Ever heard of intergovernmental immunity? I sure as hell hadn’t.
During the formation of the United States, state’s rights were a big fucking deal to the founding members. They were wary to create some “all-powerful” federal government—that ish would be too much like the motherfuckers they just shot and killed in order to form our new nation.
That said, they also understood that certain things needed to be controlled by the federal government over the states.
For instance, the Bill of Rights was initially thought of as a limit only on the federal government, but eventually SCOTUS heard Gitlow v. New York (1925).
Some socialist asshole named Gitlow was arrested in New York for passing out commie propaganda suggesting people should overthrow the government. He was arrested under a New York law banning such speech.
SCOTUS, after hearing the case, ruled in favor of Gitlow—the Constitution’s enumerated rights are not rights at all, if the states can violate the fuck out of them. So after that, case law mandated that the rights in the constitution applied to all levels of government, not just federal.
In that decision, SCOTUS was addressing the right to free speech via the first amendment, but it laid the precedent that the states have to abide by the Constitution’s restraints. All the states agreed to this shit—they can’t just back out of it later.
But this isn’t the only time the federal government exerts power of the states. There’s also intergovernmental immunity—which is much older.
Back in 1819, SCOTUS heard McCulloch v. Maryland. McCullough worked for a federal bank. Maryland wanted to tax said bank. McCullough told them to fuck off and die. The case made it to SCOTUS, and legendary chief Justice John Marshall opined that the states cannot tax or regulate property of the federal government, and voila! Intergovernmental immunity was born.
Chief Justice John Marshall
The federal government can allow the states to tax or regulate them, in certain areas, but only if the federal government says it’s cool. We’ll get to that in a minute.
This case revolves around intergovernmental immunity, because the state of Washington has this now-closed nuclear power plant called the Hanford Site. It was built in 1943 as part of the Manhattan Project. It was the first plutonium reactor in the fucking world—’Murica, bitches! Some of the plutonium produced at that site was the fuel used in the Nagasaki bomb.
Back in 1989, they decided that this plant was old, tired, outdated, and ready to be put out to pasture. So since that shit is no longer operational, someone has the duty to erase that mother fucker off the face of the Earth, and all it’s radioactive essence along with it.
That somebody is the federal government, via the U.S. Department of Energy.
The Hanford Site
Now let’s talk about Worker’s Compensation. You know, that government “insurance” program by which, if you’re hurt in the workplace, the government pays out cash money to you?
Well, there isn’t a federal worker’s comp program—that’s usually handled by the states. So, in 1936, the federal government passed 40 U.S.C. § 3172.
Remember when I said the federal government could give the states some power over them if they wanted? This statute gave the states the power to narrowly regulate federal workers on federal property which exists in that state via that state’s worker’s comp program.
Too many times, because of intergovernmental immunity, federal workers were forced to sue the federal government to get paid for on-the-job injuries, so congress passed this law to help.
This saved requiring the lazy fucks in the federal government to pass their own version of such a program.
We know worker’s comp is about injuries that occur at work, such as falling off a ladder and breaking a fucking leg, or something. That’s pretty easy to identify as a workplace hazard and incident.
What’s not so fucking easy, is attributing diseases like cancer, which may be caused by radiation leakage from a defunct nuclear power plant, to a workplace like the Hanford Site. It’s pretty much impossible to prove that someone’s cancer is not just a random cancer they contracted, even if odds suggest it probably is related to handling nuclear waste.
But worker’s comp requires that the claimant can prove the fucking harm was caused by the workplace. So this is a pain in the ass for these people trying to clean up this nuclear site.
As you can imagine, they’re basically real-life Homer Simpsons, working in a pretty hazardous environment. When accidents happen, people will likely get sick and die. Hell, some of the protections they use, may even be insufficient, leading to problems they thought they were protected from.
At the Hanford Site, the federal government was paying claims just fine, until 2018, when Washington changed the rules with H.B. 1723, making it easier for workers to claim workplace injuries there.
Generally, if safety protocols are meticulously followed, barring some fucking equipment failure, these workers should be adequately protected. But Washington noted that protocols often weren’t followed, which then might lead to increased risk.
If workers put their own dumb asses at risk by avoiding safety protocols, it’s hard to blame the workplace for such illnesses. They’re a victim of their own defective idiotic brain—such claims usually aren’t covered.
But Washington was like, “you government assholes aren’t doing a good job monitoring these safety protocols, so we don’t really know if these fuckwits are to blame for their own issues. It could be you lazy fucks, instead.”
So basically, Washington’s rule change went from requiring proof all safety protocols were followed and they got sick anyway, to “if they got sick from a disease that could be caused by exposure, we’ll assume they’re owed compensation. The monitoring of safety protocols is pretty fucking weak at times, and we can’t really determine who’s at fault.”
Even more odd, the law specifically only modified that for the Hartford Site workers. That’s odd, because other people in the state, working for the federal government, the state, or private companies, could be working with similar risks, and subject to the same harms, but for them, they don’t get that presumption of work-caused disease.
Between when SCOTUS agreed to hear this shit, and it was actually heard however, Washington amended the rule with S.B. 5890, which now covers anyone in the state working with radioactive shit.
So the Federal government was like, “Hold on a fucking minute. We were all Kool and the Gang with this shi before, but now it’s getting expensive AF.
It might seem like the federal government wouldn’t care if it covered non-federal workers, as they’re being paid by the state, and thus aren’t on the hook for these additionally-covered workers.
This is where it gets interesting.
Before the latest rule change, the federal government was suing because they felt the state was unfairly discriminating for federal workers. Now that they are applying the rules to everyone, it’s questionable if Washington mooted this case—they’re no longer discriminating in the way the federal government complained.
The federal government is skeptical the latest rule will be retroactive, which Washington says it would be. So the federal government is like, “You assholes didn’t moot shit. We’re still on the hook for these old motherfuckers, and we don’t believe you when you say you’ll apply it to non-federal workers retroactively.
So anyway, that’s the nuts and bolts of this case. Now, let’s check in on the oral arguments…
First up for Petitioners, the good ole USA, is Department of Justice Deputy Solicitor General, Malcolm Stewart.
He opened by pointing out that the changes they made to the law, have not been proven to be to the benefit of the United States, and as such, didn’t moot their fucking claim.
U.S. Deputy Solicitor General Malcolm Stewart
He points out that every other worker on the site, such as state or private workers, are under different rules, and as such, that’s pretty unfair to the United States.
Justice Kagan asked, “if they had passed this new law before you filed for certiori to have us hear it, would you still have filed?”
He agreed, it wouldn’t have been the same argument, but they’d still have filed to ask the court to vacate the lower court’s decision on this, which they lost. But, he also pointed out that he wanted the court to provide clarification on the scope of the 1936 federal law, 3172 mentioned above.
Justice Roberts seemed confused by the statute, and asked Stewart, if the facility were owned by the state, would these workers be covered by state worker’s compensation laws?
I think at the heart of the question Justice Roberts is asking, since the law Washington wrote about these federal workers only applied to them, could they also apply it to the workers if it were a state facility?
Counsel Stewart was like, “Sure, but they didn’t.” He points out that the HB1723 law only applies to Hanford Site workers, which all work for the federal government. So even if the state could apply those rules to other state facilities, the law as written doesn’t allow it. It specifically just calls out the Hanford site.
His beef is that the federal government is being discriminated against other workers doing similar work in Washington, and that’s some bullshit, in his professional opinion. They argued this point, a lot. I mean, a LOT.
Going back to the rule that the federal government has to agree to allow the states to tax or regulate them, which they do here, his argument is that they didn’t agree to be discriminated against. If the rules were the same for everyone else, they wouldn’t fucking be here. But the state, knowing that the federal government has some deep pockets, made rules specifically for the Hanford Site peeps, knowing the state or its business, wouldn’t have to pay it, only Big Daddy Fed would.
Next up is SCOTUS newbie, Tera Heintz.
She opened by arguing that while she thinks they win on the merits, it’s fucking irrelevant because it’s moot. They rescinded and replaced the law that was on the books when SCOTUS agreed to hear this shit, so if they still have a new problem, they need to submit a new case and go through the proper channels again.
Tera Heintz of Morgan, Lewis & Bockius LLP
We’ve seen this tactic before, in a New York State Rifle Association case, when states know they’re out of line, but refuse to budge until SCOTUS agrees to take the case, then all of a sudden they’re like, “Our bad, dawg. We’ll change it.”
While it’s possible some states just coincidentally see the light, and admit the errors of their ways, this seems skeezy at best.
She was like, “their complaint is asking you to invalidate a law on constitutional grounds which no longer even fucking exists. She added, even if they win, what victory can you give them? Nothing, I tell you. NOTHING! The relief they sought when they failed, has already been granted.”
This may seem like a fair argument, as the law was rescinded. But this tactic, is again kinda skeezy. Because the new law replacing it, is offensive to the other side in a slightly different way, and they fucking know it. They effectively admit the other side had a point, but instead of just fixing the error, they try to achieve it by another means, and hope that SCOTUS is so stupid as to let that shit fly.
She goes on to point out that claims filed under the old law, are what the other side is worried about, and those claims will be retroactively amended to the new law. But as the other side argued before, there’s no guarantee this is true, and the law is not written with language that suggests it must be applied retroactively. So they don’t trust this shit further than they can throw it.
Remember, that the new law is supposed to make it so that all workers, federal or not, working with retroactive materials, can now get this presumption that their cancers and shit were because of this exposure to hazardous materials.
Associate Justice Clarence Thomas
Justice Thomas wanted to know, “what if people who benefitted under the old law, want their case updated to the new one?” He’s basically asking, what if their condition changed, and they need more assistance. Maybe the new law doesn’t help them as the old one did, so they want assistance under the old law, where they got help.
Heintz argued that workers who were awarded assistance under the old law would simply refile under the new law if they need new assistance. For pending claims, the new law is retroactive and would be applied to them. Any closed claims under the old law, would need refiled under the new one.
It’s worth noting, they’re here in SCOTUS as an appeal of a Washington Supreme Court (SCOW) ruling. Once SCOTUS makes its decision, it will go back to SCOW.
So Justice Roberts is like, “You’re asking us to assume that SCOW will rule this law to be applied retroactively, right?”
She agreed, stating that that’s how they always come down on laws like this. No reason to think they’ll come down differently here.
But Justice Roberts was like, “You know, for us to moot a case, we need some certainty, and courts are kinda unpredictable.”
She surprisingly said she understood, acknowledging justice Roberts may have a point.
Chief Justice John Roberts
She pointed out though, that the opposition are being rather speculative. They don’t come to court today with any claim of harm or damages, nor do they seek any remedy for them.
They’re asking the court to prevent future damages they fear may occur. But we’re telling you they won’t, and we have good reason to argue as much.
Justice Kagan, being skeptical that she had overcome the high bar SCOTUS has for mooting the case (basically knowing how SCOW will rule), she asked, “Do you have any precedent where we mooted a case just based on previous similar ruling from a lower court, and thus assumptions about how they’d come down on a case we’re considering?”
She didn’t seem to have any cases to cite, but argued that the court could do it if they want.
Justice Gorsuch, jumping on Kagan’s question was like, “By what authority would we just vacate the lower court’s decision, if it’s not moot?”
Counsel Heintz again, surprisingly admitted she didn’t have an answer for that. Justice Gorsuch chuckled and said he didn’t either, and they moved on.
Justice Stephen “Crazy Hypothetical” Breyer, who’d apparently been working on this hypothetical for days, was like, “OK, the old law was about a geographical area, specifically, the Hanford site, and people who worked there, who just happened to be all federal workers.
The new law says it applies to any structure and its lands.
Now imagine, some people who work on the river cleaning out muskrat nests. (Yes, he really said this)
These muskrats pick up some of this radioactive waste, and transport it to their nests. The people cleaning those nests are now exposed to danger, but they’re not near any “structure and its land.”
So what about those workers? You say the new law is very specific, but I’m betting the law doesn’t say a fucking thing about muskrats and their nests. So, I say, it isn’t clear.
What do you say to that?”
She was like, “First of all, you need to stop hitting acid before you come into the courtroom. Secondly, you’d review their case solely on the text of the new law. “
But justice Breyer was like, “But imagine these people filed fourteen claims under the old law, and they won the first thirteen under the old law, but 14 isn’t decided yet. Now, the federal government wants their money back on the first 13, and they want the worker to lose on claim 14, even though the precedent was decided in the first 13 that they won. What say you?”
She was like, “Claim 14 is independent. The 13 previous have no effect on the pending 14th claim, which can only consider the new law’s text.”
Justice Alito then asked, “If this old law is so dead, why do you care if we invalidate it?”
Associate Justice Samuel Alito
Her response seemed to suggest that she was simply trying to save the justices some time. Not sure I buy that argument.
I think the concern for them is that if SCOTUS issues a broad ruling, it could fuck up their new law, too. But if they moot the case, then nothing changes for them.
Justice Alito then asked if the 1936 waiver law allows the state to single out a particular federal facility by name?
She agreed that it could, and that in fact, when the 1936 waiver was enacted, states were already doing that. So this is why she thinks the oppositions argument is invalid.
It’s also worth noting, that this seems to only apply to workers contracted by the federal government. Federal workers are covered by the Federal Employee Compensation Act (FECA). She wants to be able to discriminate against these workers who are specifically, not employees of the federal government, just simply paid and contracted by them.
You might have thought that Justice Stephen “Crazy Hypotheticals” Breyer had worked so hard on his muskrat hypo, that he was exhausted. But he was not.
Associate Justice Stephen Breyer
He then jumped in with this:
I mean, that is exactly the question that is bothering me.
