"When Someone Loses His Livelihood as a Result of Government Action,

he has a right to know how and why the government took that action.”

From last week's opinion by Judge Stephen Vaden (U.S. Ct. of Int'l Trade) in CVB, Inc. v. U.S.:

The underlying case involves a challenge to the [U.S. International Trade] Commission's final affirmative injury determination in its investigation of mattresses from Cambodia, China, Indonesia, Malaysia, Serbia, Thailand, Turkey, and Vietnam. The Slip Opinion outlined numerous errors by the Commission but found the errors were ultimately harmless and sustained the Commission's final determination. To explain what the Court characterized as the Commission's "mathematical obfuscation and statistical chicanery[,]" the Court illustrated how responses to various questionnaires contained in the record and a chart from the Commission's final determination showed the opposite of what the Commission claimed they did.

After the Court released its opinion [link added -EV], the Commission contacted the Court … to express concerns that the opinion revealed confidential business proprietary information….

The court went in considerable detail through various procedural and substantive reasons why the Commission's request to conceal the confidential information was improper (read the opinion for more on this), and then offered this policy discussion:

The American tradition of public access to judicial proceedings dates back not merely to the founding, or even to the English common law, but all the way back to Ancient Rome. Legal arguments and judicial decisions are meant to be public because "American courts are not private tribunals summoned to resolve disputes confidentially at taxpayer expense." This is especially true when the courts resolve disputes to which the Government is a party, affecting the entire citizenry. Like a student taking a math test, courts are expected to show their work. The public does not and should not accept final answers to complicated questions on faith alone.

Although the Court adjudicates the Motion to Retract based on the law and the facts currently before it, this is not the first time the Commission has taken a questionable position on transparency before the Court. The Commission took a similar tact in a high-profile case involving fertilizer imports [OCP S.A.].  In a conference prior to oral argument, the Court noted that more than one hundred members of Congress had formally commented on the Commission's decision. Despite the public interest in the case, the Commission urged the Court to hold the entire oral argument in closed session. This would bar attendance by not only the public but also all non-lawyers, including corporate officers of the parties to the case.

The Commission's counsel urged this route because she believed business proprietary information "underline[d] all the aspects and all the disputes" in the case. The Court decided to hold a public oral argument with a confidential session at the end if necessary. The transcript of the eventual oral argument was 229 pages. The public portion comprised 192 of those pages. The opinion dispensing with the case was entirely public. Compare Audio Recording: Conference Call at 24:33–50 (Commission counsel claiming it would be impossible to conduct a public hearing on the matter), with OCP S.A., 658 F. Supp. 3d at 1297–1324 (28 reporter pages of opinion, none of which are confidential).

As with OCP, the Commission's decision in this matter and in the related petitions regarding mattresses from China drew public attention. Multiple media outlets published reports or editorials about the antidumping petitions. Numerous local outlets reported the petitions' potential effects on businesses. Senators on both sides of the political aisle publicly commented on the petitions and how the Commission handled them. When faced with public attention, the Commission's reflexive action appears to be to stifle public access to the judicial review of its decisions.

Although the Commission is not an elected body, it is part of the executive branch and is accountable to the people through their elected representatives. The Commission's actions, like the Court's, are not merely academic. An injury finding can make goods more expensive for consumers across the nation. A finding of no injury can close factories and destroy manufacturing jobs. Companies affected by this investigation claimed the Commission's decision could result in job losses.

When someone loses his livelihood as a result of Government action, he has a right to know how and why the Government took that action. Neither administrative agencies nor this Court can hide from scrutiny by censoring information. Citizens can only hold their Government accountable if they know what that Government is doing…. "[B]ecause 'We the People' are not meant to be bystanders, the default expectation is transparency — that what happens in the halls of government happens in public view." … Though the Commission may be an "independent" agency, it is not immune to legal and democratic accountability. The Constitution governs all branches of the Government — even the administrative state….

Transparency is a touchstone of our judicial system. Only information that is truly confidential may be concealed from the public. Parties are expected to diligently follow the rules regarding confidentiality to promote public access to the judiciary, protection of confidential information, and judicial efficiency. Because the parties failed to abide by the Court's rules and object to statements by the Court that are not confidential, the Motion to Retract is DENIED….

