Minimum Competence - Daily Legal News Podcast
Minimum Competence
Legal News for Mon 1/22 - SCOTUS Takes aim at Administrative State, Utah's Monumental National Monument Dispute, Florida Bar AI Ethics Guidelines, and $78B Tax Bill Plods Ahead

Legal News for Mon 1/22 - SCOTUS Takes aim at Administrative State, Utah's Monumental National Monument Dispute, Florida Bar AI Ethics Guidelines, and $78B Tax Bill Plods Ahead

SCOTUS ruling on agency powers, Utah's national monument dispute, Florida Bar's AI ethics, and the $78B tax bill's progress.

Cuba in the 1960s, pencil sketch.

This Day in Legal History: Cuba Suspended from Organization of American States (OAS)

Today, January 22nd, marks a significant date in legal history. On this day in 1962, the Organization of American States (OAS), an international organization founded for the purposes of regional solidarity and cooperation among its member states in the Americas, made a momentous decision regarding Cuba. Following the communist revolution in Cuba led by Fidel Castro, the OAS voted to suspend Cuba from its membership. This action was a reflection of the Cold War tensions that were prevalent during that era, as many member countries of the OAS were aligned with the United States, which opposed communist ideologies.

The suspension of Cuba from the OAS was more than a symbolic gesture; it represented a significant diplomatic and political isolation of Cuba in the Western Hemisphere. It was a part of broader efforts by the United States and its allies to limit the spread of communism, particularly in the Americas. The OAS, established in 1948, was seen as a crucial platform for political discourse and policy-making in the region, and Cuba's exclusion meant a significant limitation in its diplomatic reach and influence.

However, the political landscape began to shift over the years, and in a historic move, the OAS voted to reinstate Cuba on June 3, 2009. This decision came at a time when international attitudes towards Cuba were thawing, and there was a growing recognition of the need to engage rather than isolate. The vote to reinstate Cuba was seen as a step towards normalizing relations and acknowledged the changing dynamics in international politics.

Interestingly, the Cuban government, led by Raul Castro, Fidel Castro's brother, rejected the offer of reinstatement almost immediately. The rejection by Cuba was indicative of the deep-seated mistrust and the residual effects of years of political and ideological conflict. Cuba’s response was also a reflection of its desire to maintain its sovereignty and political ideology without perceived interference from other nations, particularly those in the Americas.

The events of January 22, 1962, and the subsequent developments in 2009 highlight the complexities of international relations and the ongoing impact of historical events on contemporary politics. They underscore the evolving nature of diplomatic ties and the intricate balance between national sovereignty, ideological beliefs, and international cooperation.

The U.S. Supreme Court is set to make a ruling that could limit federal agencies' regulatory powers, significantly influencing a challenge to President Biden's rule on socially conscious investing for employee retirement plans. This challenge, initiated by 26 Republican-led states, focuses on a Department of Labor rule that allows retirement plans to consider environmental, social, and corporate governance (ESG) factors in investment decisions. The states have requested the U.S. appeals court to delay its decision on this matter until the Supreme Court's ruling.

The Supreme Court's decision revolves around the "Chevron deference," a legal precedent from 1984 that mandates judicial deference to reasonable agency interpretations of ambiguous U.S. laws. This doctrine is currently under scrutiny in a case related to overfishing monitoring. Texas-based U.S. District Judge Matthew Kacsmaryk, overseeing the lawsuit against the ESG investing rule, previously found the Labor Department's interpretation reasonable, allowing plans to consider ESG factors as long as traditional financial considerations remain prioritized.

However, the challenging states argue that federal law explicitly requires retirement plans to focus solely on the financial benefit of participants, negating the need for Chevron deference in this case. They suggest that the 5th Circuit Court of Appeals should await the Supreme Court's decision on Chevron deference before proceeding.

Critics of ESG investing, primarily Republicans, argue that it promotes liberal agendas, potentially harming the financial interests of plan participants or shareholders. The Biden administration, defending the ESG rule, argues for the preservation of Chevron deference, highlighting the necessity for agencies to interpret ambiguous legislation.

The ESG rule, established in November 2023, reversed former President Trump's restrictions on considering ESG factors, impacting plans that invest over $12 trillion for more than 150 million people. The Supreme Court's decision on Chevron deference could have far-reaching implications, potentially making it more challenging for federal agencies to defend their rules in court and indicating a broader conservative effort to reduce the powers of the "administrative state." During the Supreme Court's recent arguments, a clear majority opinion on overturning Chevron deference was not evident, with some conservative justices expressing skepticism while others showed reluctance to reverse it.

US Supreme Court ruling on agency powers may impact Biden ESG investing rule | Reuters

The Tenth Circuit is currently considering a challenge by Utah to President Joe Biden's re-establishment of Bears Ears and Grand Staircase-Escalante national monuments. Central to this case is the issue of judicial review regarding presidential use of the Antiquities Act for creating large national monuments. Utah, alongside two counties, appealed after their lawsuit was dismissed by Judge David Nuffer of the US District Court for the District of Utah, who ruled that Biden’s actions under the Antiquities Act aren’t subject to judicial review.

