Those Were The Days

For 40 years, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., (1984), has served as a cornerstone of administrative law, allocating responsibility for statutory construction between courts and agencies.  Under Chevron, a court uses all its normal interpretive tools to determine whether Congress has spoken to an issue.  If the court finds Congress has done so, that is the end of the matter; the agency’s views make no difference.  But if the court finds, at the end of its interpretive work, that Congress has left an ambiguity or gap, then a choice must be made.  Who should give content to a statute when Congress’s instructions have run out?  Should it be a court?  Or should it be the agency Congress has charged with administering the statute?  The answer Chevron gives is that it should usually be the agency, within the bounds of reasonableness.  That rule has formed the backdrop against which Congress, courts, and agencies -- as well as regulated parties and the public -- all have operated for decades.  It has been applied in thousands of judicial decisions.  It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds -- to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.

"Judges are not experts in the field, and are not part of either political branch of the Government." --  Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. (1984)

Those were the days, when we knew what we are not.  When we knew that as between courts and agencies, Congress would usually think agencies the better choice to resolve the ambiguities and fill the gaps in regulatory statutes.  Because agencies are “experts in the field.”  And because they are part of a political branch, with a claim to making interstitial policy.  And because Congress has charged them, not us, with administering the statutes containing the open questions.  At its core, Chevron is about respecting that allocation of responsibility -- the conferral of primary authority over regulatory matters to agencies, not courts. 

Once again, with respect, I dissent.

-- Supreme Court Associate Justice Elena Kagan, joined by Justice Sotomayor and Justice Jackson, dissenting in Loper Bright Enterprises v Raimondo, in which the Supreme Court overturned a 40-year precedent (28 June 2024)

We Refuse To Declare

We have granted certiorari and heard argument.  We have had ample opportunity to consider the issues.  The parties were well represented on both sides, and dozens of amici have weighed in.  What is more, the necessary legal reasoning is straightforward, and the answer to the question presented is -- or at least should be -- quite clear: Idaho law prohibits what federal law requires, so to that extent, under the Supremacy Clause, Idaho's law is pre-empted.  There is simply no good reason not to resolve this conflict now.

Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects.  The majority opts, instead, to dismiss these cases.  But storm clouds loom ahead.  Three Justices suggest, at least in this context, that States have free rein to nullify federal law.  And three more decline to disagree with those dissenters on the merits.  The latter group offers only murmurs that "petitioners have raised a difficult and consequential argument" about Congress's authority under the Spending Clause.  So, as of today, the Court has not adopted Idaho's farfetched theories -- but it has not rejected them either.

So, to be clear: Today's decision is not a victory for pregnant patients in Idaho.  It is delay.  While this Court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires.  This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it.  And for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas, and elsewhere will be paying the price.  Because we owe them -- and the Nation -- an answer to the straightforward pre-emption question presented in these cases, I respectfully dissent.

-- Supreme Court Associate Justice Ketanji Brown Jackson, concurring in part and dissenting in part, in Moyle v United States, in which the Supreme Court made extra effort to claim this case, then sent it back to lower courts without deciding on the merits (27 June 2024)

They Know Everything

We've educated children to think that spontaneity is inappropriate.  Children are willing to expose themselves to experiences.  We aren't.  Grownups always say they protect their children, but they're really protecting themselves.  Besides, you can't protect children.  They know everything.

-- Maurice Bernard Sendak (1928 - 2012), American writer and illustrator of children's literature, as quoted in "The Paternal Pride of Maurice Sendak" by Bernard Holland, in The New York Times (8 November 1987)

Safer And Faster

Survival machines which can simulate the future are one jump ahead of survival machines who can only learn on the basis of overt trial and error.  The trouble with overt trial is that it takes time and energy.  The trouble with overt error is that it is often fatal.  Simulation is both safer and faster.

