congress included in the statute.
Among other things, the system has to be adequately demonstrated.
It has to be of reasonable cost.
Solicitor General Elizabeth Barchas Prelogar
It can’t threaten the reliability of the energy grid.
And, critically, it must be focused on cleaner production, not on reducing overall levels of production. Finally, Petitioners are wrong to say that this case implicates a major question.
For all their criticisms of the CPP, we know that it wouldn’t have had major consequences.
The industry achieved the CPP’s emission limits a decade ahead of schedule and in the absence of any federal regulation. Given that reality, Petitioners ask the Court to focus on the nature of the statute in the abstract, not on the particular effects of any particular regulation.
But that is never how this Court has looked at major questions, and it just reinforces that Petitioners are seeking an advisory opinion here. I welcome the Court’s questions.
She clearly didn’t think they should even be here, since there’s no fucking rule in place to give the other side standing to sue. She argues that they’re just here to try to get SCOTUS to be an advisor before new rules are made. I suppose in that respect, it’s hard to argue she’s not wrong.
She also made it clear, that despite the fact that neither Trump’s nor Obama’s rules ever actually took effect, 30 fucking states hit those goals. So it seems hard to argue that they’re enduring some amazing harm, when more than half the states were like, “No fucking problem, dude!”
She also pointed out that the rules of Obama’s CPP had deadlines that came and went before it ever took effect, so it’s not like it could be implemented anyway.
Two of the recurring themes of all these arguments that Justice Sotomayor asked counsel Prelogar to explain, were “generation shifting” as we discussed. An example might be a coal plant is forced to become a wind farm, or something of that nature, because as a coal plant, there’s no foreseeable way for them to hit the emissions targets set forth by the EPA.
Official Portrait of United States Supreme Court Justice Sonia Sotomayor
Click for Biography
The second issue she questioned her on, was that there’s also two facets of the law, one is about new sources, and one is about existing sources.
Counsel Prelogar pointed out that under Obama’s CPP plan, new sources were given one standard that took effect immediately, because if you’re going to build a new plant from fucking scratch, it should be compliant right away. Why the fuck would you even build a non-compliant plant just to have to upgrade it later?
Existing plants however, were given seven years to upgrade their shit.
She also argued that there were other methods they could use besides generation shifting, such as carbon capture, which is basically what it fucking sounds like. You have a device on your exhaust to catch the CO2 coming out, that liberates the carbon from the O2, let’s the O2 go free, but keeps the carbon and presumably buries it, or uses it in such a way as to not put it back in the air. In other words, precisely what a tree does.
The other is cap & trade. You’ve probably heard this shit before, because it’s been used before. It’s when a company is a polluter, so they pay another company that is a non-polluter and receive carbon credits for doing so. Basically, they polluter helps fund the non-polluter, to offset their dirty ass ways.
Justice Kavanaugh took her to task on this point:
The other side’s theory, I think, zooming out a bit, is that Congress knows how to do cap-and-trade.
They did it with acid rain.
There were bills pending in Congress to do cap-and-trade for CO2 emissions.
Associate Justice Brett Kavanaugh
Ultimately, those did not pass.
And then what happened is the executive branch, as executive branches are, unhappy with the pace of what’s going on in Congress, tried to do a cap-and-trade regime through an old and somewhat ill-fitting regulation. So the cap-and-trade aspect of this, I just want you to address and kind of put that in context of, like, UARG, squeezing it into a — an old statute that wasn’t necessarily designed for something like this.
This is precisely the point of the major questions doctrine. For years, people who are fighting to improve CO2 emissions have lobbied to pass cap & trade legislation and failed. So how the fuck is it OK, that if congress can’t pass that shit, the president can just have a regulatory agency roll up all dirty, and pass it on the side? This is a clear separation of powers where congress can’t pass a measure, so the president tries to do it by fiat because he’s fucking annoyed with their ineptitude.
