Legal Docket: Six recent opinions

MARY REICHARD, HOST: It’s The World and Everything in It for this 17th day of June, 2024. So glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

I’m going to take a couple of minutes here for a quick story: I wrote a piece for WORLD the print magazine that’s in the mail today, and I’ll put a link to the online version in the program transcript.

I’ve been closely following the unrest at NPR over its near-total ideological capture, so I got in touch with Congressman Bob Good’s office after he filed a bill in the U.S. House to defund the network.

It’s tightly written, really tight, shuts off direct funding to the network and bolts the backdoor too by disallowing public stations receiving government grants from using that money to license NPR programming. And that’s where the real money is, by the way. So it’s a potent bill.

As we were talking, though, Congressman Good offered up that back in the day he was an NPR fan.

BOB GOOD: You know, I grew up listening to NPR, you know, back when I was a young college kid and young professional in the mid-late-80s and early 90s. I would listen to Morning Edition, I would listen to All Things Considered, coming to and from work. Those were the days of Daniel Schorr and Cokie Roberts and Nina Totenberg, and I knew they were left-leaning. But yet they had some semblance of fairness and objectivity. They weren’t a total mouthpiece for the Democrat Party. And that was a time when the media felt a great responsibility to hold government accountable, irrespective of which side of government it was.

I’ve been thinking about this awhile since a former NPR business and economics reporter there, Uri Berliner, became a newsroom whistleblower. He wrote his dissident piece for the substack of Bari Weiss, The Free Press. Now, I didn’t put this in my column, but in Berliner’s piece he wrote this and I want to read from it.

“For decades, since its founding in 1970, a wide swath of America tuned in to NPR for reliable journalism and gorgeous audio pieces with birds singing in the Amazon.”

“We were nerdy, but not knee-jerk, activist, or scolding.”

“No image generated more pride within NPR than the farmer listening to Morning Edition from his or her tractor at sunrise.”

That’s what the Congressman was talking about. That’s what I always admired about NPR that’s gone now.

So clearly, NPR doesn’t want to be NPR and pair up good journalism with those lush audio pieces that are so unexpected and really engage. Now when I listen, I feel like I’ve been scolded.

But you know, that’s fine. If that’s what they want to do that leaves the lane wide open for us. Because that’s what we want to do and always have.

REICHARD: I agree with that! And I just want to say, as you put it in your piece, we want to compete with that NPR, and I’m just grateful for donors who share that vision with us, who make it possible for us to build an NPR style that’s surprising and engaging and not hyperventilating like so much media can tend to be these days, and pursue all of that from a Christian worldview, which means a biblical interest in “The World and Everything in It” telling it true and finding what’s fascinating about this wide world God has given us stewardship over.

EICHER: Good word! Well, Mary, one important corner of The World and Everything in It is the American legal system, and it’s crunch time for the court, with opinions coming fast and furious.

REICHARD: The Court’ll have to keep pace, because it has about a third of its caseload still to release, and now just two weeks left to release it, assuming they want to be done the end of this month.

The last two days of last week the court issued six opinions. So on Friday, early afternoon, I called up petitioner Michael Cargill to ask how he got the news about his 6 to 3 win:

CARGILL: I literally fell out of bed. I was laying in bed, and I was refreshing the Supreme Court's website, and all of a sudden it popped in, and I fell out of bed and yelled at everyone inside the house.

Yelled in a happy way, of course, because Cargill is the owner of the Texas gun shop that sells the devices at issue in the case: bump stocks. These are aftermarket add-ons that make it possible to shoot hundreds of rounds per minute.

After a couple of deadly mass shootings, one at a high school in Florida, another at an outdoor concert in Las Vegas, President Donald Trump pushed the Bureau of Alcohol, Tobacco, Firearms and Explosives to make a change. The ATF changed its definition of machine gun to include bump stocks, and voila! The half-a-million or so bump stocks in circulation were made illegal.

So Cargill surrendered his, but then sued to challenge the ATF for exceeding its authority.

