Court including cases on gun rights and protections beach. We are going to go ahead and get started. Good afternoon and our partners at the National Review institute and the nation for individual is an expression and welcome you to the Supreme Court discussion. The term begins on monday of next week although this morning we got the surprise of several friends and cases here and its shaping up to be an exciting term. Theres a little bit of something for everyone, free speech, guns, classes and overreach by agencies. We have a lot of ground to cover and only about an hour to do so so im going to jump into a brief introduction for our distinguished panel. A partner where he has a the Supreme Court practice in ten cases before the Supreme Court and appeared before nearly every court in the country. He writes the popular watch and i hope youll bring back this holiday season. A fellow at the National Review institute. A recovering litigator and politics, law and facebook appeared in a variety of outlets. Dan is a longsuffering fan so perhaps we can ask for your world series productions. Last but not least, an attorney and Vice President of litigation the foundation for litigation rights and expression. Before joining, more than ten years litigating the constitutional l cases with the institute for justice. She has her wedding reception of the National Constitution center. I like to start with the big news of the day, the Supreme Court is going to hear two cases in the upcoming term. Both of these places the stakes are very high. I would argue the most important cases on the internet since about two decades ago when these laws closer one in texas and one in florida that regulate the major social media platforms. Facebook, youtube, twitter and they differ in some ways but overall two things. First, they restrict the ability of platforms known as content moderation so basically the ability to make editorial choices about moving, editing and arranging or prioritizing content. The second thingnt is impose notice requirements so laws require every instance of content moderation must be addressed and explained on an individuall basis. Individualized explanations for content moderation. Its not so much a surprise to Supreme Court has, the United States asked to take up both cases and today the court had almost two questions. One was content moderation research and and violates First Amendment and whether the notice and disclosure requirement violates the First Amendment. The florida keys 11th circuit decided District Court would likely violate the First Amendment because it discriminates based on content, viewpoint and the speaker. The District Court says it is not tailored because it is an instance of burning down the house and 11th circuit found it was right but the First Amendment protects platform moderation decision because of private entitypr decisions. Decisions about whether, to what extent and they disseminate thirdparty content so they are editoriall decisions protected y the First Amendment and longstanding Supreme Court and it establishes to exercise editorial judgment and showcase the First Amendment. The 11th circuit reversed knowing purely disclosure under the Supreme Court compel emotional disclosures. Key there. T is the the second case is texas and the fifth is basically the District Court enjoying the law but that is pending a deal for the fit circuit and the Supreme Court vacated thought. Then a divided panel ruled the content moderation conduct and censorship and its not protected by the First Amendment and even if these decisions are, the prohibition has intermediate scrutiny. The fifth circuit did declare the provisions for valid so that will be v interesting. Any predictions . I am opal the 11th circuit ruling will be held, these regulations rights, they are private entities and im hopeful the Supreme Court will recognize we are not talking about commercial, theres no commercial transactions. Looking at the requirements and provisions. Every time a social media platform decides to take down a message or post, they haded to provide a individualized explanation of why they were doing it. Im not soer sure how. United states which will be the first case with the new standard concerning the Second Amendment. Gun violence is no laughing matter that i found this kind of entertaining. One of the incidents that c ledo indictment involved firing shots into the air after his friends debit card was declined. Here so this is the fourth major Second Amendment case now in the past decade and a half and the court decided there was an individual right protected by the Second Amendment and a bit of a look at what was covered saying handguns were protected and the court said the Second Amendment was against the state which is not an issue in this case. An interesting because it was, one of the issues not quite settled is when you look at the original intent of the Second Amendment you look at 1701 and the time of the adoption of the 14th limit the 14th amendment is not relevant in the federal law case. The 2022 decision the court moved on from keeping arms to bearing arms and there is a right to carry arms in public. Now it is gun regulation. Once you establish thosesh guardrails when can the government decide you cannot keep or bear arms . 