Esquivel-Quintana v. Sessions

WHAT HAPPENED: Defendant is this case is probably the least-lucky person on Earth.  Defendant is charged with a sex crime for being slightly over 18 years old and having sex with someone who is a three year age difference.  This is a crime in the State of California, but it is legal in a strong majority of States.    After being convicted, Defendant moves to Michigan, where Defendant’s conduct would not have been a State crime.  Unfortunately, removal proceedings are brought against him, and even though he would not have been subject to removal in California, the same rules do not apply in Michigan.

WHY IS THIS BEFORE THE SUPRME COURT:  In an effort to make this generally unfair case more legal, Defendant is arguing that the immigration board’s ruling in favor of removal should be overturned, since Defendant’s crime should not subject him to removal as a “sex abuse” crime.  The State argues that even if this case is unfair, the immigration board’s ruling should stand since agencies are entitled to deference enforcing their own rules.

WHAT ARE THE RAMIFICATIONS:  One of the hot-button talking points of Trump’s new appointment is the possibility that the Court will overrule the Chevron doctrine, which is the above-referenced policy that agencies should be given deference for enforcing their own rules.  Presumably, this is the kind of case where you could make an argument that the unreasonableness of the doctrine is on display, since the different State rules and precedent have created a generally unfair proposition.  Unfortunately for this Defendant, the Conservative push for overruling agency authority is probably not going to come in a case involving immigration and sex crimes.

ROOT FOR ESQUIVEL-QUINTANA IF: you want to overrule Chevron, and don’t care about the underlying facts in what will likely be a landmark decision going forward.

ROOT FOR SESSIONS IF:  you want to overrule Chevron, but you’d rather wait until it’s an EPA decision that prevents a company owned by your right friend Doug from polluting a river.

PREDICTION:  SESSIONS 7-2

Lee v. Tam

WHAT HAPPENED: Tam is a member of THE SLANTS, an Asian-American rock band who sound like your friend’s band who you always get invited to see live but never want to see live because they are not very good.  Tam sought to trademark the band’s name, but was denied by the U.S. Patent and Trade Office (“the PTO”) for being an antiquated racial slur.

WHY IS THIS BEFORE THE SUPREME COURT:  The PTO has a policy in place that denies trademark protection for offensive words, which is the basis under which the PTO denied Tam’s request.  The issue in this case is not whether the term THE SLANTS is offensive, but more broadly whether or not the PTO can constitutionally ban trademark terms based on their subjective standard for obscenity.  The lower court ruled in favor of THE SLANTS and held that the PTO’s policy is void as a matter of law.

WHAT ARE THE RAMIFICATIONS – It may seem obnoxious to point out that this only benefits rock bands with offensive names, but it is worth noting that there are more offensive band names than you may realize.  I have a friend who works for a very popular death metal record label, and his email signature would promote bands like DYING FETUS and album names like SULFUR AND SEMEN, so if you’re a hairy, stocky white dude who claims to worship Satan, this case could be for your benefit.  More generally, this case speaks to what the First Amendment actually gives you from the government.  On one hand, this is a government agency who is censoring private speech,; but more specifically, the government is not imprisoning THE SLANTS, but just not granting them additional commercial protection, which is an important distinction.  Most likely, that will be what this case turns on.

ROOT FOR LEE IF:  you don’t need to curse in your albums to sell records.

ROOT FOR TAM IF: you do, so f*** Will Smith, and f*** you too.

PREDICTION:  Tam 5-3

 

NLRB v. SW General

WHAT HAPPENED:  SW General lost a case before the National Labor Relations Board, and instead of appealing (you know) the merits  of the case, SW General argued that the head attorney was appointed by President Obama unlawfully under the Federal Vacancies Reform Act.

WHY IS THIS BEFORE THE SUPREME COURT:  The Federal Vacancies Reform Act was intended as a way for the President to fill agency positions when Congress was being either (1) lazy or (2) assholes.  The FVRA states that the President can bypass Congress on appointments when the new appointee is the first assistant, or when the new appointee is a senior official within that agency.  The question for this case is whether or not the second half of that clause requires that the person to serve in the position ninety days before appointments, or if the ninety day waiting period only applies to first assistants.  SW General argues that it does apply, thus blocking Obama’s appointment to the NLRB, whereas the NLRB argues that it does not apply and the appointment was valid exercise of executive power.

