WEBVTT - SCOTUS Curbs Agency Power & Limits Jan. 6 Charges 0:00:02.400 --> 0:00:05.320 Welcome to the Bloomberg Law Show. I'm June Grosso. The 0:00:05.400 --> 0:00:08.920 focus is on Supreme Court decisions. This week, the Court 0:00:09.039 --> 0:00:13.200 curbed federal agency power, striking down a forty year old precedent. 0:00:13.640 --> 0:00:19.279 It limited obstruction charges against January sixth defendants, including Donald Trump, 0:00:19.680 --> 0:00:23.680 and the Court allowed emergency abortions in Idaho for now. 0:00:27.000 --> 0:00:31.240 In a blockbuster ruling that will constrain environmental, consumer and 0:00:31.320 --> 0:00:36.400 financial watchdog agencies, A divided Supreme Court upended a forty 0:00:36.479 --> 0:00:40.800 year old legal doctrine that empowered federal regulators to interpret 0:00:41.040 --> 0:00:46.159 unclear laws. Conservatives have long targeted the Chevron doctrine in 0:00:46.240 --> 0:00:49.519 the so called War on the Administrative State, and the 0:00:49.560 --> 0:00:55.320 court's conservative justices reverse Chevron this week, effectively taking power 0:00:55.360 --> 0:00:59.480 away from executive branch agencies and shifting it to the courts. 0:00:59.840 --> 0:01:03.000 The Court has been chipping away at Chevron for years. 0:01:03.280 --> 0:01:07.680 As Chief Justice John Roberts pointed out in the oral arguments, how. 0:01:08.640 --> 0:01:12.520 Much of an actual question on the ground is this. 0:01:13.640 --> 0:01:15.920 I saw some study that said we haven't relied on 0:01:16.040 --> 0:01:21.720 Chevron for fourteen years. The three liberal justices dissented. Justice 0:01:21.760 --> 0:01:25.679 Elaina Kagan wrote that in One Fell Swoop, the majority 0:01:25.680 --> 0:01:30.600 today gives itself exclusive power over every open issue, no 0:01:30.680 --> 0:01:35.800 matter how expertise driven or policy laden. Kagan had emphasized 0:01:35.840 --> 0:01:39.000 the importance of the Chevron doctrine during the arguments. 0:01:39.319 --> 0:01:42.720 You know, the best option is to listen carefully and 0:01:42.920 --> 0:01:47.280 to defer if it's reasonable and if it's consistent with 0:01:47.360 --> 0:01:50.120 everything that we know that Congress has said. To defer 0:01:50.160 --> 0:01:53.160 to people who actually know things about these things, but 0:01:53.640 --> 0:01:57.240 you know, to people who understand the way particular questions 0:01:57.600 --> 0:02:01.080 fit within a broader statutory and regular time skiam. 0:02:00.960 --> 0:02:03.960 Joining me is Michael Darff, a professor of constitutional law 0:02:04.040 --> 0:02:07.160 at Cornell Law School. Mike tell us about the Chevron 0:02:07.320 --> 0:02:10.640 doctrine and its importance for federal regulation. 0:02:11.160 --> 0:02:16.840 Sure, so, as listeners probably know, the federal government includes 0:02:17.080 --> 0:02:21.839 not only Congress, the President, and the courts, but an 0:02:21.880 --> 0:02:28.040 alphabet soup of administrative agencies. The Federal Aviation Administration, the 0:02:28.440 --> 0:02:34.280 Environmental Protection Agency, Homeland Security, the Justice Department, Education Department. 0:02:34.360 --> 0:02:39.120 All of these various departments each staff by a political 0:02:39.200 --> 0:02:42.800 appointee at the head, unless it's the so called independent agency, 0:02:42.840 --> 0:02:44.919 in which case it's somebody who's appointed but then has 0:02:45.000 --> 0:02:49.880 various protections. And then with lots of experts, people who 0:02:49.919 --> 0:02:53.400 have expertise in the particular field, so scientists at the 0:02:53.560 --> 0:02:59.360 Nuclear Regulatory Commission. Congress right statutes that are hundreds of 0:02:59.400 --> 0:03:05.280 pages law, giving power to the agencies to regulate. So 0:03:05.680 --> 0:03:10.200 the National Highway Traffic Safety Administration, which is lies within 0:03:10.840 --> 0:03:16.720 the Department of Transportation, writes rules governing safety mechanisms for 0:03:16.800 --> 0:03:22.480 new automobiles. These statutes are often pretty detailed, but it 0:03:22.520 --> 0:03:25.920 is in the nature of the complexity of life and 0:03:25.960 --> 0:03:30.960 the limitations of human language that invariably situations arise in 0:03:31.000 --> 0:03:34.440 which it's not entirely