SCOTUS Poised to Rein in the Administrative State

Happy Friday! We have new merch! If you’re interested in laptop stickers, a mug featuring two very famous dogs, and/or a rocks glass, be sure to check out the new batch of items available on The Dispatch Store. More new items will be dropping in the coming weeks!

Quick Hits: Today’s Top Stories

• President Joe Biden signed an executive order on Thursday expanding the scope of a previously declared national emergency to enable the Treasury and State Departments to impose sanctions on individuals who have engaged in “actions or policies that threaten the peace, security, or stability of Sudan.” The fighting that broke out in Sudan last month between forces led by two rival generals has now killed more than 500 people, injured thousands, and displaced even more.
• The White House on Thursday announced a suite of moves aimed at promoting “responsible artificial intelligence innovation,” including a $140 million investment in AI research and development and a public assessment of existing generative AI systems. Vice President Kamala Harris convened industry leaders at the White House yesterday, urging them to consider the risks of the technologies they are developing. “The private sector has an ethical, moral and legal responsibility to ensure the safety and security of their products,” Harris said.
• The North Carolina Senate voted 29-20 on Thursday, entirely along party lines, to advance legislation prohibiting most abortions after 12 weeks of gestation, with exceptions for rape and incest (up to 20 weeks of gestation), “life-limiting anomalies,” (up to 24 weeks), and life of the mother (no limit). The bill also appropriates money for child and foster care programs, contraception, and paid parental leave for teachers and government employees. North Carolina’s Democratic Gov. Roy Cooper has said he will veto the measure, but Republicans—who have supermajorities in both chambers after a state representative recently changed parties—believe they have the votes to override him.
• A federal jury on Thursday convicted five leaders of the Proud Boys militia—Enrique Tarrio, Ethan Nordean, Joseph Biggs, Zachary Rehl, and Dominic Pezzola—on multiple felony charges related to their activities on January 6, 2021. Four of the leaders—all except Pezzola—were found guilty of a seditious conspiracy to interfere with the transfer of power from Donald Trump to Joe Biden, and the five were also convicted on charges of obstructing an official proceeding, conspiring to prevent members of Congress and federal law enforcement officers from discharging their duties, civil disorder, and destruction of government property. Prosecutors are likely to seek lengthy sentences for all five.
• ProPublica reported Thursday Republican donor Harlan Crow spent thousands of dollars on private school tuition for a great nephew of Supreme Court Justice Clarence Thomas, whom Thomas and his wife Virginia were raising “as a son.” Thomas did not disclose the payments as gifts. Mark Paoletta, a lawyer and friend of the Thomases, confirmed Crow paid for at least two years of the child’s schooling, but argued the justice was not required to disclose the tuition payments as gifts because the child is not his son or stepson. Crow and Paoletta both said Justice Thomas never asked Crow to pay for the child’s tuition. (Disclosure: Harlan Crow is a minority investor in The Dispatch and a friend of the founders.)
• Separately, the Washington Post reported Thursday that in January 2012, Leonard Leo—a conservative judicial activist and Federalist Society executive—instructed Republican pollster Kellyanne Conway to bill a nonprofit he was advising tens of thousands of dollars and use the money to pay Virginia Thomas, Justice Clarence Thomas’ wife,  though he requested her name be left off any paperwork. Conway’s polling firm paid Virginia Thomas’ consulting firm at least $80,000 between June 2011 and June 2012, according to documents reviewed by the Post. Leo told the Post Virginia Thomas’ work “did not involve anything connected with either the Court’s business or with other legal issues,” and said he sought to keep her name off any paperwork to “protect the privacy of Justice Thomas and Ginni.
• The Daily Wire reported this week Supreme Court Justice Sonia Sotomayor did not recuse herself from multiple copyright infringement cases before the court involving Penguin Random House—one in 2013, one in 2019-2020—despite receiving several million dollars from the publisher and its subsidiaries for her books. Justice Neil Gorsuch—who joined the court in 2017—also didn’t recuse himself from the latter case, despite receiving hundreds of thousands of dollars in book deals from the publisher. Then-Justice Stephen Breyer did recuse himself from two cases involving Penguin Random House; he’d written books for the publisher, and he and his wife owned stock in a company that owned a stake in Penguin Random House. 
• Democratic Sen. Martin Heinrich of New Mexico announced Thursday he will run for a third term in 2024, and Democratic Rep. David Trone of Maryland launched a campaign for the seat of retiring Democratic Sen. Ben Cardin. Democratic Rep. Jamie Raskin of Maryland said he is “seriously investigating” whether to jump into the U.S. Senate race as well.
• The Department of Labor reported Thursday that initial jobless claims—a proxy for layoffs—increased by 13,000 week-over-week to a seasonally-adjusted 242,000 claims last week, adding to the growing number of signs the hot labor market is continuing to cool.

