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In what is considered by many people, a

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landmark decision, the supreme court last week.

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Overturned an important president,

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president. It's 19 84 Chevron doctrine.

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That doctrine in the words of chiefs

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chief justice Roberts who wrote the majority opinion

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that overrule Chevron.

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That doctrine, un quoting the chief justice, quote,

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sometimes

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required courts to defer to permissible

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agency interpretations of the statues those

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agencies, administer.

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Even when a reviewing court reads the statute

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differently.

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Close quote. That's from the his majority opinion

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and now in other words, like, putting it

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in my words, the Chevron defer meant that

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in some scenarios.

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The courts had to accept. They had to

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defer to a federal

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agencies

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interpretation of the law.

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Even when the court may have had a

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different

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interpretation of the law.

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So the questions today are is the overturn

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of Chevron a good thing,

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and how good is the reasoning

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contained in the decision, both from Roberts and

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the justices and the majority and from Justice

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C in her descent.

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Welcome to new idea live, the podcast of

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the Ina rand Institute.

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I'm on Car senior fellow and Ari and

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joining me today to discuss these questions is

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Adi D. A former student in Ari

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education programs, and today, an attorney at the

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Pacific Legal Foundation, who specializes in separation of

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powers issues and who wrote and make us

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brief in this very case.

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Hello, Abby.

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Hi, On carr. Thanks for having me.

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Yeah. And I'm really glad you could join

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us. Today. So I thought we'd start off

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with... So you're... You were on the side,

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and I think your brief words on the

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side of urging the Supreme court to overrule

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Chevron.

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I thought you could start off by telling

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us

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how you... I quoted a little bit from

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Justice Roberts character characterization of what Chevron defer

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meant.

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How you think about it?

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So what is it that has been now

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overturned or overrule?

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So the chevron doctrine which,

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was,

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which came out of the decision in 19

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84, which was written by, justice

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Stevens,

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is a doctrine of,

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judicial

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application, is how

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how I see it, because what it does

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is as you quoted the chief justice

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opinion from low bright, it

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requires judges to defer

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to the

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interpretation of statute offered by officials in the

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executive branch.

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And and it's it's it's a shock to

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the system in the sense of... Or it

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was a shock to the system

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because, it it

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it violated the constitution

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separation of powers

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and checks and balances

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on a really a fundamental level.

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Because courts if anything

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in chief justice Robert's

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views that have been expressed in some earlier

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decisions,

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must act as neutral decision makers

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without fear or favor

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granted to any particular party.

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But the Chevron defer doctrine

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required courts to put a thumb on the

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scale in favor of the government

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and against the individual. So in that sense,

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the courts really ab their role as neutral

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objective decision makers

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when a proper case is presented to them.

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And, obviously, last week, the supreme Court overrule

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the Chevron doctrine

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And and, O, I think you start at

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the right place when you say there are

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really 2 questions or 2 ways of looking

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at.

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The decision that we got in low per

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bright? 1, is it a good conclusion? And

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is it,

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are the reasons provided by the justices, good

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enough, and I'm looking forward to sort of

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talking through that.

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Okay. Good.

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Yes. And I I definitely wanna spend a

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lot of time on the actual decision and

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its reasoning because I... The tendency... When I...

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Watch things in the media for supreme court

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cases. Is the focus on the decision? And

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then what they speculation about what the consequences

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will be

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down the road now for for legal cases,

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But they don't spend a lot of time

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thinking or are arguing

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when they have experts on. So

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to to sort of analyze. Was it actually

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a good decision. So I wanna spend some

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real time on that But

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let me ask you this. And as I

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said in the intro, you focus on separation

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of powers issues and you brought that up.

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In in

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in your

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description here of Chevron.

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So

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part of the way I think about why

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this is

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a very consequential

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issue,

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is that it's

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this kind of issue is very important when

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you have a mixed

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economy. So ads... And and the way I

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think about that is at

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as the government gains more and more power

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and control

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over people's lives, and and both in the

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decision and if people have read outside sort

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of commentary

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on Chevron that it becomes

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especially

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important this kind of issue with the passage

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of the new deal

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legislation, and that was really a significant expansion

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of government,

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control and government

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power over the lives of people and, like,

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in all areas of life and business,

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work,

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employment law, health care, your retirement planning with

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social security and all that kind of stuff,

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education, and

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ka in her descent, makes this point sort

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of in passing just the the amount of

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power that the government has. This is 1,

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a, brief quote from her dissent. Of just

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listing sort of things that government now does

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on a day to day basis, and it's,

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quote, the provision of health care,

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the protection of the environment,

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the safety of consumer products, the efficacy of

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transportation systems,

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and so on. And the so on is

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a there's a long, which has hasn't even

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mentioned education there for instance. That's a long

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list. And when a government has that much

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control over people's lives. There's a really, really

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important issue of, is it

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exercising that power

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in a legal way. And in a way

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that is

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at I don't know if it can be

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fully

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square with the constitution, I don't think it

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can, but at least it has the still

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an element of real

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rule

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of law that the government it... 1 can

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really think

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Yeah. The government is enforcing the law, not

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making up the law as it goes along.

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And that this... The... As I read the

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Chevron doctrine and the... What, like, what's an

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issue is

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is the government

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enforcing a law or is it making up?

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What the law

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is and that the courts are deferring to,

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okay. If that's what the government now of

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are in in in this sense

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guys, the federal agency says the law is,

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then that's what the law is. And there's

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a real if we don't look at it

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from the perspective of rule of law is,

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like, can you as a citizen know what

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the law is by looking at what the

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acts and legislation and statute congress has passed,

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or are you sort of at the mercy

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of the federal

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agencies

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and their interpretation, what they say and part

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of in in

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the... I I think this comes up, especially

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in gorsuch

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concur,

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that it can change from

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when you have different people in the agencies,

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what they say the law can change, And

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then as an individual, like, have do you

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know beforehand, if what you're doing is legally

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prohibited, you're not supposed to do this. Or

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not. Like that, I took us... Like, that's

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sort of in the... That's what's at stake

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or what's it at issue fundamentally

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in terms of thinking about this issue of

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defer? Is that... Would what do you see

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it in a similar kind of way? Or

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would you qualify that in some way?

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So that's that's right because,

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because what what Chevron was

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doing in 19 eighties was... It was sort

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of addressing the phenomenon of

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congress sort of riding vague laws.

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You know, they'll... They'll... They'll write statute

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basically saying,

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the federal government officials,

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shall make law that is necessary and appropriate

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under this new agency that we have created,

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For example.

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Congress was

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was sort of putting things in

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in the

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discussions that led up. To the passage of

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ola law, which we call legislative history. So

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putting, you know, individual

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legislators

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statements in the record.

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And

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and, basically, that was being used as evidence

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of,

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legislative

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intent what Congress really meant when they... When

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Congress put certain words in a statute.

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And,

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obviously, you know, federal government officials looking at,

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that evidence

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or looking at those vague words,

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would then then

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assert,

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really un unfair discretion in reading those words,

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however, they please.

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And and and it it it really sort

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of gives you a glimpse into the kind

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of,

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the lack of respect for consent formation for

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for concepts. And, you know, it's really

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sort of an interesting glimpse into the

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philosophical premises of of the era, you know,

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p or what have you.

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And and that... That's what was leading

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leading a

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lot of officials to

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to

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read vague statute to give themselves

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more and more power. I mean, think of

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statute that say, you know,

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markets should be honest.

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What is honesty? What is markets? What are

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securities, what are stock exchanges? All of all

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of those terms,

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we're implicit in the concept of well, you

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know, market should be honest, but then

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congress was giving up the power to leg

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to make law.

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To the executive branch when the power does

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not belong in the executive branch, and that's

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what was causing

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causing,

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all of these vague laws and, their interpretations

282
00:11:13,340 --> 00:11:16,139
to proliferate it at the federal level. So

283
00:11:16,299 --> 00:11:18,539
Chevron, at least at the time it was

284
00:11:18,539 --> 00:11:18,860
written,

285
00:11:19,435 --> 00:11:21,995
was meant to be pretty much a sleeper

286
00:11:21,995 --> 00:11:24,394
case. No 1 really paid much attention to

287
00:11:24,394 --> 00:11:27,608
it because it was viewed as the courts,

288
00:11:28,246 --> 00:11:30,503
courts way of signaling that,

289
00:11:30,881 --> 00:11:33,436
you know, we we will we will allow

290
00:11:33,436 --> 00:11:36,550
the federal officials to interpret these vague terms...

291
00:11:36,724 --> 00:11:37,838
Because we aren't getting,

292
00:11:38,554 --> 00:11:41,021
really clear statute written from Congress.

293
00:11:42,136 --> 00:11:44,466
And and and that was fundamentally

294
00:11:45,001 --> 00:11:47,503
flawed as a premise or it was fundamentally

295
00:11:47,876 --> 00:11:50,282
flawed as a principle of constitutional.

296
00:11:51,052 --> 00:11:53,934
Because, you know, if if anything, the the

297
00:11:54,148 --> 00:11:57,838
constitution separates the law power from the

298
00:11:58,290 --> 00:12:00,616
power and the judicial power and

299
00:12:01,068 --> 00:12:02,258
the constitution places,

300
00:12:02,814 --> 00:12:03,211
the

301
00:12:04,416 --> 00:12:04,916
the

302
00:12:05,529 --> 00:12:08,309
power in the hands of congress, not in

303
00:12:08,309 --> 00:12:11,144
the hands of anybody else. The constitution says

304
00:12:11,343 --> 00:12:13,881
all legislative power, not just any power, not

305
00:12:13,881 --> 00:12:16,737
just some power, but all legislative power is

306
00:12:16,737 --> 00:12:17,768
vested in Congress.

307
00:12:18,244 --> 00:12:19,061
And and

308
00:12:20,168 --> 00:12:22,882
I mean, the the sort of incentives or

309
00:12:22,882 --> 00:12:23,382
dis

310
00:12:23,840 --> 00:12:27,034
structure that developed out of Chevron defer is

311
00:12:27,034 --> 00:12:29,443
was pretty obvious even at the time. Of

312
00:12:29,523 --> 00:12:30,023
Chevron

313
00:12:31,114 --> 00:12:33,183
when Chevron came out in 19 84, which

314
00:12:33,183 --> 00:12:35,729
is, you know, it incentivized Congress to write

315
00:12:35,729 --> 00:12:39,717
vague laws it incentivize the executive to be

316
00:12:39,717 --> 00:12:40,614
a vessel

317
00:12:40,988 --> 00:12:43,530
in interpreting those laws to their own ends

318
00:12:43,530 --> 00:12:44,641
and, you know, new admit...

319
00:12:45,451 --> 00:12:47,913
Anytime there would be an administration change. The

320
00:12:47,913 --> 00:12:49,105
new administration

321
00:12:49,979 --> 00:12:50,876
fell pretty

322
00:12:51,250 --> 00:12:54,126
pretty much, you know, un unaffected. In its

323
00:12:54,126 --> 00:12:57,072
ability to interpret those old statute, of vague

324
00:12:57,072 --> 00:12:57,572
statute

325
00:12:58,267 --> 00:12:59,381
to their own purposes.

326
00:12:59,859 --> 00:13:02,423
And and that really really you know, from

327
00:13:02,423 --> 00:13:04,337
from an individual's perspective,

328
00:13:05,454 --> 00:13:06,411
every 4 years,

329
00:13:07,129 --> 00:13:08,804
law is going to change. We don't know

330
00:13:08,804 --> 00:13:10,718
what the lies. We we can never know

331
00:13:10,718 --> 00:13:11,889
where the lies because

332
00:13:12,488 --> 00:13:15,681
administrator has both the power to enforce the

333
00:13:15,681 --> 00:13:17,677
law and the power to make the law.

334
00:13:18,156 --> 00:13:20,471
And that was the system of

335
00:13:21,190 --> 00:13:23,824
an of you know, of government that really

336
00:13:23,983 --> 00:13:26,205
Chevron incentivized and put in place.

337
00:13:27,317 --> 00:13:29,380
Bright, I think needs to be viewed in

338
00:13:29,380 --> 00:13:32,364
light of what what Chevron was meant

339
00:13:33,778 --> 00:13:34,278
meant

340
00:13:34,655 --> 00:13:37,628
to support and what Chevron actually accomplished

341
00:13:38,084 --> 00:13:38,802
as a result.

342
00:13:40,333 --> 00:13:41,950
So let me ask

343
00:13:42,328 --> 00:13:44,243
you list as a kind of summary and

344
00:13:44,243 --> 00:13:46,738
would... If if you would add anything. So

345
00:13:47,116 --> 00:13:49,144
in terms of... The what

346
00:13:49,597 --> 00:13:50,733
impact and consequences

347
00:13:51,346 --> 00:13:52,697
Chevron had. So it...

348
00:13:53,412 --> 00:13:55,025
Part of what you were saying is it

349
00:13:55,081 --> 00:13:55,581
incentivize

350
00:13:56,035 --> 00:13:56,535
Congress

351
00:13:57,003 --> 00:13:58,593
to write vague laws.

352
00:13:59,229 --> 00:14:02,011
Presumably because it's easier to pass Vague laws.

353
00:14:02,170 --> 00:14:03,760
I'd like to get agreement when people don't

354
00:14:03,760 --> 00:14:05,930
even know quite what you're agreeing to

355
00:14:06,399 --> 00:14:07,219
and then

356
00:14:08,078 --> 00:14:10,475
pumped it to the executive branch, you figure

357
00:14:10,475 --> 00:14:13,592
out the details and and in that sense,

358
00:14:13,832 --> 00:14:15,510
the executive branch is not.

359
00:14:16,162 --> 00:14:17,457
Enforcing the law

360
00:14:17,912 --> 00:14:20,537
anymore, it's making the law, and it's it's...

361
00:14:21,253 --> 00:14:22,707
And and in that sense, it's

362
00:14:23,017 --> 00:14:26,694
taking power away from Congress. So it incentivize

363
00:14:26,750 --> 00:14:28,814
congress to write vague laws,

364
00:14:29,846 --> 00:14:31,855
that in turn incentivized

365
00:14:32,324 --> 00:14:32,824
federal

366
00:14:33,201 --> 00:14:35,913
agencies to claim more and more power because

367
00:14:35,913 --> 00:14:38,625
if it was vague, it's a kind of

368
00:14:38,625 --> 00:14:39,104
reasonable,

369
00:14:39,502 --> 00:14:40,002
permissible

370
00:14:40,459 --> 00:14:42,549
interpretation even if not, the best interpretation of

371
00:14:42,549 --> 00:14:44,547
the law. But as long it was permissible,

372
00:14:44,866 --> 00:14:46,624
the courts were supposed to defer to that.

373
00:14:46,784 --> 00:14:47,684
So it incentivize

374
00:14:48,302 --> 00:14:50,220
them to claim a lot of power,

375
00:14:51,192 --> 00:14:52,461
you didn't say this, but then this is

376
00:14:52,461 --> 00:14:54,048
part I... I wanna ask if you would

377
00:14:54,048 --> 00:14:54,366
agree with this.

378
00:14:55,398 --> 00:14:56,929
The consequence for

379
00:14:57,461 --> 00:14:59,286
individuals is you would much less...

380
00:14:59,858 --> 00:15:02,331
It you would be much less likely to

381
00:15:02,331 --> 00:15:02,831
challenge

382
00:15:03,687 --> 00:15:04,187
federal

383
00:15:04,724 --> 00:15:08,074
agencies in court, thinking, you're going way beyond

384
00:15:08,074 --> 00:15:09,371
what the law says

385
00:15:10,161 --> 00:15:12,945
because the courts... If they're def... So differential

386
00:15:12,945 --> 00:15:15,808
to federal agencies, you're likely to lose that

387
00:15:15,808 --> 00:15:16,047
case,

388
00:15:17,018 --> 00:15:18,453
And so you don't even bring it in

389
00:15:18,453 --> 00:15:19,729
the first place. It's it's not that you

390
00:15:19,729 --> 00:15:21,584
lose it. You don't even bring the case

391
00:15:21,722 --> 00:15:23,875
in the first place. And that... That's a

392
00:15:23,875 --> 00:15:24,455
kind of

393
00:15:24,912 --> 00:15:25,412
unseen

394
00:15:25,803 --> 00:15:28,982
consequence of it that 1 might think, well,

395
00:15:29,141 --> 00:15:31,207
but you still have cases but all types

396
00:15:31,207 --> 00:15:32,876
of cases that maybe should have been brought.

