Life, Liberty, Property #67: Supreme Court rebuilding constitutional order in a series of decisions.
by S.T. Karnick
IN THIS ISSUE:
- Supreme Court Rebuilding Constitutional Order
- Go-Ahead for Biden Censorship
- Cartoon
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Supreme Court Rebuilding Constitutional Order
There was plenty of important news last week, including the historically lopsided presidential debate; the Commerce Department’s report that inflation in May was at the lowest rate in three years, which sparked the S&P 500 and Nasdaq to new record highs; struggles among multiple businesses as the economy appears to be slowing down; a new record low in pending home sales; and confirmation that CIA contractors were involved in the famous letter dismissing Hunter Biden’s laptop computer as Russian disinformation, a major case of election interference by a U.S. intelligence agency, and quite possibly decisive to the outcome.
Most important of all, however, was the U.S. Supreme Court’s multiple rulings on important cases. Most of these decisions were very positive developments, though there was one major disappointment.
Multiple decisions curtailed the power of the federal government’s executive agencies, a much-needed corrective that could start dismantling the unconstitutional federal regulatory state.
On Thursday, the Court ruled that the Securities and Exchange Commission cannot use agency proceedings to prosecute people for fraud. Such cases must be decided in federal courts, the justices ruled on a 6-3 vote, with the liberal justices dissenting. Use of agency proceedings violates people’s Seventh Amendment right to a jury trial, the Court noted.
“The SEC’s anti-fraud provisions replicate common law fraud, and it is well established that common law claims must be heard by a jury,” Chief Justice John Roberts wrote for the majority.
The decision is probably going to be extended to other regulatory agencies as well, Reuters reports: “Thursday’s ruling opens the door to challenges to other federal agencies’ in-house enforcement schemes, as the liberal justices expressed doubt that the decision can be limited only to fraud actions pursued by the SEC.”
Yes, by all means let us hope that the decision’s reach is not limited to the SEC. I agree with Justice Sotomayor’s statement that the decision is “a massive sea change” and “the constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be stripped of their power to enforce laws enacted by Congress.” Sotomayor and the other dissenters think that the dismantling of the regulatory state would be a very bad outcome. I think it would be extremely beneficial to the American people.
In another 6-3 decision written by Roberts, the Court ruled against prosecution of January 6 defendants for obstruction of justice under a law meant to stop people from destroying documents or otherwise tampering with evidence in criminal investigations. Justice Ketanji Brown Jackson sided with the majority, and Justice Amy Coney Barrett wrote the dissent.
Of the approximately 1,400 people who have been prosecuted for the January 6 invasion of the Capitol, about 350 have been charged with obstruction, which carries a far heavier penalty than offenses such as trespassing. The decision means that some of the longest (and most unjust) sentences against January 6 protestors will be reduced.
Meanwhile, two of the four charges in special counsel Jack Smith’s case against former president Donald Trump are based on the obstruction statute.
In the dissent, Barrett writes that petitioner Joseph W. Fischer’s trespassing in the Capitol and physical confrontation with police were “part of a successful effort to forcibly halt the certification of the election results.” That Fischer was “obstructing, influencing, or impeding an official proceeding,” in the words of the statute, “seems open and shut,” Barrett wrote. The majority, however, recognized that the law was never intended to apply to every obstruction of “an official proceeding.”
Barrett characterizes the majority’s position as being that “it simply cannot believe that Congress meant what it said” when it wrote the obstruction law:
Section 1512(c)(2) is a very broad provision, and admittedly, events like January 6th were not its target. (Who could blame Congress for that failure of imagination?) But statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway.
Such expansive interpretation of federal laws is judicial activism, plain and simple. Barrett argues that the majority had to torture the text of the law to come to their limiting conclusion, referring to their opinion as “atextual.” For this increasingly textualist Court, those are fighting words. At least, however, the justices are arguing over the texts of the laws and the Constitution in the cases before them. That is a great improvement over the Court’s many decades of judicial activism.
In a similar fashion, in Snyder v. United States, the Court “narrowed the ambit of prosecutors who file corruption charges that stretch ambiguous laws,” The Wall Street Journal reports. The majority found the prosecution of state and local officials for bribery under federal law “would create traps for unwary state and local officials” because the statute “does not identify any remotely clear lines separating an innocuous or obviously benign gratuity from a criminal gratuity.” In addition, the matter is best left to the states, and it appears that Congress intended that, the majority ruled.
“Perhaps Congress in 1986 concluded that federally criminalizing state and local gratuities would significantly intrude on federalism,” and “as a general matter, States have the ‘prerogative to regulate the permissible scope of interactions between state officials and their constituents,’” Kavanaugh wrote for the majority.
“Genuinely corrupt officials warrant prosecution,” The Wall Street Journal editorial board writes. “But another threat to liberty is from prosecutors who indict officials for behavior that isn’t clearly illegal. Justice Neil Gorsuch says the law should tilt in those cases toward what he calls ‘lenity,’ which is what the Court did Wednesday.”