clear what some term in a 0:03:34.639 --> 0:03:39.800 statute meant. The Chevron case announced the principle which it said, 0:03:39.840 --> 0:03:42.800 and I think persuasively was not new in that case, 0:03:42.840 --> 0:03:46.360 but it became the canonical citation. Announced the principle that 0:03:46.480 --> 0:03:52.000 said that when Congress uses an ambiguous term or leaves 0:03:52.040 --> 0:03:55.760 a gap in a statute, and it could be interpreted 0:03:55.800 --> 0:04:00.320 in a range of possible ways, when an agency acts 0:04:00.440 --> 0:04:04.800 to fill that gap or to resolve the ambiguity, so 0:04:05.040 --> 0:04:09.080 long as it does so reasonably, the courts will not 0:04:09.320 --> 0:04:13.560 invalidate what the agency has done. This was known as 0:04:13.600 --> 0:04:20.000 the Chevron deference. Doctrine deference because agencies got deference, that is, 0:04:20.040 --> 0:04:26.320 a court's deferred to their reasonable interpretations of ambiguous statutes. 0:04:26.839 --> 0:04:31.479 Chief Justice John Roberts wrote the majority opinion for the court, 0:04:31.960 --> 0:04:35.839 saying Chevron was a judicial invention that required judges to 0:04:35.960 --> 0:04:40.359 disregard their statutory duties. Explain his reasoning and why the 0:04:40.400 --> 0:04:44.200 Conservative supermajority finally reverse Chevron. 0:04:44.640 --> 0:04:50.359 So the Chief Justice points to two main principles. First, 0:04:50.760 --> 0:04:55.320 he says that going back to Marborie against Madison in 0:04:55.360 --> 0:04:58.640 eighteen oh three, famous case that establishes the principle of 0:04:58.880 --> 0:05:03.720 judicial review of federal statute, Chief Justice John Marshall in 0:05:03.720 --> 0:05:07.160 that case said that it is quote emphatically the province 0:05:07.200 --> 0:05:11.120 and duty of the judiciary to say what the law is. 0:05:11.279 --> 0:05:18.160 And so Roberts says that by deferring to agencies construction 0:05:18.600 --> 0:05:25.000 of ambiguous statutes, the judiciary was advocating its responsibility to 0:05:25.000 --> 0:05:27.560 say what the law is. It was giving that power 0:05:27.760 --> 0:05:31.120 over to the administrative agencies, which are either housed in 0:05:31.160 --> 0:05:35.120 the executive branch or quasi independent of the executive branch, 0:05:35.360 --> 0:05:39.120 suggesting that there is a problem there in terms of 0:05:39.200 --> 0:05:43.080 the checks and balances or the separation of powers set 0:05:43.160 --> 0:05:46.000 up by the Constitution. But that's the first basic idea, 0:05:46.360 --> 0:05:49.839 that it's the judiciary's function to say what the law is, 0:05:50.160 --> 0:05:54.839 not that of administrative agencies. The second claim he makes 0:05:54.960 --> 0:05:58.280 is he says that the Administrative Procedure Act, which is 0:05:58.320 --> 0:06:04.400 a federal statute that governs basically judicial review of agency action, 0:06:04.920 --> 0:06:10.160 says that courts are supposed to review decisions of agencies 0:06:10.240 --> 0:06:13.839 with respect to the law. And that means he says 0:06:13.960 --> 0:06:17.200 that it's up to the court, not the agency, to 0:06:17.279 --> 0:06:19.719 say what the law is. That is to say, he 0:06:19.880 --> 0:06:25.400 interprets this provision of the APA to give effect to 0:06:25.440 --> 0:06:28.360 what he says is this principle from Marbarie against Madison, 0:06:28.560 --> 0:06:32.719 And therefore he concludes, for the last forty years, the 0:06:32.920 --> 0:06:35.800 courts have not been living up to their obligation. They've 0:06:35.839 --> 0:06:39.839 been giving away authority that is properly invested in the 0:06:39.880 --> 0:06:42.239 judiciary to administrative agents. 0:06:42.800 --> 0:06:47.240 The three liberal justices in Descent, Justice Elena Kagan wrote, 0:06:47.520 --> 0:06:53.120 the majority disdains restraint and grasps for power is. She 0:06:53.240 --> 0:06:56.960 write that with this case the descent the three liberal 0:06:57.240 --> 0:07:02.680 justices in Descent, Justice Elena Kagan wrote, the majority disdains 0:07:02.800 --> 0:07:07.120 restraint and grasps for power. Is she right that with 0:07:07.279 --> 0:07:10.520 this case the Supreme Court is giving more power to 0:07:10.680 --> 0:07:12.680 itself and to federal courts. 