Comments

[ReaderY]

The legal basis of the opinion appears to be that the Commission did not properly preserve its confidentiality claims for appeal, and hence they are waived.

Given this disposition, I would omit the essay about transparency and its allusions to the “administrative state.” Any discussion of the role of transparency in the administrative branches of government is relevant only to a merits decision, and there was no merits decisioj here. I would simply state that the Commission waived its confidentiality claims for failure to preserve them for appeal. I would express no opinion on their merits. There is no warrant for the court to express one here.

[Rev. Arthur L. Kirkland]

About this judge:

.

Mr. Vaden, age 37, is another ideologically extreme, young, white man nominated by President Trump for a lifetime position on the federal bench. Mr. Vaden has never practiced international law and is not admitted to practice in the court to which he was nominated. He was nominated for this judgeship as a reward for services rendered to the Trump administration – Mr. Vaden is a political appointee in the U.S. Department of Agriculture who was confirmed to that position last year on a near party-line vote due to his controversial record – and for his previous efforts to restrict voting rights in America. The CIT is a specialized court that handles international trade disputes, but its members are Article III judges who often sit by designation on federal circuit and district courts and rule on critical civil and human rights cases. The Senate must reject Mr. Vaden’s nomination.

Worked to Restrict Voting Rights: In 2016, in the case North Carolina State Conference of the NAACP v. McCrory, Mr. Vaden defended North Carolina’s monster voter suppression law. This notorious law, passed in the wake of the Supreme Court’s devastating decision in Shelby County v. Holder that gutted a key provision of the Voting Rights Act, was struck down by the U.S. Court of Appeals for the Fourth Circuit. The North Carolina law imposed a rigid photo ID requirement, cut back the number of early voting days, and eliminated same-day voter registration. Mr. Vaden defended these restrictions, writing: “If minorities are free to vote subject only to the usual burdens of voting imposed on everyone, they have a full and fair ‘opportunity’ to vote, and cannot possibly have any less opportunity than non-minorities.”[1] The Fourth Circuit rejected Mr. Vaden’s arguments and invalidated the North Carolina law, ruling that it was passed with discriminatory intent, calling it “the most restrictive voting law North Carolina has seen since the era of Jim Crow,” and noting “that the new provisions target African Americans with almost surgical precision.”[2]

In another voting rights case, Lee v. Virginia State Board of Elections, Mr. Vaden defended a Virginia photo ID law that the plaintiffs alleged was even more strict than the ID provision struck down in the North Carolina case.[3] The plaintiffs noted that “the unrefuted evidence shows strict photo-ID laws disproportionately suppress minority turnout” and their expert witness opined that “approximately 230,000 registered Virginia voters do not possess qualifying ID.”[4] A conservative district judge and circuit court panel upheld the law.[5]

In another important voting rights case, Northeast Ohio Coalition for the Homeless v. Husted, Mr. Vaden filed an amicus brief on behalf of the right-wing, Koch-funded Buckeye Institute in which he defended Ohio laws that: (1) required county officials to reject the ballots of absentee and provisional voters whose identification did not perfectly match voting records, (2) reduced the number of post-election days for absentee and provisional voters to cure errors, and (3) limited the ways in which poll workers could help voters.[6] The district court struck down these discriminatory provisions and the Sixth Circuit partially affirmed that ruling.[7]

Mr. Vaden also sought to undermine voting rights in Ohio by defending efforts to reduce early voting opportunities. Following the 2004 election in which many Ohio voters were forced to wait in line for up to 12 hours in order to vote, the state created a five-day “Golden Week” period in which voters could register and vote at the same time, prior to an election. In 2014, the state eliminated Golden Week voting, and a district judge ruled that the law’s elimination had a disproportionate impact on voters of color in violation of the Constitution and Voting Rights Act. But Mr. Vaden defended the elimination of Golden Week in the U.S. Court of Appeals for the Sixth Circuit on behalf of the Buckeye Institute.[8] Although the Sixth Circuit overturned the district court decision, Judge Stranch wrote a dissent and concluded that Ohio’s elimination of Golden Week “imposed a disproportionate burden on African Americans” and “was linked to social and historical conditions of discrimination that diminish the ability of African Americans to participate in the political process.”[9]