Cargill was inundated with media requests and congratulatory customers when we spoke, so he had to duck into a closet to finish up our conversation:

CARGILL: I read what Judge Thomas wrote, and I was just astonished. The detail they went into as far as the definition of a machine gun, and also the detail they went into talking about how bump stocks actually work and comparing them to machine guns. You know, I thought it was just amazing that they got it right. They understood exactly what we're talking about.

EICHER: Friday’s breathless headlines aside, this was not a Second Amendment dispute.

An opinion headline in the Washington Post read: “Conservatives on the U.S. Supreme Court have decided that more Americans must die in mass shootings, because they have a quibble over the word ‘function.’”

Other headlines ran along these lines: “Supreme Court rejects ban on bumpstocks.”

That’s true, but not the whole truth.

The whole truth would read, “The high court curbs agency overreach.”

REICHARD: Because it’s a simple matter of reading statutes, which is the job of the courts. I called up the New Civil Liberties Alliance, the firm that represented Cargill. Its president is Mark Chenoweth.

MARK CHENOWETH: Yeah, that's, that's right. It's not a Second Amendment case. It's a case of an agency regulating where it doesn't have statutory authority to do so. Congress didn't give the agency the ability to go out and ban things that it wants to ban. The Congress only banned machine guns, and the agency tried to get around that by redefining a bump stock to be a machine gun in a way that wasn't consistent with the statute, and the Supreme Court rightly put an end to that.

For years, the agency explicitly said bump stocks were not machine guns. But redefining words to achieve a desired outcome is easier than going through Congress. Even the late Democrat Senator Dianne Feinstein said that’s not how to do things.

EICHER: As for Cargill, he will get his bump stocks back.

But what about other people who were ordered to destroy theirs? They won’t, unless they sue the government for compensation, but even then, no guarantees.

Lawyer Chenoweth says all federal agencies should hear a clear message from the high court about overstepping:

CHENOWETH: Justice Alito said that Congress can ban bump stocks if they want to, if Congress thinks that that’s the right policy move. Today’s decision is going to reverberate broadly across the administrative state, because it's telling bureaucrats at every one of these federal agencies, you cannot write laws that Congress hasn't written. You can't rummage around in an old statute and redefine a term and create new criminal liability. Only Congress can rewrite laws, not agencies.

EICHER: More decisions are soon expected concerning agency power, or the administrative state, or the deep state, however you want to say it.

REICHARD: Now for our second opinion in FDA versus Alliance for Hippocratic Medicine … a rare win for the pro-abortion side, and the Supreme Court left little doubt: This was nine-to-zero, a decision based on legal standing alone, not the merits of the case.

Here, pro-life doctors challenged the way the FDA removed safety measures for the abortion drug Mifepristone. Important safety precautions, such as an assessment of how far developed the child is and whether it’s an ectopic pregnancy.

But because of the FDA’s changes, women can get the pills through the mail — without ever seeing a doctor in person. That is, until an emergency arises and they have to go to the hospital.

EICHER: That leaves emergency-room doctors to finish the job a teledoc started, making physicians with conscience objections to abortion complicit.

So thousands of physician members of the Alliance for Hippocratic Medicine sued the FDA for not following proper procedures when it changed Mifepristone’s safety precautions.

Listen to Justice Ketanji Brown Jackson during oral argument in March:

JUSTICE JACKSON: So I'm worried that there is a significant mismatch in this case between the claimed injury and the remedy that's being sought and that that might or should matter for standing purposes. ….The injuries that the Respondents allege…are conscience injury, that they are being forced to participate in a medical procedure that they object to. And so the obvious common-sense remedy would be to provide them with an exemption, that they don't have to participate in this procedure. And you say… federal law already gives them that. So I guess then what they're asking for in this lawsuit is -- is more than that. They're saying, because we object to having to be forced to participate in this procedure, we're seeking an order preventing anyone from having access to these drugs at all.

REICHARD: I’ll say this decision wasn’t all that surprising, given the obstacle of standing.