397
00:15:33,449 --> 00:15:36,641
Weren't brought because the... Everybody knew that the

398
00:15:36,641 --> 00:15:39,296
court would be differential to whatever the federal

399
00:15:39,435 --> 00:15:42,325
agency, however they interpreted the statute. So would

400
00:15:42,325 --> 00:15:44,164
you say what... Is is that a third

401
00:15:44,164 --> 00:15:45,205
con... And I'm interested,

402
00:15:45,845 --> 00:15:47,684
maybe to to before now, we'll turn to

403
00:15:47,684 --> 00:15:50,259
the the reasoning in the decision. But what

404
00:15:50,259 --> 00:15:52,839
are 1 are 2 examples that you hold

405
00:15:52,980 --> 00:15:54,839
sort of as... Like, these are paradigm

406
00:15:55,220 --> 00:15:58,832
examples of what Chevron meant in actual practice.

407
00:15:58,990 --> 00:16:00,896
He brought it 1 about markets must be

408
00:16:00,896 --> 00:16:02,325
honest. But do you have a a few

409
00:16:02,325 --> 00:16:03,833
of those of how you think like that,

410
00:16:04,389 --> 00:16:06,533
if you wanna get it more concrete. This

411
00:16:06,533 --> 00:16:08,934
is the... What chevron meant in practice.

412
00:16:11,641 --> 00:16:13,575
Sure. So I... So I think

413
00:16:13,951 --> 00:16:16,261
you're you're right about sort of the third

414
00:16:16,261 --> 00:16:17,630
concert ones that you described.

415
00:16:18,347 --> 00:16:20,758
You know, many, many many cases were

416
00:16:21,453 --> 00:16:24,241
were simply not broad because you knew there

417
00:16:24,241 --> 00:16:27,065
was there was this doctrine of defer

418
00:16:27,440 --> 00:16:27,917
where

419
00:16:28,712 --> 00:16:31,258
court where Chevron essentially had said, you know,

420
00:16:31,496 --> 00:16:32,633
whenever we have

421
00:16:32,944 --> 00:16:33,924
a disputed

422
00:16:34,623 --> 00:16:37,739
interpretation, you know, an individual is interpreting, looking

423
00:16:37,739 --> 00:16:40,936
at this statute and trying to organize their

424
00:16:40,936 --> 00:16:42,455
affairs to the best of their ability.

425
00:16:43,028 --> 00:16:45,097
But there's always going to be a federal

426
00:16:45,097 --> 00:16:47,485
bureau that is going to interpret a statute

427
00:16:47,485 --> 00:16:50,271
in a different way. And there is no

428
00:16:50,271 --> 00:16:53,409
wave. For the individual to convince the court

429
00:16:53,625 --> 00:16:56,747
as to why it makes sense for the

430
00:16:56,962 --> 00:16:57,462
individual's

431
00:16:57,916 --> 00:16:59,449
interpretation to control

432
00:17:00,236 --> 00:17:02,384
that's the that's the sort of, like, bias

433
00:17:02,384 --> 00:17:04,317
or systematic bias that

434
00:17:05,249 --> 00:17:08,033
that the majority opinion and the concur opinion

435
00:17:08,033 --> 00:17:10,833
from gorsuch search. Talks about in lo bright.

436
00:17:11,469 --> 00:17:14,253
So that that definitely has been has been

437
00:17:14,253 --> 00:17:14,651
the

438
00:17:15,844 --> 00:17:18,246
the word on the street so to speak

439
00:17:18,246 --> 00:17:20,314
for the past 40 years is if you're

440
00:17:20,314 --> 00:17:21,268
going to bring a case,

441
00:17:22,780 --> 00:17:24,393
be prepared to lose because

442
00:17:24,704 --> 00:17:26,931
you know, there there's is this bias in

443
00:17:26,931 --> 00:17:27,988
favor of the government

444
00:17:28,442 --> 00:17:29,954
interpretation, thanks to Chevron.

445
00:17:30,590 --> 00:17:31,545
So in terms of,

446
00:17:32,353 --> 00:17:35,550
real world consequences. I mean, we see a

447
00:17:35,843 --> 00:17:39,016
lot of vague or vaguely written statute,

448
00:17:40,223 --> 00:17:42,457
relating to environmental protection, you see, you know,

449
00:17:42,536 --> 00:17:44,371
the clean air act or the clean water

450
00:17:44,371 --> 00:17:45,328
act. It's it's sort of,

451
00:17:46,125 --> 00:17:48,678
the the basic idea is the environment needs

452
00:17:48,678 --> 00:17:49,475
to be protected.

453
00:17:50,049 --> 00:17:53,166
And the environmental protection agency or the Army

454
00:17:53,246 --> 00:17:54,465
Corps of engineers

455
00:17:55,323 --> 00:17:58,734
can can make all manner of necessary decisions

456
00:17:59,092 --> 00:18:00,365
to protect the environment.

457
00:18:01,002 --> 00:18:03,172
And consider what what sort of

458
00:18:03,547 --> 00:18:05,750
impact that V has? I mean, you have

459
00:18:06,504 --> 00:18:09,307
you know, farmers or a or a sawmill

460
00:18:09,522 --> 00:18:13,414
or a a woodworking workshop, or simply a

461
00:18:13,414 --> 00:18:16,218
family that is trying to build a home

462
00:18:16,218 --> 00:18:16,718
on

463
00:18:17,255 --> 00:18:19,009
on a plot of land that is close

464
00:18:19,009 --> 00:18:21,243
to a close to you know, a river.

465
00:18:22,519 --> 00:18:24,009
All of those all of those

466
00:18:24,525 --> 00:18:27,937
individual decisions are now going to be oversee

467
00:18:27,937 --> 00:18:31,666
and regulated by some federal official. Is the

468
00:18:31,666 --> 00:18:32,404
is the

469
00:18:33,191 --> 00:18:33,986
individual's decision,

470
00:18:35,339 --> 00:18:37,409
harmful to the environment. Well, who is to

471
00:18:37,409 --> 00:18:39,716
say. You know, it's the federal official that

472
00:18:39,716 --> 00:18:42,000
has the final say that, and the courts

473
00:18:42,837 --> 00:18:45,708
with this idea of expertise or efficiency are

474
00:18:45,708 --> 00:18:48,202
going to defer to the federal officials

475
00:18:48,979 --> 00:18:51,451
interpretation no matter what because it is a

476
00:18:51,451 --> 00:18:51,951
permissible

477
00:18:52,500 --> 00:18:54,905
construction of the statute. And this statute gives

478
00:18:55,040 --> 00:18:57,422
gives the federal officials a tool,

479
00:18:58,136 --> 00:18:59,827
protect go and protect the environment

480
00:19:00,200 --> 00:19:00,700
and

481
00:19:01,169 --> 00:19:03,406
obviously, the federal official is going to use

482
00:19:03,406 --> 00:19:06,623
that tool in in any way that the

483
00:19:06,842 --> 00:19:07,342
films

484
00:19:07,721 --> 00:19:08,520
deem reasonable.

485
00:19:09,494 --> 00:19:11,414
And that has been the real world impacted.

486
00:19:11,815 --> 00:19:14,295
It has... You know, there there haven't... Been

487
00:19:14,295 --> 00:19:15,994
many industries that have sort of

488
00:19:16,469 --> 00:19:18,626
subs assumed or assumed that's the cost of

489
00:19:18,626 --> 00:19:21,363
doing business is to appease the federal regulator

490
00:19:21,582 --> 00:19:22,461
as opposed to,

491
00:19:23,514 --> 00:19:25,267
you know, sort of looking at law in

492
00:19:25,267 --> 00:19:26,463
an objective way.

493
00:19:27,101 --> 00:19:29,891
And, you know, some some industries have built

494
00:19:29,891 --> 00:19:30,768
that into their,

495
00:19:31,818 --> 00:19:33,410
you know, business model. That's just the cost.

496
00:19:33,569 --> 00:19:35,820
You know, you have to convince a federal

497
00:19:35,877 --> 00:19:37,707
official that you should be allowed,

498
00:19:38,741 --> 00:19:40,412
you should be permitted to build a house

499
00:19:40,412 --> 00:19:42,101
here or you should be permitted to

500
00:19:42,898 --> 00:19:44,275
you know, continue

501
00:19:45,529 --> 00:19:47,922
your Sawmill mills activities or your farming activities.

502
00:19:48,081 --> 00:19:51,122
So it it turned turned to what we

503
00:19:51,122 --> 00:19:54,218
knew as natural rights and rights of individuals

504
00:19:54,218 --> 00:19:55,250
into permission slips,

505
00:19:55,885 --> 00:19:58,901
given by government officials to you before you

506
00:19:58,901 --> 00:20:02,332
could... You could actually exercise your rights. And

507
00:20:02,332 --> 00:20:03,865
and that that was a significant

508
00:20:04,636 --> 00:20:06,010
departure from from,

509
00:20:06,639 --> 00:20:09,433
what we know American revolution stood for.

510
00:20:11,189 --> 00:20:12,945
So that... So those are some of the

511
00:20:12,945 --> 00:20:16,331
real world consequences and as as you probably

512
00:20:16,705 --> 00:20:16,943
can,

513
00:20:17,658 --> 00:20:19,008
discern they were massive.

514
00:20:20,119 --> 00:20:20,437
Yeah.

515
00:20:20,993 --> 00:20:21,493
And,

516
00:20:21,866 --> 00:20:23,772
1 way of thinking about it or 1

517
00:20:23,772 --> 00:20:26,966
way will be... Often put is in terms

518
00:20:26,966 --> 00:20:29,192
of thinking about rule of law, you're going

519
00:20:29,192 --> 00:20:29,692
from

520
00:20:30,624 --> 00:20:32,793
rule of law to rule of men

521
00:20:33,104 --> 00:20:35,582
the more and more, it's just... I have

522
00:20:35,582 --> 00:20:37,840
to win the approve or favor

523
00:20:38,219 --> 00:20:40,776
of some particular bureau democrat who happens to

524
00:20:40,776 --> 00:20:43,188
be in office now, and overseeing this part

525
00:20:43,188 --> 00:20:46,065
of the country for say environmental laws, then

526
00:20:46,065 --> 00:20:48,382
it... It's much more... It... This is a

527
00:20:48,382 --> 00:20:50,952
rule of men, not rule of act rule

528
00:20:50,952 --> 00:20:53,018
laws. It's sort of the sem of the

529
00:20:53,018 --> 00:20:55,345
rule of law, but it's not actually that

530
00:20:55,402 --> 00:20:58,182
in practice. And that's 1 of the... 1

531
00:20:58,182 --> 00:20:59,869
of the ways of holding that that it's

532
00:20:59,869 --> 00:21:02,606
a major issue for what the structure

533
00:21:02,986 --> 00:21:04,684
and division of powers

534
00:21:05,063 --> 00:21:06,282
is in our

535
00:21:06,981 --> 00:21:07,481
constitutional

536
00:21:07,860 --> 00:21:08,100
Republic.

537
00:21:08,752 --> 00:21:10,503
Okay. So let's turn to...

538
00:21:11,298 --> 00:21:14,402
So the the this decision, chief Justice Roberts

539
00:21:14,402 --> 00:21:15,516
writes, the majority,

540
00:21:16,249 --> 00:21:17,948
opinion, there's a concur

541
00:21:18,407 --> 00:21:21,923
brief concur from Thomas, a lengthy 1 from

542
00:21:21,923 --> 00:21:24,880
gorsuch, and then Ka writes the descent in

543
00:21:24,880 --> 00:21:27,600
which so to my aurora and Ja join.

544
00:21:28,872 --> 00:21:31,814
If we start with the majority opinion, and

545
00:21:31,814 --> 00:21:34,933
I'll, I'm interested just you... So your overall,

546
00:21:35,172 --> 00:21:36,846
what you think is good in it, what

547
00:21:36,846 --> 00:21:38,997
you think is not, but I have... Here's

548
00:21:38,997 --> 00:21:40,272
1 particular question as well.

549
00:21:42,599 --> 00:21:45,071
How much do you think the the chief

550
00:21:45,071 --> 00:21:45,571
justice

551
00:21:45,949 --> 00:21:46,449
opinion

552
00:21:46,906 --> 00:21:49,617
is focused on the issue of separation of

553
00:21:49,617 --> 00:21:51,248
powers? Because Thomas's

554
00:21:51,860 --> 00:21:53,155
concur is

555
00:21:53,926 --> 00:21:55,356
the way I read it, but I might

556
00:21:55,356 --> 00:21:57,875
be reading it wrong is it's sort of

557
00:21:58,074 --> 00:22:00,646
I wish the majority of opinion had also

558
00:22:00,705 --> 00:22:04,292
talked about separation of powers and overturned it

559
00:22:04,292 --> 00:22:05,966
on this these grounds.

560
00:22:06,937 --> 00:22:09,806
Because it's another and the most fundamental way

561
00:22:09,806 --> 00:22:10,784
in which Chevron

562
00:22:11,160 --> 00:22:11,660
is

563
00:22:12,276 --> 00:22:15,557
unconstitutional. The chevron difference, is on unconstitutional. So

564
00:22:15,557 --> 00:22:17,947
is that a right reading of it that

565
00:22:17,947 --> 00:22:19,541
there seems to be, like, in some ways

566
00:22:19,541 --> 00:22:20,997
that Roberts is ser

567
00:22:21,309 --> 00:22:23,857
guarding around the issue of separation of powers,

568
00:22:24,176 --> 00:22:25,074
but it's never

569
00:22:25,530 --> 00:22:28,875
mentioned explicitly. It's only mentioned explicitly by Thomas

570
00:22:28,875 --> 00:22:31,835
in his concur. So... Yeah. So the so

571
00:22:31,835 --> 00:22:33,744
based a question of how do you think

572
00:22:33,744 --> 00:22:36,449
of the the actual reasoning in it and

573
00:22:36,449 --> 00:22:38,677
since you specialize in issues a separation of

574
00:22:38,677 --> 00:22:40,918
powers. Particularly from that aspect. How do you

575
00:22:40,918 --> 00:22:41,236
see it?

576
00:22:43,937 --> 00:22:44,437
So

577
00:22:45,050 --> 00:22:47,911
the chief justices opinion really...

578
00:22:48,403 --> 00:22:50,153
Is is a mixed bag. I mean, it

579
00:22:50,153 --> 00:22:52,938
it reaches the right conclusion, but, you know,

580
00:22:53,018 --> 00:22:53,995
the the reasons

581
00:22:54,688 --> 00:22:57,098
for reaching that conclusion aren't really

582
00:22:57,647 --> 00:23:00,192
fleshed out in the opinion. And there there

583
00:23:00,192 --> 00:23:00,771
there are

584
00:23:01,146 --> 00:23:03,770
good reasons why the court to do that

585
00:23:03,770 --> 00:23:05,519
to, you know, to garner a majority,

586
00:23:06,315 --> 00:23:07,133
there there's

587
00:23:07,442 --> 00:23:08,737
some some

588
00:23:09,507 --> 00:23:11,199
understanding that you have to address

589
00:23:11,731 --> 00:23:15,305
the arguments in Chevron and sort of debunk

590
00:23:15,305 --> 00:23:18,202
those arguments or sort of show why

591
00:23:19,209 --> 00:23:22,169
why what was said in Chevron is wrong

592
00:23:22,383 --> 00:23:24,763
to then say that Chevron should be overrule,

593
00:23:25,160 --> 00:23:27,162
sort and go no farther than that.

594
00:23:28,036 --> 00:23:29,546
I mean, that that really seems to be

595
00:23:29,546 --> 00:23:32,859
the sentiment of of the majority opinion is

596
00:23:33,058 --> 00:23:35,520
Yeah. You know, I I... As the majority

597
00:23:35,520 --> 00:23:38,062
author, I need to show why Chevron was

598
00:23:38,062 --> 00:23:40,921
wrongly decided, and here are the reasons why...

599
00:23:41,414 --> 00:23:42,692
Chevron was wrongly decided,

600
00:23:44,130 --> 00:23:46,288
and sort of leave it at that. But

601
00:23:46,288 --> 00:23:48,420
but really, I mean, the the

602
00:23:49,095 --> 00:23:51,397
just as Thomas, I think talks about this.

603
00:23:52,112 --> 00:23:54,018
And gorsuch search, I mean... It it's sort

604
00:23:54,018 --> 00:23:54,518
of

605
00:23:54,891 --> 00:23:56,320
implicit in some of the premises.

606
00:23:56,654 --> 00:23:58,971
In the way that justice gorsuch wrote a

607
00:23:58,971 --> 00:23:59,610
concur opinion.