I mean, one day in the legislature a group of federal employees from Hanford show up and they say: You know, it’s tough being a federal employee.
People in the state make much more money.
We have more dangerous jobs.
And the state laws generally are pretty fair to their workers, but try working for the federal government.
This is supposed to strike a chord of agreement. So they say: Now you can’t do much for us because you’re a state legislature, but I’ll tell you one thing you can do.
What you could do for you is you give us, if we’re hurt, and define hurt very broadly, please, so that if we’re even hurt a little bit, we get millions. Now we’ve got to watch that number but, really, it’s high.
And you know the wonderful thing? If you make private employers pay this in the State of Washington, they are voters, so you have to worry about them. And if the government pays for it in the state, well, that’s a problem, you’re going to have to raise taxes.
But do you know who’s paying for this one? The feds.
The feds will pay, the taxpayers in the other states.
So let’s go and really hit the ceiling and we’ll really pay a lot of money and we won’t have to pay for it. Okay.
I know projects like that.
I won’t say which they are, but there we are. Now, to me, did I think Congress intended that? Hmm.
It’s going to take quite a lot of doing before I think they wanted that result.
Now that’s that’s where I am.
So what do you think?
Counsel Heintz responded by pointing out that if congress doesn’t like it, they can always amend the waiver—that’s their right. It’s a broad check against the abuses Justice Breyer outlined in his hypothetical.
Justice Kagan, not interested in hypotheticals like Breyer, glommed on to his line of questioning, though. She asked:
Ms. Heintz, I think the question was really a question of, like, you know, maybe you’re right about the text, but why would Congress have done that? I mean, we can’t really believe that that’s what Congress meant to do. And if you take all the other statutes which you gave us and you said, look, the text is different, and you’re right, the text is different. But, at the same time, we know that Congress has a kind of modus operandi with respect to this, and it basically always says whatever you do elsewhere you can do for facilities like Hanford. It doesn’t say, you know, whatever you could dream of doing elsewhere but actually wouldn’t you could do to federal facilities. And I think that that’s what Justice Breyer is asking.
Like, what sensible Congress would have written the statute the way you say it ought to be read?
Associate Justice Elena Kagan
Counsel Heintz was like, “The federal contractors participated in the political process when the waiver was written. So congress was aware of their concerns and where the shit might go when they wrote the waiver.
Sure, maybe congress didn’t expect us to go THIS far, but they already knew there were other rules like this, that singled out specific facilities.
She also points out that the Hanford site is the riskiest environment in the country to work in. So they surely also knew that special rules might be needed for this fucking place.
Justice Barrett question if the 1936 waiver’s language seemed to be aimed at regulatory agencies, not the state legislature.
Meaning, does the waiver apply to the state passing laws, or only to the regulatory agencies in the state passing regulations? If it’s the latter, then that assumes there’s already a law on the books creating an agency and giving them the power to regulate this.
She seemed to be hinting at the idea that the waiver was granted based on statutes that already existed, and the waiver was responding to them. So if there were new laws passed, would that potentially invalidate the waiver, and require a new waiver to be passed before they could do this?
They agreed, that sounds crazy. But Justice Barrett was essentially arguing that the waiver is directed towards the regulatory agency, not the legislature. But it’s the legislature who enacted the new statute.
Counsel Heintz argued that the waiver did not specifically distinguish between laws and regulations, and as such, the waiver should apply to the new law.
In a unanimous opinion, authored by Justice Breyer, counsel Wentz was unimpressive in her arguments, and the state law is invalidated. When the federal government waived immunity, it certainly didn’t anticipate that the states would bend them over and fuck them in the ass in ways it wouldn’t dream of doing, if the state or local businesses were paying for it.
Hear oral arguments or read about the case here at Oyez or at SCOTUSBlog.
No one knew at the time, that it would be a landmark case, initially, it was your basic snooze fest. But, it has since been cited in other cases over 18,000 god damn times.
Was Chevron a fascinating case with a compelling opinion? That’s a big nope. And, since this isn’t our case today, I’m just going to give a simple overview.
But before we get into that, we need to explain a distinction I don’t think I’ve covered before.
In the United States, we tend to think that congress are the only people who write laws. While this is the framework the constitution lays out, it gets complicated.
The word law, for our purposes, is a generic term that basically encompasses anything the government has created to control, regulate, or restrain itself, or the people. But, there are five types of things that carry the weight of law, which have different purposes.
The Constitution: It is the document creating government and restraining government, which all other laws derive from. So it’s the shit. From there, if:
Congress wrote it: This is called a statute, often called an act. This is how the constitution suggests laws are to be passed, and aside from the constitution, they carry the most weight.
The courts wrote it: This is called case law, or precedent. The constitution didn’t really grant this power to the courts, SCOTUS gave it to themselves in Marbury v. Madison (1803), by suggesting the constitution gave them this power when it created the courts and ordered them to interpret law. (That said, congress can then rewrite the law—invalidating the opinion. However, if the courts strike down a law as unconstitutional, congress can’t just repass a law with the same unconstitutional premise—they’d need a constitutional amendment to do that.
The executive (president) wrote it: This is called an executive order. Also not in the constitution. It derives from the president’s authority to execute the law. It was not initially intended to be law, so much as a temporary order. If the president needed to act quickly in an emergency, and congress wouldn’t have time to act, the president needed some power to get shit done, so this is what they came up with. It carries the weight of law, but congress can simply write a new statute invalidating or clarifying it.
An agency wrote it: This is called a regulation. It is meant to expand upon laws (statutes) congress wrote, not to have been new law created from nothing.
As you can see, congress ultimately has the broadest power to write laws, since they can invalidate any other forms of law, aside from the constitution itself.
President Barack Obama delivers a health care address to a joint session of Congress at the United States Capitol in Washington, D.C., Sept. 9, 2009. (Official White House Photo by Lawrence Jackson)
This case will specifically hinge around statutes and regulations, so I will make sure to use those terms appropriately. I wanted to make sure you, the reader, understand those distinctions, as this case is all about that shit.
We all know about the Environmental Protection Agency (EPA), right? Well, the 1970 Clean Air Act was their jam. It had a rule that said any new major “stationary sources” of pollution had to have a permit.
The idea was, if you had a factory or some large device in a place of business which was putting out pollutants, when it came time to replace that shit or build a new one elsewhere, it required a permit. The permit would then require that the replacement was cleaner than it’s outgoing counterpart.
However, to make life easier, if a company had for instance, a group of major polluting devices that worked in concert together at one location, then one of the components of that group took a shit, the company could replace it without obtaining a new permit, so long as the replacement component didn’t increase the total pollution coming out of the whole “bubble” of devices, as they called it.
It didn’t have to be better, just equal.
So, Chevron went about replacing one of these polluting devices, without upgrading it, under this bubble rule.
Great googly moogly, did that piss off environmentalists—they were none too fucking pleased. They wanted it replaced with a cleaner device.
Since the Clean Air Act (a statute written by congress, remember) didn’t really define a “stationary source” very well, the EPA (a regulatory agency) wrote the “bubble” rule into their regulation to clarify.
In their infinite wisdom, they felt it was a reasonable interpretation of the Clean Air Act’s intent—they were the experts after all. They didn’t think that just needing to repair an otherwise operative system somehow meant a company had to overhaul it completely. Not to mention, sometimes upgrading one component would require upgrading all of them, which could get really expensive.
But of course, environmentalists are the most nauseating group of social justice warriors that ever lived, and they decided to file suit, arguing that the EPA had no right to create this definition out of nowhere, just because it wasn’t well-defined in the Clean Air Act.
SCOTUS however, decided that since the Clean Air Act was ambiguous on this shit, and the EPA were the fucking experts, in such situations the court should defer to their judgement.
This one ruling, and the precedent it set, eventually translated into the idea that all government agencies should be deferred to, going forward, if they made a regulation in their expertise, that clarified ambiguous statutes written by congress, used to create the agency, or written to be regulated by that agency. It became known as the Chevron Deference, and it has been case law ever since.
As you can imagine, with a lot of government agencies, and a shit-ton of regulations, it makes sense that this case has been cited 18,000 times.
Now that you understand the basics of Chevron, let’s move on to our case today.
A group of fisherman (Loper Bright Enterprises) liked to fish in federal waters. But in this country, we often have a problem with over-fishing, where these commercial vessels take so many fish, that those populations of fish can’t reproduce fast enough to keep the species around for others to fish later.
Congress had had enough of this shit. They passed the Magnuson-Stevens Act (MSA), which is enforced by the National Marine Fisheries Service (NMFS), a federal agency, similar to the EPA referenced in the Chevron case above, albeit much smaller.
I know what you’re thinking. You’re thinking, “So how the hell does the government make sure that some asshole fishermen don’t overfish an area? They’re in the middle of the fucking ocean!”
No, it’s not with satellites, or sharks with laser beams on their fucking heads. They decided that they would require these fishermen to take a fed out on the boat with them. What made it worse to the fishermen, they had to fucking pay that fed to sail with them.
Imagine, in order to prevent speeding, if the Highway Patrol made you carry an officer in the car with you, and pay their salary for doing so. It’s hyperbolic, and just used to illustrate the point, but you can see why they might have beef with this.
The Magnuson-Stevens Act passed by congress didn’t specify this was the plan, but the NMFS decided to write that regulation, presumably because they couldn’t afford to pay these narks on their own budget. Since Chevron suggested such ambiguous law could rightly be clarified by them, they fucking went for it.
Under Chevron, the courts couldn’t really undo the rules made by NMFS, since the MSA didn’t create a clear rule for them to follow. So that’s why we’re here. To determine if these fishermen have a fair beef with NMFS, and potentially, if a previous SCOTUS was running a little fast and loose when creating this Chevron deference shit.
I’m going to go out on a limb, and explain the politics of this, because why the fuck not.
It’s important to understand a couple things. Remember, regulatory agencies are created by statutes which congress writes, but then the head of that agency is appointed by the president (with the consent of congress), and can by fired by that president, if the president is unhappy with the work they’re doing.
As such, a regulatory agency, is essentially, part of the executive branch.
So the concern, is that there are situations where the president might want congress to pass a statute, but Congress simply don’t have the votes to do so.
So what may happen, is the president looks at the regulatory agencies they oversee, and if one has some tacit connection to the statute they wanted passed, but couldn’t get passed, they tell the head of that agency to write a regulation that resembles the law they wanted. And then—abracadabra-alakazam—you have a law, and you didn’t need congress to pass it.
Since the constitutional principle of separation of powers suggests laws are to be passed by congress as statutes, and not the executive orders or regulations that come from the president, you can understand the separation of powers issue some people have.
People on the right tend to be for limited government, or at least that’s what they say, so they aren’t keen to give presidents this much power.
For Democrats, they argue that if a law is ambiguous about something, it makes sense for regulatory agencies to clarify. They’re the fucking experts, and it’s why congress creates these agencies in the first place.
For instance, imagine congress passes a law that creates the EPA, and says they’re supposed to ensure that the CO2 levels in the air stay within a range that’s acceptable for all current life on earth.
Since they don’t provide an actual number, it’s ambiguous.
So then they rely on the nerds at the EPA to do some science, come up with a number, and make that the regulation. Scientists are open to revising their beliefs based on new information, so if they find out their number is wrong, they can easily update the regulation based on the new science they did.
But you know who wouldn’t figure out what that number is? The fucking courts. They’re law nerds, not science nerds.
Now that you understand both political arguments, you know what I think? They’re both fucking right! They’re making extremely valid points.
Here’s where the politics come in. The left argue that the right are basically rebuking the expertise of the scientists, and instead, acting like they can do just as good of a job interpreting this shit.
They argue that this “separation of powers” issue is swamp gas. But this, I have a problem with.
I won’t re-explain the whole thing here, just know these basic facts.
Joe Biden is not an expert in virology or communicable diseases.
During the COVID pandemic, Joe Biden wanted congress to pass a law requiring everyone get vaccinated, and if not, to wear a mask in public. Presumably for as long as the CDC suggested we were in a pandemic.
Democrats were tacitly supportive of this, but Republicans were like, “Absolutely not! This is America. We’re a free country, and we don’t do shit like this.”
Joe Biden, being the senile by crafty fucker he is, unable to get congress to pass such a law, asked OSHA to make a regulation requiring vaccinations or a mask in the workplace, instead. This effectively would have had almost the same effect as the law he wanted, since the unemployment rate is only about 4%.
SCOTUS overruled that regulation, and Biden lost. But at the time, for whatever reason, they did not overturn Chevron.
President Joe Biden
So like it or not, there was a real world example of precisely what the right-wing were complaining about, that is quite recent, and quite true. A non-expert president, overstepped his constitutional authority, and bypassed congress to achieve his political goals.
So accusing the right of being conspiratorial and shit, is pretty unfair, in this case.
Anyway, now that you know all that, on to the arguments…
Up first, for the Loper Bright team, represented by veteran SCOTUS counsel Paul Clement.
Paul Clement
He opened first, by arguing that the expense of lugging around, and paying for, a fed on a fishing boat isn’t insignificant. It can be as much as 20% of their cost, for a smaller operation.
Not to mention, some of these boats are small, and an extra person gets in the way.
But then, he went after the big fish—the Chevron deference itself.
He spent most of his opening remarks saying that this deference was wrongly decided, and should be abandoned, while maintaining that the Chevron case itself was probably fairly decided.
His argument is that the courts need not determine whether the statute is ambiguous, and therefore a regulatory agency has the unquestionable right to clarify. But instead, that the courts should do what they always do, give their opinion as to what the best reading of the statute is.
Justice Thomas started by asking counsel about mandamus. What is mandamus you ask? I had to look that shit up, too.