0:07:13.280 --> 0:07:16.000 Yeah, I think she has a pretty good point right. 0:07:16.200 --> 0:07:23.440 The theory behind Chevron was never that agencies should be 0:07:23.600 --> 0:07:27.760 saying what the law is. It was always that when 0:07:27.920 --> 0:07:32.360 Congress says what the law is, it doesn't have perfect 0:07:32.480 --> 0:07:36.920 foresight and so it leaves open certain questions. And then 0:07:36.960 --> 0:07:42.240 the question is when Congress has done that, either through inadvertence, incompetence, 0:07:42.400 --> 0:07:46.560 sometimes deliberately because there was a compromise, sometimes deliberately because 0:07:46.560 --> 0:07:50.400 they didn't trust themselves. Whenever it's done that, who should 0:07:50.400 --> 0:07:53.800 it be assumed, was meant to be the recipient of 0:07:53.920 --> 0:07:58.880 the discretion to fill in the statutory gaps and ambiguity. 0:07:59.000 --> 0:08:01.960 And what Justice Kagan says and what Chevron had been 0:08:02.000 --> 0:08:04.560 based on for the last forty some MyDD years, was 0:08:04.600 --> 0:08:09.160 that we should assume Congress would prefer that an expert 0:08:09.280 --> 0:08:16.320 agency decide what these often technical terms mean using their expertise, 0:08:16.680 --> 0:08:21.360 and in some circumstances, insofar as these ambiguities implicate policy questions, 0:08:21.560 --> 0:08:26.360 because the agency is ultimately accountable through the secretary of 0:08:26.400 --> 0:08:28.840 the agency and then to the president, there'd be a 0:08:28.920 --> 0:08:33.560 political input as opposed to judges who typically don't know 0:08:33.800 --> 0:08:39.479 much about the underlying regulatory issue and who are not accountable. 0:08:39.480 --> 0:08:42.480 And just to give you a kind of poignant example 0:08:42.800 --> 0:08:46.240 of this issue, the Supreme Court just issued an opinion 0:08:46.280 --> 0:08:51.280 in a case called Ohio against EPA, in which Justice Gorsuch, 0:08:51.720 --> 0:08:57.400 in his majority opinion, incorrectly referred to one of the 0:08:57.720 --> 0:09:03.440 key chemicals as nikes oxide, which is laughing gas, rather 0:09:03.640 --> 0:09:08.880 than the correct chemical name, showing that judges are not 0:09:09.160 --> 0:09:13.520 experts in all of the scientific and technical questions that 0:09:13.679 --> 0:09:16.640 regulators are experts in how could they be, and that 0:09:16.800 --> 0:09:21.320 therefore it's not surprising that sometimes the judges will get 0:09:21.320 --> 0:09:23.920 it wrong, and we are better off when they are 0:09:23.960 --> 0:09:28.880 these ambiguities having the experts at the agency's fill them out, 0:09:29.240 --> 0:09:33.160 and if they get it wrong in some sense or objectionable, 0:09:33.200 --> 0:09:35.479 Congress can always amend the statue. 0:09:36.000 --> 0:09:41.520 Chevron was initially applauded by conservatives like the late Justice 0:09:41.559 --> 0:09:47.080 antonin Scalia. Why did conservatives come to loathe it so much? 0:09:47.600 --> 0:09:47.680 So? 0:09:47.760 --> 0:09:52.160 I think there are three things worth saying about that. First, 0:09:52.480 --> 0:10:00.840 the original Chevron case upheld a deregulatory environmental program by 0:10:01.480 --> 0:10:05.800 the Environmental Protection Agency under the Reagan administration. That is 0:10:05.800 --> 0:10:09.960 to say, there was a rule by the Reagan EPA 0:10:10.760 --> 0:10:15.360 construing the statutory term stationary source in a way that 0:10:15.440 --> 0:10:19.120 allowed more pollution than had been allowed under the previous 0:10:19.200 --> 0:10:23.080 Parter administration, and what the Chevron case did was to 0:10:23.120 --> 0:10:27.280 say that rule was okay. So you're right that as 0:10:27.320 --> 0:10:31.400 a basic matter, there is nothing inherent in the Chevron 0:10:31.480 --> 0:10:35.920 doctrine that conservatives would dislike. There are cases in which 0:10:35.920 --> 0:10:38.640 it actually helps them get to the results they want, 0:10:38.679 --> 0:10:42.199 which is if we assume generally conservatives are more skeptical 0:10:42.240 --> 0:10:45.760 of regulation than liberals. The second thing I'll say, though, 0:10:45.880 --> 0:10:48.840 is that over the long run, if you sort of 0:10:49.400 --> 0:10:55.199 average out over all cases, it's probably true that Chevron 0:10:55.400 --> 0:11:01.800 leads to more liberal results than conservative results. Because most 0:11:01.880 --> 0:11:04.960 of the cases that end up going to court coming 0:11:05.000 --> 0:11:09.720 from agencies are cases in which somebody from industry is 0:11:10.040 --> 0:11:14.480 challenging a regulation of them, and then the question is 0:11:14.840 --> 0:11:18.599 do you defer as a court to the agency's regulation. 