608
00:24:00,729 --> 00:24:03,740
It it... The court definitely is aware of

609
00:24:03,859 --> 00:24:06,568
you know, the separation of powers, principles, the

610
00:24:06,568 --> 00:24:07,068
structural

611
00:24:07,604 --> 00:24:08,343
constitutional principles,

612
00:24:09,356 --> 00:24:11,985
that are meant to protect individual rights against

613
00:24:11,985 --> 00:24:12,884
government en,

614
00:24:13,833 --> 00:24:16,545
so the the majority definitely is aware of

615
00:24:16,545 --> 00:24:19,416
chief Justice course... Excuse me Justice Roberts is

616
00:24:19,416 --> 00:24:21,990
aware of that, but it doesn't come out

617
00:24:22,288 --> 00:24:23,027
in the

618
00:24:23,977 --> 00:24:24,695
majority opinion.

619
00:24:25,332 --> 00:24:27,325
And and, you know, when when you read

620
00:24:27,325 --> 00:24:28,701
the opinion, it sort of

621
00:24:29,078 --> 00:24:32,865
hangs everything on, on this statute called the

622
00:24:33,005 --> 00:24:34,384
procedure act, which says

623
00:24:34,684 --> 00:24:37,644
that courts shall interpret all questions of law,

624
00:24:38,764 --> 00:24:40,479
both, you know, statute victorian

625
00:24:40,938 --> 00:24:43,496
constitutional. So I I think what's happening in

626
00:24:43,496 --> 00:24:44,854
the majority opinion is,

627
00:24:46,293 --> 00:24:49,110
the chief justice is g toward

628
00:24:49,424 --> 00:24:52,712
a statutory reason as the bare minimum reason

629
00:24:53,248 --> 00:24:53,748
why

630
00:24:54,204 --> 00:24:57,072
the Chevron doctrine of defer was wrong and

631
00:24:57,072 --> 00:25:00,668
not taking that further step to explain why

632
00:25:00,668 --> 00:25:01,327
as a

633
00:25:01,780 --> 00:25:02,416
constitutional matter,

634
00:25:03,926 --> 00:25:05,834
the Chevron defer doctrine was wrong.

635
00:25:06,723 --> 00:25:08,949
And and that is may maybe a gap

636
00:25:08,949 --> 00:25:10,800
in the, in the majority

637
00:25:11,333 --> 00:25:11,651
opinion.

638
00:25:12,446 --> 00:25:12,684
And,

639
00:25:13,400 --> 00:25:15,069
just as Thomas on the other hand, you

640
00:25:15,069 --> 00:25:15,625
know, he has...

641
00:25:16,278 --> 00:25:16,596
In,

642
00:25:17,155 --> 00:25:19,706
some previous cases, like the Baldwin versus United

643
00:25:19,865 --> 00:25:23,293
States case, which he cites pretty extensively in

644
00:25:23,293 --> 00:25:24,271
his concur

645
00:25:24,663 --> 00:25:26,679
He really went through the

646
00:25:27,136 --> 00:25:29,152
constitutional separation of powers reasons

647
00:25:29,688 --> 00:25:30,587
as to why

648
00:25:31,204 --> 00:25:34,096
it it is wrong for courts to defer

649
00:25:34,409 --> 00:25:37,461
or be biased in favor of the federal

650
00:25:37,679 --> 00:25:40,232
official and biased against the individual.

651
00:25:40,950 --> 00:25:43,023
And that... So he he he talks about

652
00:25:43,023 --> 00:25:44,894
how that really flips

653
00:25:45,902 --> 00:25:47,435
tips the scales of justice

654
00:25:47,967 --> 00:25:50,270
in favor of the government and against the

655
00:25:50,270 --> 00:25:52,309
individual when the constitution written

656
00:25:53,065 --> 00:25:56,245
to to, you know, protect the individual from

657
00:25:56,245 --> 00:25:58,710
government en engagement of the individual's rights.

658
00:26:00,300 --> 00:26:02,025
And, you know, it would have been

659
00:26:03,585 --> 00:26:06,785
if if the chief justice had wanted to

660
00:26:06,785 --> 00:26:09,664
provide the, you know, the constitutional reasons,

661
00:26:10,397 --> 00:26:12,306
I think he could have done that. We...

662
00:26:12,544 --> 00:26:13,840
I I can't imagine

663
00:26:14,692 --> 00:26:16,442
justice as Thomas or justice his gorsuch search.

664
00:26:17,093 --> 00:26:17,650
Not joining,

665
00:26:18,207 --> 00:26:18,684
those

666
00:26:19,162 --> 00:26:21,389
those opinions, but I think that would have

667
00:26:21,389 --> 00:26:22,684
given more

668
00:26:23,537 --> 00:26:26,256
ammunition and to the descent written by Justice

669
00:26:26,415 --> 00:26:29,438
C to then punch holes into,

670
00:26:30,472 --> 00:26:32,896
into the you know, the underlying fundamental

671
00:26:33,271 --> 00:26:35,896
principles that are derived from the constitution and

672
00:26:35,896 --> 00:26:37,010
our structure of government.

673
00:26:37,567 --> 00:26:40,595
And And historically, that has been interesting because,

674
00:26:40,674 --> 00:26:42,734
you know, if you go back to, let's

675
00:26:42,734 --> 00:26:42,893
say,

676
00:26:43,765 --> 00:26:46,797
Robert Bo confirmation. Hearings, you know, the the

677
00:26:46,797 --> 00:26:49,264
the the idea that the constitution is pretty

678
00:26:49,264 --> 00:26:52,367
much an ink b is is a premise

679
00:26:52,367 --> 00:26:52,867
that

680
00:26:53,178 --> 00:26:55,031
that is prevalent in in

681
00:26:55,406 --> 00:26:57,714
the thinking of many justices on the Supreme

682
00:26:57,714 --> 00:26:58,032
court.

683
00:26:58,669 --> 00:27:01,158
Again, obviously not a partisan issue. It's not

684
00:27:01,215 --> 00:27:04,170
about, you know, which... Precedent appointed with justice.

685
00:27:04,646 --> 00:27:07,528
But that understanding that the constitution

686
00:27:08,140 --> 00:27:09,911
doesn't really address

687
00:27:10,761 --> 00:27:13,636
some of these fundamental principles or doesn't, you

688
00:27:13,636 --> 00:27:16,021
know, fails to give the reasons for the

689
00:27:16,021 --> 00:27:17,792
existence of the kind of structure

690
00:27:18,166 --> 00:27:18,882
that we have,

691
00:27:19,771 --> 00:27:21,679
is pretty prevalent and I think there is

692
00:27:21,679 --> 00:27:23,291
some hesitation from

693
00:27:24,063 --> 00:27:26,527
from justices, you know, all 9 justices really

694
00:27:26,527 --> 00:27:27,027
to

695
00:27:27,560 --> 00:27:28,378
to peg

696
00:27:29,567 --> 00:27:33,020
the reason for ruling Chevron on the

697
00:27:33,397 --> 00:27:35,791
constitution alone. So I think that's that's what

698
00:27:35,791 --> 00:27:38,117
you see when chief justice as, well, you

699
00:27:38,117 --> 00:27:41,062
know, we are peg the reason as this

700
00:27:41,062 --> 00:27:44,564
statute that that Congress enacted as opposed to

701
00:27:45,280 --> 00:27:48,006
having sort of, like a full throat defense

702
00:27:48,006 --> 00:27:50,719
of their a current position in low b

703
00:27:50,958 --> 00:27:52,235
based on the constitution.

704
00:27:54,883 --> 00:27:56,956
So let me ask a follow on that.

705
00:27:57,115 --> 00:27:59,369
So you brought up because it it features

706
00:27:59,507 --> 00:28:00,645
heavily in

707
00:28:01,262 --> 00:28:02,320
both the

708
00:28:03,669 --> 00:28:04,169
Robert's

709
00:28:04,946 --> 00:28:07,522
opinion, and then Ka descent the

710
00:28:07,980 --> 00:28:09,576
Apa of the administrative,

711
00:28:10,534 --> 00:28:12,610
procedure act, which it was a 19 46.

712
00:28:13,341 --> 00:28:14,933
Act, I think passed by Congress.

713
00:28:15,570 --> 00:28:16,070
And

714
00:28:16,605 --> 00:28:17,901
so the

715
00:28:18,276 --> 00:28:22,517
Robert's reading of that is that Congress is

716
00:28:22,830 --> 00:28:23,330
charging

717
00:28:24,190 --> 00:28:26,049
the... Or, at least is how I

718
00:28:26,350 --> 00:28:27,890
understand what he's... Sorry. That

719
00:28:28,190 --> 00:28:31,330
in that act, congress is charging the court

720
00:28:31,789 --> 00:28:32,289
as

721
00:28:32,682 --> 00:28:33,580
you have

722
00:28:34,113 --> 00:28:35,011
and and

723
00:28:35,385 --> 00:28:36,498
and sort of must retain.

724
00:28:37,372 --> 00:28:37,872
Final

725
00:28:38,406 --> 00:28:41,268
decision making about what the law is. So

726
00:28:41,268 --> 00:28:42,735
you can't... Defer

727
00:28:43,107 --> 00:28:45,642
to a federal agency and say, okay. Their

728
00:28:45,642 --> 00:28:47,861
are interpretation of what the law is. That's

729
00:28:47,861 --> 00:28:50,184
what we're gonna go with. You can only

730
00:28:50,184 --> 00:28:52,684
do that if you agree with the federal

731
00:28:53,065 --> 00:28:55,305
agencies interpretation. But if you don't agree with

732
00:28:55,305 --> 00:28:58,113
it, then you can't defer and that that's

733
00:28:58,113 --> 00:28:59,328
what this act

734
00:28:59,702 --> 00:29:00,202
charges

735
00:29:00,973 --> 00:29:01,473
Congress...

736
00:29:02,165 --> 00:29:04,804
Sorry. Charges the court with and that... He

737
00:29:04,804 --> 00:29:06,982
makes a point of saying in the Chevron

738
00:29:07,121 --> 00:29:10,077
so the 19 84 case, they never even

739
00:29:10,077 --> 00:29:11,435
deal with the administrative.

740
00:29:12,246 --> 00:29:15,590
This Apa act and say why their this

741
00:29:16,067 --> 00:29:18,376
difference or of this kind of test is

742
00:29:18,376 --> 00:29:21,281
compatible with that, and that that's a major

743
00:29:21,338 --> 00:29:23,034
flaw in the Chevron

744
00:29:23,729 --> 00:29:26,119
decision that of why was wrong from the

745
00:29:26,119 --> 00:29:27,336
start because it never

746
00:29:28,444 --> 00:29:30,992
never tries to reconcile itself with the Apa

747
00:29:30,992 --> 00:29:31,231
app.

748
00:29:32,027 --> 00:29:33,641
But a way of

749
00:29:34,574 --> 00:29:36,823
reading that kind of argument, and it might

750
00:29:36,823 --> 00:29:38,741
be an un charitable reading, but so this

751
00:29:38,741 --> 00:29:39,620
is the question of,

752
00:29:41,139 --> 00:29:44,256
that if Congress had said or if they

753
00:29:44,256 --> 00:29:45,235
pass a new

754
00:29:45,789 --> 00:29:46,745
statute that says,

755
00:29:47,383 --> 00:29:49,239
no. We want the federal

756
00:29:49,695 --> 00:29:52,566
agencies and the it it... I wanna talk

757
00:29:52,566 --> 00:29:54,342
a little bit about this, but it's particularly

758
00:29:54,733 --> 00:29:58,236
supposedly in cases that where the statute is

759
00:29:58,236 --> 00:29:58,736
ambiguous

760
00:29:59,191 --> 00:30:01,181
or sometimes it will put as silent. So

761
00:30:01,181 --> 00:30:03,750
it doesn't seem to speak to that particular

762
00:30:03,887 --> 00:30:05,514
issue. That then

763
00:30:05,888 --> 00:30:06,388
the

764
00:30:06,761 --> 00:30:08,611
agency can decide. And if

765
00:30:09,064 --> 00:30:12,026
Congress passed something like that, then

766
00:30:12,575 --> 00:30:14,815
there's a question of then would the courts

767
00:30:14,815 --> 00:30:15,615
have to defer,

768
00:30:16,414 --> 00:30:19,795
and that seems like a separation of powers

769
00:30:19,934 --> 00:30:22,663
issue that, like, does congress even have the

770
00:30:22,663 --> 00:30:23,163
power

771
00:30:23,540 --> 00:30:26,010
to issue a statute like that saying, okay.

772
00:30:26,169 --> 00:30:28,878
And this issue, the the courts don't get

773
00:30:28,878 --> 00:30:30,892
to decide what the law is, the federal

774
00:30:30,950 --> 00:30:33,269
agency. Get. So there's that kind of... You

775
00:30:33,269 --> 00:30:34,857
can read... As I say, it may be

776
00:30:34,857 --> 00:30:36,525
an un charitable reading, and I and I

777
00:30:36,525 --> 00:30:38,193
have some reasons why it might be un

778
00:30:38,193 --> 00:30:39,861
charitable, but that's a way of say... Like,

779
00:30:40,099 --> 00:30:42,498
okay. If get it just so happens Congress

780
00:30:42,498 --> 00:30:45,200
passed the Apa, and it's telling courts to

781
00:30:45,200 --> 00:30:47,107
make the final decision on what the law

782
00:30:47,107 --> 00:30:49,491
is. But if they had passed something different,

783
00:30:49,903 --> 00:30:51,812
then the course would lose some of their

784
00:30:51,812 --> 00:30:54,517
power, and that seems like a separation of

785
00:30:54,517 --> 00:30:55,233
powers issue.

786
00:30:57,318 --> 00:30:58,195
That's right. And,

787
00:30:59,152 --> 00:31:00,588
I think that's that's that's the sort of,

788
00:31:01,385 --> 00:31:04,097
flaw in the premises of the majority opinion.

789
00:31:04,735 --> 00:31:06,432
Because, yeah, it does it does

790
00:31:07,063 --> 00:31:10,350
allow or it it does contemplate the possibility

791
00:31:10,488 --> 00:31:13,138
that Congress could come in and,

792
00:31:13,594 --> 00:31:15,266
say exactly what Chevron said,

793
00:31:16,235 --> 00:31:18,459
and then the courts will simply have to

794
00:31:18,459 --> 00:31:19,673
apply that. But what

795
00:31:20,047 --> 00:31:23,143
what that argument, I guess, fails to fails

796
00:31:23,143 --> 00:31:25,703
to contemplate or fails to sort of, like,

797
00:31:25,863 --> 00:31:27,397
c 2 steps ahead

798
00:31:28,170 --> 00:31:29,363
is is, you know,

799
00:31:30,636 --> 00:31:31,852
what does it mean

800
00:31:32,227 --> 00:31:35,661
for an article 3 judge, a federal judge

801
00:31:35,661 --> 00:31:36,377
to judge.

802
00:31:36,933 --> 00:31:39,954
Right? What what is the judicial power? And

803
00:31:39,954 --> 00:31:42,044
the majority opinion does not really

804
00:31:42,914 --> 00:31:44,991
really get into that except to say that.

805
00:31:45,471 --> 00:31:48,587
Well, you know, the principle of that a

806
00:31:48,587 --> 00:31:50,425
court should say what the law is.

807
00:31:51,078 --> 00:31:53,951
Is comes from Mar versus Madison, which is

808
00:31:53,951 --> 00:31:56,185
the famous case from 18 o 3,

809
00:31:57,062 --> 00:31:59,152
where, which has been you know, cited

810
00:31:59,550 --> 00:32:01,486
really hundreds of times for

811
00:32:01,863 --> 00:32:05,373
the proposition that courts have the core judicial

812
00:32:05,373 --> 00:32:07,925
power that not even congress.

813
00:32:08,497 --> 00:32:10,566
Can take away from the courts.

814
00:32:11,759 --> 00:32:14,622
And and so the majority of opinion does

815
00:32:14,622 --> 00:32:15,122
cite

816
00:32:15,434 --> 00:32:18,224
Mar versus Madison and, you know, talks about

817
00:32:18,224 --> 00:32:18,963
the history

818
00:32:19,499 --> 00:32:19,818
of,

819
00:32:20,456 --> 00:32:21,333
how that,

820
00:32:22,210 --> 00:32:23,700
Mar principle and

821
00:32:24,617 --> 00:32:25,675
applied consistently

822
00:32:26,770 --> 00:32:29,242
throughout the 200 plus year history of the

823
00:32:29,402 --> 00:32:32,671
United States except for the Chevron experiment.

824
00:32:33,564 --> 00:32:36,201
So he... So there's there's definitely some flavor

825
00:32:36,201 --> 00:32:36,361
of,

826
00:32:37,160 --> 00:32:40,036
or some understanding as to the role or

827
00:32:40,036 --> 00:32:41,235
the core functions.

