UPDATE 1: "Justice Gorsuch has two opinions today. The first is Ohio v. EPA, the EPA 'good neighbor' policy case."
UPDATE 2: The second case is Harrington v. Purdue Pharma, a bankruptcy case: "[W]ord games cannot obsure the underlying reality... the Sacklers seek greater relief than a bankruptcy charge normally affords, for they hope to extinguish even claims for wrongful death and fraud, and they seek to do so without putting anything close to all their assets on the table." That's Gorsuch, writing for the majority, joined by Thomas, Alito, Barrett, and Jackson. An unusual grouping. The dissent is written by Kavanaugh, joined by Roberts, Sotomayor, and Kagan.
UPDATE 3: SEC v. Jarkesy. SCOTUSblog says: "The court framed the issue as whether the Seventh Amendment allows the SEC to compel Jarkesy to defend himself before the agency rather than before a jury in federal court. The court holds that when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial." It's 6-3, and the grouping is the usual grouping. From the dissent, by Sotomayor: "Today, for the very first time, this Court holds that Congress violated the Constitution by authorizing a federal agency to adjudicate a statutory right that inheres in the Government in its sovereign capacity, known as a public right." Gorsuch writes a concurring opinion, joined by Thomas, to say that it's not just about the Seventh Amendment. Also at play are Article III and the Due Process Clause. He writes: "The new law gave the SEC's Commissioners — the same officials who authorized the suit against Mr. Jarkesy — the power to preside over his case and issue the judgement." Yes, the case went to an "administrative law judge," "But the title 'judge' in this context is not quite what it might seem."
UPDATE 4: Finally, it's the abortion case that got leaked yesterday, Moyle v. Idaho. As expected, the writ of certiorari is dismissed as improvidently granted, and there are various opinions. Jackson concurs in part and dissents in part. Kagan concurs, joined by Sotomayor and in part by Jackson. Barrett, joined by Roberts and Kavanaugh, concurring, "agree with the decision to dismiss it because of the extent to which, in their view, the case has changed since they agreed earlier this year to take it up. Moreover, they note, there is now a 'difficult and consequential argument' in the case about whether the constitution would allow Congress to require Medicare recipients to 'violate state criminal law.'"
AND: In Moyle, Alito dissents, joined by Thomas and Gorsuch.
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65 comments:
that's bad news. Goresuch is an oddball. At least its not Roberts
enjoins the enforcement of a major Environmental Protection Agency rule based on an underdeveloped theory that is unlikely to succeed on the merits
Understating the underdevelopment of the theory...
Waiting for Mass. v. EPA to be overruled. That was 5-4 and SCOTUS agreed with the EPA that carbon dioxide is pollution.
Every little bit helps.
Rather than recognize that right, the dissent would permit Congress to concentrate the roles of prosecutor, judge and jury in the hands of the Executive Branch
Roberts writes the clear, bright language lawyers hate...
I fully admit that as a non-lawyer I am likely missing a lot of nuance, but if the dissent in Ohio vs EPA is based on the assumption that the underlying challenge to the rule that is being adjudicated in the lower courts now is likely to fail, and therefore the EPA should be able to impose its rule, isn't that pre-judging the outcome of that underlying case?
...this Court holds that Congress violated the Constitution by authorizing a federal agency to adjudicate..
ad·ju·di·cate /əˈjo͞odəˌkāt/: a formal judgment or decision about a problem or disputed matter...act as a judge in a competition.
Soto mad EPA can't be a judge and declares she's mad they can't be a judge...
"Yes, the case went to an 'administrative law judge,' "But the title 'judge' in this context is not quite what it might seem."
As a former ALJ, he's right.
"Today, for the very first time, this Court holds that Congress violated the Constitution by authorizing a federal agency to adjudicate a statutory right that inheres in the Government in its sovereign capacity"
I foresee and am hopeful for many such "holdings" in the future, specifically regarding the Bureau of Alcohol, TransFats and Entenmanns.
Purdue wound up paying $6bn in settlement for their opioid shenanigans. They got all kinds of bad press about what evil horrible people they were. Including TV specials and not 1 but 2 multi-part dramatizations
Johnson & Johnson settled for $26 billion and I wonder how many people here even knew they were involved?
