What the hell happened last night? Putting aside Biden's seeming cognitive issues, his voice was barely audible or understandable during the debate. I had to turn up the TV volume a lot just to make out what he was saying. But today, he's clear as a bell and you might want to turn the volume down before listening to this clip.
The number of homeless people in the city of Los Angeles went down only slightly, but a lot more of them are now being sheltered. The number living on the street declined 10% in the past year.
Los Angeles has one of the worst homeless problems in the country, so it's a relief to see the numbers stop rising and genuinely good news to see that more of them are finding shelter. I've been a skeptic of LA's endless plans to fight homelessness, but maybe they're finally having an impact.
Would you like my opinion on the other big court case of the day (so far)? Actually, you already have it. I wrote about it six months ago.
A quick recap: the Sarbanes-Oxley bill makes it a crime to destroy evidence needed in an "official proceeding." It also says that anyone who "otherwise obstructs, influences, or impedes any official proceeding" can be fined or imprisoned. Italics mine.
This use of otherwise strikes me as the plainest of intent. It means doing anything else to obstruct an official proceeding. For example, invading the Capitol building, destroying property, and terrorizing everyone inside. That seems pretty obstruction-y, doesn't it?
But no. The majority opinion today spends more than a dozen tedious pages litigating exactly what otherwise means, because apparently the plain black letter language of the law isn't good enough in this case. With apologies, though, I don't have the energy right now to plow through it all. The syllabus alone is two dense pages solely about what otherwise means.
The impact of this ruling is probably minimal. A few of the January 6 insurrectionists will now be let off, but most of them were convicted of other charges too. Ditto for Donald Trump. Two of the charges against him in the January 6 case will have to be dropped, but there are others. The real-world fallout is likely to be small.
The famous—or infamous—Chevron case isn't complicated. In a nutshell, it says that when Congress writes a vague law a federal agency should be allowed to interpret it in any reasonable way. Not any way. If an agency is flatly wrong, then a court can overturn it. But if there are multiple plausible ways of interpreting the statute, courts should defer to the interpretation chosen by the agency.
This is reasonable, and it's been the law for 40 years. But today's Supreme Court practically revels in overturning long-held precedent and they did it again today:
Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. Chevron gravely erred in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction is to resolve statutory ambiguities.
There's no telling what kind of Pandora's box this opens. Agencies always write detailed rules to implement federal laws, and there's no alternative to this. In the modern world, it's simply not feasible for Congress to write laws so detailed that corporations and people can act on them with any confidence. It took more than ten years to write all the rules to implement the Dodd-Frank financial regulation bill, for example.
In practice, what this means is that every law is accompanied by hundreds of pages of implementation rules, all of which are now up for grabs with no deference allowed for the expertise and laborious public comment phase of rulemaking. If a court decides that its vibes say different, then that's the way it can now rule.
Conservatives love this because they're convinced that federal agencies are fundamentally activist and liberal while courts are increasingly conservative. And that's one way of seeing things. Another is that agencies have the expertise to know how to make a complex law executable while activist conservative courts increasingly just rule in favor of corporate interests.
As always, it's hard to know how this will play out in practice. The Court has been increasingly skeptical of Chevron over the years, so this ruling isn't a huge shock. But there's an irony to it. In the original Chevron case, the Supreme Court ruled unanimously that courts should defer to a conservative interpretation of an environmental law during the Reagan administration. The agency in question was the EPA, and the head of the EPA at the time was Anne Gorsuch Burford, mother of current Supreme Court Justice Neil Gorsuch. This means that Neil has voted to toss out the decision that allowed his mother to get her way.
Oh, did I mention that the ruling was 6-3? Of course it was.
So far today, the Supreme Court has overruled Chevron, a 40-year-old precedent, in order to reduce the power of federal agencies; and decided the Department of Justice can't try January 6 protesters for obstructing an official proceeding. All that's left is for them to decide that Donald Trump has immunity to prosecution.
That would be a bridge too far, even for them, wouldn't it? Wouldn't it?
Oh Christ. What a dog's breakfast of a debate. Donald Trump spent the whole time just saying anything he wanted. Immigrants are killing hundreds of thousands. Joe Biden is single-handedly destroying Social Security. Putin never would have invaded Ukraine and Hamas never would have attacked Israel if he had been president. I offered 10,000 troops to Nancy Pelosi on January 6. Blah blah blah. It was just endless.
Two men enter. One man leaves.
Joe Biden occasionally woke up to respond. But most of the time he just sounded confused. He was hard to understand—did he have a cold or something?—he jumped almost randomly between subjects, and he was often incoherent. He frequently stated outright that Trump was lying—which he was—but mostly left it at that instead of explaining further. And we had conversations like this:
Trump: I had the best environmental record ever.
Biden: Trump is nuts. But let me tell you about $35 insulin.
Trump: I just won two club championships.
Biden: I had a 6 handicap. An 8 handicap....
Trump: Let's not act like children.
Somehow Biden got himself maneuvered into a position where Donald Trump could pretend to be the adult in the room!
In addition to general incoherence, Biden continually got deep in the weeds about policy but only in passing. There's not a person in a hundred who could have understood most of his references unless they were explained, but Biden just blew through them as if everyone in the audience had inhaled a copy of the Congressional Record. If you were paying very close attention, this demonstrated a surprisingly deep understanding of policy on Biden's part, but the way he delivered it made it seem anything but.
