Legal Docket: Unaccountable power

NICK EICHER, HOST: It’s Monday morning and a fresh work week for The World and Everything in It. Today is the 8th of April, 2019. Glad you’re here with us. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. The Supreme Court returns next Monday for its final month of oral arguments this term. At that point, we’ll be all caught up on oral arguments from the month of March.

So far, the court’s heard 57 cases argued, with 13 cases still to hear. Thirteen to go, that is, unless something changes.

EICHER: Unless something changes, which is entirely possible.

Well, today, Mary’s put together three cases to talk about.

Two of them arise from a specialized area of the law, one shrouded mainly by obscurity: administrative law.

So here’s where “admin law” differs from the civil or criminal legal systems where a judge presides over two sides of a dispute.

In administrative law, agencies have their own courts and judges: agencies like the Social Security Administration or the Environmental Protection Agency or the Veterans Administration.

We’d do well to pay attention to what happens there, because arguably more Americans are affected by admin law than by civil or criminal law. And it’s hard, really, to say for certain how many federal government agencies exist: one count estimates 78, another 440!

It does depend on how you define the term.

REICHARD: Right, and however agencies are defined, they churn out more rules and regulations than Congress passes laws.

Fights over the power of what many see is a runaway administrative state recur at the Supreme Court.

Like the two (PDR Network, LLC v Carlton & Harris Chiropractic Inc.)
we’ll talk about today.

This first admin case involves a chiropractic group that sued over the federal law on robocalls. It prohibits sending unsolicited advertisements by fax. A $500 penalty attached per violation puts sharp teeth into it.

The fax in question was a one-page message from PDR Network. That’s a company that distributes details about prescription drugs.

But PDR says it didn’t send any “advertisement.” And they put quotation marks around the word. It sent information that is explicitly excluded from the fax prohibition.

EICHER: The agency that issued that rule about faxes is the FCC, the Federal Communications Commission. That agency decided what PDR faxed fit its definition of “advertisement” and so—open-and-shut, PDR broke the law.

That agency decision touched off a tussle in the lower courts over the meaning of the term “advertisement.”

But the real fight now is over just when and where PDR should have challenged the FCC’s definition: Should it have hashed things out before the FCC itself, or before the civil courts?

REICHARD: The chiropractors argued PDR should have challenged the agency’s definition sooner. After all, FCC published the rule in a publication called the Federal Register.

It publishes literally hundreds of pages a day, filled with government rules, proposed rules, and public notices. Since the 1990s, a typical year sees a range of 60,000 Federal Register pages on the low end and more than 90,000 pages on the high end.

At the Supreme Court, Justice Samuel Alito juiced up the argument with tomatoes, an imaginary new agency, and some common sense.

ALITO: Let’s say … the agency sets prices for home-grown tomatoes, maximum prices for home-grown tomatoes, and somebody raises heirloom tomatoes in the backyard and charges more than the specified price, and there’s a criminal penalty.  So that person is charged with the crime of selling tomatoes at a price that was over the limit. Do you think that person would be prohibited from challenging the regulation? In the criminal prosecution?

Glen Hara is the lawyer for the chiropractors and you’ll hear him in a minute. He responded to Justice Alito by differentiating his case from the hypothetical. It’s just not like that, he said. Congress took some steps to avoid being too harsh. But Justice Alito kept aiming for a guiding principle. Have a listen to the Alito-Hara exchange.

ALITO: You would say to the person who was growing these tomatoes in the backyard, well, you know, you should have kept up with the Federal Register.

HARA: Well, to the person growing the tomatoes in the backyard, that would present a more difficult case than the meat wholesaler who presumably followed those regulations.

ALITO: Okay. So where do you draw the line? You say it’s a more difficult case, but you’re not willing to say that that would be a violation of due process?

HARA: That’s correct … 

ALITO: Do you know how many pages were issued in the Federal Register in 2018? (Laughter.)

HARA: I do not.

ALITO: I think it’s something like 90,000 pages.

HARA: Right. But somebody in 2013 —

ALITO: I once saw somebody riding home on the Metro at midnight in Washington, D.C., reading the Code of Federal Regulations, and I thought: Only in Washington, D.C., could you see this sight. (Laughter.) But you think people out in other parts of the country are — they’re waiting for the latest edition — (Laughter)  to the Code of Federal Regulations?

HARA: Yeah, I — I didn’t suggest that PDR should be combing through every issue of the Federal Register, but I do think they should have consulted a lawyer before sending their faxes in 2013.

To be precise, Justice Alito’s 90,000 pages reference was not 2018. We don’t have that statistic yet. The only time register pages were that high was President Obama’s final year in office, 2016, when pages topped 95,000. President Trump trimmed annual pages by more than a third, and they’re now back into that 60,000 range, which was more typical of the Bill Clinton era 20 years ago.