828
00:32:41,808 --> 00:32:44,742
Of the judiciary, but, again, there isn't a

829
00:32:44,742 --> 00:32:45,455
full throat,

830
00:32:46,010 --> 00:32:48,388
argument in a port of that. It's sort

831
00:32:48,388 --> 00:32:51,272
of a almost hidden in the way that

832
00:32:51,272 --> 00:32:53,430
the majority talks about Mar.

833
00:32:55,028 --> 00:32:57,985
Yeah. That... That's in in my reading of

834
00:32:57,985 --> 00:32:59,910
it, the... You put it as is hidden.

835
00:33:00,069 --> 00:33:02,713
That's that's how I experienced it in reading

836
00:33:02,848 --> 00:33:04,675
the majority opinion.

837
00:33:06,184 --> 00:33:07,852
So let me ask this...

838
00:33:08,740 --> 00:33:11,621
Because it's again, it's an issue that is

839
00:33:12,628 --> 00:33:15,326
at issue. So it at play in the...

840
00:33:15,659 --> 00:33:18,465
The majority opinion and the descent, which is

841
00:33:18,601 --> 00:33:20,055
the issue of

842
00:33:20,588 --> 00:33:21,963
thinking about statutory

843
00:33:23,053 --> 00:33:25,615
interpretation. So interpretation of what the law, means.

844
00:33:25,855 --> 00:33:28,015
What is the law that can't congress has

845
00:33:28,015 --> 00:33:30,755
actually passed and now needs to be

846
00:33:31,134 --> 00:33:31,634
enforced

847
00:33:32,494 --> 00:33:32,994
that

848
00:33:33,309 --> 00:33:34,528
the issues of

849
00:33:34,988 --> 00:33:36,686
ambiguity or silence

850
00:33:37,625 --> 00:33:38,844
in the statute,

851
00:33:39,223 --> 00:33:40,522
how should a court

852
00:33:40,981 --> 00:33:42,280
proceed? And

853
00:33:42,754 --> 00:33:43,254
the

854
00:33:43,953 --> 00:33:44,453
the

855
00:33:44,912 --> 00:33:46,850
if I understand. Right, The Chevron

856
00:33:47,549 --> 00:33:50,505
doctrine and the defer is only in the

857
00:33:50,505 --> 00:33:51,005
case

858
00:33:51,318 --> 00:33:54,608
where the laws not clear or

859
00:33:54,985 --> 00:33:57,536
crystal clear. If the laws is crystal clear,

860
00:33:57,695 --> 00:33:59,783
then it just means what it means and

861
00:33:59,783 --> 00:34:02,573
the court and the agency... Like, the court

862
00:34:02,573 --> 00:34:04,407
should apply that to the agency. The agency

863
00:34:04,407 --> 00:34:06,240
is trying to go around that, it can't

864
00:34:06,240 --> 00:34:07,777
do that. But if

865
00:34:08,088 --> 00:34:10,551
the statute or the law that Congress has

866
00:34:10,551 --> 00:34:13,570
passed is ambiguous in various ways. And you

867
00:34:13,570 --> 00:34:16,644
were saying earlier, they were incentivized to write

868
00:34:16,843 --> 00:34:17,978
it ambiguous.

869
00:34:18,511 --> 00:34:21,052
If it's ambiguous or just silent on some

870
00:34:21,052 --> 00:34:21,291
issue.

871
00:34:22,005 --> 00:34:22,505
In

872
00:34:22,879 --> 00:34:24,650
robert's opinion, it's

873
00:34:25,119 --> 00:34:26,735
it's still the court's

874
00:34:27,273 --> 00:34:27,773
responsibility

875
00:34:28,230 --> 00:34:30,484
to come to the single best

876
00:34:31,340 --> 00:34:34,472
interpretation of what this statute means

877
00:34:35,264 --> 00:34:38,960
with its annuities or and silence and

878
00:34:39,818 --> 00:34:40,878
the in

879
00:34:41,496 --> 00:34:42,476
descent, it's

880
00:34:43,109 --> 00:34:45,341
But if... It, I put it something like

881
00:34:45,341 --> 00:34:46,320
this. If it's

882
00:34:46,697 --> 00:34:49,589
ambiguous or silence, there's not a single best

883
00:34:50,524 --> 00:34:51,401
interpretation. There's...

884
00:34:53,011 --> 00:34:56,361
Interpretations plural, and that's where the difference occurs

885
00:34:56,361 --> 00:34:58,674
that it's... If you can interpret this at

886
00:34:58,674 --> 00:35:01,306
5 different ways, you allow the agency to

887
00:35:01,306 --> 00:35:04,346
do that. And there just isn't a single

888
00:35:04,346 --> 00:35:06,675
best interpretation. How do you think of that

889
00:35:06,971 --> 00:35:09,614
issue and in particular, in I mean, you

890
00:35:09,614 --> 00:35:12,090
have a much more familiarity with the actual

891
00:35:12,090 --> 00:35:14,487
legal cases where this is at play in

892
00:35:14,487 --> 00:35:15,366
and in issue.

893
00:35:17,610 --> 00:35:19,435
Yes. So I think... I mean, that was,

894
00:35:19,594 --> 00:35:20,967
I think the the most

895
00:35:21,339 --> 00:35:23,005
interesting debates that occurred.

896
00:35:24,054 --> 00:35:26,295
Between the competing opinions that we saw in

897
00:35:26,375 --> 00:35:28,614
Low bright. So I think I think there

898
00:35:28,614 --> 00:35:32,110
are 3 arguments that play. 1 1 is

899
00:35:32,309 --> 00:35:33,688
you know, there are there are certain

900
00:35:34,067 --> 00:35:34,567
presumption

901
00:35:35,106 --> 00:35:37,343
in the law, and that's how, you know,

902
00:35:37,583 --> 00:35:39,660
language and cognition functions.

903
00:35:40,472 --> 00:35:42,859
And and and that... That's where the majority

904
00:35:42,859 --> 00:35:44,848
and gorsuch search are coming from is, you

905
00:35:44,848 --> 00:35:46,702
know, we we obviously have

906
00:35:47,157 --> 00:35:50,355
certain presumption. 1 of the presumption, is, for

907
00:35:50,355 --> 00:35:54,338
example, that if there is ambiguity, then, it

908
00:35:54,338 --> 00:35:57,125
is resolved in favor of the individual and

909
00:35:57,125 --> 00:35:57,921
against the government,

910
00:35:58,733 --> 00:36:02,099
because that is why we have governments established

911
00:36:02,156 --> 00:36:02,656
among

912
00:36:03,669 --> 00:36:06,398
among men. And and so

913
00:36:06,789 --> 00:36:09,336
So then Ke says, well, you're trying to

914
00:36:09,336 --> 00:36:09,836
fight

915
00:36:10,212 --> 00:36:12,600
1 presumption with another presumption.

916
00:36:13,556 --> 00:36:15,876
So she says for example Okay. There's the

917
00:36:15,876 --> 00:36:17,701
rule of Len. So if if let's say

918
00:36:17,701 --> 00:36:20,558
there is a statute that says, if somebody

919
00:36:20,558 --> 00:36:22,566
will fully or reckless...

920
00:36:24,066 --> 00:36:27,009
Drives and causes injury to someone, then that's

921
00:36:27,009 --> 00:36:29,077
a crime punishable but 2 years in jail.

922
00:36:30,843 --> 00:36:33,394
And the... Let's say, the prosecutor, which is

923
00:36:33,394 --> 00:36:34,191
the executive,

924
00:36:34,749 --> 00:36:37,299
is trying to prosecute somebody, and all they

925
00:36:37,299 --> 00:36:40,503
are able to prove, is that somebody drove

926
00:36:40,503 --> 00:36:43,850
ne on the streets. The statue just says

927
00:36:43,850 --> 00:36:47,609
will fully or reckless the statute is, you

928
00:36:47,609 --> 00:36:47,768
know,

929
00:36:48,483 --> 00:36:51,764
ambiguous or silent as to whether ne conduct

930
00:36:52,218 --> 00:36:54,522
rises to the level of the crime that

931
00:36:54,522 --> 00:36:55,419
is defined

932
00:36:55,889 --> 00:36:57,108
And in those circumstances,

933
00:36:57,885 --> 00:36:59,960
the presumption or the rule of len,

934
00:37:00,439 --> 00:37:01,977
the way it functions is

935
00:37:02,595 --> 00:37:05,322
that, quote the benefit of the doubt, to

936
00:37:05,322 --> 00:37:08,184
the individual. So if all that the government

937
00:37:08,184 --> 00:37:10,354
is able to prove is negligence

938
00:37:11,126 --> 00:37:13,671
and not reckless, which is a higher sort

939
00:37:13,671 --> 00:37:16,069
of mental state or a more sort of

940
00:37:16,069 --> 00:37:18,213
focused mental state than merely ne.

941
00:37:19,325 --> 00:37:22,025
Mental state, then, you know, the government doesn't

942
00:37:22,025 --> 00:37:24,742
win. The individual goes free there may be

943
00:37:24,742 --> 00:37:26,657
there may be other statute, for example, there

944
00:37:26,657 --> 00:37:27,476
may be civil

945
00:37:28,810 --> 00:37:30,804
that are applicable in the situation, but it's

946
00:37:30,804 --> 00:37:33,436
not a crime to ne drive and injure

947
00:37:33,436 --> 00:37:33,835
somebody.

948
00:37:34,570 --> 00:37:36,010
Because that's what the statute says.

949
00:37:36,809 --> 00:37:39,369
So so there... There's this interesting give and

950
00:37:39,369 --> 00:37:41,150
take or back and forth between

951
00:37:41,849 --> 00:37:42,809
you know, Chevron,

952
00:37:43,542 --> 00:37:46,327
itself was a presumption. The presumption was if

953
00:37:46,327 --> 00:37:48,316
there is an ambiguous or silent statute,

954
00:37:48,952 --> 00:37:50,146
then the government wins.

955
00:37:50,956 --> 00:37:53,104
Whereas, you know, gorsuch search comes in and

956
00:37:53,104 --> 00:37:56,604
says, well, actually, historically speaking, the presumption was

957
00:37:56,604 --> 00:37:57,161
the opposite.

958
00:37:57,573 --> 00:37:59,560
Is when there is an ambiguous or silent

959
00:37:59,560 --> 00:38:02,422
statute, then the individual when the government loses.

960
00:38:03,057 --> 00:38:05,442
And, you know, we are simply returning back

961
00:38:05,442 --> 00:38:08,576
to applying that historically grounded

962
00:38:08,948 --> 00:38:11,722
presumption as opposed to applying this new presumption

963
00:38:11,722 --> 00:38:12,831
that Chevron created.

964
00:38:13,465 --> 00:38:14,074
So then

965
00:38:14,592 --> 00:38:16,900
just as K comes and says, well, okay.

966
00:38:17,855 --> 00:38:20,663
Yeah. We... I I understand you're just fighting

967
00:38:20,721 --> 00:38:22,949
1 presumption by another presumption, and that's where

968
00:38:22,949 --> 00:38:24,953
we of saying, well, You can't really fight

969
00:38:24,953 --> 00:38:27,974
bias with bias. Right? You know, Chevron, if

970
00:38:27,974 --> 00:38:28,474
anything

971
00:38:28,849 --> 00:38:29,882
was a doctrine that,

972
00:38:31,075 --> 00:38:32,824
required judges to be biased in favor of

973
00:38:32,824 --> 00:38:35,074
the government. And now you're saying, okay, now,

974
00:38:35,715 --> 00:38:38,195
there is something in the constitution. You won't

975
00:38:38,195 --> 00:38:40,355
tell us what that requires us to be

976
00:38:40,355 --> 00:38:41,875
biased in favor of the individual.

977
00:38:42,766 --> 00:38:45,389
So... Yeah. That's just bias versus bias, I...

978
00:38:45,628 --> 00:38:48,012
That isn't persuasive to the dissent.

979
00:38:49,364 --> 00:38:49,840
What about...

980
00:38:51,050 --> 00:38:52,485
Expertise and what about efficiency?

981
00:38:53,281 --> 00:38:55,592
So just as C goes on to say

982
00:38:55,592 --> 00:38:56,867
that, well, you know,

983
00:38:57,757 --> 00:39:00,859
these agency officials, federal officials are the experts.

984
00:39:01,018 --> 00:39:03,562
They know what honest markets are. They know

985
00:39:03,562 --> 00:39:06,346
what what needs to be protected when they

986
00:39:06,346 --> 00:39:09,152
have the mac congressional mandate to protect the

987
00:39:09,152 --> 00:39:09,632
environment.

988
00:39:10,032 --> 00:39:10,751
They know what,

989
00:39:11,630 --> 00:39:12,509
what types of,

990
00:39:13,228 --> 00:39:16,105
immigrants are repeat offenders or there is an,

991
00:39:16,265 --> 00:39:16,505
you know,

992
00:39:18,112 --> 00:39:20,918
some intent to not comply with the nation's

993
00:39:20,975 --> 00:39:22,487
immigration laws. So they are the experts. Why

994
00:39:22,487 --> 00:39:25,032
don't you allow those experts to

995
00:39:25,841 --> 00:39:26,476
to decide,

996
00:39:27,032 --> 00:39:28,778
these issues, and then, neil, the court's job

997
00:39:28,778 --> 00:39:32,532
is easier under Ka worldview because the courts

998
00:39:32,667 --> 00:39:34,827
simply have to see. Okay. Well, I may

999
00:39:34,827 --> 00:39:37,132
have reached a different decision, a different conclusion,

1000
00:39:37,292 --> 00:39:39,382
but the federal officials decision

1001
00:39:39,757 --> 00:39:41,529
is reasonable. It's permissible

1002
00:39:41,984 --> 00:39:44,459
I'm am going... To allow the decision to

1003
00:39:44,459 --> 00:39:44,697
stand.

1004
00:39:46,124 --> 00:39:48,107
And the the the problem with that is,

1005
00:39:48,186 --> 00:39:50,113
you know, that that doesn't

1006
00:39:50,485 --> 00:39:51,557
to recognize

1007
00:39:52,330 --> 00:39:52,830
that

1008
00:39:53,443 --> 00:39:56,966
the the federal official is not the only

1009
00:39:57,262 --> 00:39:59,024
expert in the field. And, you know, the

1010
00:39:59,024 --> 00:40:00,929
chief justice and this majority Talks about well,

1011
00:40:01,168 --> 00:40:03,232
you know, expertise really depends on what fields

1012
00:40:03,232 --> 00:40:05,057
you're looking at or, you know, what's what's

1013
00:40:05,057 --> 00:40:07,772
the context of the expertise I mean, is

1014
00:40:07,772 --> 00:40:10,391
not the case that courts do not have

1015
00:40:10,391 --> 00:40:12,773
access to expertise. Right? I mean, courts have

1016
00:40:13,725 --> 00:40:15,550
the the sort of basic Idea of of,

1017
00:40:15,804 --> 00:40:17,340
fair trial in a fair tri,

1018
00:40:18,115 --> 00:40:21,302
means that a courts have access to expertise.

1019
00:40:21,461 --> 00:40:22,838
You know, the government can

1020
00:40:24,262 --> 00:40:26,353
can bring experts to testify

1021
00:40:26,887 --> 00:40:29,751
the individuals can bring the experts to testify.

1022
00:40:29,910 --> 00:40:31,675
So court, it is not the case that

1023
00:40:31,675 --> 00:40:34,141
courts do not have access to expertise. And

1024
00:40:34,141 --> 00:40:37,059
is not the case that only federal officials

1025
00:40:38,452 --> 00:40:41,794
or have a monopoly on expertise. Because if

1026
00:40:41,794 --> 00:40:44,522
anything, the the core of judicial power

1027
00:40:45,234 --> 00:40:48,775
requires courts to be experts in interpreting

1028
00:40:49,394 --> 00:40:52,514
the law because that that that expertise comes

1029
00:40:52,514 --> 00:40:53,014
from

1030
00:40:53,328 --> 00:40:55,733
a deli deliberate process and

1031
00:40:56,186 --> 00:40:58,274
process that requires courts to

1032
00:40:58,726 --> 00:41:00,791
look at concepts where what they are and

1033
00:41:00,791 --> 00:41:03,584
see, you know, what what what reference are

1034
00:41:03,584 --> 00:41:04,084
really

1035
00:41:04,457 --> 00:41:07,869
encompassed within particular concepts, or particular words that

1036
00:41:08,028 --> 00:41:10,670
Congress has used in acting. So so there's

1037
00:41:11,139 --> 00:41:14,510
this interesting mixture of, sort of presumption versus

1038
00:41:14,807 --> 00:41:16,025
presumption and

1039
00:41:16,721 --> 00:41:20,012
and expertise versus expertise or, you know, categories

1040
00:41:20,070 --> 00:41:23,593
of expertise and efficiency that that is really,

1041
00:41:23,672 --> 00:41:23,992
you know,

1042
00:41:24,868 --> 00:41:26,701
is is a good discussion to have, and

1043
00:41:26,781 --> 00:41:28,510
I think we'll continue to see that

1044
00:41:29,026 --> 00:41:31,514
but I think it it ultimately is missing

1045
00:41:31,888 --> 00:41:36,840
the reasons why the constitution has deliberately separated

1046
00:41:36,896 --> 00:41:39,298
the powers. And what it means to judge

1047
00:41:39,298 --> 00:41:41,209
what it means to and what it means

1048
00:41:41,209 --> 00:41:43,836
to execute the law, and that... That's something

1049
00:41:43,836 --> 00:41:45,428
that we did not see in the opinions.