Abuses at Department of Agriculture: As a political appointee in the Trump Department of Agriculture, Mr. Vaden has been involved in the controversial decision to repeal Roadless Rule protections for the Tongass National Forest,[10] an old-growth temperate rainforest in Alaska containing tribally significant lands for Alaska Natives. Mr. Vaden’s proposal would gut longstanding environmental protections and enable logging interests to bulldoze roads and clear-cut trees in areas that have been off limits for decades. Six federally recognized Tribal governments strongly opposed this decision and noted: “For many Tribal leaders, this is another indignation and example of environmental injustice as many Alaska Native communities bear the brunt of the climate change impacts and extraction policies that disrupt if not destroy the ecosystems they have come to rely upon while their concerns and voices are ignored.”[11] The forests protected by the Roadless Rule also safeguard drinking water supplies and provide vital habitat for thousands of wildlife species.[12]

In addition, Mr. Vaden has engaged in activities to demean and demoralize career employees. He has acknowledged providing legal advice on the controversial decision to relocate the department’s Economics Research Service and National Institute of Food and Agriculture from Washington, D.C. to Kansas City,[13] a move that has been described as “an effort to stifle research [such as climate change] that contradicts the Trump administration’s agenda.”[14] Indeed, the relocation has resulted in staff departures and delays on the completion of dozens of important research studies on such topics as veterans’ health, the opioid epidemic, obesity, and organic foods.[15] The Agriculture Department’s Inspector General (“IG”) concluded that the relocations may have violated federal law that requires congressional approval before spending money to relocate offices, but Mr. Vaden wrote a controversial memo disregarding the IG conclusions because “USDA is not required to abide by unconstitutional laws.”[16]

Mr. Vaden’s nomination to be the USDA General Counsel was opposed in 2017 by the American Federation of Government Employees (“AFGE”) because of his dismissive treatment of agency employees. One of his first acts as General Counsel was to terminate the labor contract between the office and its staff of 250 lawyers, who were represented by AFGE Local 1106.[17] Under Mr. Vaden’s leadership of the Agriculture Department’s Office of General Counsel, the employee satisfaction score in that office plummeted to number 405 out of 415 agency offices that were ranked in a recent survey.[18]

Ideological and Partisan Affiliations: Mr. Vaden has been a member of the far-right Federalist Society since 2005, when he joined as a first-year law student. He has been an active member, speaking frequently to Federalist Society audiences and serving since 2015 on its Administrative Law and Regulation Practice Group executive committee.[19] This out-of-the mainstream legal organization represents a sliver of America’s legal profession – just four percent – yet over 80 percent of President Trump’s circuit court nominees, and a significant number of his district court nominees, have been Federalist Society members. Mr. Vaden is also a member of Teneo, which was described by the National Review as “a network of young conservatives, doing what they can to advance conservative principles.”[20] He has been a partisan activist, contributing thousands of dollars to Republican candidates and serving as president of the Yale Law Republicans while in law school.

Lack of Experience: Mr. Vaden is a 2008 law school graduate, and he did not become eligible to practice law until 2009. Thus, he has practiced law for only ten years, which is two years shy of the 12-year mark that the American Bar Association (“ABA”) views as the minimum number of years to be qualified to serve as a federal judge. In addition, Mr. Vaden acknowledged that he has never litigated any matters in the CIT, he is not admitted to practice before the CIT, he has never litigated any matters involving international trade, and he has never handled a trial of any type.[21] Mr. Vaden’s ABA rating of partial Not Qualified likely reflects these concerns about his lack of experience to serve as a federal judge, particularly on a court specializing in international trade cases.

Carry on, clingers.

[Scooter]

LOL, Meat.

Nice, CopyPasta. You ever think of using your own words?

Your Betters are losing patience.

LOL

[David Nieporent]

Carry on, clingers.

And yet, he's a federal judge and you're a nobody.

[Rev. Arthur L. Kirkland]

I am a culture war champion and you and that Trump clown are culture war roadkill — disaffected, worthless losers.

[MaddogEngineer]

What, exactly, are the objective criteria by which determines a "champion"? Sounds more like a legend in your own mind.

