In 1984, the Supreme Court ruled in Chevron U.S.A. v. Natural Resources Defense Council that judges should defer to the reasonable interpretation of agencies in administering ambiguous federal laws. That deference continued to grow in later years to the point that some of us have warned of the emergence of a type of fourth branch of government.
The court went even further in Arlington v. FCC in giving deference to agencies even in defining their own jurisdiction. In dissent, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”
When I testified at the confirmation hearing of Neil Gorsuch, I noted that Chervon would likely be part of his legacy given his opposition to its use. Justice Gorsuch wrote in a 2022 dissent from denial of certiorari in Buffington v. McDonough that what he called “the aggressive reading of Chevron has more or less fallen into desuetude.” He added:
“At this late hour, the whole project deserves a tombstone no one can miss. 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.”
The cases today concern federal requirements that commercial fishermen pay for at-sea monitors. Herring fishermen in New Jersey and Rhode Island are challenging the law in a case with a long list of amicus filings on both sides from groups, politicians, and businesses. The fishermen say that the monitors could put them out of business, costing up to 20 percent of their annual revenues in a business that is already marginal for profits. They argue that the government wants monitors (which they do not necessarily oppose) but lacked the funds. The decision was made to shift the costs to the fishermen and then citing Chevron to curtail judicial review.
One of the lead counsel is my friend and former colleague Columbia professor Philip Hamburger, a brilliant academic who believes that the doctrine has fundamentally distorted our tripartite constitutional system.
In both lower court cases, Chevron carried the day for the agency.
In addition to the New Jersey case, the court added the second, nearly identical one from Rhode Island to its calendar — presumably because Justice Ketanji Brown Jackson was recused in the New Jersey matter after serving on the appeals court panel that initially reviewed it before her elevation to the Supreme Court.
The ruling of the D.C. Circuit captured the theoretical divide.
Judge Judith Rogers wrote for the majority on the U.S. Court of Appeals for the D.C. Circuit and declared that the agency must get the benefit of any doubt. Notably, the court expressed a muddled view that “the Act may not unambiguously resolve whether the Service can require industry-funded monitoring.” The finding that the Act is “not unambiguous” takes a bit of working through in this context. However, the court ruled that “the Service’s interpretation of the Act as allowing it to do so is reasonable.”
Judge Justin Walker disagreed and said in dissent that “agencies are creatures of Congress, so they have no authority apart from what Congress bestows.”
Now the herring will get a hearing on who has to pay for monitoring of fishing operations.
Philip Hamburger believes that Chevron “has fundamentally distorted . . .” (JT)
Good for him. Gut Chevron.
Americans need more, not less, freedom.
I didn’t know that herring have ears. Do such need hearing aides?
Herring make high-pitched farting sounds, especially @ night.
So they would fit right in to the typical quality of comments on this blog.
𝐉𝐨𝐡𝐧 𝐑𝐨𝐛𝐞𝐫𝐭𝐬 𝐚𝐧𝐝 𝐀𝐦𝐲 𝐂𝐨𝐧𝐞𝐲 𝐁𝐚𝐫𝐫𝐞𝐭𝐭 𝐚𝐫𝐞 𝐮𝐧𝐬𝐮𝐫𝐞 𝐢𝐟 𝐭𝐡𝐞𝐲 𝐬𝐡𝐨𝐮𝐥𝐝 𝐛𝐞 𝐢𝐧 𝐜𝐡𝐚𝐫𝐠𝐞 𝐨𝐟 𝐞𝐯𝐞𝐫𝐲𝐭𝐡𝐢𝐧𝐠
Inside the Supreme Court argument asking if the justices should crown themselves kings and queens.
Four justices appeared absolutely determined, on Wednesday, to overrule one of the most consequential Supreme Court decisions in the Court’s entire history.
Chevron v. National Resources Defense Council (1984) is arguably as important to the development of federal administrative law — an often technical area of the law, but one that touches on literally every single aspect of American life — as Brown v. Board of Education (1954) was important to the development of the law of racial equality. Chevron is a foundational decision, which places strict limits on unelected federal judges’ ability to make policy decisions for the entire nation.
By: Ian Millhiser ~ Jan 17, 2024
https://www.vox.com/scotus/2024/1/17/24041626/supreme-court-john-roberts-amy-coney-barrett-chevron-loper-bright-relentless
When did “important to the development of the administrative state” replace “faithful to the Constitution” as the measure of whether a prior decision should be reaffirmed?
Why are unelected bureacrats able to make policy decisions for the entire nation ?
The constitution assigns responsibility to congress. Regardless the issue in Chevron is NOT policy it is law.
The question is must courts defer to regulators when the meaning of the law or regulation is unclear.
That is NOT policy.
If the law is unclear – it is unconstitutional.
If the regulations created based on the law are not clear – they too are unconstitutional.
If the regulations created based on the law are not clearly authorized by the law – then they are unlawful.
Congress writes laws – not the executive or the courts.
While we should prohibit congress from delegating their power to the executive as unconstitutional, and a violation of separation of powers, unfortunately the courts have not done so.
Regardless since Marbury V Madison judicial review has been the domain of the courts.
Chevron is an aberration of that.
Reversing Chevron will bring us closer to following the constitution.
