Legal Docket: What are the limits of judicial and agency power?

NICK EICHER, HOST: It’s The World and Everything in It for this third day of March, 2025. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

People complain about Robocalls , with good reason.

ROBOCALL AUDIO: Hey again, this is the Tax Guru. / We could resolve any of those IRS tax issues you might have. / My records show / my computer shows / our files show that you still owe some back taxes / some back taxes owed / some back taxes still due. / 
I’m calling to inform you how to apply for them to be forgiven. / It's super fast / give us a quick call / so reach out quickly. / We need to sign up this week. / 
My number is 607 / Um, my direct callback number is 855.

Junk voicemails, junk emails, even junk faxes.

Two chiropractic businesses say they received unsolicited junk faxes from the McKesson Corporation. So they sued under the Telephone Consumer Protection Act. But here’s the twist: the Federal Communications Commission later ruled that ads sent by fax aren’t covered by the TCPA. So the lower courts tossed out the lawsuit.

ROBERTS: We'll hear argument next in Case 23-1226, McLaughlin Chiropractic Associates against McKesson Corporation. Mr. Wessler.

Thank you, Mr. Chief Justice, and may it please the Court: Five years ago, in PDR Network …

EICHER: Now the Supreme Court is deciding whether judges must follow the FCC’s interpretation—or whether they can interpret the TCPA differently.

Justice Ketanji Brown Jackson saw benefit in going along with the agency interpretation:

JACKSON: Wasn't it trying to establish finality, predictability, uniformity?

That’s the same argument the fax-sender McKesson makes.

After all, the FCC has the authority to issue that rule excluding faxes. And under another federal law called the Hobbs Act, courts almost always have to follow it.

REICHARD: But Justice Neil Gorsuch worried about letting agencies make rules nobody can later challenge, citing a prior case called Corner Post. That held that even longstanding agency regulations can be challenged if the plaintiff’s injury is new.

GORSUCH: ….then we're going to have the Corner Posts of the world who are going to come in and say: I wasn't alive, I wasn't there, I wasn't in business. And we've said the statute of limitations allows them to file their claims. That's got to mean something, right?

EICHER: You might think the Supreme Court ended agency deference last year, when it overturned the so-called Chevron Doctrine.

That now-defunct doctrine held that courts must defer to agency interpretations of ambiguous statutes.

It was such a landmark case, Chief Justice John Roberts announced it from the bench in 2024:

ROBERTS: We start from first principles. The framers of our Constitution assigned to the courts, not the political branches, the responsibility and power to say what the law is, as Chief Justice Marshall famously put it in Marbury against Madison. And they expected courts to do so by applying their own independent judgment…

In short, Chevron is both wrong and increasingly irrelevant…The time has come to leave it behind. Chevron is overruled.

But this case isn’t about deference; it’s about jurisdiction.

REICHARD: Even with Chevron out of the way, the Hobbs Act still prevents lower courts from ignoring agency rules unless an appellate court overturns them.

Legal beagles are watching closely. Some argue that if courts can disregard agency rulings, what’s the point of having agencies?

We’ll know how the justices think about this by the end of its term in June.

And now our final case:

ROBERTS: Hewitt versus United States and the consolidated case …

EICHER: Tony Hewitt was convicted of conspiracy and bank robbery among other things.

The law involved is a newer law called the First Step Act. It reduces certain mandatory sentences. In this case, Hewitt’s sentence was vacated before the Act passed, and then after it passed, he was resentenced.

So does the First Step Act apply to him in the resentencing? Hewitt hopes so. Here’s his lawyer Michael Kimberly:

KIMBERLY: After decades of urging by sentencing judges and the Sentencing Commission, Congress in 2018 enacted Section 403 of the First Step Act. The point of Section 403 was to override Deal against the United States, which called for extraordinarily harsh mandatory-minimum sentences even for first-time offenders. In enacting this override, Congress had to balance two countervailing values: first, justice in sentencing, and, second, finality of judgments.

REICHARD: For the other side, the court designated lawyer Michael McGinley to defend the lower court ruling. (You’ll hear why in a minute.)

MCGINLEY: Petitioners do not qualify for retroactive relief under Section 403(b) of the First Step Act… Petitioners each indisputably received a sentence before the date of enactment. It makes no difference that their sentences were later vacated after that date for unrelated reasons. This is the most natural, common sense understanding of the text read as a whole.