This is an affirmation of states’ authority to use their police powers and a welcome limitation on the federal government.
In a similarly important decision, the Court chose to allow state and local lawmakers to make law, in its ruling in City of Grants Pass, Oregon v. Johnson et al. On a 6-3 vote, the justices struck down a lower court’s ruling that the city could not fine or imprison people for violating public-camping ordinances if there are more homeless people than shelter beds “practically available” to them.
“The enforcement of generally applicable laws regulating camping on public property does not constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment,” the Court ruled.
Given that “suits against Western cities like Grants Pass proliferated” after the decision by the Ninth Circuit striking down the Grants Pass law, this decision will have a large effect in freeing lawmakers to attend to homelessness as they think best. The public disturbances, sanitation problems, and other problems in unregulated homeless encampments are a public blight that governments have not only the authority but also the responsibility to attend to.
The Court’s majority makes an important point about the extent of the Eight Amendment:
When the full [appeals] court denied rehearing en banc, several judges wrote separately to note their dissent. In one statement, Judge Bennett argued that Martin was inconsistent with the Cruel and Unusual Punishments Clause. That provision, Judge Bennett contended, prohibits certain methods of punishment a government may impose after a criminal conviction, but it does not “impose [any] substantive limits on what conduct a state may criminalize.”
For decades, the Supreme Court had been constricting the authority of states (and the local governments within them) while expanding the reach of the federal government. The Grants Pass decision is a welcome reversal of that unconstitutional habit of judicial activism.
Justice Sotomayor bases her dissent on a word-substitution trick:
For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is “cruel and unusual” under the Eighth Amendment.
No: sleeping outside is not a status; it is an action. It is tragic that the decision to sleep outside is often involuntary, and it is something that all decent people want to keep to a minimum. Mischaracterizing an action as a status, however, is not the way to go about it, and striking down reasonable laws to deal with the problem is unjustified.
Finally, in a long-awaited decision, the Court tightened the limits on federal agencies’ permission to craft regulations as they see fit as long as their interpretations of ambiguously worded congressional legislation are not obviously unreasonable. This doctrine is known as Chevron deference, after a 1984 Supreme Court ruling, though the practice dates back to the New Deal era, as the Court’s majority decision notes.
In the four decades since then, federal regulators have run wild with that permission.
The Court’s decision to reverse that precedent in Loper v. Raimondo is firm and unambiguous:
The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.
Writing for the 6-2 majority (Jackson having recused herself), Roberts flatly states that Chevron does not make sense and wrongly limits courts’ authority to decide on the legality of Executive Branch actions, for which the courts are constitutionally responsible:
Chevron cannot be reconciled with the [Administrative Procedure Act] by presuming that statutory ambiguities are implicit delegations to agencies. That presumption does not approximate reality. A statutory ambiguity does not necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the resulting interpretive question. Many or perhaps most statutory ambiguities may be unintentional. And when courts confront statutory ambiguities in cases that do not involve agency interpretations or delegations of authority, they are not somehow relieved of their obligation to independently interpret the statutes. Instead of declaring a particular party’s reading “permissible” in such a case, courts use every tool at their disposal to determine the best reading of the statute and resolve the ambiguity. But in an agency case as in any other, there is a best reading all the same—“the reading the court would have reached” if no agency were involved. Chevron, 467 U. S., at 843, n. 11. It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best.
Resolving statutory ambiguities is the courts’ responsibility and area of expertise, Roberts notes:
Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. Chevron gravely erred in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate.
The Court’s decision to strike down Chevron deference does not encourage legislation from the bench, Roberts notes. Instead, it reclaims for the courts their proper role in the constitutional order:
Finally, the view that interpretation of ambiguous statutory provisions amounts to policymaking suited for political actors rather than courts is especially mistaken because it rests on a profound misconception of the judicial role. Resolution of statutory ambiguities involves legal interpretation, and that task does not suddenly become policymaking just because a court has an “agency to fall back on.” Kisor, 588 U. S., at 575. Courts interpret statutes, no matter the context, based on the traditional tools of statutory construction, not individual policy preferences.
Writing for The Daily Signal in April, Heritage Foundation Distinguished Fellow Steve Bradbury noted that Chevron upended the nation’s constitutional order and was instrumental in the massive expansion of the regulatory state in recent decades:
Over the years, with the ascendancy of the Chevron framework, the regulatory muscles of the executive branch have become bulked up on steroids, while the other two branches have withered away in important respects. Chevron isn’t the only reason for this, but it’s a significant factor. …
[A]gencies are given a radically wide compass to change their approach to administering statutes—with 180-degree swings from one presidential administration to the next.
Meanwhile, Congress has retired from the field altogether. Rather than do the hard work of legislating to take on major issues of national importance—some perceived as emergencies—Congress lets the agencies deal with the issues under the vague phrasing of decades-old statutes that weren’t enacted to address those issues.