In other, totally unrelated news, Purdue almost never advertised in the media.
J&J spends more than $2bn every year.
John Henry
Seems like a pretty good day for the good guys. Hope that holds - tonight and tomorrow.
No Presidential Immunity case ruling before tonight’s debate? Lots of reporters are disappointed.
Do you believe the SEC case will affect the Trump civil trial that took place in NYC? Trump was denied the right to a jury trial although the government was seeking hundreds of millions in civil penalties. Many were arguing at the time that Trump's 7th Amendment rights were being violated by the denial of a jury trial. It would seem the Supreme Court agrees although I have not gotten around to reading the whole decision yet.
How often is it the 5 boys over the 4 girls?
Death to the Administrative State day at the Supreme Court
AA got lineup wrong in the abortion case. Admittedly very confusing. Dissents further down.
Oh Yea said...
No Presidential Immunity case ruling before tonight’s debate? Lots of reporters are disappointed.
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They still have the whole day to leak it or, oops, post it online by mistake.
well purdue hired much firepower including eric holder of Covington and Burling to lie for them, in the local courts, of course the controversy involves the dispensing rules the FDA used to facilitate larger quantities of this Soma,
"a major Environmental Protection Agency rule based on an underdeveloped theory"
A big theory that's a small theory?
"AA got lineup wrong in the abortion case. Admittedly very confusing. Dissents further down."
I wasn't trying to list everything or to list them in order. I've added another sentence to refer to the dissenters. It's something I'd like to read slowly.
how did Purdue promote their product, by word of mouth,
Great news for due process on the SEC case and it revives my hope that Chevron goes the right way as well.
Still, I have doubts after the horrible "standing" rejection of Missouri, since actual doctors were silenced when they were in the position of Surgeon General for their states, thereby depriving their citizens of the guidance they wanted to give.
Some damn big ones still hanging out there for the year.
how did Purdue promote their product, by word of mouth,
Yes. They hired hot chick sales reps to call on doctors who specialized in pain etc. Their sales meetings were better than any Hooters lunch.
I do some bankruptcy law, and was kinda shocked by the 2d Circuit's Purdue decision. Didn't expect reversal to be only 5-4. But must say Kavenaugh's dissent more persuasive. Will be interesting to see what happens to settlement on remand.
They hired hot chick sales reps to call on doctors who specialized in pain etc. Their sales meetings were better than any Hooters lunch.
Hey now- those hot chic sales reps were my college classmates!
If I didn't have calls this morning I would be reading Jarkesy with great interest. I suspect my immediate reaction (SEC enforcement program completely upended!) is wrong and it'll turn out they have some minor administrative fix, like with their unconstitutionally appointed administrative law "judges," but I can dream haha.
It appears Justice Jackson is still unsure what a woman is. In her separate opinion, she studiously and carefully avoids using the term "woman" or "pregnant woman." Instead, she repeatedly refers to "pregnant people" or "pregnant patients." A couple of times, she quotes the Idaho statute in dispute. But since that statute uses the term "woman," Jackson alters the quotation to replace "woman" with "patient." Whew! Crisis averted! She did slip up at least once, though, using the term "her" in acway that transphobically implies that only women can get pregnant. "Her uterus"? Doesn't
Justice Jackson realize that some men have a uterus too? Ooopsie!
I don't care (much) about these cases, but find any and all SCOTUS leakers and shoot them.
So the SEC got wrecked.
I know a large community that will be happy about that.
Joe Smith said, "I don't care (much) about these cases, but find any and all SCOTUS leakers and shoot them."
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Funny how there was never any follow-up on that. Poof. It disappeared.
In my view this is a “we’ve done this thing wrong and unconstitutionally forever so it would cause chaos to enforce the constitution now” type of stance. Administrative trials to impose significant penalties are a bit of a farce. It takes a certain amount of chutzpah to say that you’re denigrating individual liberty if you say that if the government accuses a person of fraud and wants to take their money they should get a jury trial.
RideSpaceMountain said...
"Today, for the very first time, this Court holds that Congress violated the Constitution by authorizing a federal agency to adjudicate a statutory right that inheres in the Government in its sovereign capacity"
I foresee and am hopeful for many such "holdings" in the future, specifically regarding the Bureau of Alcohol, TransFats and Entenmanns.