Mandamus is when the courts, issue an order to a lower government official, telling them to do their fucking job the way they think that person ought to do it, under the law.
So for instance, if a higher court thinks a lower court have wrongly denied an innocent person their freedom on appeal, and that lower court refuses to take the actions needed to release the person, maybe because they’re arrogant cunts who think they could not have possibly fucked up, they may use a writ of mandamus and basically say, “We weren’t asking, motherfucker—release him now.”
So the nature of his question, is about whether higher courts should tell lower courts how to consider these questions, versus what the opposition wants, which is to defer to regulatory agencies and their expertise, in matters where the law isn’t very specific.
Clement was like, “the constitution gave the power to interpret law to the fucking courts. Then your predecessors, in Chevron, basically gave that power away to the executive branch, since regulatory agencies answer to the president. That’s some grade A bullshit, right there.”
So in summary, he’s saying it’s a separation of powers issue, and the court was wrong to relinquish that power. Unless we’re to amend the constitution, interpreting statutes is the job of the fucking courts.
So if a statute is ambiguous, either congress needs to rewrite it, or the courts get to interpret it. The courts are certainly free to agree with a regulatory agency, but Chevron suggests they shouldn’t even look at the agency’s regulation if the statute is ambiguous, and that shit is wrong.
Justice Sotomayor, digging her heels in early, accused Clement of using some wonderful rhetoric.
Official Portrait of United States Supreme Court Justice Sonia Sotomayor
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She stated that if a statute uses the word “reasonable,” that it’s delegating the authority to define what is reasonable to the agency the statute created.
However, Clement was having none of this shit. He was like, “the law on domestic fisheries is that they shouldn’t incur more than 2-3% of the cost of the catch—clearly they fucking thought about this issue.
So by what reason would your dumb ass think a 20% expense for these fishermen fishing off-shore waters is what congress intended? Have you ever even running a fucking business?”
While I’m sure the regulatory agency feels empowered to do such a thing, their power comes from congress, and congress wrote similar provisions into the statute where they capped it much lower.
So the problem with Chevron is, courts would normally answer statute questions—they’re the fucking experts on that. They should be well within their wheelhouse to look at one, and say, “this dog doesn’t fucking hunt.”
Justice Roberts, coming to the defense of Chevron asked, “It seems to me, you’re arguing that the law is not ambiguous, and therefore Chevron doesn’t apply. Right?”
Supreme Court of the United States Chief Justice John Roberts
Counsel Clement was like, “let me put it another way. Chevron says, if you look at a law, and you think you could interpret it in more than one way, you assholes normally decide what the best interpretation is.
That’s your fucking job.
So why would it make sense, in this Chevron context, to all of a sudden be like, ‘Nah, we’ll let the president and his fucking minions sort this shit out.’?”
Justice Kagan chimed in next and said, “Listen you little fuckwit. In normal statutes, if congress writes a shitty fucking law, you’re right. We’re on our own interpreting that shit. We do our best best with our legal expertise.
But if there’s a law that creates an agency, congress has given us a tool to answer such questions in the form of experts. Hell, you could even argue, that the law specifically created the agency to answer those questions. But you’re saying we should shove that tool squarely up our asses and ignore it? I think not.
We’ll use that tool, because a lot of times, they fucking understand the issue way better than we do, and why the fuck wouldn’t we defer to them when congress created them for that purpose?”
Counsel Clement then tried to argue that they had an amicus brief from the House of representatives saying it doesn’t want Chevron. But boy did he fuck up mentioning this, because Justice Kagan fucking drilled him.
She rightly pointed out that congress has the power right now to overturn any aspect of Chevron it wants with new law. Clearly they fucking don’t have the votes. For forty fucking years, they haven’t done so. So you and I both know, it’s just a bunch of your right-wing assholes that wrote that shit, not congress as a whole.
Associate Justice Elena Kagan
Counsel Clement regained his composure, and put Justice Kagan back on blast with this:
It’s really convenient for some members of Congress not to have to tackle the hard questions and to rely on their friends in the executive branch to get them everything they want. I also think Justice Kavanaugh is right that even if Congress did it, the president would veto it.
And I think the third problem is, and fundamentally even more problematic, is if you get back to that fundamental premise of Chevron that when there’s silence or ambiguity, we know the agency wanted to delegate to the agency.
That is just fictional, and it’s fictional in a particular way, which is it assumes that ambiguity is always a delegation. But ambiguity is not always a delegation.
And more often, what ambiguity is, I don’t have enough votes in Congress to make it clear, so I’m going to leave it ambiguous, that’s how we’re going to get over the bicameralism and presentment hurdle, and then we’ll give it to my friends in the agency and they’ll take it from here.
And that ends up with a phenomenon where we have major problems in society that aren’t being solved because, instead of actually doing the hard work of legislation where you have to compromise with the other side at the risk of maybe drawing a primary challenger, you rely on an executive branch friend to do what you want.
And it’s not hypothetical.
He’s not wrong. The above Biden example, with his OSHA vaccine mandate—is exactly what counsel Clement is pointing out.
Counsel Clement also mentioned a “Brand X” decision often in his arguments, citing it as a prime example supporting his argument.
He’s referring to National Cable & Telecommunications Association v. Brand X Internet Services. A case where the Rehnquist court in 2005, decided that Brand X, a broadband internet company, who was trying to avoid telecommunications regulations by saying it was an internet company, won their case, because the FCC basically stated they weren’t a telecommunications company, and Chevron deference meant the courts were supposed to simply accept that shit—which they did.
His argument was that the courts didn’t agree with the FCC, but the Chevron precedent suggested they had to go with the FCC’s interpretation whether they liked it or not.
Clement seemed to be arguing that this is an opportunity for the court to say, “You know what, we have the power, not these fucking agencies. We’re not handing the power over entirely anymore, we’re taking it back.
His other underlying concern, is that these agencies are vast and varied. So their decisions create new conflicts and precedents, where one agency might decide one way, and another addressing the same exact ambiguity, might regulate in a polar opposite way.
This is in contrast to the courts, who have case law and precedent, which aims to make consistent, things like this.
He even went on to attack congress rather directly, saying that the minority are using Chevron deference to get the president, if they agree with them, to pass laws as regulations, where they know they don’t have the votes to pass themselves. That’s not a soft jab, that’s a straight bomb to the face.
It’s a clear argument that Chevron is leading to direct violations of the separation of powers doctrine our constitution lays out.
Justice Alito asked counsel Clement about what he thinks changed since Chevron was decided. Was it right then, but wrong now?
Associate Justice Samuel Alito
Counsel Clement first laid out that the courts seem to have embraced textualism more, now.
Textualism just means that the courts interpret the laws as written, not how they think congress may have intended.
He points out, that he thinks the courts were simply wrongly removed from the equation entirely, with Chevron.
If the regulation is based on the expertise of the agency, the courts could and should recognize as much, and let it stand. But the courts should not just assume that’s true and walk away before even examining it.
If the courts recognize that it’s not a regulation based on expertise, but instead, based on politics where the minority and the executive are bypassing congress, the courts should step in and put a stop to it.
Justice Kagan, not a fan of Clement’s position, asked, “we have over 70 SCOTUS cases that relied on Chevron, and over 17,000 lower court cases relied on it. You want us to blow all the shit to kingdom come? What the fuck is wrong with you? The courts will be inundated with new cases, dogs will be sleeping with cars, it’ll be total chaos!”
Clement was like, “I’m not suggesting you blow up anything. No need to revisit a bunch of old cases. I’m suggesting you have the power to interpret law. Not congress. So why the fuck would you entirely give that power to congress, in this context?”
He specifically even said:
I don’t think you actually want to invite, in all candor, that particular fox into your henhouse and tell you how to go about interpreting statutes or how to go about dealing with qualified immunity defenses.
It is rather interesting he’s trying to get the courts to take power back, and the left-leaning justices seem very unwilling to take it.
I know this is disrespectful or arrogant, and I feel bad even saying it, but I think this is a case of political ideology clouding judgement. These justices are toeing a line their political compatriots want them to, instead of thinking critically. But I will try to remain humble, and open to the idea that I’m wrong here.
Clement went on to say, “Listen, I’m not saying overturn a shit ton of cases that relied on Chevron. Again, all I’m saying, is the court shouldn’t remove itself entirely. If the agency can demonstrate to the court, it’s decision is based on expertise the courts don’t have, then the courts should certainly let that shit ride, and not decide it themselves.
But if the courts recognize it’s simple politics, and not expertise, tell them to go pound sand up their ass.
However, Chevron is saying that they shouldn’t even analyze this, and that’s the problem Clement has.
Next up for the government, Solicitor General Elizabeth Prelogar.
Solicitor General Elizabeth Barchas Prelogar
She started off by saying the opposition acknowledges that congress can grant authority to agencies, allowing the executive to fill in the gaps they may leave in their legislation for an expert the executive appoints, to fill.
If so, then what the fuck is this grand attack on Chevron? If congress can expressly delegate those powers, why can’t they implicitly delegate them?
She also pointed out stare decisis (latin for “Stand by what’s decided”). The courts generally don’t like to overrule themselves, because then the law is all over the fucking place. Ain’t nobody got time for that.
So she argues, the court could clarify or build upon Chevron, while maintaining the basic principle, as overruling it entirely violates stare decisis.
Justice Thomas started by asking about situations where the law is ambiguous, versus the law is just silent.
General Prolegar pointed out that there are several provisions in the act pertaining to the fishery that talk about how it would be monitored, and by whom. So she argues that the statute isn’t silent at all.
Associate Justice Clarence Thomas
Justice Neil “Golden Voice” Gorsuch was like, OK if you think this statute is clear, and we think it’s clear, isn’t that the kind of shit we interpret every day? Why should we defer that to someone else?
He then asked, “if we all, in this room, think it’s clear, but a lower court didn’t think it was, isn’t that a fucking problem?
Isn’t that evidence that interpreting the statute is almost always ambiguous? If experts on law like us, can come to two different interpretations, there has to be some ambiguousness.
If so, then this Chevron test itself, is too ambiguous? Certainly we’re not supposed to give up on interpreting every statue and related regulation and let agencies handle it? We’re the experts on statutes, not regulatory agencies.
So we should decide if it’s a statutory issue, or an issue of expertise. If it’s statutory, then we fucking decide it. The nerds can handle the other shit.”
He points out that the “ambiguity” trigger in Chevron is so vague, we can’t even decide if it applies to this case or not.
I understand if congress specifically gives the authority to the agency to answer a question in the statute. But you lost me at the idea we should just infer it if the language seems unclear to anyone. That’s crazy talk!”
Associate Justice Neil Gorsuch
Counsel Prelogar pointed out that when creating an agency, congress wholly understands its limits of expertise. It purposefully leaves gaps in these laws for these agencies to fill in with regulation, and they have the authority to do so. All Chevron does is recognize that, and honor what congress intended.
Justice Barrett then asked about the previous Brand X ruling, that used the Chevron deference as it’s underpinning. She asked, “Brand X basically said, even if we, the court, have an opinion about the law, and we think it’s better than the regulatory agency’s interpretation, if the court deems the agency’s interpretation is fair or reasonable, it has to go with the interpretation, and ignore what the court thinks is best. But you’re saying we don’t do that, we just use our best judgement based on all the interpretations?”
General Prelogar said she didn’t read Brand X that way. She felt that if the court could see congress did or didn’t delegate the authority to the agency in Step 1 (the statute), then there was no need to go to step 2 (the regulation) and decide if the regulation is fair or reasonable—the court should defer to the agency.
This talk of steps should probably be explained. Chevron was a two-step process.
Step one was to determine if the law was ambiguous or not. If it wasn’t, then Chevron doesn’t apply, and the courts should interpret the statue or regulation, how they see fit.
If the courts believe the statute is ambiguous, then they go to step 2, and determine if the regulation the agency wrote to clear up that ambiguity is reasonable. If it is, then the courts should defer to it, as opposed to coming up with their own interpretation.
Justice Barrett seemed concerned that there’s a facet of step 1 that says they don’t even go to step 2. Barrett’s argument is that the courts should at least go to step 2 and consider the regulation. Step 2 could have some pretty repugnant shit that the courts would never allow.
Associate Justice Amy Coney Barrett
Justice Roberts asked if Chevron applies to constitutional questions.
Sometimes the court just clears up ambiguously written law, but sometimes it weighs whether the law is even constitutional.
So if step 1 (the statute) is ambiguous, and step 2 (the regulation) is unconstitutional in the court’s eyes, Chevron seems to suggest the courts should still allow the unconstitutional regulation, because they were not supposed to even go to step 2.
But General Prelogar, conceding Justice Robert’s point, suggested Chevron was not meant to block constitutional questions, only to clarify statutory questions.
Counsel Prelogar suggested that they’re interpreting Chevron wrong. It isn’t that the courts don’t even get to step 2. Her opinion is that they always would.
They look at step one and simply determine if the statute is ambiguous. If it isn’t ambiguous, they would ensure that step 2 jibes with step 1, or is constitutional.
If the statute is ambiguous, then they look at step 2, and see if the regulation is reasonable, and presumably constitutional. If it is, then they roll with that shit, instead of trying to interpret it better themselves. If it isn’t reasonable, then they do what they do best—strike that shit and rewrite it.
Either way, they always get to step 2.
After this, Justice Gorsuch and General Prelogar went on a lengthy back and forth about the idea that when considering a statute, congress goes through a lengthy process, where voters can petition their congressperson, and give their opinions before a statute is passed.
Associate Justice Neil Gorsuch
But regulatory agencies just pass regulations without telling anyone, necessarily.