922 g8 says the criminalizes having a gun if you are subject to conviction of Domestic Violence so long as the order was subject, notice and opportunity and the court found an equitable sort current or issued prohibition of use of force. In this case the court may not reach that because the twoyear period was supported by both but the real founding issue because of the fact that under gruen was the court asked to find not an exact but at least an analog. In the fifth circuit, the sorts of things areth often done at a boilerplate level, often theres no incentive for judges to deny orders of protection come sometimes in divorce cases they will routinely issue a to a restraining order against both parties even if theres not really anything in the way of evidence that one of them is in danger. Its unusually unsympathetic fact. You had a guy who was subject to to your order of protection for threatening his girlfriend. He threatened to shoot her and he shot at it a witness alley and then was finally pulled in by the police after five separate shooting incidents in a fiveweek period. To the extent there is i think a founding air analog probably the closest thing the government seems to point to is surety laws that existed under which an individual could be required to put up surety if theyre found to bep a threat to some particular individual and that was a civil proceeding. Because of the fact the founding era normally you would be stripped of your rights to bear arms only after a felony conviction, its a little bit tricky. Its going to be interesting to see because probably it puts, this is about as sympathetic as the court is going to get a case for upholding these kind of laws and as a whole bunch of them in the federal criminal code. One interesting thing about comparing it to the surety laws is they didnt actually take away possession. You just had put up a bond and you could possess your firearm. Unless you could put up a bond, then you lost. Any prediction for how this might turn out . I have a feeling justices roberts and r can be pretty uncomfortable with following where the fifth circuit went. The question is going to be who else goes with them. Justice kavanaugh had a concurrence saying were not talking about longstanding bans on mental illness, felons, bans on carrying secured places, so they might either to to watch. Lets turn next to john, a trio of Administrative State cases and these are near and dear to my heart. The court will hear a case involving the Consumer FinancialProtection Bureau is unique funding mechanism. So instead of going hat in hand to cause like every other executive Agency Department the cpb gets to tell the fed how much the money and wants within certain caps and the fed has to hand it over. Another case challenges the securities and Exchange Commissions ability to bring Enforcement Actions for security fraud in its own inhouse which michael inhouse kangaroo court. Insteadn of a article threejudge. And finally the big kahuna of the term for my perspective theres a a case asking the justices to overturn the wrong handed chevron deference doctrine which requires judges to deferred agencies about the meaning of ambiguous statutory tax which is just a fancy way of saying judges have to put a thumb on the scale for the most powerful lytic in the country, it would be the federal government. John, tell us about the treo. It is an exciting time because i do think were on because potential of a sea seachange and Administrative Law, and were in the midst of a shift on separation of powers doctrine. On Administrative Law when i graduated from law school in the last century we will say, there were two fundamental principles of Administrative Law. First chevron was fundamental law and was firmly established. Secondly, nondelegation doctrine was useful only as a but for legal jokes. Those people may both ben the next five years, one of them as early as next year. The separation of powers thing has never really got out the fashion, but in the old days the court was much more sympathetic to the idea that congress could try to insulate an agency from political pressures. In the last few years there is a growing feeling that insulated from political pressure is not the witnessing reducing accountability. The members of the court highly skeptical him what to take a hard look at efforts to insulate anic agency from political pressures, actually it takes him outside of the congressional design because a lot of political pressures are baked into the constitution. So first, chevron, the third most cited case ever, add a note that some people stop hearing me know because you are going to think about what could possibly be cited more . It is actually qualified immunity for the day couldnt say what the other one is. As elizabeth has intimated, some people, some of the conservatives of the court have criticized chevron doctrine for both outsourcing and for putting a thumb on the scale when you te supposed beholding the balance do between both litigants. In recent years the court has based, avoided using it, basically ringing everyit bit of interpretive guidance to get out of the statute itself, and i basically saying chevron is impeccable in certain instances because of things like the major questions doctrine where you wouldd think congress didnt wat to leave Big Decisions up to the agency. As a consequence, the last time the Supreme Court really has employed chevron obligors 2016. So its been a while. Next term the w sprinkle of the case before asking them explicit to overrule chevron. The case involvess a challenger by Fishing Companies to rule issued by the National MarineFisheries Service that requires fishermen for me to meet every and tasty fish, the herring ce to pay for the cost of federal observers to monitor complex with fishery management plans. This is not nothing. They can sometimes be up to 20 of the catch. Relying on chevron the d. C. Circuit