Her response was basically that congress’ cap & trade bills were fucking different from the CPP, and that difference means these aren’t the same thing now, either. She basically said that CPP had allowed for states to use cap & trade as a measure of attaining their goals, whereas the cap & trade bill congress failed to pass, was a measure forcing it on everyone.
Justice Roberts decided to chime in, asking her if she even accepted the major questions doctrine, and if so, how she’d explain it. She agreed it was a valid principle, but she felt her arguments overcame it.
Chief Justice John Roberts
Justice Roberts was like, “but wouldn’t you fucking say, knowing that we kinda take that shit seriously, that you shouldn’t create fucking rules that violate the principle in the first place? I mean, you’re wasting our time when you know we’re going to overrule it. We’ve got better shit to do.” But because it’s Justice Roberts, he said it in a nice way with a smile on his face.
She was basically saying, “Hey, we gave them ideas on how to achieve their goals. No one told them they had to do cap & trade. We were just like, “Yo, you could try this shit, if it helps you.””
Remember how counsel Prelogar was trying to argue that both Obama’s CPP and Trump’s ACE regulations never went into effect, and therefore there was no standing for the other side to even sue in the first place?
Justice Breyer had questions about this.
Because the DC court invalidated Trumps ACE because it was fucking stupid, part of the ACE regulation was that it “Trumped” (See what I did there?) Obama’s CPP law. So if the DC court shitcanned that mother fucker Trump put forward, that has to mean that CPP is back on, right?
But counsel Prelogar was like, “Nah, dude. Remember, you put that CPP shit on hold? Well, invalidating ACE just means we went back to a time before ACE was enacted, but after CPP was put on hold. So we still sit here with two regulations that are as worthless as Bernie Senders’ ideas on economics.
Last up—Beth S. Brinkmann, in support of Biden and company, representing power companies who actually like this CPP shit, or at least better than Trump’s ACE shit, presumably because many had already achieved the goals set in CPP, opened with this:
Mr. Chief Justice, and may it please the Court: The statutory framework Congress created in Section 7411 is critical to the power companies.
For years, the power companies have used emissions trading, generation shifting, and other measures to reduce emissions while keeping the lights on at reasonable cost. The ACE Rule would exclude those measures from the BSER because they are not at or to a source, but nothing in the statute excludes them. Congress directed the expert agency to look to reality when it makes the empirical determination of the best system of emission reduction for the source category. Congress would have expected the agency to consider emissions trading.
Counsel Beth S. Brinkmann
Congress had allowed emissions trading by fossil fuel plants to control emissions of various pollutants for decades. We know that Congress did not impose the ACE Rule restriction on the BSER because of the other sections of the statute where Congress did narrow the text to — for certain other emissions limitations but not in 1174(a). The ACE Rule would eliminate significant, long-standing, cost-effective means of lowering emissions.
That’s why the power companies urge rejection of the ACE Rule while embracing the many limits that the Clean Air Act place on EPA’s authority. I welcome questions from the Court.
Justice Thomas opened up by asking her if there were instances under the Clean Air Act (Law, not regulation), where these principles CPP wants to employ were used?
She responded:
Yes.
Associate Justice Clarence Thomas
In 2005, Your Honor, the mercury rule used it in just this way.
Petitioners try and suggest it wasn’t part of the BSER, but it indeed was.
And I would also point, Your Honor, not just to the actual 1174(d) mercury rule but also the acid rain rule and the Good Neighbor rule under 7410. Those were all instances where Congress said that they had to use emissions trading, for example, but they did not require it in 1174(a), but there’s no indication that it excluded it. And if I could, I think that the statute really answers this question.
There are limits, many limits which the solicitor general addressed, but there’s no at-and-to limit.
Justice Roberts, hit her with the extreme hypothetical when he point blank asked if the best system of emission reduction, as the law states, could include just shutting that plant down. Like, if they can order them to lower their emissions, why can’t they just be forced to lower them to zero.
She said no, that’s not how she reads the statute. She agrees it’s about emission reduction, based on the source, with the assumption they’d continue producing the same amount of power.