Chevr-on the Chopping Block?

A battle over whether a fishing boat operator is required to pay the salaries of government monitors checking how many fish are being caught may not sound like a riveting legal drama. But it’s on its way to becoming the hottest case on the docket.

The Supreme Court announced Monday it was taking up a case to reconsider its ruling in Chevron v. Natural Resources Defense Council—a 1984 decision that established the so-called “Chevron standard,” a test for weighing how executive agencies interpret federal statutes. The court’s 6-3 conservative majority seems poised to upend the decades-old pillar of administrative law and shake up the balance of power between the three branches of government—but perhaps not as much as advocates on either side claim.

Under the test established in Chevron, courts must first examine whether the law—as spelled out by Congress— addresses the issue at hand for a particular agency regulation. If the law is ambiguous or silent on the question, the courts defer to any “permissible” interpretation by the agency. Basically, if the statute doesn’t specify, the agency can fill in the gaps, so long as it doesn’t contradict the rest of what’s in the law. 

The new case the court will consider—Loper Bright Enterprises v. Raimondo—involves a group of fishing boat operators contesting a 2020 agency ruling by the National Marine Fisheries Service requiring operators to pay for the service’s onboard fishing monitors. Federal law clearly states the agency can require boats to carry officials to monitor compliance with fishery laws, but it doesn’t specify who should pay for them. The D.C. Circuit Court of Appeals decided last year that having the fishing boat companies pay was a reasonable interpretation of the law. Now, the Supreme Court will hear the case during its fall term, with a decision likely to come in 2024.

Legal scholars—particularly conservative ones—have grown increasingly critical of the Chevron standard in recent years, arguing the test affords executive branch agencies too much leeway in interpreting the limits of their own authority. And there’s certainly something to that argument. “All of us who litigate in this space have stories about cases where courts just more or less rubber stamped an agency’s interpretation without really delving deeply into meaning,” Shannen Coffin, a constitutional and regulatory attorney, told TMD. “And there’s no other area in the law where the court basically says, ‘It’s not really our job to decide what the law is.’”

Currently, conservatives generally view overturning Chevron as a pathway to curtailing agency overreach and Congress delegating too much power away from itself, while progressives worry ending Chevron would put important regulations, particularly environmental rules, on the chopping block and even make the United States less democratic. But at one point, these ideological positions were reversed. 

When originally decided during the Reagan administration, the new test was viewed by conservatives as a means of preventing courts from straying into the arena of policymaking, and  it actually empowered agencies to move forward with some environmental deregulation. “Chevron was a way of curbing the excesses of the 1970s courts by saying ‘No, when there are policy choices to be made, those policy choices should be made by agencies,’” Coffin told TMD. The late Justice Antonin Scalia was a proponent of Chevron, while the liberal-leaning Justice Stephen Breyer was at one point a critic. 

The Chevron standard as it currently exists doesn’t supply agencies with unlimited powers of interpretation: It requires agencies’ actions to remain within reasonable characterizations of the law. As Scalia quipped, “It does not matter whether the word ‘yellow’ is ambiguous when the agency has interpreted it to mean ‘purple.’”

“I’m very sympathetic to Chevron as it was originally understood,” Adam White, a co-director of George Mason University’s Center for the Study of the Administrative State, told TMD. “Chevron deference in its original form, was intended to keep the courts in the law business, but also preserve space for the agencies that are in the policy discretion business.” The problems began when judges started to lean too heavily on agency deference, White argued. “It’s proven to be much, much more difficult to actually administer in real cases than Chevron’s initial defenders expected.”

How far the court will go in dismantling Chevron—if it does at all—remains unclear. Of the two questions the petitioners presented, the justices decided to exclude the one dealing with the fishery-monitoring payments themselves and focus solely on whether Chevron should be overruled—or at least clarified. Only four justices are needed to grant a writ of certiorari—a decision to review—on the case, so the court’s decision to take it up doesn’t necessarily mean a majority has decided to overturn or revise the standard. 

But the liberal wing of the bench will be down one person. Because she heard oral arguments for the case while serving as a judge on the D.C. Circuit Court, Justice Ketanji Brown Jackson recused herself this go-round.

