A Letter from Austin #29: Recent Rulings from Our Activist Supreme Court
The President Gets Immunity and Chevron Gets the Boot
I’m not sure we need to start referring to them as “King Joe,” “King Donald,” or even (could happen!) as “Queen Kamala,” as some have suggested, but July 1, 2024 was indeed a good day for the idea of the imperial presidency. In a long-awaited decision that accrued to the immediate benefit of former president Donald Trump, the Supreme Court issued a decision on July 1 in Trump v. United States.
Observers will recall that in this case, one of several criminal proceedings brought against the former commander in chief after he left office, Special Counsel Jack Smith alleged that Trump violated federal criminal law by committing fraud against the United States, obstructing an official proceeding, and conspiring to obstruct an official proceeding, all in connection with Trump’s actions after he lost the 2020 presidential election, instituted “lawfare” against various state election officials, and by various means, fair and foul, attempted to remain in the White House.
Trump’s lawyers argued that these charges should be dismissed on the basis that a president should be absolutely immune from criminal prosecution for actions the chief executive takes while in office. This argument failed at the trial court and appeals court levels, and was argued before the Supreme Court back in April. On July 1, the Court held that a president does in fact have absolute criminal immunity for acts performed pursuant to his express constitutional authority — conducting foreign policy, issuing pardons, running the executive branch, etc. Furthermore, a president is presumed to be immune from prosecution for official actions taken within the “outer perimeter” of his authority. (If you’re not familiar with that phrase in the context of our Constitution, don’t be alarmed. It doesn’t exist. The Court is making it up.)
As a result of the Court’s decision in Trump v. U.S., future proceedings involving accusations of criminal wrongdoing against a president for his or her actions while in office are going to be all about whether the allegedly objectionable conduct was an “official” act or not — and if, as the Court writes, evidence regarding a president’s motive for a particular action can’t be used to prove the crime, that’s going to present a pretty high hurdle to prosecution.
Writing for a majority of the court, Chief Justice Roberts does allow as how a president is NOT immune from criminal liability for unofficial acts — e.g., actions taken by the president to further his own personal interests — but neither he nor the justices who join in the opinion are particularly interested in figuring out what sorts of actions those might be. Justice Barrett concurred in the holding but indicated that certain of Trump’s actions after the election, namely, attempting to organize an “alternate” slate of electors in Arizona that would falsely certify that Trump had won the state’s electoral vote, were NOT official actions of the president. This may seem self-evident. Of course it’s not an official act of the president to create a slate of bogus electors in an attempt to subvert the results of a legal election. Nevertheless, such conduct is something Roberts, Alito, Thomas, Gorsuch, and Kavanaugh were for some reason reluctant to discuss.
Meanwhile, the Court’s other female jurists — Sotomayor, Jackson, and Kagan — dissented from the Court’s holding, with both Sotomayor and Jackson writing blistering rejoinders to Roberts’s opinion. Jackson was particularly biting in pointing out that the Court has effectively created a new class of one — a sitting president — who, in contrast to all other Americans, has immunity from criminal immunity for official actions, no matter how corrupt or ill-intentioned they may be.
There is no mention of criminal immunity for presidents in the Constitution, and the Court is, again, making most of this stuff up as it goes. Whether you think Trump is a good decision depends on whether (a) you trust that future presidents will act honorably and ethically and (b) you believe that the risks of partisan political prosecution inhibiting presidential behavior outweigh the risks of basically telling presidents they can do whatever they want, as long as their actions are clad in the armor of “official” justification. I’m a “no” on both. It’s a bad decision, and much broader than it needed to be.
Overturning Chevron. Though overshadowed by the Court’s July 1 holding in Trump vs. United States, another recent decision issued by the Court and written by Chief Justice Roberts may turn out to be more momentous in the course of American life. I’m speaking of the holding in Loper Bright Enterprises v. Raimondo (and a companion case, Relentless, Inc. v. Department of Commerce), that overturned the 40-year legal doctrine known as Chevron Deference. There are few less interesting subjects than administrative law, which deals with the power of government agencies to administer and enforce the laws they are assigned to them by Congress. Chevron is a federal judicial doctrine that states that where a statute is ambiguous, a court hearing a case involving interpretation of the statute must defer to a reasonable interpretation adopted by the agency charged with administering the law.
Chevron has been on the books a long time. As Justice Kagan writes in her dissent to the majority opinion, “[The] rule has formed the backdrop against which Congress, courts, and agencies — as well as regulated parties and the public — all have operated for decades. It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.” In Loper Bright Enterprises, though, the Court decided that forty years’ worth of decision-making was probably wrong — oops! — and that federal courts should no longer defer to the judgment of agency personnel on the subjects of, for example, environmental regulation, power transmission, telecommunications, etc. Rather, the courts, not experts at the agencies, should be in charge of interpreting what is required or allowed by an ambiguous statute.
The ruling is a blow against, among others, the bureaucrats, nerdlings, and know-it-alls at agencies like the Environmental Protection Agency who have helped to clean up America’s air and water in the years since the bad old days of the sixties and seventies. No longer will agency scientists and engineers have the final word on difficult technical issues. Federal judges will. After all, judges have law degrees. Chief Justice Roberts styled this decision as a victory for the American people, but it’s hard to see how the people are served by edicts issued by unelected federal judges rather than by agencies whose heads are appointed by and responsible to elected officials.
But that’s this Supreme Court: a “conservative” court that purportedly hates judicial activism but that is nevertheless busily rewriting settled law or simply making up its own, from gutting Roe v. Wade through creating presidential immunity from criminal liability and, in this new anti-Chevron decision, reshaping the relationship between branches of government for no immediately apparent reason.
Strange days indeed.
The common thread? Our federal government is getting bigger and less responsive, especially the judicial branch — the one, that is, that isn’t elected.