0:11:18.800 --> 0:11:21.720 That is to say, Chevron was an unusual case in 0:11:21.760 --> 0:11:26.359 which there was deference to a deregulatory action. In most cases, 0:11:26.559 --> 0:11:30.880 it's a matter of deferring to regulation. And so conservatives, 0:11:30.920 --> 0:11:35.200 insofar as they have an objection to regulation in general, 0:11:35.440 --> 0:11:39.480 came to dislike Chevron because they saw it as building 0:11:39.559 --> 0:11:42.960 up the administrative state. Think about, you know, Steve Bannon's 0:11:43.000 --> 0:11:45.920 attacks on the administrative state or even the so called 0:11:46.000 --> 0:11:49.960 deep states from Donald Trump by this idea that we 0:11:50.040 --> 0:11:53.400 are being regulated by bureaucrats. So in so far as 0:11:53.480 --> 0:11:58.560 Chevron gave some additional power to bureaucrats, to experts, to 0:11:58.640 --> 0:12:04.040 the agencies who are not necessarily directly controlled by politics 0:12:04.040 --> 0:12:06.600 and who are going to be regulating, they didn't like that. 0:12:06.720 --> 0:12:10.200 Third thing I'll say is I don't think it is 0:12:10.679 --> 0:12:14.680 from the perspective of the conservatives who support this move 0:12:15.040 --> 0:12:17.920 I don't think it is a bug so much as 0:12:17.920 --> 0:12:21.720 it is a feature. That it gives more power to judges, 0:12:22.360 --> 0:12:27.480 because if they look around, they will observe that conservatives 0:12:27.720 --> 0:12:32.400 dominate the federal judiciary in a way that they certainly 0:12:32.440 --> 0:12:38.280 don't dominate the executive branch. During a democratic administration, and 0:12:38.520 --> 0:12:43.120 even during Republican administrations, agencies can take actions at lower 0:12:43.200 --> 0:12:47.679 levels that are regulatory. So all of that suggests that 0:12:47.800 --> 0:12:52.920 a tightly disciplined conservative movement that is opposed to regulation 0:12:53.520 --> 0:12:55.720 would want to get rid of Chevron. And you saw 0:12:55.800 --> 0:13:00.400 that even before this decision in efforts by Republicans in 0:13:00.520 --> 0:13:03.880 Congress to introduce bills to elimination Chevron deference. 0:13:04.559 --> 0:13:08.760 I've heard a lot of doomsday scenarios about the end 0:13:08.800 --> 0:13:13.199 of the Chevron doctrine. That it will paralyze federal agencies, 0:13:13.760 --> 0:13:18.240 that will undermine important protections for the public, from the 0:13:18.400 --> 0:13:23.040 environment to workplace, that will open the floodgates of litigation. 0:13:23.640 --> 0:13:25.600 And that's just to name a few of the warnings. 0:13:26.080 --> 0:13:27.560 What do you think the effects will be? 0:13:28.840 --> 0:13:28.920 So? 0:13:29.080 --> 0:13:33.280 I think the concern is a little bit overblown, but 0:13:33.559 --> 0:13:39.800 mostly because the Supreme Court at least was already raining 0:13:39.880 --> 0:13:43.880 in the agencies using other tools, the most powerful of 0:13:43.920 --> 0:13:47.280 which was created a while back but has been transformed 0:13:47.280 --> 0:13:51.160 in recent years, and that's the so called Major Questions doctrine, 0:13:51.240 --> 0:13:55.720 which was used, for example, to strike down the Biden 0:13:55.760 --> 0:14:02.240 administration OSHA mandate or vaccinations in the administration. They used 0:14:02.240 --> 0:14:04.040 the Major Questions to do that. They've used it to 0:14:04.080 --> 0:14:08.080 strike down environmental regulations, and that basically says that if 0:14:08.240 --> 0:14:13.320 Congress doesn't give an agency specific marching orders and the 0:14:13.360 --> 0:14:16.959 agency tries to do something quote major, then the courts 0:14:16.960 --> 0:14:19.760 will assume that's beyond the power of the agency, and 0:14:19.760 --> 0:14:24.800 that was already in place without overruling Chevron. Moreover, as 0:14:24.920 --> 0:14:27.960 to Justice Roberts says in his opinion, the Supreme Court 0:14:28.040 --> 0:14:32.840 itself hasn't applied Chevron deference in several years anyway, so 0:14:32.920 --> 0:14:36.480 they were already in effect not deferring to the agency. 