Several justices—most vocally, Neil Gorsuch and Clarence Thomas—have expressed strong criticisms of Chevron. “At this late hour, the whole project deserves a tombstone no one can miss,” Gorsuch wrote in a November dissent to the court’s decision to not take up a different Chevron case. “We should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts. Someday soon I hope we might.”

But even if the justices do decide to overturn Chevron, it may have less of an effect now than in years past. Although lower courts employ Chevron deference more regularly, the Supreme Court has been moving away from the doctrine for years, not relying on the standard to decide a case since 2016. Instead, the court has been increasingly turning toward the “major questions” doctrine—a standard that says when an agency decides on an issue of major national importance, it must act from clear congressional authorization. There are also indications agencies themselves are relying on Chevron less and less to defend regulatory changes.

“On the right, people think that overturning Chevron is some sort of silver bullet, and I’m not convinced of that at all,” said Jonathan Adler, a Case Western Reserve University law professor who has written extensively about Chevron. “And some folks on the left fearmonger about it, which I think is wrong as well.”

Even if Chevron is gutted, Congress can still delegate what many conservatives would argue is overbroad authority to agencies, and those agencies will still be able to institute rules and regulations with that authority. “We certainly had a regulatory state before [Chevron], we certainly had expansive regulations prior to then,” Adler said. “And we see agencies win cases all the time without Chevron.”

“I hope that this case settles a lot, but I’m also prepared for the possibility that this case might be the first of several over the next few years that clarify and settle the issue,” White added. “It’s possible that this won’t be the last word in that conversation, but it will surely be at least an important first word.”

Music Industry Safe—For Now

It’s been a big week for pop superstar Ed Sheeran. His new album, – (Subtract), is out today, completing his series of records named to prove he passed middle school algebra. Wednesday, Disney released a four-part docuseries about his life—Ed Sheeran: The Sum of it All (he’s very good at math). And yesterday, a federal jury in Manhattan ruled he did not copy parts of Marvin Gaye’s legendary 1973 hit, “Let’s Get It On,” in his 2014 chart-topper “Thinking Out Loud.” 

The copyright infringement suit—first brought in 2017 by the descendants of Gaye’s co-writer, Ed Townsend—is the latest in a series of plagiarism accusations that have left some in the music industry, including Sheeran, fearing songwriters’ creative liberty may be at risk.

Townsend’s heirs sued Sheeran in 2017, alleging the British singer-songwriter’s double Grammy-winning track cribbed elements of Gaye and Townsend’s vocal melody, rhythm, and, crucially, chord progression. It was not the basic elements of the song at issue, but “the way in which these common elements were uniquely combined,” Keisha Rice, Townsend’s lawyer, said during the trial.

To win a copyright case, the plaintiff must prove with a preponderance of evidence the defendant had access to the original copyrighted work, there is a high degree of similarity between the original and the alleged copy, and the defendant purposefully poached from the copyrighted work. “The more similarity and the more access you can show, the more convincing your argument is, the more likely that you will meet your burden of proof that the similarities are a result of copying rather than independent creation,” Dotan Oliar, a law professor at the University of Virginia who specializes in intellectual property law, told TMD. “This is a heavy burden.”

In a trial that lasted just over a week, Sheeran’s lawyers argued the similarities between the two songs— particularly a close, but not identical, chord progression—were incidental and a byproduct of a songwriter’s limited number of “building blocks” in pop music. “You can think about a chord as a basic element of music, like a word in a text,” Oliar told TMD. “What if you have two stories and in each of them you had the same sentence? That’s probably not enough.” 

But Townsend’s legal team believed it had a “smoking gun”: a fan-recorded video of Sheeran performing a seamless mashup of “Thinking Out Loud” and “Let’s Get It On” at a concert in 2015. Testifying before the jury, Sheeran disputed the idea the video showed anything remarkable in the world of pop music. “Most pop songs can fit over most pop songs,” he said. “You could go from ‘Let It Be’ to ‘No Woman, No Cry’ and switch back.” 

At one point in the camera-free trial, Sheeran brought his guitar onto the witness stand and played the four disputed chords that are central to his hit. A musicologist who offered expert testimony for the plaintiff claimed the first 24 seconds of Sheeran’s song included a minor chord that was similar to “Let’s Get It On.” By way of rebuttal, Sheeran strummed the progression both ways, starting with the major progression he “played at every gig.” The second time, he included the minor chord—visibly flinching when he played it. 