1050
00:41:46,954 --> 00:41:49,442
Yeah. I wanna come back to that point

1051
00:41:50,054 --> 00:41:52,677
and ask some some follow about some of

1052
00:41:52,677 --> 00:41:55,323
the presumption, but first on the issue of

1053
00:41:55,323 --> 00:41:56,202
expertise that you brought up.

1054
00:41:57,320 --> 00:41:59,878
My reading of it, but I'm curious if

1055
00:41:59,878 --> 00:42:00,617
you think

1056
00:42:01,077 --> 00:42:02,435
this is un charitable.

1057
00:42:03,010 --> 00:42:03,510
Is

1058
00:42:04,610 --> 00:42:05,750
it's so

1059
00:42:06,289 --> 00:42:09,030
imp to say that the courts don't have

1060
00:42:09,410 --> 00:42:12,105
expertise that it's a kind of smokes screen

1061
00:42:13,417 --> 00:42:13,917
because

1062
00:42:14,372 --> 00:42:14,872
but

1063
00:42:15,327 --> 00:42:17,157
maybe there's a difference between when you're looking

1064
00:42:17,157 --> 00:42:20,362
at this kind of statutory law and federal

1065
00:42:20,498 --> 00:42:22,826
agencies. But in the civil courts. I mean,

1066
00:42:23,065 --> 00:42:23,724
I know,

1067
00:42:24,182 --> 00:42:25,460
I have a bunch of engineers in my

1068
00:42:25,460 --> 00:42:28,572
family. When these kinds of cases go to

1069
00:42:28,572 --> 00:42:29,530
the court, there...

1070
00:42:30,025 --> 00:42:33,964
Extremely complex, there's all kinds of scientific and

1071
00:42:34,105 --> 00:42:36,984
engineering issues at dispute in the contract dispute.

1072
00:42:37,144 --> 00:42:39,465
Like, if you've fulfill your end of your

1073
00:42:39,465 --> 00:42:41,844
contract with someone else that if the court

1074
00:42:41,844 --> 00:42:44,460
really didn't have and couldn't get this kind

1075
00:42:44,460 --> 00:42:45,515
of expertise

1076
00:42:45,824 --> 00:42:48,224
1 would think like all these decisions are...

1077
00:42:48,545 --> 00:42:50,385
They sort of just... They're making them up

1078
00:42:50,385 --> 00:42:52,224
and that it's... Like, it's almost like they're

1079
00:42:52,224 --> 00:42:54,396
guessing because they don't have expertise. So if

1080
00:42:54,396 --> 00:42:56,385
you really thought that it would be, like,

1081
00:42:56,544 --> 00:42:59,408
a whole system wouldn't work if courts don't

1082
00:42:59,408 --> 00:43:01,738
have expertise. So I found it like very

1083
00:43:02,113 --> 00:43:02,511
imp.

1084
00:43:02,924 --> 00:43:05,390
As an argument that you have to defer

1085
00:43:05,390 --> 00:43:08,414
because federal agencies have expertise and courts can't.

1086
00:43:08,573 --> 00:43:10,186
But is there a more charitable

1087
00:43:10,800 --> 00:43:11,857
reading of that

1088
00:43:14,074 --> 00:43:15,742
I I don't think there is. I mean

1089
00:43:15,821 --> 00:43:18,045
I I would definitely struggle to think there

1090
00:43:18,045 --> 00:43:20,164
is a more charitable reading of that because

1091
00:43:20,284 --> 00:43:22,620
So I mean, there's... Well, so there's

1092
00:43:23,158 --> 00:43:24,377
there is factual

1093
00:43:24,755 --> 00:43:27,150
expertise and legal expertise. There's... You know, the...

1094
00:43:27,389 --> 00:43:29,625
We we know from the way that our

1095
00:43:29,625 --> 00:43:30,619
sis... Of government

1096
00:43:30,997 --> 00:43:31,497
functions

1097
00:43:31,955 --> 00:43:34,190
that, you know, the... There is going to

1098
00:43:34,190 --> 00:43:34,690
be

1099
00:43:35,547 --> 00:43:37,463
to be factual disputes, like, you know, like,

1100
00:43:37,543 --> 00:43:39,114
a breach of contract you know where

1101
00:43:39,953 --> 00:43:42,510
some engineering firm is trying to prove that

1102
00:43:42,510 --> 00:43:44,987
well, actually, we satisfied the terms of the

1103
00:43:44,987 --> 00:43:46,105
contract. And the,

1104
00:43:46,759 --> 00:43:48,431
other side is saying, well, actually, no. I

1105
00:43:48,431 --> 00:43:50,579
mean, you, you know, here are the reasons

1106
00:43:50,579 --> 00:43:50,898
why,

1107
00:43:52,331 --> 00:43:54,241
why we feel that there is a breach

1108
00:43:54,241 --> 00:43:56,501
because you know, we we asked for,

1109
00:43:56,953 --> 00:43:59,409
you know, tax you gave us screws. I

1110
00:43:59,409 --> 00:44:01,708
mean, that doesn't help us. So I mean,

1111
00:44:02,025 --> 00:44:03,958
you some some factual issues are going to

1112
00:44:03,958 --> 00:44:05,636
be easier to resolve than others.

1113
00:44:06,355 --> 00:44:08,513
But but but I think I think the

1114
00:44:08,513 --> 00:44:11,970
the clue to understanding the chief justice opinion

1115
00:44:12,362 --> 00:44:14,989
is because it talks about, there's, you know,

1116
00:44:15,068 --> 00:44:17,535
the the agents agencies can develop those facts.

1117
00:44:17,694 --> 00:44:18,592
And we have

1118
00:44:18,967 --> 00:44:19,467
tools

1119
00:44:19,780 --> 00:44:22,420
both in the judiciary and there are tools

1120
00:44:22,420 --> 00:44:25,159
that the federal officials can use

1121
00:44:25,699 --> 00:44:28,420
to develop that factual bases,

1122
00:44:29,073 --> 00:44:31,459
for their respective positions.

1123
00:44:32,175 --> 00:44:34,323
So I mean, consider what tools courts have,

1124
00:44:34,402 --> 00:44:35,809
you know, courts we have

1125
00:44:36,247 --> 00:44:36,884
we have,

1126
00:44:37,600 --> 00:44:37,759
deposition,

1127
00:44:38,953 --> 00:44:42,135
testimony in court. We have jury trials. We

1128
00:44:42,135 --> 00:44:44,762
have rules of evidence and procedure that are

1129
00:44:44,762 --> 00:44:47,806
designed. To be fair and put both parties

1130
00:44:47,806 --> 00:44:49,003
on an equal footing.

1131
00:44:49,721 --> 00:44:51,555
And then compare that to the tools that

1132
00:44:51,555 --> 00:44:53,969
the federal official has. You know, the federal

1133
00:44:54,666 --> 00:44:57,880
official the tool of investigation they can investigate

1134
00:44:58,173 --> 00:45:00,632
whether somebody actually committed a fraud on the

1135
00:45:00,632 --> 00:45:00,950
market.

1136
00:45:02,219 --> 00:45:04,860
You know, whatever fact, the underlying facts or

1137
00:45:04,860 --> 00:45:07,493
elements that the federal government needs to prove

1138
00:45:07,493 --> 00:45:10,286
against the individual. They have investigated powers. They

1139
00:45:10,286 --> 00:45:10,739
have

1140
00:45:11,099 --> 00:45:14,534
the power to subpoena documents or subpoena, a

1141
00:45:14,534 --> 00:45:15,594
person to testify.

1142
00:45:15,973 --> 00:45:18,230
And those tools are designed

1143
00:45:18,701 --> 00:45:19,836
to to

1144
00:45:20,289 --> 00:45:23,807
understand or give access to expertise to really

1145
00:45:24,021 --> 00:45:26,816
everybody, not just the federal government to the

1146
00:45:26,816 --> 00:45:29,596
courts and to the individuals involved in these

1147
00:45:29,596 --> 00:45:29,993
cases.

1148
00:45:30,628 --> 00:45:33,511
But but what this argument from expertise

1149
00:45:33,884 --> 00:45:35,893
that justice Ka brings

1150
00:45:36,601 --> 00:45:39,067
does is it it... It's sort of, it's

1151
00:45:39,067 --> 00:45:41,136
like a bait switch. It it she talks

1152
00:45:41,136 --> 00:45:42,352
about sort of legal

1153
00:45:42,727 --> 00:45:44,418
expertise. And says, well, you know,

1154
00:45:45,297 --> 00:45:47,295
if if you want to find out what

1155
00:45:47,295 --> 00:45:50,252
honest markets mean. You have to ask people

1156
00:45:50,252 --> 00:45:50,571
who,

1157
00:45:51,131 --> 00:45:54,653
have been regulating this. Securities industry for 20

1158
00:45:54,653 --> 00:45:56,882
years because they they know it inside out,

1159
00:45:57,121 --> 00:45:58,155
they they are the experts.

1160
00:45:58,872 --> 00:46:00,795
If you want to ask about she gives

1161
00:46:00,795 --> 00:46:03,039
the example of the of, some Fda

1162
00:46:03,649 --> 00:46:05,472
regulation about protein sequences.

1163
00:46:05,868 --> 00:46:07,295
So, like, oh, core courts don't...

1164
00:46:08,421 --> 00:46:10,432
Understand this medical terminology,

1165
00:46:11,284 --> 00:46:12,635
you have to rely on,

1166
00:46:13,271 --> 00:46:14,408
the experts and...

1167
00:46:14,782 --> 00:46:16,929
Her worldview of experts is pretty narrow and

1168
00:46:16,929 --> 00:46:18,777
the sense I said, well, The only expert

1169
00:46:18,777 --> 00:46:21,252
she would recognize is the federal officials who

1170
00:46:21,252 --> 00:46:23,487
have been tasked with regulating. But, I mean,

1171
00:46:23,567 --> 00:46:25,961
that isn't obviously the end of the end

1172
00:46:25,961 --> 00:46:28,921
of the... Fear of expertise because you're going

1173
00:46:28,921 --> 00:46:29,580
to have

1174
00:46:30,194 --> 00:46:32,978
experts in the industry. Right? You're the regulated

1175
00:46:32,978 --> 00:46:35,856
party, for example, a pharmaceutical company. It's is

1176
00:46:35,856 --> 00:46:37,152
going to have scientific

1177
00:46:37,527 --> 00:46:38,345
experts who

1178
00:46:39,038 --> 00:46:41,129
able to demonstrate factual

1179
00:46:41,504 --> 00:46:42,004
why

1180
00:46:43,034 --> 00:46:46,954
this regulation doesn't apply to the particular protein

1181
00:46:46,954 --> 00:46:49,674
sequence that this lab has developed, for example.

1182
00:46:51,128 --> 00:46:53,374
So so the the expertise

1183
00:46:54,620 --> 00:46:55,755
discussion is sort of

1184
00:46:56,842 --> 00:46:59,485
intended to off skate rather than clarify.

1185
00:46:59,953 --> 00:47:02,578
It is intended to be a package to

1186
00:47:02,578 --> 00:47:04,647
really you sort of, you know, start trying

1187
00:47:04,647 --> 00:47:07,113
to sort our sort through concepts and, know,

1188
00:47:07,431 --> 00:47:09,358
that... That's I think the... I think a

1189
00:47:09,358 --> 00:47:10,795
flaw in the descent reasoning.

1190
00:47:12,949 --> 00:47:14,806
Okay. Yeah. That's that's certainly

1191
00:47:15,184 --> 00:47:16,461
how it came across to me.

1192
00:47:17,194 --> 00:47:17,353
The...

1193
00:47:18,070 --> 00:47:20,859
So on the going back now, and and

1194
00:47:21,018 --> 00:47:23,111
I think to the more fundamental issue of

1195
00:47:23,328 --> 00:47:25,958
presumption. That's part as you were saying, part

1196
00:47:25,958 --> 00:47:26,617
of what's

1197
00:47:26,928 --> 00:47:29,181
in dispute about... And what

1198
00:47:29,797 --> 00:47:33,005
between the majority and the descent and what's

1199
00:47:33,223 --> 00:47:33,723
proper

1200
00:47:34,179 --> 00:47:36,012
presumption. And I think you said at the

1201
00:47:36,012 --> 00:47:39,707
end, which I agree with that you can't

1202
00:47:40,240 --> 00:47:42,489
think of what presumption and proper

1203
00:47:42,863 --> 00:47:43,817
presumption would be,

1204
00:47:44,549 --> 00:47:47,606
absent thinking about the wider structure

1205
00:47:48,146 --> 00:47:49,205
of the government

1206
00:47:49,984 --> 00:47:53,260
and the why there's a division into an

1207
00:47:53,260 --> 00:47:53,760
executive

1208
00:47:54,234 --> 00:47:54,893
a legislative

1209
00:47:55,666 --> 00:47:56,303
judicial branch,

1210
00:47:57,497 --> 00:47:59,986
and thinking about checks and balances

1211
00:48:00,442 --> 00:48:03,465
and why that was thought important and how

1212
00:48:03,465 --> 00:48:04,858
that in practice

1213
00:48:05,235 --> 00:48:05,974
would be

1214
00:48:06,351 --> 00:48:07,388
carried out.

1215
00:48:08,505 --> 00:48:09,005
And

1216
00:48:09,861 --> 00:48:10,100
I...

1217
00:48:10,818 --> 00:48:14,262
In my reading of the descent, and so

1218
00:48:14,421 --> 00:48:18,105
Ka descent, it comes out pretty clearly

1219
00:48:18,958 --> 00:48:22,221
the way that she thinks about it, which

1220
00:48:22,221 --> 00:48:22,721
is

1221
00:48:23,415 --> 00:48:23,469
and

1222
00:48:24,469 --> 00:48:24,969
that

1223
00:48:25,427 --> 00:48:25,747
govern...

1224
00:48:26,306 --> 00:48:26,806
So

1225
00:48:27,345 --> 00:48:30,462
if if you have the presumption that you

1226
00:48:30,462 --> 00:48:31,521
defer to the federal

1227
00:48:31,980 --> 00:48:32,480
agencies

1228
00:48:32,874 --> 00:48:35,431
there's a kind of what would justify that

1229
00:48:35,431 --> 00:48:35,931
is

1230
00:48:36,710 --> 00:48:39,826
we know government has all kinds of powers.

1231
00:48:40,639 --> 00:48:42,554
And, yeah. Okay can we have to get

1232
00:48:42,554 --> 00:48:44,092
clear on exactly

1233
00:48:44,470 --> 00:48:46,726
what those powers are in this

1234
00:48:47,103 --> 00:48:49,830
instance. So... But it's... We know it has

1235
00:48:49,830 --> 00:48:52,619
a lot and a lot of power and

1236
00:48:52,619 --> 00:48:55,032
so let it decide sort of the contours

1237
00:48:55,487 --> 00:48:58,298
of that versus if you think

1238
00:48:59,007 --> 00:49:00,302
No. The government

1239
00:49:00,676 --> 00:49:04,331
doesn't have any power except what's actually and

1240
00:49:04,331 --> 00:49:05,841
explicitly delegated to it.

1241
00:49:07,131 --> 00:49:10,264
Then it becomes... If you can't find that

1242
00:49:10,322 --> 00:49:11,619
it's really been delegated,

1243
00:49:12,235 --> 00:49:14,070
it hasn't been, like, the presumption is then

1244
00:49:14,070 --> 00:49:15,527
it hasn't been delegated.