-- Richard Dawkins (26 March 1941 -), British evolutionary biologist and author, known for his advocacy of atheism, The Selfish Gene (1976, 1989)

Assange

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN MARIANA ISLANDS 

Case No CR - 24 * 00014

Plaintiff, UNITED STATES OF AMERICA. vs. JULIAN PAUL ASSANGE, Defendant.

Count One: Title 18. U.S.C. § 793(g), Conspiracy To Obtain and Disclose National Defense Information

THE DEFENDANT AND CO-CONSPIRATOR

The defendant, JULIAN PAUL ASSANGE (“ASSANGE"). was not a United States citizen, did not possess a U.S. security clearance, and did not have authorization to possess, access, or control documents, writings, or notes relating to the national defense of the United States, including United States government classified information.

Chelsea Manning ("Manning”) was a United States Army intelligence analyst who held a TOP SECRET U.S. security clearance who was deployed to forward Operating Base Hammer in Iraq.

-- Opening paragraphs of the charge to which Julian Assange of WikiLeaks will plead guilty in order to resolve his 14-year legal battle with the United States (24 June 2024)

Shadows Of Virtues

Manners are the shadows of virtues; the momentary display of those qualities which our fellow creatures love, and respect.

-- Sydney Smith (1771 - 1845), English clergyman, critic, philosopher, and wit, Sermon XII, Sermons (1809)

Absorbed

Knowledge must be so absorbed into the mind that it ceases to exist in a separate, objective way.

-- Carl von Clausewitz (1780 - 1831), Prussian general and influential military theorist, On War (1832) Book 2

Establishment Clause

Section 2122. Ten Commandments; displays

A.(1) Each public school governing authority and the governing authority of each nonpublic school that receives state funds shall display the Ten Commandments in each building it uses and classroom in each school under its jurisdiction.  The nature of the display shall be determined by each governing authority with a minimum requirement that the Ten Commandments shall be displayed on a poster or framed document that is at least eleven inches by fourteen inches.  The text of the Ten Commandments shall be the central focus of the poster or framed document and shall be printed in a large, easily readable font.

(2) The text shall read as follows:

"The Ten Commandments
I AM the LORD thy God.
Thou shalt have no other gods before me.
Thou shalt not make to thyself any graven images." etc.

-- Louisiana House Bill No. 71, signed into law by Republican Governor Jeff Landry (19 June 2024) h/t CNN

RIP Willie Mays

Gee, I've been asked hundreds of questions about that catch in the first game of the World Series.  The one that Vic Wertz hit for Cleveland.  Was it my best catch?  How did I play it?  Honestly, I don't rate 'em -- I just try to catch 'em.  When he hit the ball, I just started toward the place it was heading.  And I got there.

-- Willie Mays (6 May 1931 - 18 June 2024), Major League Baseball player for 22 seasons, starting his career with the Giants in New York, remaining with the team during their relocation to San Francisco, and then ending his career with the New York Mets, In "Willie 'Just Knows' His Job" by Mays, in The Daily Mail (25 March 1955) p. 16

The Next Minute

What a man can be the next minute bears no relation to what he is or what he was the minute before.

-- Walker Percy (1916 - 1990), American Southern author whose interests included philosophy and semiotics, The Last Gentleman (1966)

The Arrow And The Song

I shot an arrow into the air,
It fell to earth, I knew not where;
For, so swiftly it flew, the sight
Could not follow it in its flight.

I breathed a song into the air,
It fell to earth, I knew not where;
For who has sight so keen and strong
That it can follow the flight of song?

Long, long afterward, in an oak
I found the arrow, still unbroke;
And the song, from beginning to end,
I found again in the heart of a friend.

-- Henry Wadsworth Longfellow (1807 - 1882), American poet, "The Arrow and the Song" (1845)

Any Eyes

We may try to see things as objectively as we please.  None the less, we can never see them with any eyes except our own.

-- Benjamin Nathan Cardozo (1870 - 1938), long-time Justice of the Court of Appeals of New York, appointed to the Supreme Court of the United States in 1932, The Nature of the Judicial Process (1921) Pages 12-13

A Series Of Judgements

Life is made up of a series of judgments on insufficient data, and if we waited to run down all our doubts, it would flow past us.