Even in his (presumably rehearsed) final statement Biden was halting, hard to follow, and jumped from subject to subject so quickly there was no way of pulling any theme out of it. Trump blathered, but he spoke plainly about how terrible Biden was.
This was not a good night for Joe Biden.
POSTSCRIPT: As usual, I wrote this before reading or listening to any other reaction. But I now note that CNN is going strong on the fact that Trump lied a lot. Really a lot. And that's absolutely correct. Trump long ago learned the lesson that you can literally say anything you want, and all that happens is you get your wrist slapped by some fact checkers the next day. And nobody reads fact checkers.
To his credit, Trump showed unusual restraint and discipline during the debate. He didn't interrupt or explode or anything like that. He lied and evaded questions, but that's entirely normal for him.
Check this out from the latest release of the American Time Use Survey:
This is a proud day, America. After years of hard work, we've finally broken the 9-hour sleep barrier. And this an average, so it literally took all of us working together to accomplish this. First rate effort, fellow citizens.
And in case some scoffer tries to tell you this is just because our great nation is aging, it's not so. Sleep has been rising steadily for every age group over the past two decades. This is truly an intergenerational victory.
The Supreme Court has decided to leave their two biggest cases for the last day of the term. Apparently they want to drop them Friday morning and then get the hell out of Dodge. I'm not quite sure what that means.
But in the category of big-but-not-world-shaking decisions, today they published their opinion in Securities and Exchange Commission v. Jarkesy. The question at stake was whether the SEC could try Mr. Jarkesy before an internal administrative law judge. Or, per the Seventh Amendment, were they required to try him in a normal federal court? The Court's conservatives ruled that the SEC was out of line and Jarkesy had the right to an ordinary jury trial.
Ian Millhiser has the right take on this. If you were starting from scratch, you could make a case either way. The Seventh Amendment guarantees a jury trial in civil cases brought under common law, so the question is whether federal regulations count as common law. If it were 1850 and you were addressing this for the first time, it would be plausible to conclude that any trial for money damages in a traditional sort of case is common law-ish and therefore has to be done in front of a jury.
As it happens, though, the Supreme Court ruled the other way a long time ago and then continued to rule the other way for the next 150 years. During that time, Congress has made many, many laws that rely on the constitutionality of administrative law courts:
Had Congress known a century ago that the Supreme Court would someday eliminate its ability to assign certain cases to ALJs, it could have written hundreds of statutes differently so that they would be enforced in jury trials. It also could have appropriated sufficient money to federal agencies to allow them to hire trial counsel who could bring proceedings in federal district courts.
But Congress has instead operated for many decades under the assumption that cases like Atlas Roofing are good law. And now the Supreme Court has pulled the rug out from under a multitude of federal statutes.
Jarkesy went down on a straight party-line vote, 6-3. It's a bellwether of the current Court's hostility to agency power and bodes ill for their decision tomorrow in Chevron. It's also a sign of their disdain for precedent. You think Dobbs broke precedent? The SEC has been legally trying fraud cases for nearly a century.
As for the impact of the law, who knows? The Court ruled that Jarkesy "implicates the Seventh Amendment because the SEC’s antifraud provisions replicate common law fraud." So maybe the decision applies only to fraud cases?
On the other hand, the ruling also says it depends primarily on the remedy in the case, namely a fine. "The remedy is all but dispositive. For respondents’ alleged fraud, the SEC seeks civil penalties, a form of monetary relief.... SEC civil penalties are thus ‘a type of remedy at common law that could only be enforced in courts of law.’” This suggests it applies to any case that assesses monetary penalties.
On the third hand, the Court specifically says its ruling only applies to offenses that are old and well known. Fraud, for example. But in the case of offenses that are brand new and were never known to the common law—for example, unsafe working conditions as described in modern statutes—administrative courts are fine.
So what now? This is yet another case in which the Court has essentially punted by ruling so narrowly that it's very difficult to figure out just how much impact it will have. Is every administrative law court now out of business? There are dozens of them and they hear thousands of cases a year, so that would be catastrophic. The answer, as always, is that eventually someone will sue a different agency that's applying a different law, and the Court will nudge things one way or the other. In the meantime, I imagine that administrative law courts everywhere but the SEC and for all offenses other than fraud will continue operating and hoping for the best.
This is a western green mamba. It's a cute little thing, and quite shy. But don't rile one up. They don't bite often, but when they do you'd better have your affairs in order.
March 3, 2024 — Los Angeles Zoo, Los Angeles, California
A new study takes a look at prescription refills of contraceptives in the post-Dobbs era. The authors report that fills of emergency contraceptives dropped significantly in states that adopted restriction on abortion, but there was apparently no difference in fills of ordinary oral contraception:
What's peculiar here is the secular drop everywhere in oral contraception. From 2021 to 2023 fills declined overall from 6,800 to 5,000, a 26% drop. This trend is consistent throughout the entire period and has nothing to do with Dobbs. There are two interesting things here:
Is it really true that contraceptive use dropped by 26% in only three years? Why? This doesn't jibe with other research.
It appears that in states where abortion is easy to get, fewer women use oral contraceptives. Is this because, for some reason, they tend to use other kinds of contraception? Or is it because the easy availability of abortion makes them less likely to bother with contraception in the first place?
I'm going to tentatively put this in the "interesting if true" bucket. I'm not sure I trust these numbers, but they're interesting if true.