If you feel the court is wrong – you are free to amend the constitution and incorporate Chevron into the constitution.
I will note that killing Chevron which was always unconstitutional, does not fix the problem.
Passing the buck to the courts is not the solution.
Requiring Congress to do their job is.
The executive advises congress. Congress drafts our laws. The executive enforces them.
What you call policy is the limited discretion that the executive has within the bounds of the law as congress wrote it.
Regardless, the constitution NEVER intended the executive to determine what a law means.
If SCOTUS does its job it will KILL the administrative state – which is nowhere in the constitution and is a modern and unconstitutional contrivance.
Worse than being unconstitutional it is based on a philosophical premise that is fallacious.
It is anti-democratic, and literally constitutes rule by the intellectual elite.
Both logic and practice tell us that no amount of education and intellect has ever allowed those with no stake in the outcome to make wise decisions.
An ordinary person with an average IQ makes better decisions than a highly educated genius – if that ordinary persons life will be effected by their decisions, and that genius’s will not.
I would note – we got a perfect example of this writ large with Covid.
The allegedly smartest public health experts int he world not only got everything wrong – but we are discovering more and more than they have gotten wrong.
As an example not only did Lockdowns do nothing to impact Covid – a highly contageous respiratory virus, but we gathered lots of data from lockdowns and we are now finding that measures we have been relying on for over a century do not work as expected.
Other diseases such as gastroenteritis that are spread by contact, continued to spread unabated in the midst of social distancing. lock-downs, and drowning ourselves in antiseptic. Expecting these would thwart covid was wishful thinking.
But they should have had a significant measurable impact on diseases spread by contact – and that is not what the data is showing.
One of the top 4 economists in the past century – Ronald Coase proved more than 50 years ago, that absent significant friction, property rights and free markets always resolved problems more optimally than anything else.
And there is massive economic data to demonstrate that.
The article at your link is fundamentally flawed in its analysis of the issue. The issue is not that the courts would have to be in charge of everything (or even anything). The point is that Congress IS in charge and has to write better laws and not delegate its authority to unelected bureaucrats.
It is the duty of the judicial branch to implement constitutional individual freedom, free enterprise, and free markets over governmental dictatorship in every case.
It is the duty of the judicial branch to consistently support the clear meaning and intent of the Constitution and to implement constitutional individual freedom, free enterprise, and free markets over arbitrary governmental dictatorship in every case.
The government is not more wise than the Constitution.
The government is not more wise than the governed.
**Courts are tasked with preserving Rights, not implement them.
Court Update:
Barrett speculates On Litigation
Justice Amy Coney Barrett asked whether overturning a foundational decision like Chevron would invite a flood of litigation and open the door to undoing other past rulings.
The cases brought by Atlantic herring fishermen are backed by conservative legal organizations — the Cause of Action Institute and New Civil Liberties Alliance — that have received millions of dollars from the Koch network, founded by billionaire industrialist Charles Koch and his late brother, David Koch.
https://www.washingtonpost.com/politics/2024/01/17/supreme-court-herring-chevron-regulatory-agencies/
So? to both points. (1) The Court’s job is to interpret the Constitution and validly-enacted laws, not to suppress litigation. (2) Who cares that certain right-leaning civil liberties groups are involved? Just as frequently, left-leaning civil liberties groups are involved. We need public interest law firms on both sides of the aisle that promote litigation aimed at holding the government’s feet to the fire when it tries to overstep its bounds and infringe on the freedoms of Americans.
Barrett believes that precedent can “force . . . a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach.”
https://apnews.com/article/ruth-bader-ginsburg-us-supreme-court-courts-laws-texas-0565aa9c19f4f28e3bc793646180d5b5
Our institutional investment in Chevron deference is enormous. Overruling it would require likely significant legislation, and at the snail’s pace of our current Congress, that would likely take decades to resolve. This should matter to Barrett, based on her own words.
Institutional investment goes way beyond litigation.
Baloney
What is baloney? You don’t think Barrett said that she cares about the cost of upsetting institutional investment”? Or you think there would be no effect on the function of the federal (and state) governments by removing Chevron deference?
Most focus on the EPA, but if you care about your wallet, the impact on the SEC should be the biggest concern. It will require a complete overhaul of the SEC, resulting in thousands of challenges to SEC regulations. The effect on global markets is difficult to understate.
I mean it’s true that precedent should usually be followed based on the principle of stare decisis, and that reliance interests are a valid factor in discerning exceptions to that rule. But if a rule is wrong and allows for government overreach in violation of the Constitution, that’s an enormous weight on the other side. You could say it’s an insuperable weight, if the Constitution is really the supreme law of the land. Scotus has repeatedly said that stare decisis is weakest in the arena of constitutional interpretation because Congress lacks power to correct the court’s errant decisions.
To take an example, it might’ve been true in 1954 that institutional investment in separate but equal public facilities was enormous. Would you have credited that as a reason to uphold Plessy when the court was deciding Brown v. Board of Education?
Sounds like results based constitutional interpretation.
COMMUNISTS MAKE IT UP AS THEY GO ALONG PER KARL MARX’S “DICTATORSHIP OF THE PROLETARIAT.”