Now, I have to say, I got a little choked up knowing someone in Washington acknowledges regular people— like me— here in fly-over country. Y’know, we’re the folk who grow tomatoes and don’t read the Federal Register unless we have to.

Overall, the justices seemed quite weary of the entire agency question. Including letting agencies interpret words any way they want.

This next dispute (Kisor v Wilkie) is also rooted in administrative law.

Here are the facts. James Kisor served combat duty in Vietnam as a Marine. He filed for disability benefits with the Veterans Administration in 1982, claiming post traumatic stress.

But a VA psychiatrist decided what Kisor had wasn’t PTSD;  he had personality disorder.

On that basis, the VA denied Kisor disability.

But Kisor continued to have problems. Twenty-four years after his first try, Kisor in 2006 sought review of that VA denial.

This time, he had newly found records from his time in active duty. And now the VA was convinced Kisor had PTSD.

But the VA denied Kisor benefits retroactively.

The agency decided the new evidence wasn’t relevant under one part of the applicable portion of the law.

When Kisor appealed to the court system, he lost. That’s because of Supreme Court rulings that say judges must defer to agency interpretations of its own regulations. So long as they aren’t ambiguous or plainly wrong.

Kisor’s lawyer argued that’s an unfair advantage to the government in disputes.

But Justice Stephen Breyer wasn’t so sure. Judges can’t be experts in everything.

BREYER: There’re hundreds of thousands, possibly millions of interpretive regulations. I mean,  they give an example, one of them, where the Court deferred to the understanding of the FDA that a particular compound should be treated as a single new active moiety, which consists of a previously approved moiety, joined by a non-ester covalent bond to a lysine group. Do you know how much I know about that?

[Laughter] 

Right, exactly. … But what you’re doing is saying, instead of paying attention to people who know about that, but rejecting it if it’s unreasonable, the judges should decide. I mean, I want to parody it, but, I mean, this sounds like the greatest judicial power grab since Marbury versus Madison, which I would say was correctly decided.

[Laughter]

Marbury v Madison is a landmark in the law. It’s from 1803 and it gave us the principle of judicial review. In other words, it’s for the courts to strike down laws and some government actions that violate the U.S. Constitution. Not agencies.

The federal government sided with VA against the veteran here even as it acknowledged the trouble with agencies.

Solicitor General Noel Francisco proposed a six-point test to decide whether deferring to an agency is okay in a particular situation.

Justice Neil Gorsuch pointed out the problem with that.

GORSUCH: People fight over whether there’s ambiguity. And what ambiguity means. They fight over what reasonableness means. They fight over how consistent is consistent. And for the life of me, I don’t know how high a level a person has to be before we’re going to defer to him, or how much notice is fair, or how much expertise counts. I’m with Justice Breyer on moieties, but the people I think have the most expertise on what relevant evidence is, is probably John Kane, a federal district judge of about 40 years  not an agency. And under the rule you propose, every agency could define relevant evidence differently. What is, if they have enough expertise, we’re going to go down that road. I — I guess I’m just wondering, at what point does this whole edifice just fall upon itself? And lawyers will — will enrich themselves and do well with this kind of test. But how are regulated people supposed to behave?

Kisor’s lawyer is Paul Hughes. He argued not only is this system unfair, but agency deference the way it’s done violates the separation of powers.

It doesn’t even square with the Administrative Procedure Act. That’s the federal law that governs the way agencies make rules.

He urged the Supreme Court, just take the plunge and overturn precedent.

HUGHES: But we still believe that the appropriate resolution of this case is to overturn Seminole Rock and Auer in their whole because it’s critical to restore the importance of notice-and-comment rulemaking that Congress thought was a critical check to bring democratic accountability to the agencies.

Ergo, ditch power overreach of agencies promoted by wrong Supreme Court precedent and just go with the APA Administrative Procedure Act.

This final case deals with maritime law, the law of the sea.

A sailor’s hand got crushed on a vessel that wasn’t seaworthy. The question is whether punitive damages are available to him.

Each side cites law, history, or precedent to support what it wants.

Justice Brett Kavanaugh seemed to sum the dispute up well.

KAVANAUGH: — two ways we can look at this … . The question’s which of those principles to follow here. Where does the special solicitude for the welfare of sailors principle factor into how we should think about that, or does it factor at all?

The problem is that the law forks in the road, depending on which precedent you follow. The circuits are split, which is one reason the case is even at the Supreme Court now.

And that’s this week’s Legal Docket.

(AP Photo/Susan Walsh) A March 15, 2019 view of the Supreme Court in Washington. 

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