Hopefully Chevron falls soon.
I hope someone is working on making that happen.
Jarkesy seems like a HUGE ruling. HUGE. I hope this doesn't turn out to be one of those Roberts-specials that one applies in one specific instance. But, man if the EPA has to start empaneling juries and ALJs cannot be judge, jury, executioner. That's such a huge victory.
Re: Jarsky. Let's take all the administrative law judges from all the Federal agencies ("independent" or not) out of the agencies and combine them in one separate Article III court. Judges could still specialize in one or more agency's jurisdictional area, but they would not be subject to agency control. Then let's take all the enforcement officers (at least the SWAT teams) and combine them in one bureau under the Justice Department. If an agency wants to present a show of force, let them convince the DOJ it is necessary.
There are now entirely too many free-floating prosecutor+judge+jury situations. What became of the separation of powers?
Waiting for Grant's Pass here, since we live in our city's Homeless Zone.
City Council cleverly passed an urban camping ordinance to go into effect next week lol. SCOTUS could make it all moot.
"Hopefully Chevron falls soon"
Agreed. But, in all honesty, I'd almost prefer that Jarkesy is extended to all administrative cases bearing penalties. Pass all the stupid regulations you want. Have at it. Have a field day. Now, empanel a jury of my peers to enforce your bullshit.
Re: DD Driver:
Jarkesy seems like a HUGE ruling. HUGE. I hope this doesn't turn out to be one of those Roberts-specials that one applies in one specific instance. But, man if the EPA has to start empaneling juries and ALJs cannot be judge, jury, executioner. That's such a huge victory.
With the caveat that I still haven't actually read the opinions, the tantalising commentary I have seen so far suggests that to trigger the ancient right to a jury, the claims being adjudicated have to be functionally equivalent to a claim under the common law. E.g. the SEC brings loads of cases alleging "fraud" (10b-5, 17(a), etc.), which is essentially just a common law claim (although the SEC might be able to weasel out of 17(a)(2) and (3) on the grounds they are just negligence violations the SEC like to call "fraud" to make them sound more impressive). On the other hand technical violations, like a failure to register as an investment adviser or a failure to register securities or a failure of broker-dealer supervision or whatever might still be something the SEC could impose penalties for. EPA violations would tend to be more like technical violations than common law claims, but I think there's probably some old common law claims about poisoning wells or somesuch that could be worked up into an argument.
"What became of the separation of powers?"
Progressives don't like that. It's much more efficient to have the government act as judge, jury and executioner. Especially when it's progressives doing the judging, jurying and executing.
"Agreed. But, in all honesty, I'd almost prefer that Jarkesy is extended to all administrative cases bearing penalties. Pass all the stupid regulations you want. Have at it. Have a field day. Now, empanel a jury of my peers to enforce your bullshit."
This, but with the added spread of information to the public about jury nullification. The unelected juntas running this country must be brought to heal.
The distinction noted by Balfegor will indeed be where the next battles will be fought, I think. EPA will argue that (at least some of) its cases are not to obtain damages but to order cleanup.
The bankruptcy case seems to amount to the majority saying "this is the law" and Kavanaugh's dissent saying "but it's not justice."
The Sackler case is puzzling since the dissent says this is a kick in the teeth to all the victims of the Opioid crisis caused by the Sackler's disregard of the harmful impact of their drug.
So, both sides - the majority and the dissent - claim to be helping the victims against the Sacklers. Too bad Congress has been bought off and is on Sackler's side.
"What became of the separation of powers?"
So the truly Orwellian argument that Sotomayor makes is that its actually the majority that is disrespecting "separation of powers" by pulling the rug out from beneath Congress and not letting them delegate judicial functions to the executive branch.
Can't make it up.
Purdue convinced doctors that their opioid was safe, even though they knew it was highly addictive and dangerous.
I have no idea why anyone would defend the Sackler family or whitewash their behavior.
BTW, reading the opinions you get a sense of where the court is. The 3 Democrats of course work as Team and vote as a bloc, except when there's no obvious leftwing position. Goresuch is a primma donna who is he can't write the majority or minority opinion always has some special concurrance or dissent. He always has to make it clear, he's the independent super-special snowflake who's smarter than anyone.
