Or read the transcript below:
(Transcription by J. C. Hendershot)
Interview with Cory Andrews by Roger Aronoff
The “Take AIM” show on BlogTalkRadio, Thursday, July 15, 2010
ROGER ARONOFF: Good morning, and welcome to Take AIM, Accuracy in Media’s weekly talk show on BlogTalkRadio. AIM is America’s original media watchdog, and every week we point out biased coverage and bring you the stories the mainstream media ignore. We encourage you to visit our website at aim.org, and sign up to receive our daily E-mail so you can keep track of what the media are up to. I am Roger Aronoff, a media analyst with AIM. We’re going to cover a lot of ground today as we discuss several cases that have gotten little attention in the media. We’re going to discuss several legal cases, including one involving an immigration law in Arizona which preceded the current controversy by several years. We will find out if, and how, the two issues are related. Our guest for this segment is Cory Andrews, who is a litigator for the Washington Legal Foundation here in Washington, D.C. In addition to the case in Arizona, Mr. Andrews will talk to us about two recent U.S. Supreme Court cases, Holder vs. Humanitarian Law Project, and Monsanto vs. Geertson Seed Farms. So, Cory Andrews, welcome to Take AIM!
CORY ANDREWS: I’m here. Can you hear me, Roger?
ARONOFF: Now I can. Let me tell our audience a little about you first. Cory Andrews is the senior litigation counsel for the Washington Legal Foundation, a public interest law and policy center that defends and promotes free enterprise, individual rights, and a limited and accountable government. Before joining the Washington Legal Foundation, Mr. Andrews was an appellate attorney at the law firm of White and Case, where he litigated state and federal appeals on behalf of clients in the telecommunications, hospitality, and banking industries. He received his J.D. magna cum laude from the University of Florida, where he was editor-in-chief of the Florida Law Review. Most recently he was the editor of Washington Legal Foundation’s revised Special Report, Federal Erosion of Business Civil Liberties, a critical analysis of the key legal, judicial, and regulatory developments at the federal level to criminalize normal business activities. Before we start, I want to point out that the cases we will be talking about today are cases that the Washington Legal Foundation has filed briefs for on behalf of the Allied Educational Foundation, a non-profit—charitable foundation based in New Jersey. Allied Educational Foundation, which has been in existence for nearly 50 years, is dedicated to promoting education in diverse areas of study, such as law and public policy, and they have also been a major supporter of Accuracy in Media’s Speaker’s Bureau, through which we get our message out about the need for honesty and accuracy in the media. During 2009 and 2010, you filed 17 court briefs on behalf of the Allied Educational Foundation, but, just in the interests of time, we’re going to limit our discussion today to three of those cases. Regarding the mission of the Washington Legal Foundation, what is the overall problem, or situation, that Washington Legal Foundation seeks to confront? And how did it get started?
ANDREWS: Well, Washington Legal Foundation is now in its 33rd year as a public interest law and policy center, and in addition to a vibrant litigation practice, which you just spoke a little bit about, we also publish in seven different formats, and we regularly communicate to the public and the press in a variety of venues, including hosting media briefings and participating in forums such as this, your radio show. But, in a nutshell—WLF—we bring original lawsuits, we file amicus briefs, we intervene in court cases, and we also publish timely legal studies and, through our target marketing, our publications reach judges and federal and state legislators, the executive branch officials, business leaders, the media—and, to date, we’ve published almost 2,000 publications, we’ve litigated in over 1,000 court cases, and we also have a broad-based communications outreach program that disseminates our mission, which is free enterprise. Like I said, we started in 1977. Our founder, Dan Popeo—I think one of the very first high profile cases WLF took on was when Dan had the good fortune to represent Senator Barry Goldwater. Jimmy Carter had sort of unilaterally reneged on the defense treaty with Taiwan in his effort to normalize relations with Communist China at the time, and WLF took that case to court. It actually—the case ended up in the Supreme Court. Unfortunately, the Supreme Court decided that it was a political question, and that it wasn’t capable of rendering a relief in the case. But that was one of our very first cases, and since then, we’ve been shaping public policy and fighting activist lawyers and regulators and intrusive government agencies at every turn.
ARONOFF: So you started out on a significant national security case, and I know a number of your cases have been that. How does WLF decide they want to get involved in a case, and then how do you go about that?