Justice Gorsuch is concerned that the people’s government isn’t consulting the people when regulations are passed, and Chevron cuts the people out even more.
He even reiterated the idea that every person gets their day in court, if they want it. But this deference rule sort of says, well, if the law is ambiguous, and the regulation says they don’t, then fuck ’em. They can’t get their day in court.
Justice Sotomayor went back and asked about Clement’s previous argument in regards to the 20% cost of the catch estimates, which are too unworkable, and would often leave these fisherman with no profit margin left.
General Prelogar responded that this 20% number they came up with, were from a land of pure imagination.
This was an estimate provided that it said it could go as high as 20%. In the real world where we live, it falls in the 2-3% like the others he mentioned.
She went on to say, that even if it were higher, the agency provided for waivers and exemptions, if it was truly an unworkable burden for them. So in her opinion, Clement was talking shit.
Supreme Court of the United States
I think we’ve talked about the Major Questions Doctrine, before in the aforementioned OSHA case. But it’s worth reiterating that the current court feels that major questions are to be answered by congress, not regulator agencies, working as minions for the president.
Again, citing the OSHA case, it was effectively saying the entire working population should get vaccinated, or wear a mask when at work. That’s a major question, as it affects about 96% of the population. The right-wing segment of the court things such questions should be handled by congress, who are answerable to the people if they vote that way, and should not be sneakily pushed through an agency at the president’s behest instead.
General Prelogar knows this court’s majority agrees with this doctrine, so she made an effort to suggest that Chevron is workable within the major questions doctrine, because again, she’s suggesting that Chevron allows for the courts to analyze both steps, the statutory and regulatory, and decide if there’s some sort of over-reach, or other political bullshit going on, and rule accordingly.
Convincing them of that, is probably her only chance of winning this shit.
Counsel Clement did get an opportunity for rebuttal at the end.
He made the point that because of Chevron, members of congress who want to achieve something controversial, which they know would not pass the house and senate, would purposefully make a law ambiguous. Then, they would lean on a sympathetic president to push the agency under their control, to write a clarifying regulation the way that they wanted to pass the law, but couldn’t.
So he feels that overturning Chevron is necessary to shut this shit down.
And overturn it, they did.
2024 Supreme Court of the United States
In a 6:3 partisan split, where Justices Sotomayor, Kagan, and Jackson dissented, SCOTUS sided with Loper Bright, and while doing so, rebuked the Chevron deference.
The majority’s opinion is pragmatic, in my opinion. We’ve covered the political arguments over this case fairly well, and the courts reiterated them.
They agree, that expert opinions, on areas where expertise is warranted, should be considered, and accepted, if they are reasonable interpretations, they don’t violate any constitutional principles, and it seems fair that the statute used to create that agency, give them the power to make such a regulation.
So the left’s argument that the courts are looking to overrule experts in areas that they don’t have expertise, is hyperbolic nonsense, usually reserved for assholes in congress, not the Supreme Court.
So as an example, if congress writes a law asking the EPA to regulate the air in such a way as to ensure healthy air to breathe for humans, and then the EPA writes a regulation saying the air should have no more than 100 parts per million (PPM) of some harmful pollutant, because studies have shown, that more than 100PPM is when it becomes statistically significant to human health, the courts will and should recognize the court is out of it’s bailiwick, and not try to answer that question better.
If the regulation in question however, seems more about statutory interpretation, then the courts can and should consider how they’d interpret it, and if they feel their interpretation is better, they should have no qualms smacking down the regulatory agency.
For example, if congress passes a statute asking the EPA to regulate the air quality, and the EPAs response is to enact some political scheme that bans fossil fuels, that may be a problem. The courts should consider that as a major question, and decide whether that’s an agency’s expertise, or a political question for congress to decide with the consent of the people.
Because, it’s possible fossil fuels could have a place in the market, along side cleaner energy, and banning them completely isn’t really science at all, but a political ideology being put into play.
Hear oral arguments, read about the case, and the opinion here at Oyez.com
Here is another great video from Yale law professor Jed Rubenfeld, explaining it more professionally, than yours truly.
Some of you may remember, we recently had a president named Donald J. Trump. It was in the news, actually.
Donald Trump
Anyway, after four years in office, he was such a good president, that despite being an incumbent, and having the advantages that come with that, he lost to a senile old man who loses his train of thought like I lose my car keys.
It’s worth noting that he won the election when he wasn’t president, against Satan herself, when he had no power at all. But then, when he was in power, he lost to Captain Dementia, and somehow claimed the election was rigged. Again, he was in fucking power when he lost. If it was to be rigged, he was the one to rig it! It’s like he’s never even heard of Vladimir Putin.
Anyway, after he clearly lost, he decided to go on a spree of videos and Twitter posts claiming the election was stolen—stirring up a shitstorm among his loyal voters.
A few of these fine upstanding assholes even decided to invade congress and take an unguided tour outside of visiting hours. It didn’t go well.
After the peaceful protests became less than peaceful, to his credit, Trump did tell his merry band of miscreants to go home, lending some level of credence to the idea that he wasn’t actually asking for violence. So I’ll give him the benefit of the doubt, that he was seeking some sort of non-violent resolution to his loss that could still keep him in power.
It didn’t work. We got the Inappropriate-Hair-Sniffer-In-Chief.
Trump also tried to fire his Attorney General William Barr if he didn’t try to overturn the election. He tried to get Pence to not certify the election. He called states and tried to get them to submit false electoral votes in his favor. He was a fucking trainwreck, ya’ll.
Anyway, because some believe Trump broke a few fucking laws here, he’s been charged with as much. However, Trump claims that as president, which he was when some of these issues happened, he’s immune from prosecution for anything he does in office.
As you can imagine, prosecutors would love to have at the orange tyrant. But many have put those trials on hold until SCOTUS determine what immunity he is entitled to, if any.
Because this case is a landmark of landmark cases, this question was fast-tracked by SCOTUS. They presumably understood this may need resolved quickly since there’s another election coming up.
Now…on to the arguments!
Opening for Trump, counsel D. John Sauer, with the sultry voice of a diseased chicken (Listen to it and tell me I’m wrong), started with this rather ambitious statement. “Without presidential immunity from criminal prosecution, there can be no presidency as we know it.”
Counsel D. John Sauer
He went on to point out that no president has ever been tried for criminal acts. Not sure where he learned debating, but that could just mean, no president committed a serious crime while in office, that was deemed worth prosecuting.
Also, this statement has a little asterisk next to it, as Nixon almost assuredly would have been, had he not resigned. Plus, Reagan may have been for the Iran Contra-Affair, but it became obvious after he left office, his senility was so great, he could not fairly assist in his own defense.
Trump’s reason for this, is somehow the same as cops use for qualified immunity. “If you do this, no one will want to be president, because when it comes time to react to a tough situation in the moment, they’ll be too afraid to pull the trigger.”
This of course, is overcome by the fact that no previous presidents had these qualms.
Saddam Hussein
He went on to point out that Bush could have been tried for lying about WMDs in Iraq.
Pretty creative, but acts of war are bestowed upon the president, if they can fairly claim they’re defending the country or its allies. Rioting within the US to overturn an election, even if you’re delusional enough to think you won, isn’t a power bestowed upon the president by our Constitution. I don’t think this argument goes very far.
Associate Justice Clarence Thomas
He wrapped up his opening argument that “prosecuting presidents for official acts” is the supposed crime.
I’m not sure what the president is accused of is somehow an official act, but hey. Go for it, bud.
Justice Thomas, who arguably seems to favor Trump, was first to ask questions. He was like, “Where the fuck does it say the president can do this shit while in office?”
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:– I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
Section 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Section 3
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Section 4
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Sauer also claimed that somehow the Marbury v. Madison‘s precedent suggests that the president is immune, since then Chief Justice John Marshall basically allowed the new president Thomas Jefferson (Marshall’s cousin, whom he did not get along with) to withhold a judicial appointment of Justice Marbury, legally commissioned by the previous president John Adams, who Jefferson also disliked.
I guess he thinks Marshall said in this opinion, the president can do whatever they fuck they want in office, as long as it’s official. I don’t recall that part.
Justice Thomas, seeming somewhat skeptical, asked, “If we accept your argument that official acts are where the immunity lies, how the fuck do we determine what an official act is?”
Counsel Sauer pointed to an older case, Nixon v. Fitzgerald, where the court ruled that immunity applied to the “outer perimeter” of his duties. Which basically meant, anything related to his job—a much broader set of duties than something more narrow, like the president’s duties enumerated in the constitution.
Chief Justice Roberts was like, “What if the president appoints someone to an official position after that person or someone else bribed him to get the fucking job. That’s an official act, and it’s a fucking crime. We’re just supposed to sit back and take that shit?”
Chief Justice John Roberts
But as always, it’s the chief, and he did it with a smile.
Counsels response was that “bribery is not an official act.”
Counsel seemingly leaving the door open to the idea that the president is prosecutable for bribery, because that’s a separate act from the appointment.
Counsel didn’t say this, but I assume it plays out that the president would be impeached and prosecuted for accepting a bribe, and the appointee would then be impeached because they were nominated as the result of a bribe.
So while the crux of Trump’s argument is that he has full immunity, counsel Sauer seems to be more tempered in his argument, that it’s just full immunity for official acts. He is likely trying to ensure that he’s not making some overarching case that the president is above the law, which is certainly pretty smart if he’s to win this shit.
Chief Roberts followed up with asking, “bribery isn’t official, but the appointment is. So what do we do with that shit?”
Sauer suggested they defer to the courts to parse out what’s official and what’s not, then prosecute from there, any unofficial acts that are crimes.
Justice Sotomayor, launched a technique that’s rather common in science, and with SCOTUS—think in extremes to test the position.
Official Portrait of United States Supreme Court Justice Sonia Sotomayor
Click for Biography
She asked, “can the president have the military assassinate their electoral rival if they think the person is somehow a threat or corrupt?”
This mother fucker actually responded, “it depends on the hypothetical, but that could well be an official act.”
Are you fucking kidding right now? That’s his response? He could have done so much better on this. I’m guessing he was leaving an opportunity open for a situation where it could be shown the rival was a traitor and had committed some heinous act against the United States, but otherwise no, that’d be murder. He fumbled this one, in my opinion.
Justice Sotomayor points out that in counsel’s examples for Bush and Obama, they did what they did to protect the country, not for personal gain. Trump however, is trying to stay in office when everyone else is telling him he lost, which is for personal gain.
I agree with her, but this is the easiest question for him to answer so far, because he could just say Trump felt he was protecting America by trying to prevent Biden from taking over as president, when he may have truly believed Biden lost.
She pointed out that the framers actually discussed granting immunity to the president, but they never actually put it in the constitution, suggesting that he/she does not have that power. It’s actually a pretty great point from her.
Justice Kentanji Brown Jackson was next to chime in. She first established what counsel Sauer wants, which is absolute immunity. He agreed.
Justice Ketanji Brown Jackson
She then clarified, that in the past, when they grant absolute immunity, it’s in the context of official acts. He also agreed.
So then she asked, so the real question here, if we accept your stupid fucking argument is whether these things he’s being prosecuted for are official acts, right?
He responded that it was an important determination…to which Justice Jackson was like, “mother fucker, it’s THE determination and you know it!”
She then asked, if the president is using the office for personal gain, then by definition, that’s not for the benefit of the fucking United States, is it? Therefore, not an official act. Therefore, you’re talking shit. Therefore, checkmate, bitch.
Counsel Sauer, again was tongue-tied. He tacitly agreed, but then pointed out, that in the Nixon v Fitzgerald case, they didn’t want to allow the courts to assess the president’s state of mind. The business of proving someone’s motives is fraught with issues.
They just wanted to judge the acts on their merits. So if a plausible case could be made that a president does something for the betterment of the country, then BOOM, immunity—otherwise, no immunity. Prosecutors don’t have the need or leeway to prove an additional mens rea element.
She then went on to argue that every fucking president before Trump operated under the premise that they could be prosecuted after they left office, which is laid out in the impeachment process. So what he’s asking for is not the status quo, but for them to somehow infer some new power, granted to the president, that wasn’t accepted before.
Counsel Sauer’s retort was about how Benjamin Franklin once pointed out that “History furnishes one example only of a first Magistrate being formally brought to public Justice. And the people cried out against this.” He was referring to Charles I who was removed and executed.
Colorful argument. Stupid, since again, this didn’t make it into the constitution, but colorful.
Justice Neil “Golden Voice” Gorsuch was next to jump in. He was like, “We all agree, once the prez leaves office, they can be charged with a crime for their personal conduct (not official), yeah?”
Associate Justice Neil Gorsuch
Counsel Sauer agreed.
He asked about a previous circuit course case called Blassingame v. Trump, and the test they provided for separating official vs. private acts, but didn’t elaborate, presumably making sure counsel Sauer was also aware of this case and understood the test.
Counsel Sauer seemed to side with the opinion of Justice Katsas from that case.
My own cursory and amateur pass at the opinion of this case from Katsas is that they argued that if the president were at a campaign rally, or some other shit that was clearly not the work of the people, immunity isn’t attached. But that if they were in office, or doing the work of the people, and during that time, just happened to say some political shit to help their election, such as jabs at their opponent during a state of the union address, then immunity would apply.
Justice Amy Coney Barrett began rattling off things Trump has been accused of, where he had private conversations with his lawyers and shit, asking if those things were private or official.
Associate Justice Amy Coney Barrett
Counsel agreed they were private, and attempted to distinguishing the things he felt his client did officially, which is meeting with the DOJ to determine who’ll be the acting attorney general, communicating with the public, and congress. I wonder if telling them they should “fight like hell” was deemed official by counsel Sauer, because that’s kinda why he’s here?