So the judicial branch now has the power to modify and amend the Constitution through arbitrary “interpretation?”
Are you out of your ——- mind?
The Constitution was written to stand verbatim in perpetuity, not dissimilarly to the Ten Commandments, if that facilitates your understanding.
The judicial branch has no power to modify or amend the Constitution; it has merely the power to support its clear meaning and intent – to assure that actions comport with statutory and fundamental law.
To “interpret” is to corrupt; to “interpret” is the opportunity “…that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
__________________________________________________________________________________________________________________________________________________________________________________________
“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“…men…do…what their powers do not authorize, [and] what they forbid.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
Overturning Chevron will with certainty result in lots of work for the courts to do.
But that is what the constitution requires.
As top whether it would open the floodgates to unrelated challenges ?
Why does that matter ?
If the courts decided and issue unconstitutionally – they should correct that error.
If “the people” are happy with past unconstitutional court decisions – like Wickard V Fillburn,
Then they should amend the constitutional.
The constitution is not a sacred immutable text.
It absolutely is a living document. But it is absolutely NOT the court or congress or the executives role to give it life.
Changing the meaning of the constitution is done by changing the words of the constitution – by amendment.
Anything else is the rule of man, not law and destined to failure multiple ways.
In re John Say: the largest corporations usually want more costly regulations. They can afford them, like an ocean liner can deal with a large wave. But small, dynamic competitors cannot afford them; they will be capsized by that same wave.
A very large corporation’s biggest threat is from small, dynamic startups that disrupt and revolutionize the industry. It is not from government regulation, which it has entire compliance departments ready to deal with.
…other than anti-trust regulations
True.
Anti-trust laws are unconstitutional, denying constitutional rights and freedoms to individuals.
Anti-trust laws constitute the unconstitutional usurpation of power that is innate in the freedom, free enterprise, and free markets provided to free individuals.
Anti-trust laws constitute antithetical, unconstitutional, and arbitrary dictatorship.
If the Founders had intended anti-trust laws, they would have written the Constitution to reflect that.
They did not.
The Founders provided freedom, free enterprise, and free markets to individuals; they also provided courts to resolve disputes.
Free industries may self-regulate to preclude litigation that may lead to insolvency.
Yep. The Robber Barons did a lot of self-regulation. George, sometimes you have a point. This time you are off the rails.
Your “robber barons” were not immune to fundamental, statutory, criminal and civil laws – self-regulation is a mode of defense.
Free market competition constitutes fundamental regulation.
Congress has the power, ultimately, to take private property for public use with just compensation.
Certainly, victims of your “robber barons” had the legal right to sue.
A “wise” person would profoundly and conclusively refute a position, exhausting a quiver full of facts.
Yours is a feckless and failed negation by wisecrack.
Voila! Not a wiseoldlawyer but a wisecracklawyer.
“The Robber Barons . . .”
You are using a Marxist smear to describe America’s original industrialists and wealth creators.
Robber Barons practiced their enalienable right to ‘pursue happiness’. The Government decided – without an Amendment to the Consitution – the Robber Barons had ‘too much’ and that it ‘wasn’t fair’. That action by the government was, as George correctly points out, unconstitutional and completely against the spirit and bedrock text of the Constution that’s meant limit government and protect/enforce citizen’s Rights in the US. Textually speaking, George has not yet been wrong on the Constitutional issues he refers. He’s also not wrong to point out Marx as the inspiration to many in today’s US government to thwart Individual citizen’s Rights in the name of ‘protecting’ and maintaing, Constitutionally-speaking, government’s overreach and power. Even percieved bad people, Robber Barrons, tend to work within the laws that exist (they just don’t steal from others outright); just like the Robber Barons of today, Congress, except when they illegally exempt themselves from the legislation they create and the penalties therein.
There is actually substantial economic study done globally on antitrust law and monopolies.
First without government monopolies are unsustainable.
Next so long as a free market exists and government does not create barriers to entry,
even a near monopoly is highly regulated by teh free market merely by the possibility that if it tries to take advantage of near monopoly power – competitors will flood the market relatively quickly because of the oportunity for profits created by near monopolies trying to leverage their assumed market power.
Next, in the real world the so called predatory conduct of near monopolies or market players trying to leverage near monopoly power ALWAYS harms them.
Not long ago we go a beautiful example with JP Morgans London Whale. Using massive amounts of capitol from one of the biggest investment banks in the world, the Whale tried to “corner” some comondities markets and profit by controlling prices.
Some relatively small hedge funds in the US noticed that something odd was going on -= though they did not know what and bet heavily against it. Though not large enough on their own that sent a signal to the market and in short order the Whale was obliterated and lost JP morgan Billions.
While that is a recent example, nobel prizes have been won demonstrating that from the early periods of Trust busting through to the 80’s the allegedly bad conduct of near monopolies (without govenrment support), benefited consumers and harmed the near monopoly.
The optimal operation of an economy has a diverse and dynamic mix of businesses.
Different scales, different focuses, different domains and scopes.
And all of this constantly adjusting as the world changes as our wants and needs change.
There is nothing wrong with big business, or medium business or small business. The economy works best when it is dynamic and diverse.