Kavanaugh,Roberts, and ACB are always trying to split the baby and support the mushy status quo. All three are heirs of Grandma O'Connor and Drama queen Kennedy. Whether they will vote conservative or liberal is always a tossup. the only 2 solid votes for a conservative judicial philosphy are thomas and Alioto.
One shudders to think what would've happened if President Hillary had been able to put 3 leftists on the Court!
"a major Environmental Protection Agency rule based on an underdeveloped theory"
Yeah. The EPA does that a lot. They don't actually do science. The EPA finds a scientific outcome that it likes and then shapes it to their aplications. If it puts you out a business, tough.
RCOCEAN II said, "I have no idea why anyone would defend the Sackler family or whitewash their behavior."
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Because they're being paid to.
The sort of people who favor rule by a self-perpetuating unelected left-wing bureaucracy, a la the European Commission, allege that Congress, presidents and governors, and judges are all a bunch of unsophisticated amateurs. They don't understand the nuances of the fields the bureaucrats regulate, and so the bureaucrats should therefore be made into a fourth branch of the government superior to the other three. The Chevron decision made that explicit. I am glad to see the pushback from the USSC, and am crossing my fingers for a mighty torpedo to the administrative state when the Loper Bright and Relentless decisions come out tomorrow.
I'm fine with expert bureaucrats coming up with proposed modifications to their agencies' regulations, but I do not think it is a good idea for the power to put them into effect to be delegated to the civil service. At least once a year they should bring their proposals to the relevant Congressional committees for a hearing, and then a committee and whole-house vote to approve them before they go into effect.
Goresuch is a primma donna who is he can't write the majority or minority opinion always has some special concurrance or dissent. He always has to make it clear, he's the independent super-special snowflake who's smarter than anyone.
I think this is wrong. You need your smartest justice writing concurrences that future majorities can quote from.
as pointed out earlier, Purdue maximized their profits, persuant to FDA rules, and they went on a philanthophic spree, like the Russell the Forbes the Delanos all those fine folk who traded in Opium in China, as I recall from Epstein Agency of Fear, the senior rockefeller sold patent medicine, that enabled his son to go from Clerk to the richest man in the World by that time,
For once I agree with D.D. Driver- pretty much every decision needs multiple concurrences and dissents just for the record of the thinking of the people who made the decision a majority.
And I agree again with D.D. Driver on the administrative law case- I literally don't understand how anyone could have dissented in that case- the 7th Amendment has no qualifiers that allows Congress to create a separate judicial system that can issues punishments that can't be challenged in a court where the 7th Amendment doesn't apply. It can't get any more clear cut than that and the only explanation is that the Left wants to use coercion without those pesky juries getting in the way.
A "common-law" requirement for application of the 7th Amendment is just a giant loophole through which government will just drive the Titanic through. What is the "common-law"? Is it a thing that just reached an endpoint at the end of the 18th century and is now static?
The common-law at the end of the 18th century doesn't address many of the things we today call crimes and torts today and such a loophole would allow Congress to simply create new crimes and torts that you can't get a jury to adjudicate.
The majority got it right in this case and it is disappointing that it wasn't 9-0.
Regarding the SEC case, from my bankruptcy background I am very familiar with the case upon which the majority largely relies, Granfinanciera from 1989. It holds that a creditor in a bankruptcy case who has not filed a proof of claim does not submit to the jurisdiction of the bankruptcy court and give up its right to a jury trial if sued in the bankruptcy. That seems a very weak reed upon which to build a whole jurisprudence of right to jury in agency proceedings such as SEC enforcement action. Especially when the case was 35 years ago, and nobody saw such huge implications at the time or thereafter. A very results-oriented result.
Gorsuch also has side gig in Chinese drama as grandpa Jiang deputy to God Emperor
Thinking about Moyle:
The controlling "opinion" is from Barrett, with Roberts and Kavanaugh along for the ride. To quote teh relevant part:
Before the Ninth Circuit had the opportunity to review the District Court’s preliminary injunction, this Court stayed the injunction and granted certiorari before judgment. Both decisions were premised on the belief that Idaho would suffer irreparable harm under the injunction and that these cases were ready for the Court’s immediate determination. Since then, briefing and oral argument have “shed more light on this case than in the nature of things was afforded at the time” the Court considered petitioners’ emergency applications.