said that was a reasonable interpretation of the statute, even though, well, the statute does say it can require monitors to be present in on crowd fishing ships that itself is not nothing. Couple of the place in the statute explicitly say fishman have to pay for that. But they dont in the part of the statute that applies to herring fishermen, and so theres alreadyth a negative argument there. The d. C. Circuit is not afraid to play chiffon unlike the Supreme Court or not reluctant to apply chevron. The Fishing Companies came to the Supreme Court to ask two questions. First, whether this wasas a pror application of chevron and second weather chevron should be overruled or im going to read this, or at least with the coure courts should listen for statutory silence concerning controversial powers expressly but nearly granted elsewhere in the statute does that constitute and ambiguity requiring deference to the agency. The court only granted on the second question which automatically madent the case kd of a blockbuster because it shows they dont want to overrule chevron are only interest in overruling chevron or limiting it. Most of the attention in the briefing has been focused on the big ticket question, whether to overrule chevron whether to whether to limit it. Represented by the former solicitor general how clement gets a full throated argument saying chevron deference is a historical inconsistent with the procedure act and has a pernicious effect systemwide in that people no longer try to sort out, and no longer try to compromise in congress because they figure at the time their party is going to be in power at the can get their way through the executive branch and its kind of broken the political system. He argues chevron isnt entitled to stare decisis because it is designed to not endanger, because this post make it you can change the interpretation recently. This thing like i always think of the line from yellow submarine, sees of green, what i think about the amicus briefs and cases like this because theres already 50 amicus briefs filed just on the top side. Im sure there will be similar numbers on the other side. It willnt be interesting to see whether they go for the big question but there is this offramp whether they decide to limit chevron further. There is a lot of reason to believe they might do that. A few years ago the court was asked to overrule our deference which basically applies to the same principle but to s an agen, interpretation of zone regulation. Instead of overruling it outright they winnowed it down to virtually nothing, or the winnowed down substantially. Query whether the sprinklers could have much apathy to overrule chevron when the same, when kavanaugh and roberts of the world couldnt buy off on overruling our deference. That brings us to nondelegation doctrine. I will give a brief nondelegation preview, which was that it was more or less we got four justices who more or less said we were interesten revisiting this in separate opinions in the gundy case and then Justice Kavanaugh joined the courtrt and said in a disset from denial or actually opinion concurring in denial that boy, that gorsuch opinion in gundy was great. We ought to consider this in an appropriate case here that is present in sdc versus jarkesy which is a case out of the fifth circuit and involved an administrative prosecution or administrative proceeding against George Jarkesy who for basic a security fraud. He sought to challenge administrative ruling that he is guilty of fraud and the fifth circuit, and the fifth circuit invalidated the administrative finding on three grounds. So they wanted this thing killed dad. First of all they got out ahead of the Supreme Court because the Supreme Court has merely flirted with providing refini. The fifth circuit said his administered prosecution was violated with the nondelegation doctrine because congress led the sec the choice whether to prosecute and ministry proceeding or in court. They said that violated nondelegation doctrine and they didnt give a oh, what are the phrase . A, what is the phrase that you say oh, yes. An intelligible principle. You have to provide an intelligible principle for howib to choose it when those two, and they didnt even meet that. Secondly they conclude a piloted the seventh amendment right to jury trials to bring enforcement proceedings and administratively when fraud was a familiar common law concept. And finally third come hell divided the separation of powers to Administrative Law judges on the sec who are subject to two levels of removal restrictions because not only was he alj subject to a restriction on removability but the sec chair who would remove themhe also subject to removal restriction and those are two tears of removal restrictions violated the presence to take care of the laws faithfully executed, which the court said to tears of removal restriction was unlawful and Free Enterprise fund versus peekaboo public up his accounting oversight board. For what its worth, unlike some of the other speakers i am more willing to venture predictions if you promise to forget them if i am wrong. I think nondelegation is a fairly weak argument the government makes a fairly strong case that legislators in the past have given execution choices to agencies and hasnt been considered too bad, although in past its been criminal versus civil. And potentially not alleges a determination. Thats more of an executive choice. The government argues in the past when they kind of created a public rights that congress is allowed congress to condition than in place, basically allowed them to