WHAT ARE THE RAMIFICATIONS –  This case seems relevant to a much larger point about today’s government; however, this case will likely not have the effect that it could or should.  We are certainly having a moment right now where our government seems to be prioritizing grudges and power-grabs over actually doing their job and running the government.  This case is a great example of how political moves can cloud the proper and efficient organization of a government agency.  That being said, the FVRA doesn’t deal with Supreme Court justices, or executive orders, or health care, or impeachment proceedings, so all the things that you want this to resolve, it probably won’t.  The only interesting point here could be within the text of the opinion, as you can’t put it past the Court to include their own opinions within their decisions, either subtly or not-so subtly.  For example, a few months prior to the Obgefell v. Hodges decision which required universal recognition of same-sex marriage, the Supreme Court fought intensely about the due process right to get married in the case of Kerry v. Din.  The subtext of that case maybe wasn’t as clear at the time, but in hindsight, you can see an underlying subtext in the decision through the scope of something totally different.  Considering the Court is being treated like a 10 year-old at a child custody hearing, it wouldn’t be all the surprising to get some kind of temper tantrum.

ROOT FOR NLRB IF:  you hate the government right now.

ROOT FOR SW GENERAL IF:  you hated the government four months ago, but now things are pretty sweet.

PREDICTION:  SW General 5-3

WHAT HAPPENED:  SW General lost a case before the National Labor Relations Board, and instead of appealing (you know) the merits  of the case, SW General argued that the head attorney was appointed by President Obama unlawfully under the Federal Vacancies Reform Act.

WHY IS THIS BEFORE THE SUPREME COURT:  The Federal Vacancies Reform Act was intended as a way for the President to fill agency positions when Congress was being either (1) lazy or (2) assholes.  The FVRA states that the President can bypass Congress on appointments when the new appointee is the first assistant, or when the new appointee is a senior official within that agency.  The question for this case is whether or not the second half of that clause requires that the person to serve in the position ninety days before appointments, or if the ninety day waiting period only applies to first assistants.  SW General argues that it does apply, thus blocking Obamas appoint to the NLRB, whereas the NLRB argues that it does not apply and the appointment was valid exercise of executive power.

WHAT ARE THE RAMIFICATIONS –  This case seems relevant to a much larger point about today’s government; however, this case will likely not have the effect that it could or should.  We are certainly having a moment right now where our government seems to be prioritizing grudges and power-grabs over actually doing their job and running the government.  This case is a great example of how political moves can cloud the proper and efficient organization of a government agency.  That being said, the FVRA doesn’t deal with Supreme Court justices, or executive orders, or health care, or impeachment proceedings, so all the things that you want this to resolve, it probably won’t.  The only interesting point here could be within the text of the opinion, as you can’t put it past the Court to include their own opinions within their decisions, either subtly or not-so subtly.  For example, a few months prior to the Obgefell v. Hodges decision which required universal recognition of same-sex marriage, the Supreme Court fought intensely about the due process right to get married in the case of Kerry v. Din.  The subtext of that case maybe wasn’t as clear at the time, but in hindsight, you can see an underlying subtext in the decision through the scope of something totally different.  Considering the Court is being treated like a 10 year-old at a child custody hearing, it wouldn’t be all the surprising to get some kind of temper tantrum.

ROOT FOR NLRB IF:  you hate the government right now.

ROOT FOR SW GENERAL IF:  you hated the government four months ago, but now things are pretty sweet.

PREDICTION:  SW General 5-3

Balancing Separated Powers

As I previously mentioned, in December, the North Carolina legislature passed a law limiting the future governors’ powers. The background to this action is that the legislature belongs to one party (with a veto-proof majority), and the governor to the other. The current governor, on his way out, signed the bill into law. Specifically, the new law strips future governors of their power to appoint a majority to the State Board of Elections. It also makes it more difficult for certain types of cases to appeal directly to the NC Supreme Court, which is controlled by the future governor’s party. Pending legislation (pdf warning) also strips the governor of his ability to name members to the boards of state universities, and reduces the number of state employees the governor appoints from 1,500 to 425. Further, the governor’s cabinet appointees become subject to approval by the State Senate.