[MaddogEngineer]

You also failed to engage with the judge's reasoning, choosing instead to attack his qualifications. Just because you found someone else's words to impugn him, doesn't mean the judge's reasoning is faulty. Seems like yet another case of disregarding the merits of his decision because he belongs to the wrong tribe.

[David Nieporent]

You are a champion in exactly the same way as Donald Trump is.

[hmi]

I knew I liked that judge.

[Michael P]

I followed the court up to this point:

The Commission took a similar tact in a high-profile case involving fertilizer imports [OCP S.A.].

I have no tact for people who confuse tact and tack. Or tract and track. Or pact and pack.

[ReaderY]

Even judges sometimes make typos. I wouldn’t sweat over it too much.

[Rev. Arthur L. Kirkland]

Why do you infer it was a typo?

[Jokibif0]

I definitely know people who always say "tact" when they mean "tack". It may very well not be a typo. Very distracting.

[Stephen Lathrop]

Make it a point to notice. That particular mistake, like use of, "nucular," is a quirky but reliable field mark of right-wing literary incompetence.

[hmi]

Jimmy Carter & George W. Bush Pronounce "Nuclear" Incorrectly
https://www.youtube.com/watch?v=wHdl_0q-F60

[Stephen Lathrop]

Perhaps in the cases of those two for similar reasons.

It is hard to suppose that Carter, educated as a nuclear engineer, did not know how to use the correct pronunciation. But to use it in Georgia politics might have suggested Carter lacked the common touch necessary to relate to constituents who pronounced it otherwise.

Bush seems more like one of Carter's Georgia constituents. They picked up "nucular," from those around them, and stuck with it because they were tribally tone deaf to the alternative. Tellingly, Bush's use of, "nucular" long pre-dated his personal involvement in politics—but of course not his family's involvement.

Perhaps by the time he became a politician, Bush too recognized the difference, but judged it expedient to stick with the error—more or less on the same tribal principle that encourages right wingers to chorus, "Democrat Party."

[David Nieporent]

Why do you think it's an error, rather than a dialect?

[Stephen Lathrop]

Nieporent, choice of, "Democrat Party," is dialect? No? Neither is, "nucular."

Note also, every time I try in these comments to write, "nucular," I have to go back and retype it to prevent an auto-correct. To me, auto correction implies a consensus choice on correct usage. Your mileage may vary. Ain't that so? I guess it is; no correction to auto-correct necessary to get that bit of dialect accepted.

More generally, could you please exercise your quibble impulse on someone else. Like anything else too much repeated, correcting you loses its appeal after long practice. It not only gets tiresome, but also inclines my formerly better opinion toward conclusion that despite evident talents you perversely prefer to be judged a crank.

[David Nieporent]

Setting aside the wisdom of deferring to a coder at Microsoft,¹ I somehow doubt that Jimmy Carter (or, google tells me, Walter Mondale), spelled it as "nucular." "Nucular" is a pronunciation, not a spelling.
​
​
¹They routinely try to "correct" tortious to tortuous, for instance.

[Absaroka]

"They routinely try to “correct” tortious to tortuous, for instance."

Maybe old news, but in at least some browsers you can right click the flagged word and 'add to dictionary' is one of the choices.

[markm23]

So Lathrop thinks Jimmy Carter was right wing!

[Toranth]

So, having been caught committing blatant and deliberate fraud in its court filings, what punishment will the Commission face?

[Alec Rawls]

I thought this was going to be about the Covid mandates, which Democrats used to purge our military of conservatives. Ditto many blue states, like where I live in WA, which used them to purge their entire government.

As soon as they realized that there was a partisan divide on willingness to take the radically experimental mRNA "vaccines," with Democrats, who receive nothing but censored information through their Democrat controlled fake-news media believing that the vaccines were "safe and effective," and conservatives, who get their information uncensored from conservative aggregators who promote actual expert opinion, saying no way, WA's totalitarian Democrat thug-o-cracy didn't just fire every government employee who rejected the new and dangerous gene therapy that nobody actually needed (since Covid was not dangerous to anyone who wasn't elderly with multiple co-morbidities, and it's not advisable for people with serious co-morbidities to stress their immune systems with challenging vaccines), but they widened their purge of conservatives by taking away the medical and business licenses from everyone who refused the vax. This in a state where virtually every trade requires a state issued license.