0:14:36.800 --> 0:14:37.040 Now. 0:14:37.160 --> 0:14:40.360 That is not to say that this decision won't have 0:14:40.480 --> 0:14:46.720 any impact. After all, not every regulation that gets reviewed 0:14:46.840 --> 0:14:50.040 by the court goes up to the Supreme Court. And 0:14:50.120 --> 0:14:53.760 even though the US Supreme Court hasn't used Chevron to 0:14:54.000 --> 0:14:57.960 defer to agencies in several years, lower courts have. So 0:14:58.120 --> 0:15:01.440 I do think that this is going to have two effects. 0:15:01.600 --> 0:15:06.120 One is it will license lower court to invalidate agency 0:15:06.160 --> 0:15:09.280 actions a bit more frequently, and the other is it 0:15:09.320 --> 0:15:11.960 will have some kind of a chilling effect on the 0:15:12.120 --> 0:15:16.160 issuance of regulations by federal agents. I'll just say one 0:15:16.320 --> 0:15:19.680 further thing about it, which listeners que interesting that can 0:15:19.720 --> 0:15:21.760 find my write up of this point on my blog 0:15:21.800 --> 0:15:24.960 that's Scorf on law, and that is that there is 0:15:25.000 --> 0:15:29.720 some ambiguity in the majority opinion as to what the 0:15:29.760 --> 0:15:32.840 basis for the ruling is, as I said earlier, it's 0:15:32.880 --> 0:15:35.840 at least clear that Chief Justice Roberts and the Majority 0:15:35.920 --> 0:15:39.800 think that Chevron was inconsistent with the text of the 0:15:39.800 --> 0:15:43.920 Administrative Procedure Act. But Justice Thomas writes a concurrence in 0:15:43.960 --> 0:15:47.640 which he says not only that Chevron was unconstitutional. The 0:15:47.760 --> 0:15:50.120 Majority doesn't reject that, but they don't endorse it either. 0:15:50.160 --> 0:15:54.280 And the reason why it matters is if Chevron is unconstitutional, 0:15:54.800 --> 0:15:58.200 then that's it. There can never be deference to agencies 0:15:58.400 --> 0:16:02.760 under general principle. Again, however, if the Majority was only 0:16:02.800 --> 0:16:06.440 relying on this inconsistency with the statute and throwing in 0:16:06.520 --> 0:16:10.200 the constitutional points about Marbury against Madison merely as rhetoric, 0:16:10.480 --> 0:16:13.680 then there's a possibility that in the future a Congress 0:16:14.080 --> 0:16:19.840 could pass a law reinstating Chevron. That's extremely unlucky to 0:16:19.880 --> 0:16:23.560 happen with either House of Congress controlled by Republicans or 0:16:23.600 --> 0:16:27.000 with the Republican president, but you could imagine a future 0:16:27.000 --> 0:16:31.200 Democratic Congress and Democratic president wanting more robust power pre 0:16:31.240 --> 0:16:34.280 agencies and enacting such a statute. And we don't know 0:16:34.760 --> 0:16:39.800 after this decision whether a statutory requirement of deference would 0:16:39.840 --> 0:16:40.560 be upheld or not. 0:16:41.040 --> 0:16:43.080 Stay with me, Mike. Coming up next, I'm going to 0:16:43.080 --> 0:16:47.600 continue this conversation with Professor Michael Dorff of Cornell Law School. 0:16:47.960 --> 0:16:53.280 We'll discuss the court limiting obstruction charges against January sixth defendants. 0:16:53.440 --> 0:16:57.640 I'm June Grosso and you're listening to Bloomberg. The Supreme 0:16:57.680 --> 0:17:01.440 Court sided with a January sixth in a decision that 0:17:01.480 --> 0:17:06.440 will likely upend many capital riot prosecutions and perhaps even 0:17:06.480 --> 0:17:10.399 the DC criminal case against former President Donald Trump. The 0:17:10.680 --> 0:17:13.840 justices ruled six to three that the charge of obstructing 0:17:13.880 --> 0:17:18.000 an official proceeding enacted in response to the Enron collapse 0:17:18.400 --> 0:17:21.760 must include proof that defendants tried to tamper with or 0:17:21.840 --> 0:17:26.480 destroy documents During the oral argument. Several conservative justices like 0:17:26.600 --> 0:17:30.240 Neil Gorsuch had expressed skepticism about the scope of the 0:17:30.280 --> 0:17:34.160 obstruction charge and the kinds of conduct it could criminalize. 