-- Learned Hand (1872 - 1961), American judge and judicial philosopher, "On Receiving an Honorary Degree" (1939)

Not More Zealous

Men are not more zealous for truth than they often are for error, and a sufficient application of legal or even of social penalties will generally succeed in stopping the propagation of either.

-- John Stuart Mill (1806 - 1873), English political philosopher and economist who was an advocate of utilitarianism, On Liberty (1859) Chapter II, Of The Liberty Of Thought And Discussion

So Many Truths

Out of patriotism -- which can be respected as long as it remains in the domain of sentiment and art on exactly the same footing as the sense of family and local pride, all equally sacred -- out of patriotism they make a Utopian and impracticable idea, unbalancing the world, a sort of cancer which drains all the living force, spreads everywhere and crushes life, a contagious cancer which culminates either in the crash of war or in the exhaustion and suffocation of armed peace.

They pervert the most admirable of moral principles.  How many are the crimes of which they have made virtues merely by dowering them with the word "national"?  They distort even truth itself.  For the truth which is eternally the same they substitute each their national truth.  So many nations, so many truths; and thus they falsify and twist the truth.

-- Henri Barbusse (1873 - 1935), French novelist and journalist, Under Fire (1916) Ch. 24 - The Dawn

RIP Bill Anders

That photograph, shared globally and always in the public domain, has since served to educate and inspire: The Earth we saw rising over the battered grey lunar surface was small and delicate, a magnificent spot of color in the vast blackness of space.  Once-distant places appeared inseparably close.  Borders that once rendered division vanished.  All of humanity appeared joined together on this glorious-but-fragile sphere.

-- William Alison Anders (17 October 1933 - 7 June 2024), former American astronaut, who flew as Lunar Module Pilot for the Apollo 8 mission (although no lunar module was carried by the mission), the first mission where humans traveled beyond Low Earth orbit, "50 Years After 'Earthrise,' a Christmas Eve Message from Its Photographer" Space.com (24 December 2018)

Go And Remember

We know the dark forces that these heroes fought against 80 years ago.  They never fade.  Aggression and greed, the desire to dominate and control, to change borders by force -- these are perennial.  And the struggle between a dictatorship and freedom is unending. 

To surrender to bullies, to bow down to dictators is simply unthinkable.  Were we to do that, it means we'd be forgetting what happened here on these hallowed beaches. 

Make no mistake:  We will not bow down.  We will not forget. 

Let me end with this.  History tells us freedom is not free.  If you want to know the price of freedom, come here to Normandy.  Come to Normandy and look.  Go to the other cemeteries in Europe where our fallen heroes rest.  Go back home to Arlington Cemetery. 

Tomorrow, I will pay respects at Pointe du Hoc.  Go there as well and remember: The price of unchecked tyranny is the blood of the young and the brave. 

In their generation, in their hour of trial, the Allied forces of D-Day did their duty.  

-- Remarks by President Biden Commemorating the 80th Anniversary of D-Day, Collevile-sur-Mer, France (6 June 2024)

Wrong Direction

You know what the biggest problem with pushing all-things-AI is?  Wrong direction.

I want AI to do my laundry and dishes so that I can do art and writing, not for AI to do my art and writing so that I can do my laundry and dishes.

-- Author and videogame enthusiast Joanna Maciejewska, posting on Twitter as @AuthorJMac (29 March 2024)

Do Not Follow

Do not seek to follow in the footsteps of the wise.  Seek what they sought.

-- Matsuo Bashō (1644 - 1694), major Japanese poet, primarily known for his achievements in haiku, and his poetic diaries, from "Words by a Brushwood Gate" 

Mumpsimus

‘Mumpsimus’, 16th century: one who insists that they are right (or wronged) when all evidence points to the contrary.

-- Susie Dent, who posts a "Word of the Day" on Twitter, posting as @susie_dent (30 May 2024)