Sheeran further testified that he and his long-time collaborator, Amy Wadge, wrote the song in just a few hours, after he heard her playing the progression at his house one night in 2014. The lyrics emerged from a conversation about ailing family members and love in old age. “Their song was born from an emotional conversation,” Ilene Farkas, Sheeran’s attorney, said. “It was their original creation.”

The jury—which deliberated for three hours Thursday before returning a verdict—must have been familiar with the “Four Chord Theory” of pop music. Or else, Sheeran hired “The A Team” of lawyers. Either way, fans of the popstar can rejoice, since a loss in the plagiarism case may have spelled a self-imposed end to the singer’s career. “I’m obviously very happy with the outcome of the case, and it looks like I’m not having to retire from my day job after all,” Sheeran said after the jury issued its verdict. “But at the same time, I am unbelievably frustrated that baseless claims like this are allowed to go to court at all.”

This isn’t Sheeran’s first rodeo. He successfully beat a suit in a British court last year over alleged plagiarism in his Grammy-winning song “Shape of You,” and settled out of court over a similar complaint against his song “Photograph” in 2016.

He’s far from the first musician to find himself on the wrong side of a plagiarism charge. Even the queen of pop music herself, Taylor Swift, was accused of copying lyrics for her hit song “Shake It Off” in a case that was dismissed in 2022. Queen and David Bowie got in on the action, successfully suing Vanilla Ice over claims he ripped off “Under Pressure” in his 1990s hit “Ice Ice Baby” and scoring co-writing credits on the song. In 2015, Marvin Gaye’s estate won a suit against Robin Thicke and Pharrell Williams. Alleging Thicke and Williams copied Gaye’s song, “Got to Give It Up,” in their 2013 hit “Blurred Lines,” the claim garnered $5.3 million and half of the song’s royalties for the Gaye estate. 

Sheeran can’t retreat to his “Castle on a Hill” (his house in Suffolk) just yet, as a second, related lawsuit is still working its way through the court system. But Sheeran struck a defiant tone after the verdict nevertheless. “I’m just a guy with a guitar who loves writing music for people to enjoy,” he said. “I am not and will never allow myself to be a piggy bank for anyone to shake.”

Worth Your Time

• In a piece for the MIT Technology Review, Jessica Hamzelou details a groundbreaking brain surgery doctors performed on a baby girl—before she was born. “She doesn’t know it yet, but a baby girl living somewhere near Boston has made history,” Hamzelou writes. “The seven-week-old is one of the first people to have undergone an experimental brain operation while still in the womb. It might have saved her life. Before she was born, this little girl developed a dangerous condition that led blood to pool in a 14-millimeter-wide pocket in her brain. The condition could have resulted in brain damage, heart problems, and breathing difficulties after birth. It could have been fatal. Her parents signed up for a clinical trial of an in-utero surgical treatment to see if doctors could intervene before any of these outcomes materialized. It seems to have worked. The team behind the operation now plans to treat more fetuses in the same way. Other, similar brain conditions might benefit from the same approach. For conditions like these, fetal brain surgery could be the future.”

Presented Without Comment 

National Review: TikTok Claims ‘Technical Error’ Led to Suspension of Think Tank that Posted about Hong Kong

Also Presented Without Comment 

Financial Times: Buyer Plans to Make Jeffrey Epstein’s Infamous Islands a Luxury Resort

Toeing the Company Line

• In the newsletters: Nick weighs in on (🔒) a viral video depicting a death on a New York subway.
• On the podcasts: For Advisory Opinions David and Sarah discuss the latest in Ron DeSantis’ crusade against Disney, and on the Dispatch Podcast David, Sarah, Steve, and Jonah discuss the drones in Moscow, Kevin McCarthy’s job performance, violent crime, and the 2024 Senate map. Plus: If you weren’t able to make it to D.C. earlier this week, Dispatch members can now access a recording—video or audio-only—of Jonah, Steve, and Stirewalt’s conversation about their time at Fox News. Click here for more!
• On the site: Kevin offers three ways to think about the debt ceiling, and Reuel Marc Gerecht argues Iran may be as emboldened as ever.

Let Us Know

We’re tempted to ask about your views on the “Chevron standard” but we suspect that many of you—like some of us—thought “Chevron standard” meant the relative price of unleaded gas at stations in your area. Could also be the Sunoco standard or the BP standard or, back in the day, the Standard standard. Anyway, feel free to share any thoughts you have on the SCOTUS case or gas prices, but also: What plans do you have for this spring weekend?