ANDREWS: It’s a two-pronged process. Some of the cases we will percolate internally through just keeping our ears to the ground and following current events. We present cases to our board, and if people feel that it lands squarely in our mission, that it’s in the public interest, and, assuming that our resources are not completely stretched too thin, then we’ll dedicate it. A lot of times, especially as our reputation’s built up over the years, we’ve been approached by outside people to take a case on, or to file an amicus brief in a case, because they’ve come to appreciate the quality of work that we can do, and raising the profile of the issues involved.
ARONOFF: Let’s talk about what I believe is your latest victory at the Supreme Court, Monsanto Company vs. Geertson Seed Farm.
ARONOFF: Tell us about that case, and what the significance of it is.
ANDREWS: Sure. The Monsanto case is an interesting case. You always, whenever you’re a litigator, you always learn a lot more about things than just the law, and so working up this case I got to learn a lot about genetically modified seed. The case involves a variety of genetically modified alfalfa that had been developed and marketed by the Monsanto company. Now, anyone who knows about alfalfa knows that the yields increase considerably if the weeds can be prevented from growing in the same field, so Monsanto has one of the safest, most environmentally friendly herbicides on the market that everyone’s familiar with—it’s called Roundup. What Monsanto did was, they developed a new variety of alfalfa, known as “Roundup Ready Alfalfa,” that proves to be resistant to Roundup. If you spray the field with Roundup, it’ll kill everything—except for the crop. This allows farmers to apply Roundup to their entire field of alfalfa crops, rather than going through the more expensive and, quite frankly, less environmentally friendly herbicides that would have to be applied much more frequently. And so, as with everything in America, there’s a huge regulatory process for Monsanto to eventually put this seed on the market, so before—and, by the way, genetically modified seeds are currently marketed. Most of the beets, for example, that we buy, where our sugar comes from, are genetically modified seeds. There’s genetically modified corn, soybeans. The alfalfa was nothing new, other than it being alfalfa.
But before any genetically modified plant seed can be sold commercially, federal law requires that they obtain approval from the USDA—in particular, a branch of the USDA called the Animal and Plant Health Inspection Service. Unsurprisingly, that process is designed to ensure that the seed is safe, that the danger of cross-pollination with other seed varieties is minimal, and that the possibility of cross-pollinizing with adjacent farmers is not a significant, harmful impact on the human environment. So, after eight years of field testing, the USDA finally approved this Roundup Ready Alfalfa for marketing and for distribution, and, in doing so, it also determined, after conducting an environmental assessment, that the approval of this crop wouldn’t significantly impact the environment. As tends to happen, several environmental groups then filed a lawsuit against the USDA, alleging that its environmental assessment had been inadequate, and the district court—which, by the way, was Chuck Breyer, who’s the brother of Justice Stephen Breyer—he agreed, and he said that the USDA was required to prepare a much more extensive and lengthy environmental impact statement before this crop could go on to market. But it did something more than that: It then further held, and issued an injunction, and said that all marketing of Roundup Ready Alfalfa, and all planting, should be completely enjoined until that lengthy environmental impact statement could be completed—and this is a process, Roger, that often takes several years. So Monsanto appeals—by the way, I should say that Judge Breyer, at the district court level, refused to conduct an evidentiary hearing on the question of whether there would ever be any harm as a result of using this crop, but held that plants would be irreparably harmed in the absence of a blanket, nationwide injunction against future marketing. This—
ARONOFF: These were done reflexively, rather than based on the evidence?
ANDREWS: That’s right. Any time a judge is faced with two parties that come into court, and Party A says x, and Party B comes in and says not x, and they each produce, in their submissions, they each produce expert testimony, each saying x and not x—the only way to resolve that, in our historical system of jurisprudence, is through an evidentiary hearing. You put people on the stand. You submit them to cross-examination. You can assess their credibility as experts. You get to the bottom of it. You have to roll your sleeves up to get to the bottom of it, and it can take a while. But he didn’t want to do any of that. He just said, “Look, I don’t want to sort through the evidence. I’m not a scientist. So I’m just going to err on the side of caution, and issue this blanket, nationwide injunction.” The U.S. Court of Appeals for the Ninth Circuit affirmed the injunction, and Monsanto, which had intervened in the case to support the USDA, then successfully petitioned the Supreme Court to review that decision. We had actually become involved at that point. We filed a brief in support of cert, which was granted. Fast forward. The U.S. Supreme Court—it wasn’t even, really, a close call—it ended up being a seven-to-one decision. Justice Breyer abstained because his brother was a district judge. Justice Stevens was the lone holdout, and dissented.