1245
00:49:16,159 --> 00:49:19,027
Versus the presumption is, know that government has

1246
00:49:19,027 --> 00:49:21,919
this power unless we can find it explicitly

1247
00:49:22,056 --> 00:49:24,304
it's sort of prohibited to the government. To

1248
00:49:24,304 --> 00:49:27,101
have this power. And so so when they

1249
00:49:27,101 --> 00:49:29,338
defer to the federal agencies to something that's

1250
00:49:29,338 --> 00:49:29,817
permissible,

1251
00:49:30,376 --> 00:49:32,547
it... Like, it's in I think of it

1252
00:49:32,547 --> 00:49:33,845
as in that wider

1253
00:49:34,701 --> 00:49:36,695
context. And she brings up,

1254
00:49:37,572 --> 00:49:39,007
I thought 1 of the things in the

1255
00:49:39,007 --> 00:49:41,891
descent that's revealing just the formulation. In the

1256
00:49:41,891 --> 00:49:43,504
way that she form... It's it's

1257
00:49:43,878 --> 00:49:45,865
in thinking, and she calls it.

1258
00:49:47,375 --> 00:49:48,669
This is not really

1259
00:49:49,618 --> 00:49:52,809
deciding what the law is it's policy making.

1260
00:49:53,926 --> 00:49:56,261
And she describes it like that. The task

1261
00:49:56,815 --> 00:49:58,494
is... It's this is about sort of the

1262
00:49:58,494 --> 00:50:00,894
power of of a federal agency. Quote, the

1263
00:50:00,894 --> 00:50:03,775
task is less 1 of cons constrain a

1264
00:50:03,775 --> 00:50:04,275
text

1265
00:50:05,067 --> 00:50:06,124
then of balancing

1266
00:50:06,578 --> 00:50:08,510
competing goals and values,

1267
00:50:09,521 --> 00:50:13,295
close quote. And that's the the the policy

1268
00:50:13,430 --> 00:50:16,048
making this... Well, I've got to balance competing

1269
00:50:16,048 --> 00:50:17,342
goals and values,

1270
00:50:18,111 --> 00:50:18,611
and

1271
00:50:19,478 --> 00:50:21,550
1 administration might do it in a certain

1272
00:50:21,550 --> 00:50:23,543
way, and the next administration does it in

1273
00:50:23,543 --> 00:50:24,899
a different way. This is why it can

1274
00:50:24,899 --> 00:50:28,422
change from administration to administration And the courts

1275
00:50:28,422 --> 00:50:31,213
is supposed to say, okay. That... That's permissible,

1276
00:50:31,532 --> 00:50:33,047
we... We're not gonna do anything about that.

1277
00:50:33,207 --> 00:50:35,839
Even though the agency's own interpretation of the

1278
00:50:35,839 --> 00:50:37,489
laws changing from administration.

1279
00:50:38,088 --> 00:50:40,881
Because it's just the variation on how they're

1280
00:50:40,881 --> 00:50:41,381
balancing

1281
00:50:41,919 --> 00:50:44,712
the... This what competing goals and values. But

1282
00:50:44,712 --> 00:50:47,140
there's a real question Like, is that law

1283
00:50:47,198 --> 00:50:50,486
anymore? Like and so what is policy making

1284
00:50:50,544 --> 00:50:53,513
mean? And and how is that an executive

1285
00:50:53,650 --> 00:50:54,925
fun Well I like, why is that not?

1286
00:50:55,179 --> 00:50:57,411
A legislative function to make policy.

1287
00:50:57,890 --> 00:50:59,324
But she's trying to put it in the

1288
00:50:59,324 --> 00:51:01,897
executive branch that that... Like, it's prop... And

1289
00:51:01,955 --> 00:51:04,844
that seems like that's, like, core issue in

1290
00:51:04,844 --> 00:51:06,925
terms of separation of powers and how to

1291
00:51:06,925 --> 00:51:08,684
think of these various branches.

1292
00:51:09,565 --> 00:51:10,925
And is that is that how you read,

1293
00:51:11,005 --> 00:51:12,445
like, what's part of what's going on?

1294
00:51:14,450 --> 00:51:16,835
Yes. And and I think I mean, what

1295
00:51:16,835 --> 00:51:19,402
just as Ka is addressing is the consequences

1296
00:51:19,936 --> 00:51:20,436
of

1297
00:51:21,049 --> 00:51:22,083
the low bright rule.

1298
00:51:23,133 --> 00:51:25,286
You know, so she she's trying to sort

1299
00:51:25,286 --> 00:51:27,200
of project into the future and sort of

1300
00:51:27,200 --> 00:51:28,077
trying to see okay,

1301
00:51:28,795 --> 00:51:31,289
have, low bright, which says the

1302
00:51:31,746 --> 00:51:33,611
the courts are going to

1303
00:51:34,381 --> 00:51:36,523
provide up the best interpretation of the statute.

1304
00:51:38,030 --> 00:51:39,165
What does that world

1305
00:51:39,697 --> 00:51:42,585
look like? Courts And and, you know, from

1306
00:51:42,585 --> 00:51:44,525
from the majority view that word

1307
00:51:44,905 --> 00:51:47,724
look looks as follows. I mean, it the

1308
00:51:47,784 --> 00:51:49,304
in... Under the low bright rule,

1309
00:51:50,277 --> 00:51:52,427
a judge looks at a statute, and and,

1310
00:51:52,507 --> 00:51:54,419
you know, the courts are going to be

1311
00:51:54,419 --> 00:51:56,889
looking at statute that are hundred years old

1312
00:51:56,889 --> 00:51:58,800
statute that are 20 years old statute etcetera

1313
00:51:58,800 --> 00:52:00,572
are. Very recently enacted.

1314
00:52:01,291 --> 00:52:03,869
All types of statute where if they

1315
00:52:04,248 --> 00:52:05,946
encounter an ambiguity

1316
00:52:06,818 --> 00:52:07,535
or silence.

1317
00:52:08,093 --> 00:52:10,345
All that the courts need to do is

1318
00:52:10,483 --> 00:52:12,235
say that, well, okay. You know,

1319
00:52:13,031 --> 00:52:15,523
really this statute is hopeless ambiguous

1320
00:52:15,994 --> 00:52:18,875
we cannot figure out what this statute means.

1321
00:52:19,035 --> 00:52:20,494
There is no best

1322
00:52:20,795 --> 00:52:22,555
interpretation of this statute.

1323
00:52:23,289 --> 00:52:26,430
And what that permits or what that incentivize

1324
00:52:26,890 --> 00:52:30,269
courts to do is then look at the

1325
00:52:30,489 --> 00:52:33,139
underlying sort of issue, which is Okay. You

1326
00:52:33,139 --> 00:52:36,314
know, congress wanted to make markets honest.

1327
00:52:36,949 --> 00:52:40,125
But, you know, what power is Congress really?

1328
00:52:40,616 --> 00:52:43,077
Exercising there? Is it the commerce power? You

1329
00:52:43,077 --> 00:52:44,370
know, is is it

1330
00:52:44,743 --> 00:52:47,283
constitutional under the commerce clause of the constitution?

1331
00:52:48,331 --> 00:52:51,754
To, to, you know, for Congress to say

1332
00:52:51,754 --> 00:52:52,311
that, you know,

1333
00:52:53,027 --> 00:52:55,040
any any financial activity

1334
00:52:56,052 --> 00:52:57,539
in some rural part of

1335
00:52:58,059 --> 00:52:59,997
the country is going to affect

1336
00:53:00,456 --> 00:53:01,974
interested interstate commerce and therefore,

1337
00:53:02,454 --> 00:53:05,570
based on that authority to regulate interested commerce

1338
00:53:05,570 --> 00:53:05,890
we are,

1339
00:53:07,019 --> 00:53:09,242
going to require markets to be honest and

1340
00:53:09,242 --> 00:53:10,195
then give authority.

1341
00:53:10,989 --> 00:53:12,680
Policy making authority to the

1342
00:53:13,054 --> 00:53:15,929
executive branch to decide actually what that honest

1343
00:53:15,929 --> 00:53:17,126
this market looks like.

1344
00:53:18,164 --> 00:53:19,041
So I think it will...

1345
00:53:19,760 --> 00:53:22,574
The world view from the majority perspective is

1346
00:53:23,112 --> 00:53:23,851
that will

1347
00:53:24,883 --> 00:53:27,278
incentivized course to have an honest discussion of

1348
00:53:27,278 --> 00:53:29,593
the underlying issues, you know, what power is

1349
00:53:29,593 --> 00:53:33,105
congress really exercising when it's speaking through Vague,

1350
00:53:33,598 --> 00:53:34,973
and ambiguous or silent

1351
00:53:36,463 --> 00:53:36,940
statues.

1352
00:53:37,815 --> 00:53:40,861
Whereas from the world view under the dissent

1353
00:53:40,998 --> 00:53:41,498
perspective

1354
00:53:41,873 --> 00:53:42,373
is

1355
00:53:42,684 --> 00:53:45,237
Yeah. But that's, you know, that's giving too

1356
00:53:45,237 --> 00:53:48,110
much policy making power too much control to

1357
00:53:48,110 --> 00:53:51,785
the judges to dictate. Who gets to decide

1358
00:53:51,785 --> 00:53:54,322
the policies for the nation. And, you know,

1359
00:53:54,480 --> 00:53:57,755
it is very practical or it's very efficient

1360
00:53:58,064 --> 00:54:00,242
to allow federal officials to

1361
00:54:00,621 --> 00:54:03,178
make those policy choices because, you know, the

1362
00:54:03,178 --> 00:54:06,860
premise being congress is dysfunctional it doesn't do

1363
00:54:06,860 --> 00:54:07,360
anything

1364
00:54:07,734 --> 00:54:08,925
nowadays. It, you know,

1365
00:54:09,640 --> 00:54:12,976
legislators are interested in sound bites on social

1366
00:54:12,976 --> 00:54:15,041
media as opposed to actually doing the work

1367
00:54:15,041 --> 00:54:16,252
of drafting statute,

1368
00:54:16,731 --> 00:54:20,503
getting majority support, getting them enacted through the

1369
00:54:20,562 --> 00:54:21,062
congressional

1370
00:54:21,440 --> 00:54:21,940
procedures

1371
00:54:22,318 --> 00:54:23,696
presenting it to the precedent

1372
00:54:24,088 --> 00:54:26,234
the president might veto the statute and then

1373
00:54:26,234 --> 00:54:28,062
comes back to congress for amendment.

1374
00:54:29,572 --> 00:54:32,116
So that that pros... That whole process of

1375
00:54:32,116 --> 00:54:34,704
making law, is very very

1376
00:54:35,324 --> 00:54:35,824
inefficient

1377
00:54:36,525 --> 00:54:38,605
according to the descent. And therefore,

1378
00:54:39,005 --> 00:54:41,344
it is appropriate for congress to

1379
00:54:41,818 --> 00:54:44,153
give its law making functions

1380
00:54:44,690 --> 00:54:47,800
to somebody who can be extremely efficient. And

1381
00:54:47,800 --> 00:54:50,193
that somebody just happens to be the precedent

1382
00:54:50,193 --> 00:54:51,310
and the executive branch.

1383
00:54:52,204 --> 00:54:55,420
And that is the system that that Chevron

1384
00:54:55,559 --> 00:54:57,796
incentivized that Chevron put in place, and we

1385
00:54:57,796 --> 00:55:00,206
like that system because... You know, it's cozy

1386
00:55:00,206 --> 00:55:02,380
and nice, it's sort of, like psychologically

1387
00:55:04,192 --> 00:55:04,670
understandable.

1388
00:55:05,706 --> 00:55:09,385
But what what the descent, fails to understand

1389
00:55:09,385 --> 00:55:09,885
is

1390
00:55:10,419 --> 00:55:12,806
is is that, you know, the the majority

1391
00:55:12,806 --> 00:55:14,769
sort of implicit premise is

1392
00:55:15,284 --> 00:55:16,894
no. Because, you know, the

1393
00:55:17,424 --> 00:55:19,984
you still have to deal with words that

1394
00:55:20,276 --> 00:55:23,469
individuals are reading. Like, common that the common

1395
00:55:23,469 --> 00:55:25,540
man on the street is reading a statute

1396
00:55:25,540 --> 00:55:27,076
and trying to ascertain

1397
00:55:27,930 --> 00:55:30,400
what conduct is legal, what conduct is illegal,

1398
00:55:30,559 --> 00:55:33,286
and we have to enter statute. And, you

1399
00:55:33,286 --> 00:55:36,159
know, put that common man on an equal

1400
00:55:36,159 --> 00:55:38,634
footing in a fair try on a fair

1401
00:55:38,634 --> 00:55:39,294
tri you

1402
00:55:39,672 --> 00:55:40,571
against the government

1403
00:55:41,681 --> 00:55:43,356
so... And and, you know, it it will

1404
00:55:43,356 --> 00:55:45,212
lead the courts to have that honest

1405
00:55:45,988 --> 00:55:48,779
discussion about congressional powers down the road.

1406
00:55:49,577 --> 00:55:51,983
And that... Consequence, I think is scary for

1407
00:55:51,983 --> 00:55:53,656
the for the descent because

1408
00:55:54,134 --> 00:55:56,683
you know, there there's at least of a

1409
00:55:56,683 --> 00:55:57,422
few justices,

1410
00:55:57,813 --> 00:56:00,199
And a few judges on the lower courts

1411
00:56:00,199 --> 00:56:03,562
that do not want to tackle the the

1412
00:56:04,016 --> 00:56:05,527
extent of the powers of Congress.

1413
00:56:06,659 --> 00:56:08,097
Because, you know, we we have seen what

1414
00:56:08,097 --> 00:56:09,775
happened to the commerce clause. We have seen

1415
00:56:09,775 --> 00:56:12,333
what happened to the necessary and proper clause

1416
00:56:12,333 --> 00:56:15,425
and the constitution. We see taxing bankruptcy all

1417
00:56:15,623 --> 00:56:18,489
coin money, all sorts of, powers described in

1418
00:56:18,489 --> 00:56:20,797
the constitution that are given to Congress and

1419
00:56:20,797 --> 00:56:21,536
courts have

1420
00:56:21,912 --> 00:56:22,412
largely

1421
00:56:24,154 --> 00:56:27,014
gotten themselves out of the up trying to

1422
00:56:27,014 --> 00:56:30,771
interpret those sections of the constitution. But low

1423
00:56:30,907 --> 00:56:34,260
would would flip that and require courts to

1424
00:56:34,260 --> 00:56:34,658
go there,

1425
00:56:35,453 --> 00:56:37,123
where they have been hesitant so far.

1426
00:56:38,873 --> 00:56:40,860
Okay. I'll I'll... That'll be the last thing

1427
00:56:40,940 --> 00:56:42,869
I wanna ask you about sort of what

1428
00:56:42,869 --> 00:56:44,647
you think of, and I know it's

1429
00:56:45,106 --> 00:56:47,023
it's part guessing what are they're gonna be,

1430
00:56:47,263 --> 00:56:49,180
now the consequences of this. But just before

1431
00:56:49,180 --> 00:56:49,340
that,

1432
00:56:49,994 --> 00:56:51,827
the the 1 of the last issues you

1433
00:56:51,827 --> 00:56:52,226
brought up.

1434
00:56:53,023 --> 00:56:54,617
My reading of this descendant...

1435
00:56:55,654 --> 00:56:57,408
The question is is this also you're reading

1436
00:56:57,408 --> 00:56:57,908
is

1437
00:56:58,697 --> 00:57:01,711
Cad never addresses this kind of rule of

1438
00:57:01,711 --> 00:57:04,115
law issue of canon ordinary

1439
00:57:04,726 --> 00:57:05,226
citizen,

1440
00:57:05,693 --> 00:57:07,040
going about their business,

1441
00:57:07,753 --> 00:57:10,131
trying to build a house, start a farm,

1442
00:57:10,765 --> 00:57:12,612
can they look at the statute

1443
00:57:13,159 --> 00:57:15,153
And even the statute and some of the

1444
00:57:15,153 --> 00:57:17,785
decisions that have when when things have gone

1445
00:57:17,785 --> 00:57:19,141
to court and say,

1446
00:57:19,779 --> 00:57:22,012
okay. I'm... Now I know what I'm doing

1447
00:57:22,012 --> 00:57:23,625
is not legally prohibited.

1448
00:57:24,025 --> 00:57:25,785
I'm in the clear, and I'm gonna do

1449
00:57:25,785 --> 00:57:26,025
it.