But then she went on to argue that if plant A is a major polluter for instance, it can create a new plant B that’s not a polluter, such as a windfarm, and it could offset plant A’s dirty fucking exhaust. So it’s still producing the same amount of energy, it’s just now it’s offset by something cleaner.
While I get her point, the amount of energy usage doesn’t change because a new plant comes online. The people use what the people use. So a new clean plant they end up making, which generates new energy that wasn’t there before, will take a piece of that energy pie away from the older plant, in effect harming them.
Justice Alito wanted to understand, that under their interpretation of the major questions doctrine, maybe there was a rule from long ago that no one ever fucking used. So an agency decides, “You know what, I think I’d like to use this shit in my regulation.” Now, the regulation could have broad implications, but in this case, they’re just going to apply it to one small thing. If this regulation would get struck down under major questions philosophy, is it OK if they only implement it to a small group where it doesn’t affect many people?
Counsel Brinkmann was like, “Remember when you struck down OSHA making all employees get vaccinated or wear a mask, but you were OK with HHS requiring vaccines for health care workers who work at a facility that gets Medicare/Medicaid money? Well, that’s how we see that shit, too. So yeah, a smaller pool of people is OK, but fucking everyone, not so much.
Justice Breyer, wanting to press this issue, went for the joke of the day with one of his crazy hypotheticals when he asked:
Associate Justice Stephen Breyer
Look, in tobacco—suppose they started off in saying we are regulating the advertising of four-foot cigars smoked through hookahs, okay?
He was referring to the FDA regulating tobacco. The FDA can regulate facets of tobacco use, but they can’t just fucking ban tobacco. So his hypothetical wants to know about big ass fucking cigar hookah shit.
She tried to walk the line by saying that really, they should look at what’s being regulated, and whether it is in line with the text of the law authorizing them to regulate it, almost entirely ignoring the major questions issue in front of her.
Justice Breyer, ever the modest person was like, “Maybe my hypothetical wasn’t that good.”
Justice Alito, ignoring Breyer’s silliness was like, “OK, let me put it another way. Let’s say we’re all Kool & the Gang with the small regulation against a few people, but then the EPA is like, “Well, that worked, so we’ll expand this to more people…and more people…and more people, until we’re basically a tyrannical oppressor.
But she went back to the idea that basically, she looks at the text of the law, essentially arguing the major questions doctrine away entirely, and not entertaining any hypotheticals.
Associate Justice Samuel Alito
In a 6:3 partisan split, SCOTUS agreed that the EPA did not have the power to implement a regulations that push these companies to completely change their business model. They believed this approach definitely falls under the major questions doctrine, and is something for elected officials to pass as law, not the president to instruct the EPA to craft as regulation.
Justice Roberts, in his majority opinion was unimpressed with the Biden administrations claims that they were passing a new rule anyway, making this moot. He was like, “You fucking talk all the time how great that fucking regulation was you old bastard. So don’t tell us you’re not about to pass something similar. And stay away from my fucking hair. Jesus!”
Roberts also reasoned that this broad approach had not long before, been attempted to be passed by congress, and it failed. So clearly, congress wouldn’t want the fucking EPA to do it instead. If they didn’t want it, they didn’t fucking want it!”
Justice Roberts was not against these measures as a reasonable means to combat climate change. He admitted in his opinion, that they were likely a fair path forward to achieve that end. They just believe such regulations should be laws passed by congress, so the people can decide, not the president.
The minority complained about the majority’s strict adherence to the major questions doctrine. Their argument is that these agencies are appointed because they’re fucking experts, unlike those dumb cunts in congress, or the three brilliant legal minds here on our courthouse. As such, that’s why congress gives them the authority to make those regulations, because they fucking know better than any of us here in Washington. Their willingness to give the executive such power seemingly suggests they forgot that Donald Trump was once president.
Hear oral arguments and/or read about the case here at Oyez or SCOTUSBlog.
log·i·cal: capable of reasoning or of using reason in an orderly cogent fashion lib·er·tar·i·an: an advocate of the doctrine of free will; a person who upholds the principles of individual liberty especially of thought and action
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