Justice Alito wrote an opinion, in which Justices Ginsberg and Sotomayor joined, that basically overturned the District court’s injunction and reaffirmed its previous holdings in a case called Winter, which was a case that had involved a challenge to the Navy’s sonar use as “threatening to dolphins,” that said, an injunction is a drastic remedy, that these injunctions should not automatically issue against a proposed action, even where a federal agency may not have completed a complete environmental impact study, as required by federal law. The decision was a victory for us, and for the party, Monsanto, and for the USDA. In fact, the government had submitted a brief also critical of the district court’s injunction, and asking the Supreme Court to uphold what USDA had decided to do in the case. We argued that even when a violation of an environmental law has been established, there are important constraints of equity that have always required an injunction should be denied unless the plaintiff can demonstrate that there will be irreparable harm in the absence of an injunction. And, just for your listeners, the concept of irreparable harm, in the law, means “Something that cannot be compensated by money damages.” Here, if someone’s—again, the actual threat of any imminent harm to nearby farmers, who were concerned that their fields would be cross-pollinated by alfalfa, I think the record showed that it was somewhere around one to three percent, at the margins. It was a very, very slim possibility. But even assuming that kind of harm, that kind of harm is compensable. It’s measurable. We know how much—
ARONOFF: Right . . .
ANDREWS: —money they expected to make in crops. We know how much it might cost them to replace their seed in their fields with pure seed that wasn’t genetically modified. And, again, these are nightmare scenarios that I don’t think would even have taken place. But even if they had taken place, that’s not what the law traditionally views as irreparable harm. Irreparable harm is harm that cannot be compensated, that you cannot put a price tag on. And so the Supreme Court agreed with WLF that traditional constraints on injunctive relief apply in all cases, that there’s a process you have to go through, that irreparable harm is one of the things you have to show, and that applies no matter whether it’s an environmental case or a business dispute—or an immigration dispute, for that matter.
ARONOFF: Let me ask you: Do you think this sounds huge, and very significant? Is this real change? Or will they interpret the decision narrowly, and will it come back again with the next environmental scare tactic like that?
ANDREWS: You know, that’s a good question. The case certainly didn’t go as far as it could have. The Court took a very, I think, narrow approach to just merely overturning the injunction. They didn’t even get into some of the more deeper issues that had been briefed, and I think this is why we saw such a big consensus, perhaps, an accord. Justice Roberts has demonstrated a desire to try to bring people together, and to only decide cases on the narrowest possible grounds, so that the Supreme Court isn’t being all things to all people at all times, and I think there’s a certain wisdom in that. But I think we haven’t seen the last of these types of injunctions, and I think we haven’t seen the last of these types of challenges. Again, the question that the Court ultimately decided was one that had already been previously decided in Winter, which is that the legal hurdles for an injunction that must be satisfied do apply in an environmental case under NEPA, which is the National Environmental Protection Act. And so, in that sense, while it was a victory, and it certainly was a victory for Monsanto, the case didn’t tell us anything that we didn’t know already.
ANDREWS: And so it was almost like the Court telling the Ninth Circuit, “Look, guys: We really meant what we said in Winter. You really should go through these steps before you enter an injunction.”
ARONOFF: Let’s move on to the next one, because—
ARONOFF: —I want to give them all ample time—
ANDREWS: Sure, Roger.
ARONOFF: —and I also want to ask you about media coverage, if any of these are getting it. Your other case regarding immigration…
ANDREWS: …most of your listeners are going to know that Arizona has basically just been faced with a great deal of hardship and economic costs and burdens by virtue of the border they share with Mexico…Our case was one of—there are now seven cases pending in Arizona, including the DoJ’s case, which was just filed recently. This case was a case that was brought by the ACLU and the Mexican-American Legal Defense and Education Fund—called MALDEF—and several other activists to prevent Arizona immigration law SB 1070 from taking effect. So this is a case that has been at the forefront of media attention the last several weeks. The case involves a facial challenge to Arizona’s “Support Our Law Enforcement and Safe Neighborhoods” Act, and the plaintiffs claim it conflicts with, and is preempted by, federal law. And so the name of the case is Friendly House vs. Whiting, and we filed a brief only yesterday in that case. We argue that the law is designed merely to assist with the implementation of immigration policies already established by Congress, and I’m pleased to say that we filed this brief not only on our behalf, but on behalf of 23 or 24 amici clients, including Allied Education, but also including the author of the law, Arizona State Senator Russell Pierce, and 18 members of the United States Congress, along with the National Border Patrol Council—which is the largest union for border control agents—the American Immigration Control Foundation, and also Concerned Citizens and Friends of Illegal Immigration Law Enforcement. And we argued that there’s nothing in the Arizona law that stands as an obstacle to Congress’s policies on immigration—in fact, it dovetails with federal law.
