Arbitrary and Capricious
| David French and Sarah Isgur | Jun 18 | 20 | 34 |
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| 0:00 | -1:19:54 |
David and Sarah discuss the Supreme Court's ruling that blocks the Trump administration from ending DACA for now, return to their discussion over the Title VII ruling, and finish with the legal fight over John Bolton's book.
Show Notes:
-Cass Sunstein on Gorsuch Title VII opinion
-Atlanta Journal-Constitution piece on Bostock
-David's piece A Conservative Legal Chernobyl?
See omnystudio.com/listener for privacy information.
| 20 | 34 |
Guess Democrats will not be in favor of packing courts as much now?
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Here's what strikes me about the DACA ruling:
In the DAPA case, the 4 progressive justices are on record as believing that instituting DAPA did NOT violate the Administrative Procedures Act. Those same 4 justices have now signed on to a decision that rescinding a nearly identical program DOES violate the APA. That is some impressive intellectual pliability.
It seems like only one wing of the court seems bound by judicial philosophy. All a petitioner on the progressive side of a case has to do is come up with a process argument that at least one justice on the conservative side will buy into, since the votes of the 4 progressive justices are not in jeopardy. Does anyone seriously believe that Breyer, Ginsburg, Kagan and Sotomayor would apply the same APA standards if it meant the outcome disfavored a progressive policy?
Think of this counter-factual: the Trump administration issues a memorandum creating a program called Deferred Accounting for Productive Assets, that allows for accelerated depreciation of capital goods to reduce corporate taxes, even though Congress had recently considered and rejected this tax treatment. It directs the Treasury Dept to issue amnesty letters to companies that use this program to reduce their taxes.
In the first year of the Biden administration, the program is rescinded by memorandum, and affected corporations sue to enjoin the rescission. Is there any doubt that the case would lose 9-0?
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