In an interesting turn of events, a NC Superior Court judge temporarily blocked the new law with an injunction, citing McCrory v Berger (pdf warning). In that case, the legislature created an agency within the executive branch. The court held that separation of powers required that the governor, as leader of the executive branch, must have effective control of the agency. But, since the legislature selected a majority of the agency members, and it could remove members for cause, the court decided that the governor didn’t have enough control over the agency for it to respect the separation of powers required by the NC state constitution.

The current case, however, is slightly different: the election board at issue is an independent state agency (and since it’s not an executive agency, it presumably doesn’t need to be controlled by the governor), and the members are evenly selected by the governor and the legislature. My guess is that it should come out okay because of those differences, but it’s a new issue for the NC courts – which makes the injunction a smart play by the judge. I don’t expect this to be appealed to the Federal Supreme Court, because it’s squarely a state constitutional issue, but it’s nice to see courts not shy away from these very real constitutional issues just because politics are involved. Although, admittedly, state courts are much more likely to be politically active, since state judges often are heavily tied to one party or another, unlike federal judges, who tend to distance themselves from the political machinations of Washington DC. Relatively speaking, of course.

Glouchester County School Board v. G.G.

WHAT HAPPENED:  A Virginia School District made a rule that infringed upon a transgender student’s ability to choose which bathroom to use.  The student filed suit and lost at the original level.  The Federal Government (by way of the Dept. of Education) stepped in and stated that this action violated Title IX, which was the basis for the Fourth Circuit’s reversal of the lower decision in favor of the student.  In other words, the student is currently winning based on the opinion by the Department of Education.

WHY IS THIS BEFORE THE SUPREME COURT:  For one, it’s not the reason you think it is.  While there are certainly Equal Protection issues, Substantive Due Process issues, and general Constitutional concerns, this issue comes down to agency law; and specifically whether the Department of Education had the authority to issue an opinion based on Title IX, and whether the Fourth Circuit should have followed that opinion.

WHAT ARE THE RAMIFICATIONS:  For one, it’s not as significant as you might think.  While a ruling in favor of G.G. would give more power to trans students in an educational setting, there are probably very little ramifications outside of this specific context.  The issue in this case is limited to the value of the Department of Education’s opinion, so affirming that opinion would likely just benefit this student.  Similarly, a ruling against G.G. would likely just state that the grounds for the decision were wrong and that the Court has to review the findings again fresh.  To whatever extent this makes you feel better, a ruling against G.G. is not the end of the world, as the Court could still rule in favor of the student, just on different grounds.   Ultimately, the ramifications of this ruling are very limited to the problem at hand, even though the circumstances are a hot button issue.

ROOT FOR GLOUCHESTER COUNTY IF: (and only if) if you do not agree with the Department of Education’s interpretation of Title IX and the 4^th Circuit Court of Appeals’ reliance on that opinion.

ROOT FOR G.G. IF: (and only if) you do agree with the Department of Education’s interpretation of Title IX and the 4^th Circuit Court of Appeals’ reliance on that opinion.

PREDICTION:  4-4 push.

McCrory v. Harris Case Brief

For every case covered in the podcast and the Fantasy League, we will provide a brief summary of everything you need to know and worry about for each case.

WHAT HAPPENED:  In 2013, the Supreme Court invalidated a provision of the Voting Rights Act that required States and Counties with a history of discrimination to seek approval for all new statutes on voting to prevent instances of latent and overt racism. Subsequent to that decision, North Carolina jumped at the opportunity to incorporate latent racism into its Voting procedures by passing the Omnibus election law which included banned voting procedures like early voting, early registration and instituted a voter ID law.

WHY IS THIS BEFORE THE SUPREME COURT: This case was brought before the Supreme Court under the remaining provisions of the VRA which bars States from passing discriminatory voting laws. The lower court found emphatically against the law, holding that the North Carolina provisions were passed to curtail African American Democratic votes.  This ruling was supported by considerable evidence in North Carolina, and is also generally considered true all around the country, because provisions like these routinely prejudice non-white voters.  The Supreme Courts job is now to determine whether or not that’s actually true both specifically (did the lower court have the authority to make that ruling) and generally (could any Court make that ruling).