Sauer, addressing Justice Roberts, suggested that he felt many of the things in the indictment were official acts, and he agreed some may be private.
So he essentially wanted SCOTUS to parse that shit out, removing all official acts from the indictment, and only letting Trump be charged with things that were un-official acts. Presumably feeling the unofficial stuff, in their opinion, weren’t that serious, or were more easily defeated if they go back to court.
Justice Roberts, seeming perplexed by his arguments was like, “if appointing a justice is an official act, but bribing the president to appoint that justice isn’t, how the fuck do we prosecute the president for taking a bribe to appoint a justice? Giving someone money is perfectly legal. Appointing the justice is the official act, and perfectly legal. It’s giving someone money to appoint a justice that’s the fucking problem. If you have us remove the “appointing a justice” part, it’s just giving someone money, and that’s AOK. See the fucking problem here, dipshit?
His response was…well…incoherent to me. I’ll let you be the judge:
In this particular indictment, where we say virtually all the overt conduct is official, we don’t believe it would be able to go forward.
I mean, there could be a case where it would, but if you look at—even the government’s brief in this case divides up the indictment into things that, other than the electors allegations, don’t really—are—they haven’t disputed that they are official acts.
But what they do is say, well, we tie it all together by characterizing it as done, and these are the allegations that the Court just referred to, by an improper private aim or private end.
Again, that’s their words.
And that just runs loggerheads, you know, dead-set against this Court’s case law saying you don’t look at with immunity determinations the—the—the motive—improper motivation or purpose.
I’m not saying Sauer was drunk, but that response felt like someone should have requested a breathalyzer.
Justice Kagan, having none of this shit, was like…
Does it strike you as odd that your understanding of immunity goes way beyond what the Office of Legal Counsel has ever claimed for the former president?
Associate Justice Elena Kagan
He responded by saying that any time a congressional statute seemed to indict a president, they went out of their way to avoid that.
As usual, he didn’t answer the question, and Kagan wasn’t interested in letting that slide.
She then asked, what if the president sold nuclear secrets to enemies?
His answer was that he couldn’t just be tried. He’d have to be impeached, then tried in the senate, and only after a conviction there, could he be tried in criminal court.
I know it seems like I’m mentioning they asked him a bunch of hypotheticals, because they did. Like, there were hypotheticals falling out the court’s asshole.
She went on to ask, what if the president got the military to stage a coup. Clever what she did there, because it wasn’t the military, but that’s kinda the argument as to what he did, right?
He had the same response as before, but Kagan wasn’t done. She was like, but in this case, the president is out of office now, so impeaching him and convicting him in congress is off the table. So he just gets away with it?
I don’t think I’ve ever heard any counsel arguing before SCOTUS struggle to find his words and a coherent argument more than Sauer at this point.
To be fair, he may just be a fine attorney in an unenviable position. But again, Trump has a history of two things:
Firing good attorneys who give him good advice, but said advice just happens to be not what Trump wants to hear
Good attorneys firing Trump as a client because he’s often batshit crazy, from a legal perspective, and asks them to do dumb shit they don’t want to do, for sake of their reputation and law license.
Kagan, like a cat playing with a mouse, finally dropped the hammer. She was like, “the fucking framers didn’t put an immunity clause into the constitution. They weren’t fucking idiots—they certainly knew how to. They just didn’t. Why? Because they didn’t want assholes like your client to become unremovable tyrants. You fucking know this, yeah?”
Again, he attempted to argue the vesting clause above, somehow was understood to provide immunity. But as Trump himself is famous for saying…
His argument was again, that the path to prosecute the president is impeachment, not a trial in criminal court, which is why they created such a process.
Justice Gorsuch posed the question about Trump potentially pardoning himself. He pointed out that the court has thankfully never had to address such a question. Counsel Sauer agreed, and admitted he didn’t have an argument for that either.
Sauer then reiterated the idea that that the president will be afraid to do anything, if they know future congress could pass a law making their acts illegal, and then prosecute them accordingly.
I’m gonna add an editorial here—this argument is fucking nonsense. The president is aware of current laws, and therefore should know not to break them. If a future congress passes future laws to make an act criminal, those laws cannot be retroactive.
You can’t prosecute someone for a law that didn’t exist when they committed the act, because people can’t predict the future. So while this is seemingly a decent argument, it’s my opinion that this argument assumes everyone else is an idiot, and doesn’t understand what I just pointed out.
Trump Impeachment Vote
It’s also worth noting, his position that the impeachment process must be performed to convict a president is really just a way to say, as long as the president’s party controls one of two houses, he’s unlikely to ever be prosecuted, as opposed to a criminal court which would typically weed out such partisanship in the jury selection process.
Justice Barrett chimed in and asked, “Us nine assholes in a robe are also subject to the same impeachment rules as the president. No one has suggested the laws don’t apply to us, have they? Are we afforded that same luxury?”
He disagreed. He argued this only applies to the president, again citing the framers and the constitution without offering an ounce of language to support this argument.
Justice Barrett then hit him with the ole, “What if the crime wasn’t discovered until after they leave office, removing the impeachment process from the equation? They just skip Jail, hit Go, and collect $200?”
His response was that the framers just assumed that risk.
It’s my observation, he assumes a lot with very little evidence.
Justice Barrett also hit him with, “You say the president is exempt from these criminal statutes, except for a couple. So how is he to be convicted after the impeachment process, if he’s exempted as you argue?”
Associate Justice Amy Coney Barrett
She went on to ask, “Giving the example of the president arranging a coup, even if the president were impeached and convicted in the senate, he still couldn’t be convicted in criminal court, unless congress specifically mentioned the president in the law—that somehow he’s presumed exempt.”
Counsel agreed. Let me say that again…counsel AGREED. He didn’t excuse it away, he basically said, unless the congress specifically writes a law that says the president is a criminal if they do this thing, it’s assumed the president cannot be criminally prosecuted for any other crime.
Again, this is fucking crazy, y’all.
Justice Jackson asked, “We know the fucking president, as a matter of fact, has the best lawyers in the world at their disposal. So why the fuck, would the framers give that person immunity, when others do not get it. Seems kinda silly, yeah?”
Counsel Sauer was like, “You’re talking shit. The president must follow the law. Our argument is that you assholes in robes don’t hold them accountable in criminal court, congress does via impeachment.”
She was like, “Maybe I spoke French and you didn’t understand. So let me repeat the question, dipshit. Others, like us, other appointees, and elected officials, don’t have the legal protections the president does. Why? Why can we go to jail, but the president alone is only prosecutable in congress?”
Counsel Sauer responded by citing Nixon v. Fitzgerald again, where it was determined the president can’t be sued. But, that’s fucking civil court—not criminal.
Justice Jackson was like, “Dude, we ruled that way, because we know every Tom, Dick, and Harry would sue the president if they could, and he’d spend his whole life in civil court. But criminal convictions are done by the government, and therefore, that risk isn’t nearly the same. Are you kidding me with this shit?”
Associate Justice Ketanji Brown Jackson
His argument was that the president is held liable by the people who choose not to reelect him (which is ironic), or the congress which can impeach and convict him.
Honestly, there’s no way Sauer needed over an hour to argue. He basically had three songs he sang over and over again. He could have wrapped in ten minutes.
Justice Brown, with her own editorial was like, “Can you imagine someone being elected president, knowing that they’ll be the most powerful person in the world, and then on top of that shit, you tell them they’re immune from any criminal prosecution? That sounds like a recipe for tyranicism. So what disincentivizes the president from becoming such a tyrant in your argument?”
She went on to argue, “You’re asking us to take criminal prosecution off the table, and therefore creating incentives for all future presidents to be career criminals.”
Justice Jackson, then wrapped with, “If congress decides a future action should be criminal, why the fuck do they have to specify it’s criminal if the president does it, too? Do you really expect us to buy that shit? That’s crazy talk.”
And mercifully with that, counsel Sauer’s time in the hotseat was over.
For the United States, counsel Michael Dreeben.
Michael Dreeben
He basically opened with, “My friend on the other side is a fucking idiot. The constitution doesn’t grant immunity for the president anywhere in the text.
If we’re to believe this idiot, the president could ass rape Mitch McConnell on the White House lawn, then shoot him for not lubing up first, and basically not worry about it.
Our founders knew too well about the abuses of a tyrant. No fucking way they give that power to a president.”
Justice Thomas, as usual, was the first with questions. He asked, “Are you saying there’s no presidential immunity whatsoever? Not even for official acts?”
Justice Thomas referred to Operation Mongoose, which was a Kennedy plan to kill Castro in Cuba. “Why wasn’t that prosecuted?” he asked.
He responded that the reason there were no prosecutions, was because there were no crimes.
Woah! I’m kinda on his side, but that seems like a statement that requires balls the size of Texas. But nonetheless, he has my attention.
He points out that in the example Justice Thomas gave, that doesn’t mean that the president can’t commit murder, but that the constitution gives the president the power to command the military to eliminate threats to the United States, in this case, Fidel Castro, but in Obama’s case, generic terrorists.
Justice Alito jumped into the fray, asking counsel Dreeben, why is your opponent’s argument that the president must go through the impeachment process before they can be criminally prosecuted a bad system?
Associate Justice Samuel Alito
Counsel Dreeben was like, “I don’t know if you noticed this, but congress is a bunch of whiny ass political hacks. If the president’s party is in power, then he/she will NEVER get impeached. Or do you not recall Clinton and Trump’s impeachments being thwarted by their respective parties.
Criminal acts shouldn’t be subjected to the political whims of the political parties in charge at the time, it should be up to the criminal courts.
You’re a fucking judge, why would you not see your people are better equipped, and more fair, at handling such things, than those contemptuous zealots in congress? Give me a fucking break, with this question.”
Justices Kavanaugh, Alito, and Gorsuch all seemed to want to understand that with the checks and balances clearly enshrined into our constitution, are there presidential acts that congress may not criminalize.
Meaning, is the president protected from a congress, who simply doesn’t like what the president is doing, all of a sudden, making presidential acts a crime, so they can remove a sitting president they just don’t like?
Counsel Dreeben was like, “No dawg. If the constitution bestows powers onto the executive, congress can’t just criminalize them. It would have to amend the constitution. Surely you know this, yo?”
With that agreement, then Gorsuch was like, “OK, we agree that there are some things that are off limits for congress to do to the president, now we simply have to draw a line as to what congress may or may not do, to criminalize actions a president might take.”
Associate Justice Neil Gorsuch
An example Justice Gorsuch gave was, what if the president arranged a peaceful sit-in at Congress—protesting some legislation they seemed poised to pass—and this sit-in preventing congress from moving forward with their legislative duties, could congress criminalize that?
This is clearly a reference to what happened when President Trump organized rallies to protest Biden’s win, although it eventually was not so peaceful.
Counsel Dreeben’s response was basically, “If it’s not outlined as a power the president is constitutionally enshrined with, it’s complicated.”
After covering powers that he’s granted by the constitution, then past areas where congress may specifically prevent the president from doing something, the answer becomes, is the president subject to criminal law in general. Gorsuch, seemed to agree, that was the heart of the question, which counsel believes they are.
Justice Sotomayor asked:
If he’s not covered by the criminal law, he can’t be impeached for it.
She elaborated on her question by asking if the president is subject to the criminal code, except when somehow a criminal code would criminalize the president’s actions that the constitution grants them.
Dreeben agreed.
She then asked, “is it not mandated that the president faithfully execute the laws, and therefore violating them would be a direct violation of their duty to violate any code they swore to protect?
Dreeben was like, “You’re speaking my love language, mama!”
I think the heart of Sotomayor’s question is that if the president has immunity, then how can they be impeached for “high crimes and misdemeanors” if they’re immune from them? Seems like some weird circular logic to me.
Official Portrait of United States Supreme Court Justice Sonia Sotomayor
Click for Biography
Justice Alito had heard enough of this shit, though. He was like, “The fucking president has to make a lot of tough decision to protect the United States from harm. Isn’t it fair to say on occasion, it might mean breaking a few stupid fucking laws? Like, the president makes one fucking mistake, trying to keep us safe, and you’re going to land their ass in jail?”
Counsel Dreeben, having enough of Alito’s shit, was like, “Mistakes won’t land a fucking president in prison, you ignorant fuck.”
He also pointed out, that the president has no role in certifying their own election. The VP does. So anything a president does to interfere with the election, is not a constitutionally protected action—it’s not in his fucking job description.
Justice Alito, apparently trying to figure out why Trump is the first idiot to be indicted for a crime while he was president asked, “What about Roosevelt throwing Japanese Americans in concentration camps? Could that be something the president could be charged for—violating American’s rights?”
Counsel Dreeben was like, “By today’s standards, hell yes.”
He then went on to add some nuance, part of which was that White House counsel at the time would have fucking told him he was allowed to do that under presidential powers of war, which gives the president some level of innocence.
So Alito asked, “you’re telling me, if his lawyers are like, ‘you’re good dog’, that this ineffective (ignorant) assistance of counsel would exonerate the president from wrongdoing?
Associate Justice Samuel Alito
Dreeben agreed that he felt it would. Presumably the president is not a lawyer. Certainly not in Trump’s case. So if the AG and other top government lawyers give him legal advice, and he follows it, that seems unfair to come after them later—they thought they were following the fucking law.
He brought up a legal principle he called entrapment by estoppel. This is not just about the president, it applies to anyone. If a government official, in this case, Trump’s lawyer, tells you that you may do something, and you then do it, they can’t come later and arrest you for it. That’s fucked up!
Imagine a cop says, “sure, smoke that joint, your fine.” So you do. Then he nabs you and charges you for smoking a joint. I think we can all understand why this is wrong.
