SCOTUS Poised to Rein in the Administrative State

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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?

The U.S. Supreme Court building on April 23, 2023. (Photo by DANIEL SLIM/AFP via Getty Images)
The U.S. Supreme Court building on April 23, 2023. (Photo by DANIEL SLIM/AFP via Getty Images)

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. 

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