WHAT ARE THE RAMIFICATIONS OF THIS CASE:  This case is checking the pulse of the Voting Rights Act. If North Carolina (McCrory) wins, the States can do whatever they want with voting as long as they can defend their laws with a straight face. If the Harris wins, the VRA will do that thing that happens at the end of horror movies where the camera focuses in on a grave stone and then a hand pops out.  This case may also determine whether or not the provisions in the Omnibis Act, which are facially neutral, can be declared unilaterally discriminatory in all jurisdictions around the Country.

ROOT FOR MCCRORY if you view politics like a pro wrestling referee, where you can only get disqualified if you are caught red-handed with a steel chair.

ROOT FOR HARRIS if you view politics like a basketball referee, where being obtuse and substituting your judgment for someone else is the only way to keep things fair.

PREDICTION- 5-3 in support of HARRIS, with the decision on individual elements spread out among a collection of concurrence and dissents.

A Bit About Basic Income

Nazim mentioned the concept of a National Basic Income on a recent episode, and I wanted to post some extra information about it, just in case there was interest. The core notion is to replace all governmental income subsidies, which include unemployment assistance, social security, the Earned Income Tax Credit, Food Stamps, Temporary Assistance for Needy Families, and the many other programs that assist those who may in be temporary or long-term financial distress with a paycheck that the recipient can spend however she or he chooses. It would also remove some regulations that shift livelyhood burdens on employers, such as their portion of unemployment insurance, social security contributions and minimum wage requirements. However, this would not replace medical or educational assistance programs, at least as far as I understand it.

This idea comes in many shapes and sizes, and Nazim likes the administrative efficiency of a Negative Income Tax (which is just another form of Basic Income) the best, and while the notion has the big draw of being administratively light and deferring to individuals’ choices, most concerns focus on its feasibility, mainly the price tag and whether people will just turn into large, pale slugs.

As far as the latter goes, well, pilot programs haven’t yielded any such evolutionary step. Many of the experiments report a small decrease in working hours, but some report an increase, and overall productivity doesn’t seem to change much, but most attempts so far have been pretty small in terms of scale, so it’s hard to say. Finland might implement a large scale program in a couple of years, and it would be very interesting to see how it goes.

The feasibility issue, and the economic cost, is the bigger issue, and one that I did some quick, back-of-the-napkin math for. The Office of Management and Budget, which both parties use when they make budget projections, puts the total cost of Social Security and Income Security programs at $1.35 trillion in 2013, so lets start with that number. Basic Income would really only benefit the poorest part of the population, because it would be taxed back (or not paid out at all, in the case of a Negative Income Tax bracket) from anyone wealthy enough to not need it, which I will arbitrarily draw the line for at $30,000 of annual income. So, those making below $30 grand a year, they would get a graduated paycheck that scales inversely to their “normal” income, from zero for those who make $30,000 or more to, say (again, arbitrarily), $10,000 a year for those who make nothing. These are numbers I’ve plucked from thin air, for the sake of discussion. According to the Census Bureau, we get the following breakdown (pdf warning; and the numbers are approximate and rounded for ease of calculation):

• About 11 million people in the US make close to nothing in annual income, so they would get the full $10,000 in basic income.
• About 40 million make around $10,000 a year, so their basic income would decrease by a third, netting them $6,666 in basic income for that year, in addition to their regular income.
• Another 42 million people make around $20,000 a year, so they would get about $3,333 in basic income to supplement their $20,000.
• The remaining population, who all make $30,000 a year or more, either get no basic income or it is taxed back, so we don’t need to calculate needs at all.

These costs total only half a trillion dollars, so we could spend the same amount again to administer it in the most inefficient way imaginable and still come in at a substantially lower price tag than the current programs cost us. While it’s hard to tell whether current programs are better off giving cash, or directed assistance, what Nazim likes in these programs is that the individuals involved would determine their needs, instead of legislative dictates. But, perhaps more importantly, there would be a substantial solution to the growing automation of menial labor, and the decrease in untrained job offers. Sure, folks might not want to work for McDonald’s anymore, but that would mean that McDonald’s would have to either offer better compensation or automate more of the production, which sounds like progress to me.

Man, it’s weird to write about myself in the third person.

Is Judicial Deference to Agency Courts Bad?