0:17:34.320 --> 0:17:38.880 Would a sit in that disrupts a trial for access 0:17:38.920 --> 0:17:42.880 to a federal courthouse qualify? Would a heckler in today's 0:17:42.920 --> 0:17:46.400 audience qualify? Or at the State of the Union address? 0:17:47.280 --> 0:17:53.639 Would pulling a fire alarm before a vote qualify? For 0:17:53.680 --> 0:17:55.080 twenty years in federal prison. 0:17:55.240 --> 0:17:59.160 The case divided the court along unusual lines, with liberal 0:17:59.359 --> 0:18:03.719 Justice Aie Brown Jackson joining the conservatives in the majority 0:18:04.240 --> 0:18:08.200 and conservative Justice Amy Cony Barrett joined the two other 0:18:08.280 --> 0:18:12.000 liberals in descent. I've been talking to constitutional law expert 0:18:12.040 --> 0:18:15.680 Michael Dorf, a professor at Cornell Law School, Mike tell 0:18:15.760 --> 0:18:17.359 us about the main issue in the case. 0:18:17.760 --> 0:18:21.000 So this is a case called Fisher against the United States. 0:18:21.160 --> 0:18:28.240 So Fisher was charged with participating in the January sixth insurrection, 0:18:28.960 --> 0:18:32.640 and he was charged under a number of statues, one 0:18:32.720 --> 0:18:35.280 of which is at issue in this case, and that 0:18:35.560 --> 0:18:40.600 is a provision that says that he was obstructing from 0:18:40.600 --> 0:18:44.600 an official proceeding. I'll read you the exact text. It says, 0:18:44.880 --> 0:18:50.000 whoever corruptly and then it has a bunch of examples alters, destroys, mutilates, 0:18:50.080 --> 0:18:52.920 or can feels a record, document or other objects, etc. 0:18:53.160 --> 0:18:53.320 Etc. 0:18:53.920 --> 0:18:59.480 Or quote otherwise obstruct, influences, or impedes any official proceeding, 0:18:59.680 --> 0:19:03.000 shall guilty of the crime. Fisher was charged under the 0:19:03.119 --> 0:19:08.280 second part, which says somebody who otherwise obstruct and official proceeding. 0:19:08.480 --> 0:19:12.840 And the question in the case was whether what Fisher did, 0:19:13.280 --> 0:19:17.280 which was basically to participate in mob violence, including against 0:19:17.320 --> 0:19:23.520 Capitol police, whether that counts as otherwise obstructing and official proceeding. Now, 0:19:23.680 --> 0:19:28.000 everybody in the case acknowledges that if you just take 0:19:28.040 --> 0:19:33.600 that language in isolation otherwise obstruct. Well, sure Fisher obstructed 0:19:34.040 --> 0:19:38.000 an official proceeding because he participated in this mob action, 0:19:38.440 --> 0:19:42.520 and the mob action delayed the certification of the electoral 0:19:42.600 --> 0:19:45.840 votes on January sixth, twenty twenty one. But Chief just 0:19:45.920 --> 0:19:49.400 As Roberts writes for a six to three majority that 0:19:49.760 --> 0:19:55.320 you can't read that term obstructs and official proceeding in isolation. 0:19:55.840 --> 0:19:59.920 You have to read it in conjunction with the previous 0:20:00.200 --> 0:20:06.960 sub paragraph part one, which is all about destroying records, documents, 0:20:07.160 --> 0:20:10.760 other physical items that are going to be used in 0:20:10.760 --> 0:20:15.640 an official proceeding, and not generally about obstructing. Now, one 0:20:15.640 --> 0:20:17.119 thing I should say is when I say it was 0:20:17.160 --> 0:20:19.800 six to three, listeners might assume that that was the 0:20:19.960 --> 0:20:23.880 usual six to three. It wasn't quite. Justice Katanji Brown 0:20:23.960 --> 0:20:29.280 Jackson joined in the majority, whereas Justice amy Cony Barrett 0:20:29.600 --> 0:20:33.359 wrote the descent for herself and Justices Soto, Mayor and Kagan. 0:20:33.600 --> 0:20:37.679 So in that sense, two justices sort of flipped from 0:20:37.680 --> 0:20:41.280 what you might think of as their usual ideological or 0:20:41.400 --> 0:20:44.960 partisan alignment. But it basically comes down to a case 0:20:44.960 --> 0:20:48.600 decided on ideological lines, and in. 0:20:48.560 --> 0:20:53.680 The dissent, Justice Barrett wrote, the majority simply cannot believe 0:20:53.720 --> 0:20:57.640 that Congress meant what it said when writing this statute. 0:20:57.880 --> 0:21:00.320 So who do you think makes the better argument, meant 0:21:00.680 --> 0:21:02.000 the Chief or Barrett. 