The problem is with government. Big businesses (and sometimes well connected small and medium businesses) find it easier to succeed by leveraging govenrment power.
Nearly everyone agrees with that. We all rail at the power that super pacs or bug corporations excercise over government.
What far to many fail to grasp – despite massive demonstrations from history is that whatever power you give government SOMEONE will find a way to rent and profit from it. It does not matter what form of govenrment, it does not matter what laws you put in place.
Even if you could entirely shut down the influence of the wealthy and big corporations -= they would merely be replaced by some other special interest distinct from that of the people.
The very best way to assure that the people are in control, is to leave the power with the people NOT the government.
The Constitution give the power to lay taxes to congress. Congress cannot delegate that power.
You leftist are always at odds with the constitution. Why is that?
Because Karl Marx offered them central planning, control of the means of production (i.e. unconstitutional regulation), redistribution of wealth, and social engineering, per Karl Marx’s motto: “From each according to his abilities, to each according to his needs.”
Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.
The entire communistic American welfare state is unconstitutional including, but not limited to, admissions affirmative action, grade-inflation affirmative action, employment affirmative action, quotas, welfare, food stamps, minimum wage, rent control, social services, forced busing, public housing, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, Health and Human Services, Housing and Urban Development, Environmental Protection Agency, Agriculture, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.Government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while government is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of only security and infrastructure.
Article 1, Section 8, provides Congress the power to tax for ONLY debt, defense, and “…general (all, the whole) Welfare…,” omitting and, thereby, excluding any power to tax for individual Welfare, specific Welfare, particular Welfare, favor or charity. The same article enumerates and provides Congress the power to regulate ONLY the Value of money, Commerce with foreign Nations, and among the several states, and with the Indian Tribes, and land and naval Forces. Additionally, the 5th Amendment right to private property was initially qualified by the Framers and is, therefore, absolute, allowing no further qualification, and allowing ONLY the owner the power to “claim and exercise” dominion over private property.
Government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while government is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure only.
The nondelegation doctrine is dead.
Congress can delegate legislative functions to other branches.
Not constitutionally.
You are correct that the courts have SOMEWHAT allowed them to.
That does not mean it is constitutional, or that it is a good idea.
I know this is hard for piss poorly educated left wing nuts,
But all of this has been worked out in the past – both in theory and in practice.
Limited govenrment is not merely an ideology, it is the only form of govenrment that does not either reduce standard of living or reduce the growth of standard of living.
There is MASSIVE amounts of data on this.
Government is inherently inefficient. We would not want it to be otherwise – the Nazi’s are an example of government striving to be efficient.
Optimizing the scale of govenrment is far more important than the specific FORM of government.
My editorial: I would think that now is when the Court should force these entities to stick to the plain letter of the law. If an act wasn’t authorized by any law, then the agencies involved should not be allowed to expand their jurisdiction to include what their leadership wants. Also: Why is it that these agencies aren’t under the Legislative branch of our government, when it says that Congress shall have the power to “regulate (meaning “to make regular”) interstate commerce”; that’s not an area that is allowed to the Executive branch.
I would prefer the Court would go Full Logical, and reduce the Administrative Procedures Act to rubble, and throw it in the dustbin of history, by sating that it violated Congress’ authority to transfer their duties to another branch of government.
The Framers provided Congress the power to regulate the “stream” of commerce among the States to preclude bias and favor by one or more States over one or more other States.
Congress has no power to regulate the design, engineering, production, marketing, or distribution of any and all specific and particular goods, services, commodities, merchandise, etc.
Free market competition and voluntary self-regulation by industries, as a common defense against litigation that possesses the potential to cause enterprise insolvency, constitute the only appropriate and legal regulation of any and all specific and particular products, merchandise, goods, services, commodities, etc.
That communists (liberals, progressives, socialists, democrats, RINOs, AINOs) desire the power to rule arbitrarily by dictatorship does not bear.
________________________________________________________________________________________________________________________________________________________
Article 1, Section 8
The Congress shall have power…
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;…
The Constitution holds dominion.
The Constitution reveals all of the natural and God-given rights, freedoms, privileges, and immunities of human beings in America, which they possessed before government was conceived.
Neither the legislative nor judicial branches may come between Americans and their Constitution.
Neither the legislative nor judicial branches are superior to the natural and constitutional freedom, free enterprise, and free markets of free American individuals.
Neither the legislative nor judicial branches may usurp the power and dominion of the Constitution.
Neither the legislative nor judicial branches may modify or amend the Constitution outside of the constitutional amendment process.
Neither the legislative nor judicial branches may deny constitutional rights, freedoms, privileges, and immunities.
Neither the legislative nor judicial branches enjoy the power of dictatorship.
The Supreme Court may not deny constitutional rights, freedoms, privileges, and immunities.
Legislation may not deny constitutional rights, freedoms, privileges, and immunities.
Americans certainly enjoy the freedom, free enterprise, and free markets of the free fishing industry.
Enterprise competition constitutes regulation.
The free and independent fishing industry will further self-regulate to avoid litigation that has the potential to cause insolvency.
The Constitution allows regulation of only the value of money, the “flow” of commerce among nations, States, and Indian tribes, and land and naval Forces.
The Constitution provides maximal freedom to individuals while severely limiting and restricting government.