EICHER: The reason the Court had to appoint someone is because Hewitt’s lawyers and federal prosecutors wound up agreeing with each other—during the course of the appeal!

The government started out saying the law should not apply retroactively. But by the time Hewitt was resentenced, the government flipped ,and now says the law should be applied retroactively.

And that’s why the Court had to appoint someone else, McGinley to defend the ruling below.

REICHARD: The argument was equal parts statutory interpretation and grammar. Justice Gorsuch:

GORSUCH: Mr. McGinley, would you agree that the present-perfect tense usually refers to something that has a continuing effect?

EICHER: I’ll admit, I must’ve dozed off during the grammar lesson on the present-perfect tense, because I had to look it up. Turns out it’s the verb tense we use for something that happened in the past but still matters now. You build it by pairing “have” or “has” with the past participle—for example, this comes easily to mind, “I have eaten.”

REICHARD: Right—and for me, the past act of having eaten doesn’t just matter; it’s crucial, because you try explaining legal concepts on an empty stomach … not so easy! So, with that bit of grammar behind us, let’s return to the Gorsuch question: Would you agree the present-perfect tense usually refers to a thing that has a continuing effect? Here’s McGinley’s answer … as he continued defending the lower court’s ruling …

McGINLEY: I think the Chicago Manual of Style says it either can be that or something that has been completed.

GORSUCH: …-I mean, isn't that how you learned your high school grammar, that you don't use the present-perfect tense for something that's wholly completed and in the past, with no continuing effect?

Justice Brett Kavanaugh worried about disparities in sentencing people.

KAVANAUGH: The point -- the reason why I'm concerned about this case -- and the government's obviously been on both sides of this, so I feel good about that in terms of my own thinking --is there are still disparities, like really, really big disparities, and really big unfairness even under your reading, which, usually, when we say, well, the literal reading can't be right, it's because the non-literal reading makes more sense in context. And, here, there are still going to be big-time disparities.

EICHER: Justice Jackson suggested that Congress deliberately carved out relief for defendants like Hewitt.

JACKSON: And what I can't understand is why there's a difference between people who have sentencing to be coming because their prior sentence was vacated versus people who have sentencing to be coming because they weren't sentenced before. If you can't give an answer to that, I don't understand how you can win.

REICHARD: Justice Alito lightened the mood:

ALITO: Well, it's always fun to talk about grammar and -- (Laughter.) --and usage.

(react a little)…going on to give a much-better example of context-dependent present-perfect tense:

ALITO: Anybody who won a gold medal at the Olympics can participate in a particular parade. And, in context, that would probably mean that somebody who won a gold medal that was later revoked due to violation of doping rules would not be entitled to march in the parade. Okay But -I could give you a thousand examples of situations in which present-perfect tense is used to refer to an event that doesn't have continuing --that does not continue up to the present. Were you ever employed as a dishwasher? Yes, somebody who washed dishes in college would answer yes. Were you ever a member of the Communist Party? Have you ever been a student at X college? …So it all depends on the context.

The justices’ questions suggest a split on how to interpret the words of the statute. If they rule against Hewitt, he and others could face decades of additional time behind bars. If they rule for him, the First Step Act will apply more broadly to those awaiting resentencing.

EICHER: Finally, the Supreme Court handed down four decisions, we’ll hit those quickly.

First, Glossip v. Oklahoma: Death-row inmate Richard Glossip will get a new trial after prosecutors failed to correct false testimony. State Attorney General Gentner Drummond:

DRUMMOND: I do not believe that Richard Glossip is innocent. I believe him to be guilty. But I believe him to not have been given a fair trial.

By the way, Justices Alito and Clarence Thomas dissented.

Cases two and three were unanimous. Dewberry Group v. Dewberry Engineers: The court held that an affiliate’s profits can’t be included in trademark damages, unless the affiliate itself is a defendant. And Waetzig v. Halliburton: A voluntarily dismissed age-discrimination suit can be revived after an unsuccessful arbitration.

REICHARD: Final case: Lackey v. Stinney, the Court said no attorney fees for drivers who sued Virginia over license suspensions, because the state repealed the law before final judgment. In dissent, Justices Jackson and Sonia Sotomayor.

And that is this week’s Legal Docket.

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