The state argues that the vast size of these monuments, collectively covering over 3 million acres, violates the Antiquities Act's requirement for including only the “smallest area compatible” to protect antiquities. This expansion by Biden, which reversed former President Donald Trump's reduction of the monuments in 2017, has been criticized for limiting activities like drilling, mining, and logging.

The Biden administration, along with environmental groups and tribes, are advocating for the appeals court to uphold the district court’s dismissal of Utah’s lawsuit. The Supreme Court’s attention to this issue has been hinted at in a 2021 dissent by Chief Justice John Roberts, who noted the potentially limitless power of the Antiquities Act.

Environmental groups argue that the Supreme Court already settled this issue in 1920, affirming President Theodore Roosevelt’s use of the Act to protect the Grand Canyon. They, along with 29 law professors, contend that the challenges to the monuments are baseless and note the historical significance of these areas, dense with cultural artifacts sacred to tribes.

The law professors emphasized that the Antiquities Act, which has been used by 18 presidents to establish protected areas, doesn’t allow for judicial review and is a crucial piece of public land legislation. They highlight its historical use in creating significant monuments, including Papahānaumokuākea Marine National Monument and others by recent presidents.

The Tenth Circuit's decision on whether Antiquities Act proclamations are reviewable could lead to a remand to the district court for a deeper examination of Utah’s claims against the Biden administration. The outcome of this case could impact the future scope and application of the Antiquities Act in the preservation of national monuments.

Biden Monument Dispute in Utah to Center on Judicial Review

The Florida State Bar recently adopted ethical guidelines for attorneys using artificial intelligence (AI), marking it as one of the first governing bodies to provide such guidance. These guidelines, detailed in an 18-page opinion approved by the bar's board of governors, address various aspects of AI use in legal practice, from reviewing computer-generated work to fee structures and maintaining client confidentiality.

The initiative to develop these guidelines stemmed from the bar President Scott Westheimer's focus on addressing the promise and peril of AI in law. An ethics committee identified potential pitfalls of AI to offer general guidance adaptable to the increasing number of AI tools in the legal industry. Brian David Burgoon, Chair of the Board Review Committee on Professional Ethics, emphasized the significance of AI in law, noting both excitement and caution due to its potential to provide a competitive edge to practitioners who use it responsibly.

Despite AI being a new technology, the ethical concerns it raises are familiar. The guidance reminds lawyers of the importance of supervising and verifying the work produced by AI, akin to the traditional oversight of law clerks and paralegals. The potential efficiency and effectiveness of AI in legal practice could lead to cost savings for clients and firms. However, the guidelines stress the need for fair pricing, drawing parallels with past rulings on other expenses and overheads.

A unique challenge with AI is the risk to client confidentiality, particularly with large language models that might retain and improperly divulge client information. The guidelines advise lawyers to be vigilant and continuously analyze each AI tool's use to ensure adherence to ethical principles.

The rapidly evolving nature of AI technology and its growing presence in legal practice underscore the importance of having ethical guidelines. These guidelines aim to help lawyers navigate both the advantageous tools and the potential problems AI can bring to the legal field.

AI Guidance From Florida Bar Builds on Familiar Ethics Rules

The $78 billion bipartisan business break and child tax credit bill passed the House Ways and Means Committee with a 40-3 vote, signaling a rare moment of bipartisanship in Congress. Despite Republican resistance to more robust child tax credit provisions and a raised state-and-local tax (SALT) deduction cap, both parties recognized the bill as a compromise. The committee's Chair, Jason Smith (R-Mo.), praised the bipartisan vote, highlighting the potential for cross-party collaboration to deliver tax relief.

As the bill moves to the House floor, members from both parties expressed a desire for a swift vote, possibly as soon as January 29 when the House returns. However, Speaker Mike Johnson (R-La.) has not indicated his support for the bill nor his plans for its presentation in the House. The bill might need to pass under suspension of the rules, which limits amendments and requires a two-thirds supermajority, but regular order could allow for further amendments from both parties.

In the Senate, the situation is more complex. While Senate Democrats generally support the plan, Senate Republicans, including Senate Finance Ranking Member Mike Crapo (R-Idaho) and Minority Leader Mitch McConnell (R-Ky.), have remained critical or silent. Some Senate Republicans have concerns about the cost of the child tax credit and the proposed offsets. The bill needs at least 60 votes to pass in the Senate, suggesting possible further amendments to gain Republican support.

The timing of the bill's passage is crucial, as the House returns on the same date tax filing begins, January 29. IRS Commissioner Danny Werfel noted the challenges of implementing tax changes so close to the filing season but expressed confidence, as did Richard Neal, in the IRS's ability to adapt. However, National Taxpayer Advocate Erin Collins warned that changes during the filing season could disrupt the process, potentially delaying refunds and increasing IRS call volumes. Collins advocates for a provision allowing the IRS to adjust credits post-filing to avoid the need for amended returns, addressing an existing backlog issue.

What’s Next for the Tax Bill? Three Questions After Panel Markup

Minimum Competence - Daily Legal News Podcast
Minimum Competence
The idea is that this podcast can accompany you on your commute home and will render you minimally competent on the major legal news stories of the day. The transcript is available in the form of a newsletter at