So if the Attorney General tells the president, “Hey man, you’re within the law to do this,” it would be wrong for the same reason, for someone to then arrest the president for doing it.
Justice Alito then asked, “but what if the president just picks some random fucking idiot as their AG, and this person is literally hired to be a “yes man?”
But again, Dreeben had an answer for that. “He’s like, again with stupid questions. The president nominates, but the congress approves this person. So such an idiot should never make it to being AG.
Justice Alito then asked the question Gorsuch asked of Sauer earlier, “Can the president pardon him/herself?”
Biden Pardoning President Trump
Counsel Dreeben responded, “we’ve never chimed in on that, and the constitution doesn’t answer it. Probably because we never had any half-wit president consider it before now. So he also had no argument on this one. Plus, to be fair, Trump never said he’d do it, and even tacitly rejected the idea.
Alito then hit Dreeben, who works for the DOJ, with the left hook. “Don’t we need to know your position, as a representative for the DOJ on this? I mean, if you have no position against it, can’t the president just pardon themselves for every imaginable crime on the way out the door?”
It’s worth noting here, the presidential pardon power is for federal crimes only. Not state and local ones. If someone is charged by a state, then the governor of that state is who may pardon them.
Counsel Dreeben was like, “I would assume that the bedrock principle in our laws, that no person shall be the judge in their own case, applies here, and therefore the president may not pardon themselves.”
Justice Kagan asked, “What should we do here? Is it within our power to decide if the president may pardon themselves, if they may commit crimes in office, etc.?” Are we not potentially stepping on the power of congress and the president”
Associate Justice Elena Kagan
Counsel Dreeben agreed that there was plenty of precedent that the courts could indeed draw these distinctions, as they do with any other constitutional questions.
In response to Justice Gorsuch, asking about the distinction in this case, between office seeker, which isn’t protected, and office holder, which is, counsel Dreeben stated that when Trump is on the phone saying he needed them to find 11,000 votes, that’s quite obviously an office seeker, and therefore not protected.
Justice Kavanaugh, almost assuredly referring to New York AG Alvin Bragg, who campaigned on the idea he’d get Trump on criminal charges, asked about the corruption concern of opposing parties picking someone they don’t like, and just looking for a crime to hang on them. This is opposed to what should happen, where there’s evidence of a crime first, then an investigation, which potentially then leads to the person in question.
Counsel Dreeben pointed out that during Iran-Contra, the judge looking at the issue, reviewed the evidence and dismissed the criminal complaint. His suggestion being, that the justice system does have some effective checks to ensure an ambitious prosecutor can’t just go on a political witch hunt, and succeed.
Justice Kavanaugh gave another hypothetical, that what if President Johnson had purposefully lied to the American people about Vietnam, in order to achieve political goals there. Could he have been prosecuted for that?
Counsel Dreeben’s response was a healthy respect for the first amendment, that we don’t prosecute speech. We prosecute illegal actions.
Kavanaugh then asked, “What about Johnson pardoning Nixon?”
Dreebon’s response, “That’s a presidential action granted by the constitution. Soooo…”
Dreeben responded that the DOJ reviewed this and felt it was not an unlawful killing and chose not to prosecute. Suggesting that the system worked to protect the president when he was acting to protect the country.
Truthfully, seems like kind of a dodged question. He didn’t really explain why Obama was deemed to be within his right as president to deny a citizen due process before killing them. But I think he ultimately was relying on the “entrapment by estoppel” argument mentioned earlier, pointing out that White House advisors gave Obama the go-ahead to nuke that terrorist cunt.
In a long series of question, Justice Jackson asked if Dreeben felt there were any acts Trump is accused of, they he feels falls under official acts, and therefore are immune from prosecution.
Dreeben was like, “No. We agree official acts aren’t prosecutable. So we wouldn’t have sought prosecution if we thought for a minute, they were official acts. It’s our position, he did this entirely for personal gain, to take control of an election his dumb ass clearly lost, and he damn well knows it.”
Associate Justice Ketanji Brown Jackson
Without a question in sight, Justice Jackson went on to make a political statement that she thinks Trump’s argument that allowing these prosecutions to go through, would chill all presidents in the future, when they’re faced with a tough action, while valid, is no less valid than the concerns of a president who’s entirely immune from prosecution, going on a criminal bender like they’re both Thelma and Louise.
This case has made my head spin. It’s a pretty crazy thing.
While I always listen to the oral arguments, I rarely read the full opinion of the court. That shit is long, full of legal mumbo-jumbo (mostly citations, actually), and boring. A synopsis is usually good enough for me to opine. But for this one, I actually did read that shit.
Here it is (Click the link), as delivered by the chief himself, Justice Roberts.
Supreme Court of the United States Chief Justice John Roberts
There is a LOT of fucking nuance, and if people have strong opinions about this case, they should shut the fuck up until they’ve actually read the opinion.
Because I think it largely stands on it’s own. Here’s the last few paragraphs of the opinion, if you don’t want to read the whole thing. I think it’s a pretty good summary. I’ve removed the citations below in all the actual quotes to make it easier to read.
This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency?
Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic.
Our perspective must be more farsighted, for “[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”
Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.”
It is these enduring principles that guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.
The judgment of the Court of Appeals for the D. C. Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Anyway, here’s my analysis of the whole opinion. I know, this is new for me, but let’s give it a whirl.
*takes deep breath in*
Trump largely won.
SCOTUS separated actions by a president into four categories, and then outlined what actions, if any could be taken against the president related to them:
Powers or duties enumerated by the constitution – Absolute immunity
Powers or duties granted by congress – Presumptive immunity
Powers or duties assumed by the people – Presumptive immunity
Unofficial acts (everything else) – No immunity
First, constitutional powers: the basic principle is that powers the president is granted by the constitution are the supreme law of the land. Don’t like it? Amend the fucking constitution.
The president has the discretion on how to achieve these goals, and can’t be prosecuted for doing them, even if some law says that act is illegal. Why? Because laws don’t have more power than the constitution, they have less.
Some on social media, and even the dissent, are showing some level of hyperbole by saying Trump could have ordered the military to kill Biden while in office, to eliminate the threat of losing the election, and that would be OK.
In my humble opinion, that is not what the opinion says. Also, remember when Justice Roberts asked Trump’s counsel Sauer about bribing the president to get an appointment and his response was, “a bribe isn’t an official act?”
Clearly, even Trump’s attorney understood that there is a distinction between something criminal and something official, and that one can lead to the other, but it doesn’t mean they’re entirely enjoined as an official act.
The majority stated that the constitution lays out what the president’s duties are, and if the president does them how they see fit, the president is “absolutely” immune from congress or the courts trying to remove that power from them, or prosecute them from doing them. It’s a separation-of-powers joint. Absolute just means, it can never ever happen, and no takesy backsies.
2024 Supreme Court of the United States
Here’s the snippet from the opinion addressing this:
We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.
For instance, the president has an enumerated power to pardon federal criminals. Congress cannot at some point decide that the person the president pardoned, somehow makes that pardon a crime. That power is absolute, and congress can’t fuck with it.
The gave the example of when Lincoln pardoned confederate soldiers. Congress at the time didn’t agree and tried to pass a law preventing the president from doing it. SCOTUS at the time struck that shit down, because of the reasons current SCOTUS is citing now—the president’s power to pardon is a constitutional one which congress cannot remove or modify by law—only a constitutional amendment can change that. Make sense?
Chris Goldstein receives pardon from President Biden for marijuana protests.
From there, we move on to congressional acts giving the president powers and duties.
They ruled that the president has “presumptive” immunity on official acts, that are not enumerated in the constitution.
For instance, congress creates agencies, which then are headed by someone appointed by, and answering to, the president. So in this situation, congress is giving the president a new power.
The courts argue that congress should let the president carry out those duties however the president sees fit. If they don’t like it, amend the fucking law, which SCOTUS agrees is perfectly acceptable.
I believe their concern is with congress trying to retroactively prosecute a president they don’t like by changing laws so they can prosecute them. But they seemed to feel that they could cross that bridge when congress builds it. They just suggested that in the meantime, the president should be presumed to be immune, unless a good case can be made otherwise.
Here’s what they said on that:
As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.
The last bit, the “outer perimeter” likely refers to acts that are assumed to be the job of the president, but aren’t specifically outlined in the constitution, or created by congress.
For instance, when Donald Trump spoke to supporters after he lost, and conveyed his lame-ass notion the election was stolen, it was arguably him conveying what he thought was necessary information for the people to know. At least, that’s what his rep Sauer said in oral arguments—talking to the people, and informing them, is part of the president’s job, even if there’s no text stating as much.
His detractors argued he was inciting people to riot, of course, which is part of why he’s here now.
I just think he was either delusional, in denial, or full of shit. I don’t think he actually wanted rioting. But I’m an optimist at heart.
Now that we’ve covered that shit, they went on to outline who can prosecute the president and when:
No matter the context, the President’s authority to act necessarily “stem[s] either from an act of Congress or from the Constitution itself.” In the latter case, the President’s authority is sometimes “conclusive and preclusive.” When the President exercises such authority, he may act even when the measures he takes are “incompatible with the expressed or implied will of Congress.” The exclusive constitutional authority of the President “disabl[es] the Congress from acting upon the subject.” And the courts have “no power to control [the President’s] discretion” when he acts pursuant to the powers invested exclusively in him by the Constitution.
If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so. In Youngstown, for instance, we held that President Truman exceeded his constitutional authority when he seized most of the Nation’s steel mills. But once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.
They’ve clearly outlined the framework of how and when a president can be prosecuted. If the president commits acts that are bestowed upon them in the constitution, congress nor the courts can step on that without violating the separation of powers. So that’s a big old can of “No No.”
If the president exercises power granted to them by congress, or acts that are those understood to be something the president does, then congress may impeach him if they believe he has acted outside the laws they created.
And if it’s an unofficial act entirely, then off to court they may go.
The majority also left it open for the lower courts to decide if they’re official acts or not. If they deem they’re not official, the president could be in real fucking trouble. The “presumptive” thing just means that it is assumed the president is immune, unless they can make a good case why they’re not—establishing a baseline that starts from immunity.
The majority even pointed out that with Nixon and Jefferson, the courts established that a president can be subpoenaed, and compelled to turn over evidence, just as any other citizen may be forced to do. The only narrow exception was if those bits of evidence, if made public, could be a danger to the country or its people.
Former President Richard Nixon
They agreed with Sauers overarching theme, that if the president doesn’t enjoy this immunity structure they’ve laid out, then the president will be “chilled” as they put it, from acting in a way they think is best, if they’re worried about going to jail for it later.
I see their point, but frankly, that bit concerns me, as it seems to be an open door for criminal actors who may become president, to more easily commit crimes, if they can frame it as an official act, well enough.
The majority however, hammered it home by saying:
We must, however, “recognize the countervailing interests at stake.” Federal criminal laws seek to redress “a wrong to the public” as a whole, not just “a wrong to the individual.” There is therefore a compelling “public interest in fair and effective law enforcement.” The President, charged with enforcing federal criminal laws, is not above them.
They then elaborated on how they felt that should be restrained, while still describing when the door is open for the president to be prosecuted:
At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”
They next went on to explain why they kicked the question of what’s official and not official to the lower courts.
The White House
They basically said, none of these assholes in front of us bothered to argue what’s official and what’s not in their briefs for us to consider. Nor did the lower courts who decided these cases that led these assholes here. So we’re not doing that fucking work for you, you lazy pricks. We’re the court who settles your arguments. We don’t make the arguments ourselves.
They then went on to say that the president’s motives for official conduct are off limits. Meaning, if it’s official conduct, it’s official. You don’t get to drag his ass off to court because you don’t like the motives you assume he had while doing it. Not to mention proving someone’s mental state is pretty fucking hard.
They didn’t give an example, but I’ll fucking try. Why not?
The president appoints justices to the supreme court. Imagine a male president appoints some ultra-hot female Instagram influencer. Congress doesn’t get to come in and make that illegal because they believe he only did it to get laid. He has the power, and he did it how he saw fit. His motive can’t be the basis of it being criminal. Make sense? Good.
All of that speaks to their opinion on presidential powers and immunity in general.
They then went on to address the particular past president in front of them—one Donald J. Trump. So let’s dig in to his issues, and why he’s here.
They first addressed Trump threatening to fire his Attorney General William Barr if he didn’t help him overturn the election. Since the AG is answerable to the president, that is within the presidents constitutional authority, and therefore, he cannot be prosecuted for it, even if his motives were bullshit.
Second, we have Trump trying to get Pence to overturn the election by not certifying the vote.
While they acknowledge the president and VP are joined at the hip, and there are a lot of official acts between them, the VPs role is also as the president of the senate. Things the VP does in the senate, are not official acts of the president.
So, they argued presumptive immunity applies there. Meaning, let’s assume he was confiding and advising the VP as a president often does in his official role, but if the government can prove it was anything but that, and a criminal act, then by all means, the lower courts consider the merits of the arguments against him, and proceed accordingly.
Third, they covered a broad range of shit—his communications with state officials, private parties, and the public at large. Specifically, trying to get the states and republican electors, to cast fraudulent votes for Trump.
SCOTUS was like, “You didn’t provide nearly enough evidence in these cases for us to rule on it. We’re not going to provide an opinion facts not in evidence. So they basically punted that to the lower courts, and for the two sides to prepare their cases accordingly.
So no immunity granted or rescinded. Genuinely no opinion. This is for the lower courts to first decide, and we’ll see you later if it comes to that.
Fourth, his Tweets and speeches on January sixth.