The dictatorship imposed in America is that of Karl Marx’s admitted and prescribed “dictatorship of the proletariat.”
The Founders ended dictatorship in all its forms, emphasizing the abrogation of the dictatorship of the monarchy.
The Founders did not provide or establish dictatorship.
The Founders provided and established freedom.
Jonathan: Boris Epshteyn is not the only one having trouble with Judge Kaplan. After BE was told to sit down Alina Habba got up and asked for a continuance so DJT could attend his mother-in-law’s funeral. Kaplan had previously ruled against a continuance for that purpose but said he would give DJT an opportunity to testify next Monday. That was not good enough for Alina. She got up and continued to make her demand. Here was the exchange between Judge Kaplan and Alina: Kaplan: “The application is denied. I will hear no further argument on it”. When Habba tried to continue Kaplan shut her down: “None. Do you understand the word [i.e., “denied”]? Sit down”. To which Alina replied: “I don’t like to be spoken to that way, your honor”. Kaplan had the final word: “It’s denied. Sit down”.
So Judge Kaplan’s trial will continue unabated with a jury verdict likely next week–despite all of Alina Habba’s theatrics. As the trial proceeds DJT continues he defamatory attacks on E. Jean Casrroll. Could there be a THIRD defamation against DJT on the horizon?
Strange, it’s been a minute since we’ve heard a certain commenter here sing
Fani, Fani, bo-bani
Banana-fana fo-Fani
Fee-fi-mo-mani
Fani!
I wonder why?
Let’s do Chuck.
Chuck, Chuck, bo-buck
Banana-fana…
On second thought, let’s not do Chuck.
DM – why are you trying to defend this nonsense.
This is simple -= if you wish to claim this is not all election interferance – then it is the responsibility fo the COURTS to work arround the election – not the other way arround.
Otherwise Democrats are engaged in election interferance and election fraud.
Trump is absolutely entitled to attend the Funeral of his mother in law.
He is also entitled to attend campaign events in New Hampshire.
Either the courts can accomidate that – or they need to drop the case entirely or reschedule after the election.
Ultimately this is more of the idiotic cases that may win in front of a biased jury with a biased judge but will ultimately be obliterated in appeal.
In this Trial Trump is being accused of defaming Carrol by saying “She is not my type”.
Exactly how is that defamation ? It is BTW a statement that is both one of opinion and one that is OBVIOUSLY true. We have a long list of the people Trump has had relations with. Carrol is most definitely NOT HIS TYPE.
And we are only in this case because a Prior Jury under Kaplan screwed the case up.
They clearly did not beleive Carrol – they found against her on rape. Which again beggs the question of Why is Kaplan hearing this case.
Lets be Clear the prior jury found there was no rape, and Kaplan is saying there was.
What couple possibly be a more biased judge than one who can not accurately state what happened in his own court room.
Regardless, in the prior case Carrol could not demonstrate Trump was in Bergdorfs.
Could not demonstrate that Trump was in NYC
Could not demonstrate that Trump and Carrol were in the same place at the same time.
Could not demonstrate that Trump knew who Carrol was.
Further Carrol actually published a book alleging that 40 men had raped her – pretty much every man she had even known in her life.
And ….. Trump was NOT one of those in the book.
So we have Carrol suddenly 30 years later remembering that Trump raped her or maybe dot – she is not quite sure – you should watch Carrol interviews on TV that Kaplan did not let into court. And two friends again years after the fact tremembering that maybe Carrol had told her about this – neither of which were especially credible
And to “Get Trump” – you had to wreak havoc with statutes of limitation and open a one time narrow window specifically to let Carrol sue Trump.
And you want people to beleive this is not a nonsensical politically biased mess ?
If this case is NOT overturned on appeal – we have LOST the rule of law.
“Trump is absolutely entitled to attend the Funeral of his mother in law.”
The court isn’t stopping him.
“He is also entitled to attend campaign events in New Hampshire.”
The court isn’t stopping him.
“Either the courts can accomidate that…”
The courts don’t have to do anything. They do not require Trump to be there at all, unless he chooses to testify. Beyond that, he’s just another defendant, and the courts do not have to do a single thing to accommodate his non-legal desires any more than they do for any other party to a suit.
“In this Trial Trump is being accused of defaming Carrol by saying “She is not my type”.”
He was already found liable for defamation. This isn’t a trial to determine whether or not he defamed Carroll. He did. This trial is only to determine damages.
“They clearly did not beleive Carrol – they found against her on rape.”
They clearly did believe her, because they found for her on sexual assault. They also paid attention to the restricted definition of rape in NY law. But what Trump was found liable for meets the UCR definition of rape, even though it doesn’t meet the NY state definition of rape.
And because you’re always exceptionally long-winded, I’ll just ignore the rest of your word vomit.
You are correct that the courts are not requiring anything of Trump – but they are impermissibly restricting his choices.
We have listened to those of you on the left say this is not political or an attempt to interfere in an election.
Yet, here you are making it OBVIOUS that is a lie.
If the courts restrict Trump’s ability to participate in the election – that is no different from censoring him.
And that is both illegal and unconstitutional.
As to the rest – this is a civil trial. there is absolutely no urgency to the court proceedings.