Last week, the Honorable Neil Gorsuch opined (pdf warning) that it might be time to re-evaluate the deference article 3 courts give to agency courts. The latter have a lot of expertise in their subject matter, but care very little about process, evidentiary rules, and procedure, which where most of our constitutional rights are implemented. I would agree with the good judge and the Washington Post article that brought this to my attention, IF the judicial branch had the manpower and resources to take on this extra burden. As things stand, the deference that the judge criticizes not only gives considerable power to agency courts, it also lightens the dramatically underfunded federal and state courts’ load. So, I guess I disagree with him, but here’s a juicy bit on why the judge is right:

Precisely to avoid the possibility of allowing politicized decisionmakers to decide cases and controversies about the meaning of existing laws, the framers sought to ensure that judicial judgments “may not lawfully be revised, overturned or refused faith and credit by” the elected branches of government. . . . Yet this deliberate design, this separation of functions aimed to ensure a neutral decisionmaker for the people’s disputes, faces more than a little pressure from Brand X.

Lee v. Tam / Pro Football, Inc. v. Blackhorse

WHAT HAPPENED:  The U.S. Patent and Trademark Office has a rule that prohibits trademarking any name that “disparages” any living or dead individual, belief or national symbol.  Two such entities that have had their trademarks rescinded by Federal Circuit Courts include THE SLANTS (the rock band shown above) and the WASHINGTON REDSKINS (image not shown as it is too offensive).

WHY IS THIS BEFORE ANY COURT:  The argument goes that the PTO’s denial of trademark protection violates the First Amendment.  For the Slants, their use of the term represents reclaiming offensive terminology.  For the Redskins, their use of the term represents sticking with racist words because it costs too much to change it.

WHAT WAS THE RULING:  The Slants won, and the Redskins lost.  The Redskins have now petitioned the Supreme Court to get priority review of their claim since they lost at the lower level.

WHAT ARE THE RAMIFICATIONS:  At the heart of it, the concern in this case is whether you can get priority use of an offensive term.  If that applies to you, you probably stink.

WILL THIS GO BEFORE THE SUPREME COURT:  More likely than not this will have some life at the Supreme Court next term.  There is a split in jurisdictions in regard to whether this rule is Constitutional or not, so that needs some clarity.  One interesting issue would be whether or not the Court makes a factual distinction between these two cases, or makes a rule that applies to all similar situations across the board.

U.S. v. Texas

WHAT HAPPENED:  In 2014 and 2015, President Obama passed two “executive orders” which pertained to immigration, the DACA and the DAPA.  In the interests of brevity, those two orders granted deferred action to two general classes of illegal immigrants, (1) people who arrived in the U.S. under the age of 16 and were now over 30, and (2)  parents of natural born citizens who never obtained their own citizenship.  These orders instructed the government against deporting those citizens, and instead allowing them to stay in the U.S., even though they would not be granted citizenship rights.

WHY IS THIS BEFORE THE SUPREME COURT:  Immigration issues are primarily Congress’ jurisdiction, as the Legislature has primary authority to create policy and regulations regarding the status of illegal immigrants.  Therefore, opponents of these actions claim the President has exceeded his authority to act.  On the other hand, the agency that performs these actions is under the President’s control and the President is allows to make edicts for those agencies to follow.  Therefore, the issue, in part, comes down to whether or not the President’s executive orders are so sweeping that they require greater action, of if the executive orders are within his ability to control lower agencies.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION:  This case could determine the occupancy status of hundreds of thousands of people who are currently living in America, but do not have citizenship.  These people likely have no where else to go if they are removed from the country, or could be separated from their children if deported.  If the orders are upheld, this could allow the government to have a better handle on undocumented aliens, as people would be more likely to come participate in registration if they were not concerned about deportation.  On the other hand, these orders only stabilize the situation and do not provide a real solution to the concern citizenship and illegal immigrants.

ROOT FOR U.S.:  If you are OK with expanding Presidential Power to resolve a situation temporarily, and probably until a Republican is voted into office.  You are also probably an advocate for the legalization of marijuana.

ROOT FOR TEXAS:  If you hate President Obama, Obamacare, and any other Obama-related terms.  You are also probably someone who likes it when people follow the Constitution, at least when it comes to this situation.