Streetwise Professor

July 7, 2024

The Recent Supreme Court Term: A Victorious Battle in a Long-Running War

Filed under: Politics,Regulation — cpirrong @ 10:34 am

The recent Supreme Court session was one of the most significant in recent memory. A major thrust of many of the most important rulings was a fundamental shift in the allocation of authority among the branches of government. The decisions made clearer who can drive in what lane.

In the most important decisions, Congress was the winner, although it might not be happy with the prize because it shifts responsibility to the legislative branch, a past master at shirking responsibility.

Loper struck down “Chevron deference,” meaning that administrative agencies cannot expansively assert their authority in the face of statutory ambiguity or lacunae. It requires judges to interpret statutes to determine whether a regulator has the authority to do what it wants. This sharply circumscribes the power of the executive. Although it would be more accurate to say that it sharply circumscribes the power of a de facto separate branch of government operating outside the tripartite structure created under the Constitution: although formally part of the executive, unaccountable bureaucratic agencies are largely outside its control.

The bump stock ruling in Cargill constrains agencies from straying from explicit statutory language and arguing that since X is kinda like what is explicitly defined and outlawed in a statute the agency can outlaw X too even if it does not meet the statutory definition.

Both of these shift responsibility for regulation back to Congress, and puts the onus on the legislature to write laws that clearly delineate agency powers. Like I said above, this probably doesn’t make members of the legislative branch happy because it forces them to work hard, work carefully, and work precisely. So much easier to say “we delegate the formulation of the specifics of the law to three letter agencies.”

In Jarkasy the Court limited the enforcement power of agencies by requiring jury trials in Section 3 courts in lieu of proceedings before in-house administrative law judges.

Thus, these major decisions can be summarized: agencies lose power, Congress and the courts gain power. Or perhaps more accurately, powers that have been usurped by agencies are returned to their proper Constitutional homes.

The most controversial but arguably least impactful decision for the long term was the ruling on presidential immunity in Trump. The Court formalized a three part division of presidential acts, granted absolute immunity in one (explicitly Constitutionally recognized powers), strongly (but not completely) presumptive immunity in a second (“official acts”), and no immunity in a third (“unofficial acts”). The Court recognized that drawing the line between what is official and what is unofficial is a fact-intensive exercise and mandates that lower courts undertake this exercise seriously with appropriate fact-finding procedures. It sharply criticized the DC circuit court in Trump for rubber stamping the government claim of no immunity rather than engaging in the necessary fact-finding.

The left is hysterical about this decision, but they have no one to blame but themselves. The issue of the extent of presidential immunity has always been fraught with uncertainty. But by pursuing Trump in two federal cases the Biden administration forced the Supreme Court to open the legal Schrödinger’s box to rule that their beloved cat is dead.

That is why I say this ruling will be among the least impactful in the long term. The Republic operated very well with the uncertainty and widespread acknowledgement that presidential immunity was quite expansive until the Biden administration forced the issue with lawfare against Trump. The ruling will sharply reduce the ability and incentive to engage in such lawfare and thereby return the country to a very workable status quo ante. That is, the impact is almost purely situational and relates to an unprecedented situation created by the current administration.

Another situational impact of the decision may come from Justice Thomas’s concurrence that questioned the legality and constitutionality of special counsel Jack Smith’s appointment. Wink, wink, nudge, nudge, Judge Cannon. (And she apparently has taken the hint, scheduling hearings on this issue in the classified documents case in Florida).

As for the other decisions, they will likely have enduring impact, but how much remains to be seen. The demise of Chevron is clearly important–it has already put some major agency rules, such as the FTC’s non-compete rule and the FCC’s net neutrality rule, in jeopardy. But the “major questions” doctrine that was revitalized by earlier Supreme Court decisions already cut back on agency power: the incremental effect of Loper remains to be seen. And no doubt agencies will press their luck in court rather than meekly stay in their lanes, if for no other reason than to learn how far the ruling reaches, or to play the legal lottery. The application of Loper by highly ideologically diverse district and appeals courts means that agency interpretative powers aren’t dead yet and some courts may side with agencies. Ditto goes for Cargill. Jarkasy is more clearcut, but its scope is narrower than the other two decisions.

But overall, the movement is in the right direction. Reining in agency powers is essential. The war is not over by a long shot, but these decisions change the correlation of forces in that war.

The dissents in these cases were embarrassing. They relied on emotional and consequentialist arguments rather than legal and Constitutional ones. For example, in Cargill the argument was that the Las Vegas shooter used a bump stock, so we should ban bump stocks even though Congress (that has had ample opportunity to do so) has not: this is an argument for the courts to usurp legislative powers based on the emotional reaction to one extreme event. In Trump the dissent offered up a parade of horribles, such as the presidency becoming a monarchy or the president unleashing SEAL Team 6 to dispatch political opponents. None of which transpired in the status quo ante that the decision restores.

The most amusing response was from Harvard Law Professor Lawrence Tribe who lamented the effect of Loper on all of those sturdy professors and practicing lawyers toiling in the fields of administrative law. Oh! The humanity! And insofar as professors are concerned, this is incumbency bias. Big new decisions create big research opportunities opening up the field to new scholars. Creative destruction, as it were.

The most disappointing decision was in the free speech case, Murthy. Here the Court refused to rule that government suasion of social media companies of the “nice little platform you got here, shame if anything happened to it” variety was an unconstitutional infringement of First Amendment rights. This unleashed a righteous–and right–dissent from Judge Alito.

Here the game is not over. It is possible that when the issue is adjudicated in the lower courts it will return to SCOTUS and be resolved correctly on the lines Alito forcefully argued.

One of the most revealing aspects of the just-completed term is the behavior of Amy Coney Barrett who had her coming out party as the new version of Anthony Kennedy or Sandra Day O’Connor. What is it with justices with Irish surnames appointed by Republican presidents that makes them wishy-washy “balancers” apparently trying to remain in the good graces of the DC establishment?

On the other hand, Chief Justice Roberts exceeded expectations.

Every Supreme Court term is just a battle in a war that has waged since Marbury v. Madison. This term is no different. But it represents a signal victory for those opposed to the trajectory of government since the New Deal. Yes, there were losses, but that is true of every battle. And maybe it is just the end of the beginning, not the beginning of the end, for the administrative state in particular. But that’s not nothing.

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  1. this probably doesn’t make members of the legislative branch happy because” it reveals their predilections, exposes them to voters’ ire, and risks the negative feedback of being voted out of office.

    Let’s remember that the prime job of a legislator is to get re-elected. Everything else is a distant second. So, exposing one’s views to the voter is perhaps the last thing a legislator might desire.

    Comment by Pat Frank — July 7, 2024 @ 2:48 pm

  2. Why the sudden ‘basedness’?

    Especially when the rest of the country’s institutions are trending left – with those already to the left pushing themselves deeper out into the nutty fringe.

    Comment by Ex-Global Super-Regulator on Lunch Break — July 9, 2024 @ 3:20 am

  3. I must say I never liked the cut of Kavanaugh’s jib. Is he Irish?

    Comment by dearieme — July 10, 2024 @ 3:56 pm

  4. I have been told that I am voting for an unelected dictatorship if I vote for Trump because of these decisions.

    Comment by Jeff Carter (@pointsnfigures1) — July 13, 2024 @ 7:28 am

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