ARONOFF: Right . . .
ANDREWS: We firmly believe, Roger, that state and local governments have an important role to play in enforcing our nation’s immigration laws, and unless they’re both permitted and encouraged to assist the federal government in enforcing those laws, it’s unlikely that we’ll ever be able to stem the flood of illegal immigrants across our borders.
ARONOFF: Right. Another point that’s being made is these “sanctuary cities,” which are actually forbidden. From a 1996 law, they’re required to turn over illegal immigrants that commit crimes to the federal authorities, but they refuse to do that, and so people are saying, “Why doesn’t—instead of going after this law by Arizona that mirrors the federal law, go after these cities that are in clear violation of a federal law?” And the federal government’s staying out of that.
ANDREWS: You know—
ARONOFF: It’s ironic, huh?
ANDREWS: It’s absolutely inexplicable. The Supreme Court has long recognized that there’s a presumption against federal preemption, that courts should not find that state laws are preempted unless that’s a clear and manifest purpose of Congress. But what’s interesting is that the view of preemption that the administration is now peddling in the Arizona litigation is just radically different from the position that it’s only recently announced elsewhere. For example, the government Solicitor General filed an amicus brief in a case called Williamson v. Mazda, in which the government took a very strong anti-preemption stance, said it did not agree with the broader theory of implied preemption that many lower courts had advanced. Many commentators referred to this a blistering anti-preemption brief. But that’s not all! Back on May 20th, in 2009, Roger, President Obama issued a Presidential Memorandum on preemption. He delivered it to all executive department agency heads, and he said that he was alarmed that executive departments were announcing that their regulations preempted state law without explicit preemption intention by the Congress.
The memo actually advances the view that state law and national law are often working concurrently to provide independent safeguards for the public, and that preemption of state law should be undertaken only with a full consideration of all the legitimate prerogatives of the states, and with a sufficient legal basis for the preemption. Basically, in this memo, President Obama advocated presumption against preemption unless a clear contrary intention was expressed in the statute. If you look at even the policies that are in place, and some of the programs are in place, they also undermine the argument that the administration’s undertaken. There are programs in place that clearly contemplate and encourage state and local governments to play a vital role in addressing public safety concerns related to border security and immigration. Just to give you a few examples: In 2009, the Obama administration spent over $60 million dollars on something called “Operation Stonegarden,” which provides grants to state, local, and tribal law enforcement in 13 states to, quote, “Enhance cooperation and coordination between federal, state, and local law enforcement agencies in a joint mission to secure the U.S. border.” Okay. When that program was announced, Secretary Napolitano proclaimed, quote, “I am proud to announce that this funding provides all the flexibility necessary to ensure that our first responders here in the states are equipped with the resources they need to confront the challenge of border control.” The administration also routinely solicits state and local governments to participate in programs like “Secure Communities” and “Border Enforcement Security Teams,” all of which are designed to help identify and remove criminal aliens through local law enforcement. In fact, the DoJ itself participates in a program called “Basic Immigrant Enforcement Training,” which is designed to train state and local law enforcement officers on immigration issues. So at the end of the day, how do we explain this seeming hypocrisy which—I think you’re right—is only further compounded by its inconsistent stand on sanctuary cities. If it really wants to find people who are actively undermining federal immigration policy, they might start to look there. But I’m afraid this is just politics as usual, Roger.
ARONOFF: Yeah. That’s what a lot of people seem to think, even though, politically, it doesn’t seem to be playing too well. Maybe it is—
ANDREWS: Constituencies. You’re right. It is an unpopular move, and in that sense, the administration’s kind of tone deaf. But I think they’re just so beholden to certain constituencies that they can’t see the forest for the trees.