While the court did not know that Trump’s mother in law was going to die – it is still a NORM for courts to address unforeseen circumstances.
I would furthert note that while the Defendant in a civil case has the right to absent themselves from the procededings.
The Courts do NOT. And the defendant has the right to be present in those proceedings.
This is a common error of those on the left.
Rights belong to individuals. Govenrment has powers, not rights.
It is the right of a person to a speedy trial, to a trial buy jury, to the advice of counsel and to assist in their own defense.
These are all RIGHTS of people. They are NOT tradeoffs, they are not also rights of government.
If Trump wishes to be present for his trial – the court MUST accomodate his right to do so.
It is tradition to accomodate deaths in the family – equal protection requires that when courts allow that for some they must allow that for all.
Further Government CAN NOT interfere in an election. PERIOD. The reasons for that should be obvious.
And the courts are a part of government as bound as any other part of government.
This is actually especially important in 2024 – because it is inarguable that the government interfered in the 2020 election.
Regardless, an election is not legitimate – it is not entitled to the trust of the electorate if government puts its thumb on the scales of the election. The courts found Poll taxes and literacy tests unconstitutional interferance in elections a generation ago.
All but a moron would understand that it is not poll taxes and literacy tests that are the problem. It is Government interfering in the election that is the problem.
The SOLE involvement of govenrment in elections is for the purposes of assuring Trust – not influencing the outcome.
Finally – though it is self evident that you are clueless – the electorate is not.
Trump’s polling has been rising and Biden’s approval has been falling the more of this nonsense you engage in.
This is not happening because Trump is magically becoming MORE appealing.
IOt is happening because those who engage in the chicanery that the left is doing become LESS appealing.
You rant about this nonsense of right wing authoritariansm while blatnantly engaging in authoritarianism and deluding yourself that people do not notice.
you do not seem to grasp that increasingly the trials you have concocted are a lose lose proposition for YOU.
If Trump loses – absent the govenrment making a compelling case that Trump has done something truly awful then Trump gains – because YOU lose by coming accross as lawless and authoritarian. And if Trump wins – you lose because you should not have broughtthe case.
Get outside your bubble – most people are troubled by this.
The left thought that because polls said that if Trump was convicted of a felony that many voters would no longer vote for him, that meant they could conduct a star chamber trial and convict him without evidence with corrupt judges and biased juries.
you are slowly learning – that does not work any better for democrats than it did in the USSR.
I found it hillarious that Judge Pan asked if the president going send a seal team after a political opponent.
The Better hypothetical would be can the president send the DOJ after a political opponent.
The fact is that a president CAN send a seal team or DOJ after a political opponent.
But if they do so – they better have a compelling justification – one that super majorities of people accept.
There are so many problems with this case.
Do you understand that convicted rapists are not tried for defamation for continuing to protest their innocence.
We can not have a functional legal system if you can accuse someone of a crime – 30 years after the fact – long past the statute of limitations.
The statute of limitations is actually MORE of an issue in a civil trial.
In a criminal trial the prosecution must prove guilt beyond a reasonable doubt.
In a civil trial the standard is the preponderance of the evidence. That significantly raises the burden on the defendant.
Coming close to requiring the defendant to prove their innocence.
When decades have past – it is the prosecution that will have difficulty because evidence disappears. records disappear, memoriues fade or become distorted. The standard the prosecution must meet is high and the passage of time makes the prosecution meeting that burden harder.
But in a civil trial the lower burden on the plantiff raises the burden on the defendant.
Had Carrol made her allegations contemporaneous with the alleged offense, Trmp would have had the oportunity to find his own staff or records, or Bergdorf staff or any numbero fo other possible witnesses to establish whether either he or Carrol were actually present when this crime allegedly occured.
30 years later that is nearly impossible. It is not possible to prove that either Trump or Carrol were in bergdorfs. I do not beleive Carrol was even capable of identifying when the event occured.
If Carrol can not provide when the event occurred – How can Trump even attempt to prove it did not ?
We have statutes of limitations for a reason.
The New York Legislature erred in temporarily waiving them in order to “get Trump”
I note that Mayor Adams is now caught in an allegation of sexual misconduct – because the windows the legislature briefly opened – allowed an ancient claim against him too.
But this is typical of left wing nuts such as your self.
You would attempt to relitgate Caine and Abel if that allowed you to “get Trump”
You can not defame someone as part of legal proceedings. That is standard law.
You can be sanctioned by the judge for remarks as part of the legal process.
Defamation is something very specific. It is a demonstrably false statement about someone that causes REAL damage to their reputation.
As with most cases – this case never should have entered the court.
“She is not my type” – is NOT defamation.
If you wish to claim that you are merely following the law – then every single case you bring should NOT require highly unusual legal interpretations that have never been done before. They should NOT require legislatures to open temporary windows in the law to allow for your specific case. They should not involve convoluted claims of wrong doing that only those who decided that the accused was guilty before the allegation was made can follow.
I listened to a legal discussion of much of this with John You and Richard Epstein. They did not deal with the Carrol cases.
They said regardless of what Engron decides he will be reversed on appeal.
That the Bragg case is gaming the system because even if Bragg somehow threaded the needle – the charges all merge and the punishment for a first offense is a $250 fine.