1450
00:57:26,985 --> 00:57:28,664
Like, so that kind of rule of law

1451
00:57:28,664 --> 00:57:31,485
that you know in advance of your actions

1452
00:57:31,719 --> 00:57:33,960
is this something that is on the right

1453
00:57:33,960 --> 00:57:35,480
side of the law or on the wrong

1454
00:57:35,480 --> 00:57:37,320
side of the the law or you have

1455
00:57:37,320 --> 00:57:38,860
to wait for the latest

1456
00:57:39,652 --> 00:57:42,307
administration and and it's bureau and the federal

1457
00:57:42,366 --> 00:57:45,159
agencies to tell you. Oh, no. Our interpretation

1458
00:57:45,159 --> 00:57:47,408
of the is you can't do this. And

1459
00:57:47,408 --> 00:57:50,040
that... Like, that really destroys rule of law.

1460
00:57:50,199 --> 00:57:52,831
And my reading of the descent is it

1461
00:57:52,831 --> 00:57:55,224
never tries... It never even tries to address

1462
00:57:55,224 --> 00:57:55,782
this issue.

1463
00:57:56,914 --> 00:57:57,795
Is that your reading?

1464
00:58:00,275 --> 00:58:02,994
Yes. And I I think I think both

1465
00:58:02,994 --> 00:58:04,434
the both the majority.

1466
00:58:05,246 --> 00:58:07,153
And the descent. And you know, even the

1467
00:58:07,153 --> 00:58:10,254
concur to a large extent are skirt around

1468
00:58:10,254 --> 00:58:13,764
that issue because because it it is an

1469
00:58:13,764 --> 00:58:14,319
issue on which...

1470
00:58:15,588 --> 00:58:16,699
I think I think it's

1471
00:58:17,730 --> 00:58:20,213
a a lot of justices hold mixed premises

1472
00:58:20,268 --> 00:58:22,032
on, And we and we see that play

1473
00:58:22,032 --> 00:58:25,133
out in in other decisions that that, you

1474
00:58:25,133 --> 00:58:27,144
know, that are decided a certain way

1475
00:58:27,598 --> 00:58:30,222
for, you know, maybe the right conclusion for

1476
00:58:30,222 --> 00:58:32,299
the wrong reasons or right conclusion for the

1477
00:58:32,299 --> 00:58:34,755
right reasons, or wrong conclusion for the right

1478
00:58:34,755 --> 00:58:36,894
reasons or, you know, wrong conclusion for the

1479
00:58:36,894 --> 00:58:37,900
wrong reasons. Reasons

1480
00:58:38,814 --> 00:58:41,119
So so there's there's a mixed bag of

1481
00:58:41,119 --> 00:58:42,175
premises that

1482
00:58:42,709 --> 00:58:43,345
really, you know,

1483
00:58:44,537 --> 00:58:45,491
all 9 justices.

1484
00:58:46,539 --> 00:58:47,650
Have in terms of

1485
00:58:49,398 --> 00:58:51,382
you know, what rule of law means.

1486
00:58:52,018 --> 00:58:54,179
And III...

1487
00:58:54,498 --> 00:58:56,252
And and maybe that's that's 1 of the

1488
00:58:56,252 --> 00:58:58,427
1 of the criticisms against

1489
00:58:59,921 --> 00:59:02,234
the current supreme court, you know, maybe maybe

1490
00:59:02,234 --> 00:59:04,802
a future supreme court as well. Is is,

1491
00:59:04,961 --> 00:59:05,200
you know,

1492
00:59:05,918 --> 00:59:07,694
there isn't really any

1493
00:59:09,587 --> 00:59:10,087
any

1494
00:59:10,704 --> 00:59:13,118
sort of urgency at least from the justices

1495
00:59:13,256 --> 00:59:13,575
minds.

1496
00:59:14,388 --> 00:59:15,207
To clarify

1497
00:59:15,824 --> 00:59:18,716
the Jury prudential, the philosophical principles,

1498
00:59:19,652 --> 00:59:22,762
that animate their decisions. And and you you

1499
00:59:22,762 --> 00:59:23,775
see that in the sort of

1500
00:59:24,694 --> 00:59:27,654
way that the Robert's court is described. You

1501
00:59:27,654 --> 00:59:30,054
know, the Robert's court court is described as

1502
00:59:30,054 --> 00:59:33,021
an incremental court, in the sense that, you

1503
00:59:33,021 --> 00:59:35,746
know, they'll they'll take the smallest step possible

1504
00:59:35,961 --> 00:59:36,461
in

1505
00:59:37,073 --> 00:59:40,115
in a certain direction without then explaining

1506
00:59:40,743 --> 00:59:43,210
you know, the repercussions of that decision or

1507
00:59:43,210 --> 00:59:43,869
the consequences

1508
00:59:44,722 --> 00:59:46,632
for other things. And, you know, we, maybe

1509
00:59:46,632 --> 00:59:47,507
that's the that's

1510
00:59:48,398 --> 00:59:51,043
a practical approach, maybe that's a pragmatic

1511
00:59:51,417 --> 00:59:53,960
approach. But but many times what it does

1512
00:59:53,960 --> 00:59:55,628
is it inject these,

1513
00:59:56,264 --> 00:59:56,764
these

1514
00:59:57,233 --> 00:59:59,486
mixed premises or unexplained

1515
01:00:00,659 --> 01:00:01,956
or it it sort of

1516
01:00:02,971 --> 01:00:03,471
prevents

1517
01:00:04,166 --> 01:00:06,732
prevents courts or lower court judges from trying

1518
01:00:06,732 --> 01:00:08,507
to figure out exactly what

1519
01:00:09,761 --> 01:00:12,791
the supreme Court meant when they said XYZ,

1520
01:00:13,444 --> 01:00:15,598
And and and and, you know, some of

1521
01:00:15,598 --> 01:00:15,997
that is

1522
01:00:16,875 --> 01:00:19,348
is is the way that judging occurs and,

1523
01:00:19,428 --> 01:00:20,545
you know, justice gorsuch.

1524
01:00:21,673 --> 01:00:23,763
Goes into that. I mean, his his

1525
01:00:24,853 --> 01:00:25,353
his

1526
01:00:25,728 --> 01:00:26,523
way of this is,

1527
01:00:27,397 --> 01:00:28,669
you know, there... There is no such thing

1528
01:00:28,669 --> 01:00:29,169
as

1529
01:00:30,592 --> 01:00:30,911
you know,

1530
01:00:32,026 --> 01:00:33,243
respect for the

1531
01:00:33,619 --> 01:00:36,805
methodology used by past judges. So every judge

1532
01:00:36,805 --> 01:00:38,477
has to make up his or her own

1533
01:00:38,477 --> 01:00:38,716
mind,

1534
01:00:39,289 --> 01:00:39,789
in

1535
01:00:40,164 --> 01:00:42,233
understanding and applying what the rule of law

1536
01:00:42,233 --> 01:00:42,552
means.

1537
01:00:43,507 --> 01:00:45,894
And and so it it it it... He

1538
01:00:45,894 --> 01:00:46,554
sort of

1539
01:00:47,421 --> 01:00:49,751
switches between subject ism and en

1540
01:00:50,444 --> 01:00:52,512
to some extent when he's talking about sort

1541
01:00:52,512 --> 01:00:53,012
of,

1542
01:00:54,994 --> 01:00:57,302
independence of each judge from under judge.

1543
01:00:58,416 --> 01:00:59,712
And and then there's

1544
01:01:00,088 --> 01:01:02,873
there's the other camp on the supreme court

1545
01:01:02,873 --> 01:01:03,192
that

1546
01:01:04,083 --> 01:01:06,097
that says, well, okay, You know, this is

1547
01:01:06,154 --> 01:01:07,610
this is sort of, like, a very

1548
01:01:08,146 --> 01:01:08,646
mechanical

1549
01:01:09,023 --> 01:01:09,979
exercise where we are,

1550
01:01:10,696 --> 01:01:12,289
we are... We have these tools. We have

1551
01:01:12,289 --> 01:01:15,333
tools of interpretation. We have these presumption in

1552
01:01:15,333 --> 01:01:17,245
the law, You know, if there is a

1553
01:01:17,245 --> 01:01:20,035
veteran involved, and we give the benefit doubt

1554
01:01:20,035 --> 01:01:21,644
to the veteran if there is we and

1555
01:01:21,883 --> 01:01:23,879
Indian tribe involved we give the benefit out

1556
01:01:23,879 --> 01:01:26,434
to the in Indian tribe or all these,

1557
01:01:26,514 --> 01:01:28,509
you know, presumption in the law. And we

1558
01:01:28,509 --> 01:01:31,555
just sort of mechanics to apply those principles,

1559
01:01:31,714 --> 01:01:33,864
that's sort the rule of law means. And

1560
01:01:33,864 --> 01:01:35,717
that again, doesn't really

1561
01:01:36,411 --> 01:01:39,196
grapple with, you know, the... What rule of

1562
01:01:39,196 --> 01:01:40,151
law actually means.

1563
01:01:40,961 --> 01:01:43,186
Which is, you know, which is which is

1564
01:01:43,186 --> 01:01:45,807
a core judicial function of of of judging.

1565
01:01:45,966 --> 01:01:48,190
And, you know, judging isn't a simple matter

1566
01:01:48,190 --> 01:01:48,667
of saying,

1567
01:01:49,238 --> 01:01:51,861
Okay. You know, the the statute says will

1568
01:01:51,861 --> 01:01:52,759
fully and

1569
01:01:53,292 --> 01:01:56,391
reckless, but you prove ne there you're wrong.

1570
01:01:56,884 --> 01:01:58,880
You know, there there's more to it than

1571
01:01:58,880 --> 01:02:00,635
that, you know, the the the more is

1572
01:02:00,635 --> 01:02:01,375
the constitute.

1573
01:02:01,753 --> 01:02:03,530
The more is the fundamental

1574
01:02:04,067 --> 01:02:05,126
philosophical principles.

1575
01:02:05,678 --> 01:02:06,496
That animate

1576
01:02:07,111 --> 01:02:08,248
animate the

1577
01:02:08,862 --> 01:02:10,375
decisions that the judges provide.

1578
01:02:14,609 --> 01:02:17,156
So as I said, a a last question,

1579
01:02:18,747 --> 01:02:19,247
and

1580
01:02:19,623 --> 01:02:21,550
again, looking at it, both from the point

1581
01:02:21,550 --> 01:02:24,750
of view of the majority opinion and descent

1582
01:02:24,750 --> 01:02:26,929
of now what will the consequences

1583
01:02:27,309 --> 01:02:29,663
of the overturn of Chevron

1584
01:02:30,199 --> 01:02:32,828
b. So as as you've talked about, you

1585
01:02:32,828 --> 01:02:34,661
you think of it... It's... The over overturn

1586
01:02:34,661 --> 01:02:35,798
is a good result

1587
01:02:37,063 --> 01:02:39,682
the reasoning is a mixed bag, but both

1588
01:02:39,682 --> 01:02:43,174
have impacts going forward. So... The... And and

1589
01:02:43,174 --> 01:02:43,784
from the

1590
01:02:44,223 --> 01:02:45,499
dissent side, that it is 1 of the

1591
01:02:45,499 --> 01:02:48,370
things Ka says in the descent, quote, the

1592
01:02:48,370 --> 01:02:51,901
majority decision today will cause a massive shock

1593
01:02:52,119 --> 01:02:53,416
to the legal system

1594
01:02:53,809 --> 01:02:56,530
close quote. And so that's on the dissent

1595
01:02:56,530 --> 01:02:57,329
side on the,

1596
01:02:58,610 --> 01:02:59,110
Robert's

1597
01:02:59,489 --> 01:03:01,110
majority opinion, it's

1598
01:03:02,703 --> 01:03:06,139
we're not saying that for for the past

1599
01:03:06,139 --> 01:03:07,918
cases that have been decided

1600
01:03:08,536 --> 01:03:09,895
based on Chevron,

1601
01:03:10,309 --> 01:03:12,939
defer. We're not saying now that all those

1602
01:03:12,939 --> 01:03:15,649
are void and or even that they can

1603
01:03:15,649 --> 01:03:17,185
be challenged simply

1604
01:03:17,562 --> 01:03:18,062
because

1605
01:03:18,373 --> 01:03:21,160
they were based on Chevron defer. It's we're

1606
01:03:21,160 --> 01:03:23,809
not using that going forward. But it... So

1607
01:03:24,264 --> 01:03:26,150
that I I think is trying to address

1608
01:03:26,349 --> 01:03:28,109
is this a massive shop? No? It's not

1609
01:03:28,109 --> 01:03:30,589
gonna be a massive shop. How are you

1610
01:03:30,589 --> 01:03:31,730
thinking about it

1611
01:03:32,269 --> 01:03:35,401
operating in this area? What... Are your expectations

1612
01:03:35,401 --> 01:03:37,156
now going forward in the next years.

1613
01:03:39,629 --> 01:03:42,277
So I think of I mean, there justice

1614
01:03:42,277 --> 01:03:44,193
as Ke is trying to get at,

1615
01:03:45,949 --> 01:03:48,684
I think a a legitimate concern

1616
01:03:49,142 --> 01:03:50,910
is how I would put it. In terms

1617
01:03:50,910 --> 01:03:52,973
of, you know, what does it mean for

1618
01:03:52,973 --> 01:03:54,505
the majority to say

1619
01:03:54,957 --> 01:03:55,275
that,

1620
01:03:55,909 --> 01:03:56,409
the

1621
01:03:56,862 --> 01:03:58,846
statute, the administrative procedure act,

1622
01:03:59,579 --> 01:04:01,039
requires the court

1623
01:04:01,500 --> 01:04:02,719
to not differ

1624
01:04:03,019 --> 01:04:05,739
to the interpretations of the federal official. So

1625
01:04:05,739 --> 01:04:08,219
she's she's getting at this sort of you

1626
01:04:08,219 --> 01:04:08,380
know,

1627
01:04:09,033 --> 01:04:11,418
this d dichotomy that has developed

1628
01:04:11,816 --> 01:04:13,350
over the decades heads

1629
01:04:13,884 --> 01:04:16,769
between the star sizes effect given

1630
01:04:17,319 --> 01:04:18,218
to statutory

1631
01:04:19,153 --> 01:04:21,488
interpretation as compared to constitutional

1632
01:04:21,945 --> 01:04:22,105
interpretation.

1633
01:04:22,902 --> 01:04:24,838
And I think the chief justice

1634
01:04:25,774 --> 01:04:28,598
was very sort of practical in

1635
01:04:29,052 --> 01:04:29,552
peg

1636
01:04:30,563 --> 01:04:32,811
the majority decision on the statute

1637
01:04:33,424 --> 01:04:34,322
because statutory

1638
01:04:35,748 --> 01:04:36,248
decisions

1639
01:04:37,424 --> 01:04:37,924
are

1640
01:04:38,861 --> 01:04:41,357
have a greater star decisive effect

1641
01:04:41,895 --> 01:04:43,353
than the court's

1642
01:04:43,811 --> 01:04:46,702
constitutional decisions. And the... And and that's the

1643
01:04:46,702 --> 01:04:50,318
d dichotomy is, you know, courts courts view

1644
01:04:50,537 --> 01:04:51,037
statutory

1645
01:04:51,735 --> 01:04:52,135
interpretations of...

1646
01:04:52,789 --> 01:04:56,730
Previous courts as, you know, as as stronger

1647
01:04:57,750 --> 01:04:59,530
in as having stronger

1648
01:04:59,829 --> 01:05:02,002
presidential value because Congress can always come in

1649
01:05:02,002 --> 01:05:02,481
and amend,

1650
01:05:03,279 --> 01:05:07,031
the statute and thereby overrule the interpretation that

1651
01:05:07,031 --> 01:05:08,649
the court has offered previously.

1652
01:05:09,187 --> 01:05:09,985
But if the court,

1653
01:05:10,797 --> 01:05:12,014
Decides a cons...

1654
01:05:13,584 --> 01:05:16,610
Decides the case based on constitutional grounds, then

1655
01:05:16,610 --> 01:05:18,066
the only way for

1656
01:05:19,252 --> 01:05:21,868
we the people to really amend or overrule

1657
01:05:21,868 --> 01:05:25,777
that interpretation is to amend the constitution. So

1658
01:05:25,832 --> 01:05:28,708
we as courts, take it upon ourselves to

1659
01:05:28,708 --> 01:05:32,289
give less respect or less presidential value to

1660
01:05:32,289 --> 01:05:32,789
our

1661
01:05:33,244 --> 01:05:33,960
constitutional decisions,

1662
01:05:35,332 --> 01:05:38,227
for that reason. So there's there's this dichotomy

1663
01:05:38,445 --> 01:05:38,945
between

1664
01:05:39,323 --> 01:05:41,500
statutory, star sizes and

1665
01:05:41,878 --> 01:05:42,995
constitutional star sizes.