ARONOFF: Unfortunately, we’re running a little low on time. I’m going to go a few minutes over. Let’s get into this third case that we wanted to talk about, Holder vs. Humanitarian Law Project. Last month, WLF achieved a victory when the Supreme Court upheld a portion of the PATRIOT Act. It had to do with a federal law that makes it a crime to provide material support to any organization designated by the State Department as a “Foreign Terrorist Organization.” You were doing it on behalf of JINSA—the Jewish Institute for National Security Affairs, who I’m quite familiar with—and the National Defense Committee, in addition to Allied Educational Foundation. What was this one about, briefly?
ANDREWS: Sure. We actually also filed on behalf of four retired generals and admirals. The law in question, 18 USC 2339B, makes it a felony to knowingly provide material support or resources to groups that have been designated by our government as a “Foreign Terrorist Organization.” The law had originally been adopted back in ’96, but was later strengthened by the USA PATRIOT Act in 2001 and 2004. There are 44 such groups, including al-Qaeda and Hamas, and, if you can believe it, people were arguing that it was basically chilling their First Amendment rights. They said this was an obstacle to our “constructive dialogue” between Americans and foreign groups that might be reasoned with, and might eventually become our friends. This is actually—you can read this kind of stuff in the New York Times op-ed that ran on June 29th.
ANDREWS: WLF took the position, and the Supreme Court agreed with it, that there’s simply no such thing as “good aid” to a terrorist group, because all aid is fungible—which is to say, any time you provide material support to a terrorist organization, even if you provide it to its humanitarian efforts, that frees up resources that the group can then reallocate to its terrorist efforts. And so the law didn’t chill speech; under the law, Americans are still free to praise a terrorist group, and even to act independently to advance the group’s objectives. The law at issue covered only those activities that provided material benefit, in the form of goods or services, to a terrorist group. And the First Amendment has never been understood to prohibit the government from making a certain course of conduct illegal merely because it’s carried out through the use of words. We’ve all heard that you can’t shout “Fire!” in a crowded theater and this is an extension of that doctrine. You’re also not free to assist a terrorist organization that’s hell-bent on destroying our country.
ARONOFF: Yes. I can’t imagine doing something, say, for the charitable side of the Taliban, or al-Qaeda, that could be viewed as “Well, that’s okay, look, look, they’re not using that to blow up Americans or other people.” These cases are all very significant, and getting victories at the Supreme Court. I think it’s fantastic. Give me—other than the Arizona case, which we know is getting a lot of coverage, not necessarily your role in it, but how do you see the media, and their role in covering these sort of cases, and these victories that you have had?
ANDREWS: We do a good job of getting the facts, we think, the right side of the story out in front of the media, and for the most part these days, the Supreme Court press, the journalism circles for the Supreme Court is a very tight-knit group, and they regularly attend our media briefings here. I think, for the most part, especially in light of having two recent vacancies on the Supreme Court, for the most part the media has at least done a good job of looking at all the important issues and cases facing the day. They don’t always present it in a completely fair and balanced way, but the attention’s there. The spotlight is there. In a sense, it’s unfortunate, I think, that so many Americans look to the Supreme Court as one of the most influential institutions affecting their day-to-day lives. I don’t know that it was ever intended to be that way, but it’s sort of become that way.
ARONOFF: Well, Cory, I’m afraid we’re going to have to leave it there. But tell people how they can learn more about the Washington Legal Foundation, and read your articles in Forbes. In preparing for this, it was really an education for me, reading all your articles there. Tell people how they can find those two things, and then we’re going to have to leave it there.
ANDREWS: Well, thank you so much, Roger. It’s been a pleasure to spend some time with you today. You can learn more about the Washington Legal Foundation on our website, www.wlf.org. We also have a legal blog that contains a lot of guest commentaries, including in-house commentaries by our attorneys, and that’s wlflegalpulse.com. And anyone desiring any more information on WLF, please feel free to E-mail me. My E-mail address is email@example.com.
ARONOFF: And your articles in Forbes?
ANDREWS: Our articles in Forbes are in Forbes on the Docket. And I don’t have that memorized—
ARONOFF: Okay, well—
ANDREWS: Here it is! Blogs.forbes.com, then slash, docket.
ARONOFF: Okay. Again, our guest has been Cory Andrews, Senior Litigation Counsel for the Washington Legal Foundation. Cory, thank you so much for being with us today on Take AIM.
ANDREWS: It’s my pleasure, Roger. Thank you.