Again, they punted this to the lower courts, because the evidence was incomplete. They had some Tweets but not all of them. They had portions of speeches but not the whole speech. The court refuses to opine without the full evidence.
Next, here’s where it gets a bit tricky. If the president uses his official acts to do something unofficial, his official acts cannot be part of the indictment for the unofficial act he’s being tried for.
They didn’t give examples for this, and I’m not sure I can come up with one either. But they point out, if we can use his official actions to secure a conviction on unofficial actions that are deemed criminal, then immunity means nothing.
They wrote on this:
If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated.
I get the argument. How can one be immune from something, but that thing still harms them? But still seems maybe a little too friendly to a potentially criminal act by a president, for my tastes.
They then moved on to Trumps much more broad immunity claims. That he can’t go to try for jack shit. That they could only prosecute him by impeachment and removal in the house and senate.
SCOTUS were having none of that shit. They were quoting the Federalist papers, previous precedents, and statements from the framers destroying that gobbledygook.
Trump also alleged that if the impeachment failed while in office, he couldn’t be tried in criminal court later. They shut that shit down as well.
They then turned to the government’s argument that he has no immunity at all. They were like, “You even fucking agreed with us at oral argument when we talked about constitutional powers being absolute. Are you fucking nuts?”
They then dropped a hammer on the idea that such prosecutions by the government against Trump, or future presidents, would be assumed to be on the merits, and not some political witch hunt. They said on this subject:
As for the Government’s assurances that prosecutors and grand juries will not permit political or baseless prosecutions from advancing in the first place, those assurances are available to every criminal defendant and fail to account for the President’s “unique position in the constitutional scheme.” We do not ordinarily decline to decide significant constitutional questions based on the Government’s promises of good faith. “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Nor do we do so today.
The majority then went after the minority, who…well…let’s just say, may have played a little politics, and got a little (actually a lot) hyperbolic. It was ugly.
On the minority’s assertion that this is bullshit because there is no immunity clause, they wrote:
True, there is no “Presidential immunity clause” in the Constitution. But there is no “ ‘separation of powers clause’ ” either.
The majority frankly took the gloves off with this shit. I think Justices Sotomayor, Jackson, and Kagan probably need an IV drip after this.
Justices Sotomayor, Jackson, and Kagan (left to right)
After shitting all over some of their poorly substantiated arguments, they wrote next that:
The principal dissent’s most compelling piece of evidence consists of excerpted statements of Charles Pinckney from an 1800 Senate debate. See post, at 7. But those statements reflect only the now-discredited argument that any immunity not expressly mentioned in the Constitution must not exist. And Pinckney is not exactly a reliable authority on the separation of powers: He went on to state on the same day that “it was wrong to give the nomination of Judges to the President”—an opinion expressly rejected by the Framers. Given the Framers’ desire for an energetic and vigorous President, the principal dissent’s view that the Constitution they designed allows all his actions to be subject to prosecution—even the exercise of powers it grants exclusively to him—defies credulity.
By now, you’ve all heard that Sotomayor basically said that the court made the president above the law. Oh, boy. The majority was not pleased with that shit. They responded rather forcefully:
Coming up short on reasoning, the dissents repeatedly level variations of the accusation that the Court has rendered the President “above the law.” As before, that “rhetorically chilling” contention is “wholly unjustified.” Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.
Justices Roberts, Thomas, Alito, Gorsuch, Kavanugh, and Barrett
They went on to accuse Sotomayor and Jackson of “fearmongering” (She kinda was). And they then explained why their argument is so problematic.
That without this framework, congress, courts, prosecutors, etc., can and will go after the president for every little fucking thing they can come up with, and the president will spend his whole fucking presidency dealing with that bullshit.
They’re not wrong. For a while now, we’ve endure several attempts to prosecute former presidents for things that are essentially political grandstanding and posturing, and not really trying to protect the people from real criminal acts.
Trump may well deserve a lot of this shit, but a lot of it was an absolute waste of time and taxpayer money. So I applaud this part of the opinion most. Congress is a fucking joke, and this should help reign in some of the attempts to use the legal system for political gain, when they simply don’t have the votes to win otherwise.
They then went on to complain about how the dissent wanted them to outline official acts and shit. The majority was however, like:
They have a point. The majority can’t come up with every possible scenario and create some sort of fucking legal vaccine. They have to let the parties make their arguments, lower courts can rule on them, and if they think they need to weigh in, they fucking will.
Justice Barrett, in her concurrence, felt that the majority didn’t need to kick everything to the lower courts. She agreed with the constitutional powers immunity, but on the non-constitutional issues, she felt they could have addressed them here.
Meaning, she didn’t think they needed to cover every fucking possible scenario, but they could have at least addressed the ones Trump tried to argue were official acts.
She also took issue with the ability to use official acts as evidence for prosecuting non-official acts. She wrote:
The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution—a charge not at issue here but one that provides a useful example. The federal bribery statute forbids any public official to seek or accept a thing of value “for or because of any official act.” The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.
Associate Justice Amy Coney Barrett
As usual, she makes a pretty valid point. Barrett is no idiot.
So, despite what the minority, and every left-wing pundit says, it wasn’t that they made him above the law. They specifically said their opinion was not that.
What they did do, is lay the framework for when the president can be prosecuted and how, while also ensuring congress nor the courts, take presidential power from the executive and give it to themselves.
*exhales*
Hear oral arguments or read about the case, and the final opinions here at Oyez.
As an added bonus, watch this video from Yale Law Professor Jed Rubenfeld, from his “Straight Down the Middle” series. He provides a pretty great and fair analysis.
Imagine going to buy a piece of property, and the realtor tells you it’s prime real estate. But then after you sign on the dotted line, you find out it’s in a flood zone, or close to something noisy like an airport. You got the ole bait n’ switch.
That principle is at the heart of this case for Luxshare, involving 28 U.S.C. § 1782—but for SCOTUS specifically, it’s what the hell constitutes a foreign or international tribunal. I know, you’re already riveted, right?
Well, a lot of people are apparently interested, because unlike most cases which have two sides, one representative each, and maybe one amicus between then, this case had three fucking people arguing for the petitioners, ZF Automotive, and two arguing for the respondents Luxshare. Five fucking people arguing this shit! That’s a record, for me.
Anyway…
Congress wrote 28 U.S.C. § 1782 to assist in international disputes, as a courtesy to other nations. As you may know, when you sue someone, you can request relevant documents, if you have evidence they’re pertinent to your case, via a subpoena.
So the gist of this law is basically that if a company is being sued in Germany for instance, but their headquarters are in New York, the German court can ask New York to order the company they want documentation from, to turn that shit over for use in German court proceedings, just as they’d have to do if the suit were all transpiring in the United States.
Most countries have a similar law—it’s just a way to reciprocate with each other in a world that has a lot of international business disputes.
When 28 U.S.C. § 1782 was originally written in 1948, it specified “courts” as the entity who can demand discovery. But then congress amended the language in 1964 to read as “foreign tribunals.”
It is well understood their intentions in amending this language were meant to broaden the scope to more than just courts, as there are other “official” proceedings that should have a right to subpoena evidence. It’s been applied to magistrates and governmental investigations around the world.
However, people have also attempted to use it to apply to international private arbitrations, which is why we’re here now—SCOTUS has had enough of this shit. Private arbitrations are when two parties agree to hire arbitrators, which are private entities—often lawyers—to settle their dispute out of court.
ZF Automotive
For the case in question here, in 2017, technology company Luxshare bought a Michigan factory owned by German auto-manufacturer ZF Automotive. But after moving into its new digs, Luxshare was not pleased with their purchase. They believed that ZF Automotive were less than honest about the value of this shithole.
As an Ohioan, I’d like to point out that it was in Michigan, so you’d think they’d have known it was basically worthless—nothing good comes from Michigan, except maybe Tom Brady.
Once Luxshare realized they’d gotten got, they wanted restitution. In their purchasing contract with ZF, they agreed to arbitration in Germany if there were any disputes of this nature. So using 28 U.S.C. § 1782 as their wingman, Luxshare requested a Michigan court to force ZF to help them with discovery documents from ZF Auto.
They wanted to prove they were highballed, since the ZF location in question is located in Michigan, but the discovery is to assist in support of their agreed-upon arbitration in Germany.
Stepping back for a second, I suppose I should explain something I haven’t previously. I know I often gloss over this, but in general, it should be understood that basically no one gets to go straight to the fucking Supreme Court.
Otherwise, the opposite of original jurisdiction is “Appellate Jurisdiction,” which is when a lower court rules, and a party of that decision, generally the loser, is none too pleased with those fucking idiots, and decides to appeal to a higher court.
This is called submitting a writ of certiori. The higher court reviews this writ, and decides whether they think it’s worth their time to review, or if they think it’s a big old nothing burger and tell them to pound sand.
If the higher court does grant certiori (agree to hear the appeal), either the petitioner loses again, or the superior court decides the lower court were fucking idiots, and overrule them.
So now, whomever lost the second round is pissed, and they appeal that appeal to a higher court again. This dance of sore losers eventually meanders it’s way to SCOTUS, one higher court at a time.
SCOTUS is generally an appellate court—the prettiest appellate court in all the land. There is no appeal once you lose there—other than maybe trying to get your shit heard again by a newer SCOTUS years later.
While we’re on the subject of shit I often gloss over, it’s also worth noting that on the subject of legal documents, it’s good practice to define terms that are written in your law or contract that could be ambiguous. The better one does this, the less likely the document will be scrutinized in courts.
For instance, in a contract, maybe you have verbiage that says, “This contract is null and void if either party acts like an asshole.”
Asshole is a word that is rather open to interpretation. So the contract would (and should) have a definitions section, and there, it would define “asshole” specifically. It might say, “Asshole: A person who has made publicly disparaging remarks against the other party.”
So now, when courts or arbitrators have to determine if one of the parties was an asshole, they clearly understand what the test is to determine if they were an asshole or not—did that party talk shit about the other publicly?
Make sense?
So, now that you understand that, this a great time to mention that those lazy fucks in congress didn’t define “Foreign or international tribunal” in 28 U.S.C. § 1782. They were too busy insider trading and grandstanding in front of congressional cameras to write an actual well-written law. Classic fucking congress! It should be known that probably 90% of what SCOTUS does, is cleaning up congress’ rather avoidable fucking messes.
SCOTUS is often just an editor for whatever congress writes. Congress writes a law with the linguistic skills of a caveman, so then some member of the public interprets their idiotic law one way, while some other idiot or government official interprets it another way, and now these two have beef which could have been avoided if congress had spent a little time writing a better fucking law.
So SCOTUS had to read 28 U.S.C. § 1782, and be like, “What fucking idiot forgot to define ‘Foreign or international tribunals?’ Here, let us fix this for you, you fucking morons. There’s 538 of you fucking idiots, and you can’t write a decent fucking law between you.”
I know SCOTUS is all polite and professional in public, but you know in closed quarters, this is the language they use.
Anyway, on to the arguments…
Counsel Roman Martinez opened for the petitioner’s ZF Automotive by pointing out that the reports from congress, when updating this law to read “foreign tribunals” clearly show that their intent was to create a cooperative effort with foreign governments in a similar way as we’d hope they’d do for us if the roles were reversed. There’s no fucking mention of private arbitrations in this shit.
Roman Martinez
He also points out that since arbitrations are more common than court proceedings, district courts are going to have these requests falling out of their assholes if the court were to side with Luxshare.
Justice Kagan, ever the skeptic, pointed out that things like “foreign university” or “foreign language” don’t necessarily mean it’s government related. So your fucking argument is full of holes, bro!
Counsel Martinez went out to point out that the rules commission who drafted this new rule, were specifically told to do so by congress, in an effort to enhance cooperation between nations. So how the fuck would that translate to private arbitrations?
Justice Breyer, being ever the contrarian was like, “Sure congress gave them a directive, but this language can be interpreted more broadly to include private arbitration, so what’s the fucking harm in that?”
Next up was counsel Joseph Baio, also arguing for the petitioners. He also wanted to answer Justice Breyer’s question with the Judge Judy defense. No shit!
Joseph Baio
He was like, “If some asshole goes on Judge Judy’s program and asks for discovery, we wouldn’t give that old bag jack shit. Even though she’s an actual judge, her fucking show is just private arbitration. So for you to side with those other assholes, you’d be arguing that a German Judge Judy, would have the right to discovery that American Judge Judy does not!”
My quote may not be verbatim, but that was the basic gist of it.
He went on to tell justice Breyer, “if you side with those dipshits, you’re basically incentivizing ambulance chasers like me to start our arbitrations in foreign countries, so we can bypass your rules here.
Justice Breyer seemed unimpressed.
Counsel Baio, being a man of extreme examples, also put forth his violin defense.
He was like, “A foreign orchestra could hold an audition for a violinist. That is a decision-making process that would be allowed if you ruled for those fucking idiots over there. Do you really want that shit?”
Justice Sotomayor, seemingly unimpressed, asked about the World Trade Organization (WTO). She was like, what if they pick some arbitrators. They’re an independent organization, and not a government. So are they fucked?
Counsel Baio was like, “Listen, I’m sick of your shit. If the individuals disputing the case select the arbitrators, it’s fucking private, and they can get bent. If however the WTO picks the arbitrators, it’s an international organization of cooperating governments, so they get to demand discovery. Why is this so difficult?”
Next up was Edwin Kneedler, acting on behalf of the US Government in support of the petitioners. His opening was basically a greatest hits of the first two. He was like, “Listen, y’all know the reason we passed this fucking law. It was about international cooperation with other governments. Why are we even talking about this shit?”
Edwin Kneedler
He argued quite simply, that the line he draws, is that an international tribunal has to be:
Established by government, and exercising governmental authority.