It was Holodomor. They were stripping their political opponents of their livelihoods, which is how Stalin mass-murdered a million Ukrainians, and this actually happened in the United States.

That's two massive systematic war crimes. Coercing people to participate in the most radical medical experiment in human history was a blatant violation of the Nuremberg Code, and the instrument of coercion that they used, Holodomor, is another monstrously evil war crime.

All for the unconstitutional purpose of weaponizing the powers of government against political opponents, which violates both equal protection, and the guarantee of a republican form of government.

The latter must apply to the federal government as well as to state governments, because the people of each state have over them both a state government and the federal government, and it is the people of each state who are guaranteed to "have a republican form of government." If either of the governments that are over them are unrepublican then the government that they "have" is not republican.

[ReaderY]

Excuse me. Regarding “purge our military of conservatives,” that’s quite an accusation you’re making. Are you suggesting that even a single member of the military died from COVID vaccination?

Or are you just saying that having rules purges the military of those who want to obey them? If that’s the case, I would think that the requirements that one get up in the morning and wear a uniform by themselves probably did far more to purge the military of people who think liberty means they have the right to do whatever the hell they damn well please and the people around them be damned (aka “conservatives” in the new political jargon) then this rule ever did.

[Absaroka]

When someone is comparing vaccination requirements to the Holodomor, IMHO it's mute button time. Don't feed the trolls.

[Alec Rawls]

The purge of conservatives from the military came from the purging of people who refused the vax, who were known to be almost all conservatives.

Obviously they didn't get ALL the conservatives. The conservative military people I know mostly did take the vax, even though they dearly wanted not to, because they have families to support and careers that they have been working on for many years.

It's still a purge, politicizing the standing army that the authors of our Constitution were very skeptical of and wanted to limit precisely because of the danger that it could be used for partisan purposes by a usurpatious executive. A political purge suggests that this betrayal of constitutional purposes is in swing, which is something that libertarians really should care about.

Are you really libertarian?

Was my comment really so garbled that even that could be missed?

[David Nieporent]

Okay, now that we've heard from the mentally ill crowd, can we get back to reality?

[Alec Rawls]

Moron

[Alec Rawls]

Sorry for that comment being so garbled. I went back to edit a few things and the editing software didn't keep my fixes but just added more garble. So I'm not going to try to fix it again, haha.

[David Nieporent]

Shouldn't you be apologizing for the absolutely nutty content instead?

[Alec Rawls]

Nutty content? I live in a state where everyone in state government, who refused to take the radically experimental mRNA vax, 90% of whom were conservatives, was fired. Many of my friends are military. Same thing for them. Other friends are state licensed in their field of work. Same for them.

Forcing the people to participate in medical experiments is a war crime. Stripping them of their livelihoods for not going along is a war crime. If these things were done in war, the people involved would hang. Yet they did it to the American people under fraudulent claims of emergency need.

You idiots are not the slightest bit libertarian.

We knew very early on, from the Diamond Princess analysis, that Covid was only dangerous to elderly people with serious co-morbidities, and had similar overall mortality to a bad flu, meaning there was little to no medical benefit for 90% of people even if the vax did work and was safe. (Turned out it was neither safe nor effective.)

So they pretended that people should do it "for grandma," but everyone knows that the effectiveness of any antigen-fighting mechanism is a scarce resource that should NOT be squandered on people who don't need it.

A true vaccine, one that reliably prevents infection, yes, that can possibly be successful with wide use, but the mRNA vax never was that. It didn't prevent infection, but only reduced symptoms. That turned the body of every person who got vaccinated and then caught Covid into a Petri dish for breeding escape variants of the Sars-Cov2 virus that could survive the vax-induced antibodies. The more people who were vaccinated the faster escape variants would emerge.

This was known at the beginning. Yet they still mandated the vax for people who didn't need it, on the lying claim that this was saving grandma, when it was actually squandering the vaccine efficacy that might have helped grandma, had the vax actually worked.

Why did they do it? Partly corruption, to enrich highly connected pharma companies, but also in an attempt to get to vaccine passports, the ultimate mechanism of totalitarian control, where nobody can have a job, enter a store, board public transportation, get medical help, etcetera, without a stamp of good-standing from the government.

Libertarians really ought to care about these attacks on liberty.