They both felt the 1512C case was going to be won by J6 defendants. Though both fetl there were real crimes on J6, they both felt the Justice department had WAY over charged. They also both Felt Smith was way out of his depth, and Garland could not have chosen a prosecutor more likely to fail had he tried.
They both felt Trump would quickly win the ballot removal case and that SCOTUS would do so on the basis that the 14th amendment clearly does not apply to the president. I have heard that before, and while I think it is correct, I thought it was the weakest not strongest claim – but Both Epstein and You pointed out historical reasons related to the legislative history of the 14th amendment that it did not apply to the president – the simple version of which is that the Civil War Republican congress had no fear of an insurrectionist civil war presidential candidate as they would have to win the majrotiy of the electoral college not just the south.
They were affraid of People like Jeffereson Davis returning the the House or the Senate or to governorships – as those elections would occur only in southern states.
They both felt Trump’s immunity claim was going nowhere with respect to Smith. But they BOTH felt it would win with respect to state prosecutions. Neither felt that SCOTUS was going to allow state courts to prosecute current or former presidents for actions taken while in office. That would just provoke tit for tat lawfare between red and blue states.
And they both noted that the MAL documents case was a dead end – because – Clinton, Obama, Biden, Hillary, … had all done worse
They felt there was a small possibility of getting somewhere on obstruction.
I am NOT at all a fan of You – though he is quite smart – he is a Bushie, and a Neocon.
I am more impressed by Epstein who is more of a libertarain.
One of the things epstein pointed out was that the biggest problem with these cases is that everyone grasps that they are political.
That they are just efforts to keep Trump from winning in 2024.
That would not sit well with Scotus. And it is not sitting well with voters.
Keep digging, you may dig yourself into a deep enough hole to reach china yet.
Turley why do you bother writing about the SCOTUS when the man who you have enabled and protected has said he will terminate the constitution and with it the judges who apply said constitution. Trump has proven he will not protect or defend the constitution, besides the Trump cult you write to these days would rather see white robes than black ones.
Whats that smell? 💩
You’re smelling your own.
Actually he has said (and done) precisely the opposite. He has tried to populate the courts with judges that would floow the constitution.
The FACT that you want the constitution to say something different than it does – without going to the effort to get it changed is YOUR problem.
Can we cut the idiotic KKK references.
The KKK were Democrats.
Just as in the past – Racism is most prevalent in DEMOCRATS.
No group is more loathed by the left in this country than black conservatives.
Though Jews and Asians are common targets of left wing racism.
Minorities in this country have been moving
AWAY from the left for he past 20 years.
Is that because they all hate themselves ?
or maybe it is because the left is RACIST.
Asians Jews, Blacks, Hispanics, are all moving republican. it is possible that the majority of hispanics will vote republican in 2024.
Regardless the gains have been very large and the trend is that minorities continue to move to republicans.
Anyone familiar with the Chevron case knows that the outcome could be as significant as overturning Roe v Wade.
*Sigh*. Guess the soul of the country and quite possibly individual freedom isn’t at stake at the moment, and people couldn’t fish at all if the regime continues their march forward, which is enabled by at least half of us. Beginning to think the judges that consider these cases are a little too privileged for comfort. What difference does this make if after the next election dems put dems in every position, and we are basically the USSR? The Professor is amazing and willfully ignorant, too. The levers of justice, at least in 2023, depend entirely and only on who controls them. Your dems will never pull those levers for anything bit their own benefit.
I wonder: do imported fish have to have the same level of restrictions, or at least tariffs that level the playing field? If not, aren’t we just giving our economic competitors an unfair advantage by driving the cost of domestic fish up so high due to fisherman-paid monitors, that American consumers will instead purchase imported fish (e.g., from Canada)?
It is likely that some imports are subject to more restrictions and others less.
Separately from the fishing restrictions imports may alos be subject to other restrictions – because they are imports.
In the end what you have is a mess.
The objective of the regulatory state is to make sure there are NOT free markets in anything.
Those on the left do not seem to grasp that the power to regulate is the power to politically extort money.
It is no accident that democrats now and for some time have had far far more corporate contributions.
Businesses are paying – to leverage the regulatory power of government.
In their favor
against their competitors
Especially against smaller competitors.
It is a very stupid error to beleivre that business – especially big business actually wants free markets.
They do not. Most big businesses aspire to being public utilities. Answerable to regulators not markets.
Overfishing is a dynamic externality because the removal of fish decreases the amount of fish available for other fisherman at that point in time and because a decrease in the present size of the stock negatively affects the future size of the stock.
Research indicates that the most effective way to deal with dynamic externalities is to issue ITQs (individual transferable quotas, such as a cap-and-trade system). ITQs control dynamic externalities by appropriating what share of a total allowable catch each fisherman is permitted to harvest. When transferable, they end up in the hands of the most efficient fishermen, who are willing to pay the most for them.
This is all to say that, given the externality, regulation is necessary to improve economic output. Thus, unregulated fishing would actually accomplish what you suggest, namely benefiting foreign fishermen.