...
Since this suit began in the District Court, Idaho law has significantly changed—twice. And since we granted certiorari, the parties’ litigating positions have rendered the scope of the dispute unclear, at best. In its stay application, Idaho argued that the Government’s interpretation of EMTALA would render Idaho’s Act virtually unenforceable. As Idaho understood it, the Government’s theory would allow physicians to perform abortions whenever necessary to avoid “ ‘serious jeopardy’ ” to the mother’s mental health. Stay Reply Brief in No. 23A470, p. 6. On that broad reading, Idaho projected that emergency rooms would function as “federal abortion enclaves governed not by state law, but by physician judgment, as enforced by the United States’s mandate to perform abortions on demand.” Ibid. (citation omitted). Idaho also warned that the Government’s interpretation would “threate[n] religious healthcare providers” by forcing doctors and hospitals to perform abortions regardless of conscience objections. Id., at 15. Both of these points were relevant to the Court’s assessment of the irreparable harm that Idaho would suffer from the preliminary injunction
At the merits stage, however, the United States disclaimed these interpretations of EMTALA. First, it emphatically disavowed the notion that an abortion is ever required as stabilizing treatment for mental health conditions. Brief for United States 26, n. 5; Tr. of Oral Arg. 76–78.
...
Second, the United States clarified that federal conscience protections, for both hospitals and individual physicians, apply in the EMTALA context
...
The United States identified PPROM, placental abruption, preeclampsia, and eclampsia as conditions for which EMTALA requires an emergency abortion to be available... But in this Court, petitioners represent that the Act permits physicians to treat each of
these conditions with emergency abortions, even if the threat to the woman’s life is not imminent.
Footnote: The United States also clarified that if pregnancy seriously jeopardizes the woman’s health postviability, EMTALA requires delivery, not abortion. Brief for United States 10; Tr. of Oral Arg. 75. And it emphasized that EMTALA requires abortion only in an “emergency acute medical situation,” where a woman’s health is in jeopardy if she does not receive an abortion “then and there.”
So, given the above, the ID AG needs to send out a letter to every single hospital in ID, noting those points:
1: You may not violate anyone's conscience & force them to participate in an abortion
2: You may not refuse to hire people on the grounds that they won't do abortions
3: Abortions are ONLY allowed in an “emergency acute medical situation,” where a woman’s health is in jeopardy if she does not receive an abortion “then and there.”
4: "health" does NOT == "mental health"
5: PPROM, placental abruption, preeclampsia, and eclampsia are legitimate grounds for an abortion
And if they carry out any abortion that doesn't meet the above requirements, they'll be prosecuted immediately.
Let the District Judge object, and start a new round up to SCOTUS where Barrett & co are forced to follow what they claimed today
StoughtonSconnie said...
I fully admit that as a non-lawyer I am likely missing a lot of nuance, but if the dissent in Ohio vs EPA is based on the assumption that the underlying challenge to the rule that is being adjudicated in the lower courts now is likely to fail, and therefore the EPA should be able to impose its rule, isn't that pre-judging the outcome of that underlying case?
When you're going for an injunction, one of the metrics is "how likely are you to win?"
Unless the answer is "very likely to win", you shouldn't be receiving an injunction.
The 5 men are saying "the EPA is going to lose". The 4 girls are disagreeing.
Readering said...
How often is it the 5 boys over the 4 girls?
It's an occasional lineup.
It was 5-1-3 On whether anyone besides Congress can pull a candidate off a Federal ballot, with Barrett sitting off to the side saying "can't we all get along?"
So many legalisms; all to get to the ultimate point... What a weird, stupid, medically foolish law that the Idaho Arayn Na- er, Republican Party has passed.
"The distinction noted by Balfegor will indeed be where the next battles will be fought, I think. EPA will argue that (at least some of) its cases are not to obtain damages but to order cleanup."