1666
01:05:43,570 --> 01:05:46,530
And and I I think you see see

1667
01:05:46,530 --> 01:05:49,190
that concern come out in justice Ka

1668
01:05:50,289 --> 01:05:52,449
opinion when she says what she quoted, which

1669
01:05:52,449 --> 01:05:52,929
is, you know,

1670
01:05:53,899 --> 01:05:56,466
what does this mean in the future? And

1671
01:05:56,920 --> 01:05:58,748
and and maybe that's why the chief, you

1672
01:05:58,748 --> 01:06:00,974
know, I understand why he would peg it

1673
01:06:00,974 --> 01:06:02,031
as a statutory.

1674
01:06:03,136 --> 01:06:05,782
Decision not a constitutional because then that is

1675
01:06:06,315 --> 01:06:08,381
set in stone to a greater extent than

1676
01:06:08,381 --> 01:06:09,812
if he had said, you know, this is,

1677
01:06:09,891 --> 01:06:09,971
like,

1678
01:06:10,780 --> 01:06:12,846
non defer is a constitutional principle.

1679
01:06:13,323 --> 01:06:14,753
So he's... He he he did sort of,

1680
01:06:14,833 --> 01:06:16,739
like, a smart thing when he did that

1681
01:06:16,739 --> 01:06:18,193
because that pretty much

1682
01:06:19,536 --> 01:06:20,036
addresses

1683
01:06:20,571 --> 01:06:23,538
justice Ka concern. But again, you know, the

1684
01:06:24,073 --> 01:06:26,483
there is controversy and debate about

1685
01:06:27,510 --> 01:06:29,101
the the nature of,

1686
01:06:30,214 --> 01:06:33,237
presidential effect given to previous decisions of the

1687
01:06:33,237 --> 01:06:35,505
core. I mean, even even sort of stepping

1688
01:06:35,643 --> 01:06:36,463
back from

1689
01:06:36,840 --> 01:06:39,551
1 step and, you know, not thinking about

1690
01:06:39,551 --> 01:06:40,530
statutory versus

1691
01:06:40,987 --> 01:06:42,981
constitutional. I think just as go search,

1692
01:06:43,633 --> 01:06:45,462
you know, talks about it Well, actually, you

1693
01:06:45,462 --> 01:06:47,869
know, that's part of judging. That's a core

1694
01:06:48,403 --> 01:06:50,788
judicial function. We have the ability to figure

1695
01:06:50,788 --> 01:06:51,288
out

1696
01:06:51,598 --> 01:06:52,393
which precedent...

1697
01:06:52,791 --> 01:06:55,438
Which precedent of the court have

1698
01:06:55,892 --> 01:06:57,983
have the force effect

1699
01:06:58,437 --> 01:07:00,945
that is, you know, to be given more

1700
01:07:01,085 --> 01:07:03,005
presidential effect than others. And we can figure

1701
01:07:03,005 --> 01:07:04,765
that all of that out in the future,

1702
01:07:05,805 --> 01:07:07,965
but because that's the core function of judging,

1703
01:07:08,699 --> 01:07:10,860
So I think I think Gorsuch tries to

1704
01:07:10,860 --> 01:07:11,360
address

1705
01:07:12,059 --> 01:07:12,960
justice Ka

1706
01:07:13,340 --> 01:07:15,579
concern, you know, okay. How how how how

1707
01:07:15,579 --> 01:07:17,019
is this going to play out in the

1708
01:07:17,019 --> 01:07:17,260
future?

1709
01:07:17,912 --> 01:07:19,663
You just peg this on the statute,

1710
01:07:20,299 --> 01:07:21,731
in sort of the constitution.

1711
01:07:23,004 --> 01:07:24,913
But but that that will be something that

1712
01:07:24,913 --> 01:07:25,970
will need to be

1713
01:07:27,079 --> 01:07:28,917
that will need to be fleshed out certainly

1714
01:07:28,917 --> 01:07:30,914
speaking in the future. I think I think

1715
01:07:30,914 --> 01:07:32,113
this, idea of,

1716
01:07:33,392 --> 01:07:35,410
applying the low bright rule

1717
01:07:36,364 --> 01:07:37,882
retroactively to previous,

1718
01:07:39,880 --> 01:07:42,916
do you know previous decisions and or applying

1719
01:07:42,916 --> 01:07:44,615
it prospective only

1720
01:07:45,088 --> 01:07:46,702
is is a legitimate,

1721
01:07:47,156 --> 01:07:47,474
you know,

1722
01:07:48,826 --> 01:07:50,496
concern for many judges. You know, how is

1723
01:07:50,496 --> 01:07:52,405
that going to be applied? And this isn't

1724
01:07:52,405 --> 01:07:54,327
the only time that is this has happened.

1725
01:07:54,486 --> 01:07:55,859
You know, there are there have been

1726
01:07:56,312 --> 01:07:58,455
cases where, you know, let's say, the court

1727
01:07:58,455 --> 01:08:00,916
said you have the right to counsel in

1728
01:08:00,916 --> 01:08:01,789
criminal proceedings.

1729
01:08:03,315 --> 01:08:04,907
A second case needs to go to the

1730
01:08:04,907 --> 01:08:06,282
court saying, well, okay. You

1731
01:08:06,737 --> 01:08:07,772
introduced a new principle,

1732
01:08:08,727 --> 01:08:10,653
are you going to apply that to all

1733
01:08:10,653 --> 01:08:12,410
of the cases that we're pending or are

1734
01:08:12,410 --> 01:08:14,644
you going to only apply it prospective, and

1735
01:08:14,644 --> 01:08:17,039
the cord then has to decide whether it

1736
01:08:17,039 --> 01:08:20,560
has prospective applicability or retroactive applicability.

1737
01:08:21,195 --> 01:08:23,101
So that that next case is going to

1738
01:08:23,101 --> 01:08:25,166
come up no matter what because, you know,

1739
01:08:25,245 --> 01:08:26,595
to the extent that Lo bread is a

1740
01:08:26,595 --> 01:08:27,231
new principle,

1741
01:08:27,645 --> 01:08:29,965
not just an application of the Mar principle,

1742
01:08:30,045 --> 01:08:32,045
then, you know, the court will have to

1743
01:08:32,045 --> 01:08:33,085
decide that question.

1744
01:08:37,020 --> 01:08:37,520
And

1745
01:08:38,859 --> 01:08:40,319
so part of the

1746
01:08:41,020 --> 01:08:41,520
the

1747
01:08:42,300 --> 01:08:45,655
descent is... Painting this as... Or I think,

1748
01:08:45,734 --> 01:08:48,378
at least trying to activate in

1749
01:08:49,306 --> 01:08:51,783
some people's minds or maybe that even... You

1750
01:08:51,783 --> 01:08:53,528
could just say, the media takes it like

1751
01:08:53,528 --> 01:08:54,956
this whether or they were trying to activate,

1752
01:08:55,114 --> 01:08:57,122
that it's gonna be chaos now

1753
01:08:57,573 --> 01:08:59,904
is the I've in part of what you're

1754
01:08:59,904 --> 01:09:02,064
saying that this is has happened before and

1755
01:09:02,064 --> 01:09:04,145
and the cases are brought and that you

1756
01:09:04,145 --> 01:09:06,545
you have a gradual playing out of this.

1757
01:09:07,358 --> 01:09:10,310
Is that is that the expectation that you

1758
01:09:10,310 --> 01:09:11,927
see or is do you see any

1759
01:09:12,305 --> 01:09:14,300
potential for, like, real legal chaos?

1760
01:09:16,555 --> 01:09:18,555
I do not see a potential for legal

1761
01:09:18,555 --> 01:09:18,795
chaos.

1762
01:09:19,675 --> 01:09:22,335
Because... Yeah, that's that's just how gradually

1763
01:09:23,208 --> 01:09:26,067
court decides things case by case. And that

1764
01:09:26,067 --> 01:09:26,885
is the

1765
01:09:27,337 --> 01:09:29,800
fundamental nature of the judicial power. You know,

1766
01:09:29,958 --> 01:09:32,261
Congress can come and make generally applicable law.

1767
01:09:32,420 --> 01:09:34,344
The you know, they can come in and,

1768
01:09:34,423 --> 01:09:36,810
you know, say, okay. Here's the new rule

1769
01:09:36,810 --> 01:09:38,322
that's applied to everybody.

1770
01:09:39,037 --> 01:09:42,024
But but, that sort of law applies prospective

1771
01:09:42,241 --> 01:09:42,640
only.

1772
01:09:43,358 --> 01:09:45,431
You know, it it what the... What a

1773
01:09:45,431 --> 01:09:47,744
judge does or what a court does is

1774
01:09:47,744 --> 01:09:51,025
not make the law finds the law and

1775
01:09:51,185 --> 01:09:53,572
Gorsuch talks about that in his concur.

1776
01:09:54,448 --> 01:09:56,438
And and and and and that finding of

1777
01:09:56,438 --> 01:09:58,825
the law is necessarily case by cases.

1778
01:09:59,797 --> 01:10:00,675
Necessarily gradual,

1779
01:10:01,472 --> 01:10:05,540
and is necessarily designed to not shock the

1780
01:10:05,540 --> 01:10:08,172
system in a way that congress really can

1781
01:10:08,172 --> 01:10:08,810
shock the system.

1782
01:10:09,543 --> 01:10:11,778
The, you know, the political branches can shock

1783
01:10:11,778 --> 01:10:14,889
the system by, you know, creating some massive

1784
01:10:14,889 --> 01:10:16,699
piece of legislation. I mean, think of

1785
01:10:17,378 --> 01:10:19,613
think of Obamacare think of all sorts of,

1786
01:10:20,252 --> 01:10:22,886
benefits plans that are just created overnight.

1787
01:10:24,562 --> 01:10:25,062
So...

1788
01:10:25,853 --> 01:10:28,558
The political branches Yes are in a position

1789
01:10:28,558 --> 01:10:29,058
to

1790
01:10:29,513 --> 01:10:32,139
provide that massive shock to the system, but

1791
01:10:32,139 --> 01:10:34,525
courts simply are not designed to do that.

1792
01:10:34,779 --> 01:10:36,231
So so that concern

1793
01:10:36,605 --> 01:10:39,145
about shocked the system coming from the descent

1794
01:10:39,145 --> 01:10:41,551
is is really over overblown or. It's really

1795
01:10:42,400 --> 01:10:43,511
placing or placing.

1796
01:10:44,083 --> 01:10:47,211
The blame on on courts when it should

1797
01:10:47,268 --> 01:10:49,259
be placed on congress, and it should be

1798
01:10:49,259 --> 01:10:50,077
placed on

1799
01:10:50,532 --> 01:10:51,408
congress is sort of,

1800
01:10:52,699 --> 01:10:53,420
use of,

1801
01:10:54,300 --> 01:10:54,800
muscular

1802
01:10:55,739 --> 01:10:57,180
legislative powers that

1803
01:10:57,659 --> 01:11:00,779
really the constitution does not grant Congress.

1804
01:11:02,394 --> 01:11:03,672
And then that sort of goes back to

1805
01:11:03,672 --> 01:11:05,510
the discussion of Well. We will we see

1806
01:11:05,510 --> 01:11:06,468
more cases about,

1807
01:11:07,987 --> 01:11:11,456
did Congress really, have this power to regulate

1808
01:11:11,514 --> 01:11:13,930
commerce, or did Congress really have this power

1809
01:11:14,228 --> 01:11:15,606
to create this massive

1810
01:11:15,984 --> 01:11:17,739
regulatory scheme or what have you?

1811
01:11:18,473 --> 01:11:20,865
We'll we'll see more of those cases. But

1812
01:11:20,865 --> 01:11:23,099
again, it will be gradual case by case

1813
01:11:23,099 --> 01:11:25,992
as opposed to this massive shock that the

1814
01:11:26,210 --> 01:11:26,449
contemplating.

1815
01:11:28,457 --> 01:11:30,207
Okay. Thank you. So... Yeah. As I said,

1816
01:11:30,287 --> 01:11:32,037
that that's the last major issue I wanted

1817
01:11:32,037 --> 01:11:34,105
to talk about. So any... As we close

1818
01:11:34,105 --> 01:11:35,322
here, anything

1819
01:11:36,333 --> 01:11:36,652
from...

1820
01:11:37,224 --> 01:11:39,717
The decision or what you think about it's

1821
01:11:39,775 --> 01:11:42,726
aftermath that you think we didn't touch on

1822
01:11:42,726 --> 01:11:45,278
that might be important to to bring up

1823
01:11:45,278 --> 01:11:45,756
in closing.

1824
01:11:47,530 --> 01:11:48,970
So I think the the the 1 thing

1825
01:11:48,970 --> 01:11:50,170
that comes to mind is, you know, I

1826
01:11:50,170 --> 01:11:51,789
was looking at the

1827
01:11:52,250 --> 01:11:53,149
reactions from,

1828
01:11:53,689 --> 01:11:54,010
from,

1829
01:11:54,663 --> 01:11:55,960
you know, legal scholars

1830
01:11:56,655 --> 01:11:59,126
right after the low provide decision came out.

1831
01:11:59,604 --> 01:12:02,569
It was interesting to see sort of, the

1832
01:12:02,569 --> 01:12:03,468
law professors

1833
01:12:03,927 --> 01:12:04,987
being extremely

1834
01:12:07,363 --> 01:12:09,680
disillusioned and critical of the low provide decision.

1835
01:12:10,253 --> 01:12:12,344
And that is that is an interesting phenomenon

1836
01:12:12,480 --> 01:12:12,980
because

1837
01:12:13,515 --> 01:12:13,912
because, you know,

1838
01:12:15,424 --> 01:12:17,492
I think I think the legal academia is,

1839
01:12:19,258 --> 01:12:20,693
I mean, I don't want to sort of,

1840
01:12:20,772 --> 01:12:22,844
like, make a political judgment as to you

1841
01:12:22,844 --> 01:12:24,837
know, where they lean. But but really, I

1842
01:12:24,837 --> 01:12:27,564
mean, the this idea is... About, you know,

1843
01:12:28,363 --> 01:12:31,319
oh, the world, the world has turned upside

1844
01:12:31,319 --> 01:12:31,558
down.

1845
01:12:32,996 --> 01:12:36,466
That that rhetoric, is really coming from the

1846
01:12:36,524 --> 01:12:38,460
academics. It's not coming from

1847
01:12:38,997 --> 01:12:41,152
lit. So it's not coming from people who

1848
01:12:41,152 --> 01:12:41,652
have

1849
01:12:42,202 --> 01:12:44,530
actually lit these cases and seen

1850
01:12:44,904 --> 01:12:46,811
seen what the thumb on the scale really

1851
01:12:46,811 --> 01:12:49,696
means for the individual. So that was really

1852
01:12:49,832 --> 01:12:52,790
interesting to see as. A cultural phenomenon of

1853
01:12:52,790 --> 01:12:55,338
the divide between academia and practitioners,

1854
01:12:56,055 --> 01:12:57,806
and then, you know, may maybe I'll just

1855
01:12:57,806 --> 01:12:59,295
say that and leave it at that. Maybe

1856
01:13:00,533 --> 01:13:02,450
Okay. Thank you, Eddie for,

1857
01:13:03,090 --> 01:13:04,207
joining us today.

1858
01:13:04,846 --> 01:13:05,087
So,

1859
01:13:06,445 --> 01:13:08,770
just to close out here if you enjoyed...

1860
01:13:09,248 --> 01:13:11,160
Those was watching today. If you enjoyed the

1861
01:13:11,160 --> 01:13:13,652
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1862
01:13:14,283 --> 01:13:16,859
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1863
01:13:16,997 --> 01:13:18,594
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1864
01:13:19,233 --> 01:13:21,069
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1866
01:13:24,751 --> 01:13:27,937
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1867
01:13:27,937 --> 01:13:29,928
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01:13:29,928 --> 01:13:31,680
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1870
01:13:34,975 --> 01:13:37,454
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01:13:37,454 --> 01:13:41,063
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1872
01:13:41,461 --> 01:13:42,336
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1873
01:13:43,051 --> 01:13:45,438
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1874
01:13:45,438 --> 01:13:48,478
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1875
01:13:48,478 --> 01:13:49,991
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1876
01:13:49,991 --> 01:13:51,903
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1877
01:13:52,859 --> 01:13:55,328
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1878
01:13:55,328 --> 01:13:56,799
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1879
01:13:57,337 --> 01:14:00,129
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1880
01:14:02,283 --> 01:14:04,952
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1881
01:14:05,088 --> 01:14:06,440
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1882
01:14:07,156 --> 01:14:08,747
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1886
01:14:15,710 --> 01:14:16,909
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1887
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