Legal illiterate John L. Armstrong, who once stayed at a Holiday Inn Express, offers this amicus commentary on behalf of his fellow American patriots:
“I fully anticipate a Deep State beat down of the magnitude of the Roe v Wade reversal.”
By “deferring” to the Agency’s judgement is that to mean The Judicial Branch’s not questioning it at all?? Some indications in Merrick Garland’s own writings that I remember being quoted/publishing at the time of his nomination to the SCOTUS indicated that he not only believed in Chevron Deference but in an EXTREME CHEVRON DEFERENCE that the Judicial Branch could not judge Administrative Actions done by Agencies created by Congress AT ALL. Only Congress could set up any system for questioning/judicial reviewing of agency actions. Essentially, that idea means ending Judicial Review of Agency actions–and Merrick Garland appeared to support it.
Interestingly, there has been NO mention of Judicial Review here at all. Even Jonathan Turley hasn’t thought of Chevron Deference’s being used to circumvent or even abolish the concept of Judicial Review.
Bro, have you even read Chevron or the Administrative Procedures Act?
Does “arbitrary and capricious” mean anything to you?
Jonathan: Forget for a moment the Chevron case. The real action today is in the second E. Jean Carroll defamation case against DJT before Judge Kaplan in federal court in NY this week. An attorney claiming to represent DJT got up before Judge Kaplan and tried to argue a point. And it wasn’t Alina Habba. It was Boris Epshteyn.
Now who is BE? He is an attorney, a kind of behind the scenes “consigliere” for DJT. He’s the guy who picked all the attorneys to represent DJT in his various criminal and civil cases. He is the “fixer” who replaced Michael Cohen. BE was also involved in the fake elector scheme and is an un-indicted co-conspirator in Jack Smith’s criminal indictment before Judge Chutkan. BE also tried to foment a riot in Detroit to stop the 2020 election count. Yeah, that Boris Epshteyn who is all over the J.6 Committee report.
To represent a client in federal court you must be a member of the bar of that court–in the case before Judge Kaplan you must be admitted to practice in the Southern District of NY. Although BE is authorized to appear in NY state court he is not admitted to practice in federal court.
So what happened today in the E. Jean Carroll trial? Epshteyn tried to get up and argue a point. This was the interchange between the Judge and BE:
Judge Kaplan: “Are you a member of the bar of this court?”
Epshteyn: “I’m a member of the New York state bar”.
Kaplan: “Alright, then please have a seat”.
Judge Kaplan runs a tight ship. He saw right through the shenanigans of BE’s attempt to represent DJT. Since BE is not an attorney of record in the case and is not authorized to practice in federal court Judge Kaplan told him basically to shut up and sit down! Alina Habba is the attorney of record and only she can represent DJT. Which in and itself is a bad sign for DJT’s prospects in the case.
DJT likes to sow confusion in his cases. He likes it when his lawyers do a kind of performance art–trying to pretend they are authorized to appear in court, being unruly and disruptive and generally defying court rules. DJT thinks that’s acting “tough”. That won’t work in Judge Kaplan’s courtroom!
Extraneous comment. “Epshtein” sounds like a made-up name, too. The NY judiciary sounds as unreliable and venal as it was in the days of the so-called Erie Wars of the late 1860’s and the early 1870’s. Put it this way, I would give a NY judge the same “respect” (and for the same reasons) I would give a Great White Shark in the waters off Coney Island on a warm summer’s day. Except that shark might be more “ethical”–after all it’s a real shark!
Anonymous: The only made up part is the name “Epshtein”. The real name is “Epshteyn”–and he’s a real person. You wouldn’t probably know that because you are not in DJT’s inner circle nor up on the finer points of his conspiracy to overturn the 2020 election. But Jack Smith knows Boris Epshteyn as does the J. Committee report. But you don’t because you didn’t take the time to have read the entire report. The only “unreliable and venal” part of this is your commentary!
Chevron is our King.
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
There is a length list of grievances. Many are prescient. This one seems relavent in lots of discussions.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
Yep. The Nature of man is ever apparent.
“SO SUE ME!”
Legislation cannot deny constitutional rights, freedoms, privileges, and immunities.
Americans certainly enjoy the freedom, free enterprise, and free markets of fishing.
Enterprise competition is regulation.
The fishing industry would be inclined to self-regulate to avoid litigation causing insolvency.
The Constitution allows regulation of only the value of money, the “flow” of commerce among nations, States, and Indian tribes, and land and naval Forces.
The Constitution provides maximal freedom to individuals while severely limiting and restricting government.
The Founders ended dictatorship in all forms, emphasizing that of the monarchy.
The Founders provided freedom.
Time to either blow Chevron up or to narrowly (and I mean narrowly) limit it’s impact
An Administrative State example on display in Henderson, Nevada 1-16-2024:
From Bing:
“The Henderson City Council recently approved a new governance policy that outlines the rules and limitations for the city’s elected officials, ranging from their role in city functions to interactions with media and conduct during council meetings. The policy directs council members to stay out of the actual implementation of policies they pass and leave that to city staff. It also, however, says the council needs to hold the appointed senior members of staff (city manager, city clerk and city attorney) accountable, while not saying how the council is supposed to do that. The policy has been criticized by some council members and residents for disenfranchising voters and violating members’ First Amendment rights.”
Yikes