This is the present situation where if you were 0.001% at fault for an environmental problem, you can be 100% liable for the entire cost, including the fees of plaintif lawyers and private consultants lordly fees, if the other 99.999% of the defendants don't have enough money or have contributed a lot to the current President.
The EPA says, but unless we get you to pay it all, no one will pay. A just society says, pay for the specific things you did.
Balfegor said...
If I didn't have calls this morning I would be reading Jarkesy with great interest. I suspect my immediate reaction (SEC enforcement program completely upended!) is wrong and it'll turn out they have some minor administrative fix, like with their unconstitutionally appointed administrative law "judges," but I can dream haha.
It's huge.
Held: When the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial. Pp. 6–27.
The Seventh Amendment guarantees that in “[s]uits at common law . . . the right of trial by jury shall be preserved.” The right itself is not limited to the “common-law forms of action recognized” when the Seventh Amendment was ratified. Curtis v. Loether, 415 U. S. 189, 193. Rather, it “embrace[s] all suits which are not of equity or admiralty jurisdiction, whatever may be the peculiar form which they may assume.” Parsons, 3 Pet., at 447. That includes statutory claims that are “legal in nature.” Granfinanciera
...
In Granfinanciera, this Court previously considered whether the Seventh Amendment guarantees the right to a jury trial “in the face of Congress’ decision to allow a non-Article III tribunal to adjudicate” a statutory “fraud claim.” 492 U. S., at 37, 50. There the issue was whether Congress’s designation of fraudulent conveyance actions as “core [bankruptcy] proceedings” authorized non-Article III bankruptcy judges to hear them without juries. Id., at 50. The Court held that the designation was not permissible, even under the public rights exception.
...
Congress cannot “conjure away the Seventh Amendment by mandating that traditional legal claims be . . . taken to an administrative tribunal.”
Rich said...
Administrative trials to impose significant penalties are a bit of a farce. It takes a certain amount of chutzpah to say that you’re denigrating individual liberty if you say that if the government accuses a person of fraud and wants to take their money they should get a jury trial.
Not often I agree with Rich, but agree here 100%
It's kind of appalling this wasn't 9-0
What's also appalling is the number of press and twitter bozos whining that the mean ol SCOTUS is making it harder for the gov't to do its job.
Balfegor said...
With the caveat that I still haven't actually read the opinions, the tantalising commentary I have seen so far suggests that to trigger the ancient right to a jury, the claims being adjudicated have to be functionally equivalent to a claim under the common law. E.g. the SEC brings loads of cases alleging "fraud" (10b-5, 17(a), etc.), which is essentially just a common law claim (although the SEC might be able to weasel out of 17(a)(2) and (3) on the grounds they are just negligence violations the SEC like to call "fraud" to make them sound more impressive). On the other hand technical violations, like a failure to register as an investment adviser or a failure to register securities or a failure of broker-dealer supervision or whatever might still be something the SEC could impose penalties for
I think this is the key line here:
In this case, the remedy is all but dispositive. For respondents’ alleged fraud, the SEC seeks civil penalties, a form of monetary relief. While monetary relief can be legal or equitable, money damages are the prototypical common law remedy. See Mertens v. Hewitt Associates, 508 U. S. 248, 255 (1993). What determines whether a monetary remedy is legal is if it is designed to punish or deter the wrongdoer, or, on the other hand, solely to “restore the status quo.”
So "disgorge proffits" or "pay to restore damage you caused" == ALJ allowed.
Anything more than that?
Judge and jury
mccullough said...
Death to the Administrative State day at the Supreme Court
Not yet. Hopefully tomorrow Chevron gets a stake through its heart
I actually miss ScotusBlog on ExTwitter, especially their post-decisions trolling of people thinking they were the actual SCOTUS.
Today, for the very first time, this Court holds that Congress violated the Constitution by authorizing a federal agency to adjudicate a statutory right that inheres in the Government in its sovereign capacity"
What is really frightening is that a Supreme Court justice charged with making sure that our Constitution is preserved and followed wrote that (or one of the justice's clerks wrote it) without irony.
Greg the Class Traitor said...
mccullough said...
Death to the Administrative State day at the Supreme Court
Not yet. Hopefully tomorrow Chevron gets a stake through its heart
Yes!!!!
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