0:21:02.240 --> 0:21:04.840 I think it's actually a hard case. So if you 0:21:05.000 --> 0:21:09.520 put aside that this case involves January sixth, and just 0:21:10.000 --> 0:21:14.440 think about the statute, there's I think a decent argument 0:21:14.560 --> 0:21:19.280 on either side. Chief. Just as Robert invokes two Latin 0:21:19.400 --> 0:21:24.000 maxims which I won't try to pronounce, that basically say 0:21:24.400 --> 0:21:26.600 that if you have a list of things and then 0:21:26.640 --> 0:21:31.000 you have a catch all, the catch lol is limited 0:21:31.400 --> 0:21:36.879 by the idea behind what the specifics are. And he 0:21:36.960 --> 0:21:41.359 gives a couple of sort of amusing examples. One involves football, 0:21:41.720 --> 0:21:46.920 another involves sign at a zoo about not disturbing the animals, 0:21:46.960 --> 0:21:50.760 and he says that you take the specifics and then 0:21:50.800 --> 0:21:54.439 the catch lol means other things that are like the 0:21:54.520 --> 0:21:59.320 specifics but not too far distant. Now, what Justice Barrett 0:21:59.359 --> 0:22:02.000 does in it does not to deny the general principle, 0:22:02.400 --> 0:22:07.800 but to deny that the structure of the statutory provision 0:22:08.359 --> 0:22:12.879 parallels the examples that Chief Justice Roberts gives, and she 0:22:13.040 --> 0:22:17.760 says that language of otherwise obstruct really does stand more 0:22:17.880 --> 0:22:22.040 alone than he acknowledges that they're in two separate sub 0:22:22.160 --> 0:22:25.000 paragraphs that if you parse the language, are a little different. 0:22:25.160 --> 0:22:29.840 So I think she's right that, taken at face value, 0:22:30.280 --> 0:22:34.920 the language does cover what Fisher and other people did 0:22:34.960 --> 0:22:38.640 on January sixth, But I think the majority is also 0:22:38.920 --> 0:22:42.359 right that you can't take it just at face value. 0:22:42.480 --> 0:22:44.760 And so the hard question is on that sort of 0:22:44.840 --> 0:22:49.680 second level of disagreement, which is, to what extent does 0:22:49.760 --> 0:22:54.480 this statute fit the paradigm that the Chief Justice adopt 0:22:54.760 --> 0:22:57.960 where it's a casual at the end of a specific list. 0:22:58.000 --> 0:23:01.280 Because it doesn't fit it exactly, but it's kind of 0:23:01.440 --> 0:23:04.320 like that, And so I think reasonable minds could differ 0:23:04.520 --> 0:23:05.080 on that. 0:23:05.080 --> 0:23:08.960 Question, reasonable minds that are textualists. I mean, is this 0:23:09.040 --> 0:23:14.240 a showdown between textualist interpretations. Barrett wrote that the majority 0:23:14.680 --> 0:23:19.040 does textual backflips to find some way anyway to narrow 0:23:19.040 --> 0:23:22.120 the reach of the obstruction law, and Barrett has also 0:23:22.320 --> 0:23:27.760 recently disagreed with the way Justice Clarence Thomas has analyzed 0:23:27.760 --> 0:23:28.200 a case. 0:23:28.880 --> 0:23:31.800 I think it's fair to say that there is a 0:23:32.000 --> 0:23:39.440 developing risk between Justice Barrett and the other conservatives. She's 0:23:39.480 --> 0:23:43.440 still quite conservative overall, but there's a developing rerip over methodology. 0:23:44.000 --> 0:23:48.000 And you see this not only here where she says, 0:23:48.280 --> 0:23:51.280 you know, you're not really doing textualism, You're relying an 0:23:51.320 --> 0:23:55.680 awful lot on these Latin maxims rather than looking closely 0:23:55.760 --> 0:23:58.359 at the structure of the statue. But you also see 0:23:58.400 --> 0:24:03.760 this in her current in last week's Raheemi case. This 0:24:03.840 --> 0:24:07.439 is the case where the court upheld, as against a 0:24:07.520 --> 0:24:13.360 Second Amendment challenge, the federal statute that forbids people who 0:24:13.400 --> 0:24:18.520 are under domestic violence protection orders from obtaining firearms, and 0:24:18.560 --> 0:24:21.399 the Court upheld that eight to one. But there's a 0:24:21.440 --> 0:24:25.080 series of concurrences. And one of the things that Justice 0:24:25.119 --> 0:24:30.000 Barrett says in her concurrence is she distances herself from 0:24:30.280 --> 0:24:34.280 the so called tradition approach, which I think is more 0:24:34.280 --> 0:24:37.520 closely associated certainly with Justice Thomas and to some extent 0:24:37.560 --> 0:24:40.960 with Justice Kavanaugh. And she wants to say that no, no, 0:24:40.960 --> 0:24:45.879 