He also cited international comity. The idea that the standard the respondents want isn’t what other countries recognize. So if he were to lose, the US would be giving up discovery like a twenty dollar whore, where other countries would be more like a thousand dollar whore or something.
Finally, for the respondents, we first have counsel Andrew Davies. He argued that the “best and most natural interpretation” of foreign tribunal includes commercial tribunals, because they’re adjudicating a party’s legal rights.
Andrew Davies
He also points out that the courts benefit from arbitrations, because that means they don’t have to handle all those fucking disputes. So if SCOTUS rules against his side, that will actually create more work for the courts, not less, because people will be less likely to arbitrate international affairs knowing they won’t have that discovery option available.
He also cited that the court has sided with previous arbitrations, as promoting international comity, so the other side are a bunch of fucking liars spewing bullshit. That while they may be right that some countries don’t provide arbitration support, most of our major trading partners do.
Justice Neil “Golden Voice” Gorsuch chimed in and was like, “Back in 1964, arbitration wasn’t “a thing” like it is today. So surely congress then couldn’t have envisioned the world we live in now, with fucking arbitrations all over the god damn place. Clearly, congress wasn’t considering private arbitrations when they wrote this fucking rule, yeah?”
Associate Justice Neil Gorsuch
Counsel’s response was essentially to point out there there are lots of countries already supporting arbitrations in this manner, and the language doesn’t rule it out, so that should be good enough.
Justice Breyer, siding with Gorsuch was like, “Dawg, you crazy.”
Finally, counsel Alexander Yanos for the respondent. He dug deep and was like, “Hey man, these other assholes are just flat wrong when they say congress didn’t anticipate arbitration in this law. The senate report used to incite the committee to draft this law cited a German Mixed Claims Commission, which was effectively arbitration.
Justice Roberts pointed out that a representative for the government was here, and arguing the opposite position. Shouldn’t their opinion matter?
But counsel Yanos was certain that the point of the law was for international cooperation. If an arbitration is set up in a foreign country, and it’s decisions are binding under law, and only appealable by the courts, then it’s an international tribunal, even if it’s private arbitration, because any appeals do end up in court.
Alexander Yanos
Justice Gorsuch, seemingly unimpressed with counsel Yanos’ argument, and in agreement with the idea that it’ll add a lot more work to American courts, pointed out that 3rd party discovery is a pain in the ass that no one fucking likes. As such, he’s pretty sure congress wasn’t intending to make that shit the norm.
In a unanimous decision for ZF Automotive Group, SCOTUS decided that a foreign and international tribunal shall be defined as a governmental agency abroad, and not some rando third party arbitrators. Otherwise, it’ll basically be anarchy up in this bitch. Anyone with an international beef that forms some sort of inquiry board will be asking for shit they have no right to ask for.
As such, ZF is not required to hand over documents to Luxshare under 28 U.S.C. § 1782.
Weirdly, Justice Barrett who authored the opinion acknowledged that the word tribunal could certainly be interpreted as something that isn’t governmental in nature.
Associate Justice Amy Coney Barrett
She also acknowledged that foreign just means not located in the US, it also doesn’t have to mean a foreign government.
But when used together, a foreign tribunal is generally thought of as a governmental agency that isn’t part of the United States. Her argument for this was the term “foreign leader.” She was like, you wouldn’t call the president of a company abroad a foreign leader would you? Fuck no. You’d call the leader of a foreign country that.
They went on to define a foreign tribunal as a governmental agency from a foreign country, and an international tribunal is one where two governments join together to form some intergovernmental agency, like maybe NATO, or the United Nations.
She then suggested that it was plainly obvious the US passed this law to create a level of mutual respect among international governments and the US, and if that’s the purpose, helping third-party arbitrators doesn’t really serve that purpose.
She finally hit her opinion home by pointing out that in the US, third-party arbitrators don’t often get the right to demand discovery. So if we don’t do it here at home carte blanche, why the fuck would we give some international assholes that power?
The idea was, that once people agreed to arbitration via a contract, they couldn’t just be like, “Fuck this arbitrator, we’re going to court instead.” Presumably, congress also liked the idea of not tying up the courts with a bunch of nonsense that arbitrators could handle.
For those who don’t know, arbitration agreements are basically when two people enter into some sort of relationship, but before they do, they agree that if they have beef with one another which might result in them dragging each other’s asses to court, they’ll use an arbitrator instead. It’s cheaper and easier to settle disputes via arbitration than going to court, plus I’m pretty sure it’s not a matter of public record either, in case you don’t want your private matters on blast.
Your insurance is likely one example. They may have written into the policy that if you disagree with a decision, instead of suing them, you agree to go through arbitration. Whatever the arbitrator decides, you both agree to do that thing.
The arbitrator also must be impartial. Not an employee of other side, or even retained by one party or the other. In some instances, both parties hire their own arbitrator, then those two hire a third impartial arbitrator to be a deciding vote.
This case involves a humble Iowa Taco Bell franchise employee, named Robyn Morgan. The franchise owner is Sundance Incorporated.
Morgan argues that Sundance Inc. failed to pay her overtime as prescribed by the Fair Labor Standards Act (FLSA), which basically says if you are paid hourly, and work more than forty hours in a seven-day period, you must be paid at least 1.5 times your normal wage.
Sundance, when hiring new employees, has an arbitration clause in their application for employment. Pretty standard shit, really.
Well, Morgan, apparently being unaware or uninterested that this was the deal, opted to sue Sundance instead of going to arbitration, starting a class action suit claiming her and many other employees like her, were underpaid for the overtime they worked.
It’s not that these assholes aren’t allowed to go to court, but they had a fucking agreement. If they both waive that agreement, and decide court is the best path, they’re welcome to do so.
Morgan was not the only person alleging Sundance were some no-overtime-paying assholes. There was another case, Wood v. Sundance in Michigan, who also claimed the same. Sundance apparently owns like 150 Taco Bells all over the midwest.
Anyway, when Morgan filed suit, again, it was a class action. So Sundance was like, “Hey, man. There’s already another case out there (Wood v. Sundance), so this bitch is double-dipping. If she wants to sue on her own, fine. But this class action shit is wrong, man!”
The court however, thought the class-action was perfectly fine, and allowed her to proceed.
But, Morgan and Wood, seeing an opportunity to join forces, went into mediation as a united front against those no-overtime-paying mother fuckers. They got a shit ton of payroll data from Sundance, and eventually Wood settled, but Morgan was like, “No way, Jose. We want more.”
At some point, someone at Sundance finally went, “Hey, uhh guys? Don’t we have an arbitration clause? I seem to recall that shit somewhere. Why are we settling this through the courts?”
Another Sundance rep was like, “Fuck, you’re right my brother. How did we forget that? We must have been stoned or something. Let’s file a motion to compel arbitration and stop wasting time with this shit in court, then go get some tacos.”
They tried to argue that they were afraid they’d have to arbitrate with the whole fucking class, which seemed like a pretty big ask, but then when SCOTUS ruled on a similar case, saying such things weren’t required, which gave Sundance the feeling of safety to think they could just push Morgan to arbitrate. But we all know, they were fucking high, forgot, and got the munchies for some tacos, right?
Supreme Court of the United States
Either way, Morgan was like, “The minute you decided to file motions and shit to prevent us from a class action, you fucking waived the arbitration agreement. We’ve spent money and time prepping for court, not arbitration. So you can fuck right the hell off.”
A district court heard Sundance’s argument, but was like, “Sorry you idiots. But you waited too fucking long to compel for arbitration. With all the time and money she spent, you harmed her by waiting around to ask for arbitration until after she spent all the scratch.” This harm indicates that she has been “prejudiced.”
But Sundance was unmoved, and filed an appeal with the 8th circuit, who didn’t feel Morgan was prejudiced by such a delay. Apparently believing any money she spent preparing for court, was also good preparation for arbitration.
Lower courts had used a three-part test to determine the case before it made it to SCOTUS:
Did Sundance fucking know they had an arbitration clause in place?
Did they behave in such a way that suggests they knew they had a fucking arbitration clause and intended to enforce it?
Was Morgan fucking harmed (prejudiced) in some way by them doing what they did prior to deciding to enforce their fucking arbitration agreement.
The debate in this case, is mostly about #3—whether the petitioner (Morgan) has a burden to prove that the respondents (Sundance) waived the arbitration, and such burden, is more of a pain in the ass (shows prejudice) than other burdens a petitioner might have to overcome in contract law. Most other contracts do not need to show prejudice to be ruled unenforceable.
Since SCOTUS previously ruled arbitration agreements shouldn’t be treated as more special than other contracts, Morgan’s team argues that having to show prejudice means she’s required to do more, and thus violates Concepcion’s rule.
As arguments began, Justice Roberts, with the politeness of a 50-year-old Boy Scout, asked counsel for petitioner Morgan, Karla Gilbride, “So what the fuck do we do if there’s a state that has some arbitration-specific rule? Tell the state to go fuck themselves, and shove that rule squarely up their ass?”
Counsel Gilbride was like, “Yeah, basically. Did you even fucking read the FAA? It’s part of my briefs. All contracts created equally.”
Justice Roberts was like, “Well how the fuck do we define waiver then? Isn’t it a case by case basis? No one has a million fucking rules defining what is and isn’t a fucking waiver.”
Chief Justice John Roberts
“Sure, bro. But what the lower court got wrong, was that they added a requirement of prejudice. They did analyze the first two tests, and agreed it had been waived. But then, they added that third part of the test, requiring prejudice. That’s what we take issue with.” Counsel Gilbride responded.
Justice Kagan chimed in and asked if Iowa law had a prejudice requirement in state law for all contracts, would it then be acceptable here?
Counsel Gilbride responded, “If we’re going to discuss things that aren’t true in this fucking case, then sure, since that would apply to all contracts equally, it would jive with the FAA and would be OK.”
Justice Barrett had some monkey wrenches she wanted to throw at counsel Gilbride, so she was like, “Based on the lower courts three part test, I know we’re assuming that they waived their right to arbitration by engaging with the courts instead of asserting arbitration right away. But instead of waivers, aren’t we really talking about estoppel by laches?”
Associate Justice Amy Coney Barrett
What is estoppel and laches you ask? Great fucking question. I didn’t know either. It’s basically the idea that if you wait too long to assert a right, the court will prevent you from asserting it later. So the difference is that a waiver is something you do voluntarily, whereas estoppel is when the court basically waives it for you, and you don’t have a choice.
The reason this matters, is that estoppel by laches does require prejudice. Meaning, for the court to say, “Fuck you, you can no longer assert your right to arbitrate because you waited to long” they must show that the wait fucked up the other party. If so, this puts Morgan back on the hook for #3 of the three part test.
Counsel Gilbride responded, “You’re assuming we’re arguing we weren’t prejudiced, but we’re not and never have. We’re just arguing it shouldn’t be necessary to show prejudice to begin with.”
Counsel Karla Gilbride
For the respondents (Sundance), comes SCOTUS regular, counsel Paul Clement.
He opened that nothing in any of these laws or contracts puts a fucking time limit on when arbitration must be asserted.
So while those other assholes claim that us waiting to assert it is akin to waiving that right, that’s a fucking lie. It’s waived, when we say it’s waived. If you assholes want to prevent us from asserting our right, then that’s estoppel, and you have to show prejudice. But we didn’t do shit to that girl that caused her harm. We were just chilling out, waiting to see what made more sense.”
Justice Gorsuch, seemingly unconvinced by this argument was like, “Are you really trying to say that the courts can never decide you waived your right if there’s no time limit on asserting it? Because that seems pretty fucking crazy, dog.”
Associate Justice Neil Gorsuch
Counsel Clement was like, “If it’s obvious we waived it, sure. But clearly we never made any effort to suggest we voluntarily waived it. They are just assuming that, and trying to get the court to impose it, which then becomes estoppel, and then requires prejudice. This isn’t rocket surgery, man.”
Justice Kavanaugh asked about the lower courts determination that there’s a “presumption of forfeiture” if you don’t demand arbitration in your first response. Once you agree to engage with the courts, you’re waiving arbitration.
Justice Kavanaugh also questioned the idea that Morgan wasn’t prejudiced. Any delays by Sundance due to motions and discovery are going to add costs to Morgan’s case, and that is certainly causing her harm.
Counsel Clement argued that other courts generally don’t require invoking arbitration at the first response, but instead, consider it waived if there’s a shit-ton of requests for evidence (known as discovery) and such that the defense requests for court.
Counsel Paul Clement
Justices Kagan seemed to be having none of Clements arguments, though. While he continued to hammer the point that just filing a few motions in court doesn’t mean his side waived their right to arbitrate, Justice Kagan accused him of just making up rules of default for his own benefit.
But the real dagger was justice Sotomayor chiming in, who laid out all the ways Sundance delayed and stalled, filed motions, and entered into settlement talks, all the while knowing they had an arbitration agreement they weren’t demanding be honored.
By their own admission, they were gambling on another SCOTUS case to see how it was decided, which would then give them a better understanding if they should litigate against the class action, or force arbitration. That decision to gamble, in her mind, was a fucking waiver of their right to arbitrate.
In a unanimous decision where Morgan wins, SCOTUS ruled indeed that the Sundance waived the right to arbitration when it engaged in litigation versus compelling arbitration. Morgan does NOT have to show she was harmed by their actions (prejudiced) before trying to compel arbitration, because that would then be a unique requirement for arbitration agreements, putting them on some unique tier, above other contracts, and that’s some straight up bullshit.
Listen to oral arguments or read about the case at Oyez.com and/or SCOTUSBlog
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.
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
The Logical Libertarian™ 