I contacted the firm representing the doctors to inquire why it brought the case. Here’s Chief Legal Counsel for Alliance Defending Freedom, Jim Campbell sticking to the script:

JIM CAMPBELL: These doctors have built their professional practice around bringing life into the world. Instead, the FDA actions have forced them to divert their attention to dealing with the fallout of chemical abortions.

EICHER: That’s ADF’s argument on standing, and it persuaded no one on the court. But Justice Clarence Thomas in his concurrence offered a roadmap of how associations like ADF’s doctor group could achieve standing in a future case.

It’s a kind of fishing line in the water to see if enough justices will bite.

The scope of FDA’s authority as deployed in the case of the abortion pill is still a little murky, but could be cleared up—with the right plaintiffs. So this is likely not the last word.

Still, those with the most to lose have no legal standing either: the unborn. So for now, doctors with conscience objections are left with what they regard as an impossible choice.

REICHARD: Okay, moving on to our third opinion. It’s an 8 to 1 win for Starbucks in a labor dispute.

The company fired several employees, who in the course of efforts to form a union, violated company policy.

The National Labor Relations Board filed an administrative complaint against the company—NLRB alleging Starbucks was guilty of unfair labor practices. Then it sought a preliminary injunction that would keep the status quo—while the case went forward. Keeping the status quo meant reinstating the fired employees, among other things.

EICHER: The question was whether the NLRB had to follow the same four factor test required of every other agency in order to win a preliminary injunction.

You could’ve guessed how the court was going to go when Chief Justice John Roberts back in April said this:

CHIEF JUSTICE ROBERTS: Do you agree with your friend on the other side that we can dispose of this in a short opinion? (Laughter.)

And dispose it did, using that predicted short opinion: the NLRB is not special. It must follow the same standard as other agencies, not the less stringent two-factor standard the NLRB sought.

REICHARD: On to decision four: a unanimous ruling in Vidal versus Elster, a dispute over a trademark.

This case arose out of the rather tasteless spat between Marco Rubio and Donald Trump in the 2016 Republican presidential debates. They sparred over their, I’ll just say, biological prodigiousness.

A man tried to register the phrase “Trump too small” for his t-shirt enterprise, but the trademark office refused him.

Bottom line? The trademark office can refuse to register any trademark that includes the name of a living person if that person hasn’t given consent to use his or her name.

EICHER: Moving right along now to the fifth opinion in a bankruptcy case, US Trustee v John Q Hammons, LLC. It’s a loss for debtors who use chapter 11 of the bankruptcy code.

Here, a disparity among the states existed for fees imposed on debtor companies to fund the bankruptcy system. Recently, the Supreme Court found that disparity unconstitutional.

A hotel operation in chapter 11 had already paid the higher fees, so it sued for a refund after that ruling came down.

But bad news for the bankrupt hotel. The majority said no refunds, only application of the new rule going forward.

REICHARD: Justice Neil Gorsuch wrote a blistering dissent, joined by Clarence Thomas and Amy Coney Barrett. He pointed out that because the court already held that geographically discriminatory treatment is unconstitutional, and I’m quoting now: “a provision that, we stressed, was not 'toothless.’ Today, however, the Court performs a remedial root canal, permitting the government to keep the cash it extracted from its unconstitutional fee regime.”

EICHER: A remedial root canal! Alright!

Our final opinion is in a case called Campos-Chavez versus Garland, a matter of immigration law.

It’s a loss for a man from El Salvador who entered the U.S. illegally almost 20 years ago. The government sought to deport him, but he says the government failed to give him proper notice to appear for a hearing.

But a majority five justices say the government has no such obligation. The court held the government is required only to give noncitizens all the information at one time about time and place of the hearing, so long as it does eventually send it.

REICHARD: Justice Sonia Sotomayor wrote the dissent joined by Elena Kagan and Neil Gorsuch. She accused the majority justices of trying to “help the government avoid the consequences of its chronic noncompliance with Congress’s mandates.”

You could hear that dissenting opinion in this from Justice Kagan during oral argument—

JUSTICE KAGAN: We're living in this world where this is a strange statute because the government has been out of compliance for so long and it leads to some kind of strange results.

Strange results or not, that’s this week’s Legal Docket!

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