we really as originalist textualists, want to focus on the 0:24:46.000 --> 0:24:50.920 meaning of the word and you know what laws were 0:24:50.960 --> 0:24:55.600 around at the time, what people's subjective intentions and expectations 0:24:55.600 --> 0:24:59.200 that might have been might be relevant in figuring out 0:24:59.200 --> 0:25:01.200 what the words mean, but they're not relevant in and 0:25:01.280 --> 0:25:04.200 of themselves in the way that some of the other 0:25:04.680 --> 0:25:08.520 more history and tradition focused conservatives seem to think. Now, 0:25:08.680 --> 0:25:14.080 I should say that that disagreement doesn't necessarily make her 0:25:14.800 --> 0:25:19.440 likely to be less conservative overall, but I do think 0:25:19.480 --> 0:25:23.399 it shows her to be somewhat more principled than some 0:25:23.480 --> 0:25:27.560 of the other conservatives, and really thinking through the consequences 0:25:27.560 --> 0:25:35.240 of her jurisprudential methodological commitment, and that in so being principled, 0:25:35.320 --> 0:25:39.199 she's likely more often to reach results that might be 0:25:39.240 --> 0:25:43.760 surprising ideologically. So I do think there is some prospect 0:25:44.160 --> 0:25:48.360 that we are going to see her be less reliably 0:25:48.480 --> 0:25:52.520 conservative over the coming years, not so much because she's 0:25:52.520 --> 0:25:56.320 becoming a liberal, but because she's sort of really sticking 0:25:56.400 --> 0:26:01.800 by the implications of her methodology, which will sometimes few liberal. 0:26:01.800 --> 0:26:04.880 In particular case, this case got a lot of attention 0:26:05.160 --> 0:26:09.360 because the charge has been used against Trump, but Special 0:26:09.400 --> 0:26:12.960 counsel Jack Smith has said that Trump's conduct would still 0:26:13.000 --> 0:26:18.159 be covered even under a narrower interpretation of the statute because, 0:26:18.200 --> 0:26:22.280 for example, it involved efforts to interfere with the electoral 0:26:22.320 --> 0:26:25.400 college certificates arriving at the desk to be counted. 0:26:25.600 --> 0:26:28.560 Yeah, I think there's something to that. The court sends 0:26:28.720 --> 0:26:31.680 even Fisher's case back to the lower courts to figure 0:26:31.720 --> 0:26:36.040 out whether he can be charged under the narrower reading, 0:26:36.160 --> 0:26:41.040 because you know, you could say that all of the 0:26:41.160 --> 0:26:47.480 January sixth rioters were interfering with the arrival or counting 0:26:47.640 --> 0:26:51.200 or something to do with the physical certificates. In that case, 0:26:51.359 --> 0:26:53.960 then this case would be a bit of a sport right, 0:26:54.040 --> 0:26:57.040 having no real bearing on the January sixth prosecutions, but 0:26:57.119 --> 0:27:01.120 potentially having bearing on other cases rise under this statute 0:27:01.119 --> 0:27:04.840 in totally different setting. I think Smith has a stronger 0:27:05.040 --> 0:27:10.320 argument that Trump himself was obstructing with respect to the 0:27:10.320 --> 0:27:14.399 particular certificates in light of the allegations about the so 0:27:14.520 --> 0:27:19.280 called fake electors scheme, because there the goal was to 0:27:19.480 --> 0:27:26.080 get before Congress certificates from people purporting to be electors 0:27:26.200 --> 0:27:29.320 who really weren't, and you could say that then what 0:27:29.359 --> 0:27:34.119 they were doing was obstructing the official proceeding with respect 0:27:34.359 --> 0:27:38.200 to the availability for use of the real certificates. I 0:27:38.240 --> 0:27:39.840 don't think it's a slam dunk, but I think it's 0:27:39.840 --> 0:27:43.040 Smith has a pretty good case that even after the 0:27:43.080 --> 0:27:47.040 Fisher decision, the allegations against Trump's stand. And it's important 0:27:47.080 --> 0:27:51.680 to remember that Smith has charged Trump under other statutes 0:27:51.760 --> 0:27:54.520 as well, So it's not just that even if under 0:27:54.560 --> 0:27:58.720 this narrower view those counts against Trump are thrown out, 0:27:58.920 --> 0:28:01.280 there's still a case. Again. Of course, all of that 0:28:01.359 --> 0:28:04.800 would depend on the outcome that's coming down on Monday 0:28:04.960 --> 0:28:06.560 in the immunity case, the. 0:28:06.560 --> 0:28:10.120