This has led to an “intolerable” level of regulatory interference, Bradbury notes:
For example, the EPA has assumed power under the Clean Air Act, a law passed in the 1970s, to regulate carbon dioxide emissions, even though these efforts by the agency don’t fit sensibly within the statutory framework. Through its carbon rules, EPA is forcing revolutionary transformations in the automotive and power industries—something Congress didn’t vote to approve.
And during the coronavirus pandemic, the Occupational Safety and Health Administration, not Congress, tried to impose a vaccine mandate on private industries using workplace safety laws that previously weren’t applied that way.
Loper returns to Congress the responsibility for crafting legislation and establishing regulations. That is a most welcome change.
Sources: Reuters; The Wall Street Journal; Joseph W. Fischer v. United States; City of Grants Pass, Oregon v. Johnson et al.; The Wall Street Journal; Snyder v. United States; Loper Bright Enterprises et al. v. Gina Raimondo, Secretary of Commerce, et al.; The Daily Signal
Go-Ahead for Biden Censorship
Unfortunately, not all the Supreme Court’s decisions last week were decided as sensibly as those noted above.
In a highly dubious decision, the Court gave the Biden administration permission to threaten, cajole, and bribe media organizations into supporting the president’s reelection campaign.
That is the only conclusion that can be reasonably drawn from the Court’s decision in Murthy v. Missouri, delivered last Wednesday.
The Court decided that the plaintiffs, “two States and five social-media users, [who] sued dozens of Executive Branch officials and agencies, alleging that they pressured the platforms to suppress protected speech in violation of the First Amendment,” failed to “demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek.” Therefore, the Court decided, the plaintiffs did not have standing to call for a preliminary injunction against further election interference by the Biden administration:
The plaintiffs claim standing based on the “direct censorship” of their own speech as well as their “right to listen” to others who faced social-media censorship. Brief for Respondents 19, 22. Notably, both theories depend on the platform’s actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts. They seek to enjoin Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.
The one-step-removed, anticipatory nature of their alleged injuries presents the plaintiffs with two particular challenges. First, it is a bedrock principle that a federal court cannot redress “injury that results from the independent action of some third party not before the court.” Simon, 426 U. S., at 41–42. In keeping with this principle, we have “been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment.”
The decision indicates that the plaintiffs could sue the media organizations for damages for past actions. However, the Court will not stop the Biden administration because the trial courts did not identify enough evidence to prove to the Supreme Court’s satisfaction that Biden’s team would do this again:
Here, a note of caution: If the plaintiffs were seeking compensatory relief, the traceability of their past injuries would be the whole ball game. But because the plaintiffs are seeking only forward-looking relief, the past injuries are relevant only for their predictive value. … The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation.
The Court’s majority—Barrett, Roberts, Sotomayor, Kagan, Kavanaugh, and Jackson—thus decided to take no action to stop the Biden administration at this time. In short, the Court is willing to let the Biden administration continue to induce media organizations to suppress bad news about the president and quash readers’ and posters’ comments to the contrary.
The fact that the Biden administration did all this in secrecy worked to their advantage:
The plaintiffs rely on allegations of past Government censorship as evidence that future censorship is likely. But they fail, by and large, to link their past social-media restrictions to the defendants’ communications with the platforms. Thus, the events of the past do little to help any of the plaintiffs establish standing to seek an injunction to prevent future harms.
The Court is saying that it trusts the Biden administration to do the right thing. That, quite frankly, is absurd. The obvious falsity of the assumption that the Biden administration can be trusted to follow the Constitution destroys the majority’s argument at its base.
The dissenters—Alito, Thomas, and Gorsuch—correctly argue that the only entity of relevance in this case in regard to culpability is the government, specifically the Biden administration:
Of course, purely private entities like newspapers are not subject to the First Amendment, and as a result, they may publish or decline to publish whatever they wish. But government officials may not coerce private entities to suppress speech, see National Rifle Association of America v. Vullo, 602 U. S. 175 (2024), and that is what happened in this case.
There is plenty of evidence showing that actions of the Biden administration harmed the defendants, Alito writes for the dissenters:
The record before us is vast. It contains evidence of communications between many different government actors and a variety of internet platforms, as well as evidence regarding the effects of those interactions on the seven different plaintiffs. …
For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID–19-related speech. Not surprisingly, Facebook repeatedly yielded. As a result Hines was indisputably injured, and due to the officials’ continuing efforts, she was threatened with more of the same when she brought suit. These past and threatened future injuries were caused by and traceable to censorship that the officials coerced, and the injunctive relief she sought was an available and suitable remedy. This evidence was more than sufficient to establish Hines’s standing to sue, see Lujan v. Defenders of Wildlife, 504 U. S. 555, 561–562 (1992), and consequently, we are obligated to tackle the free speech issue that the case presents. The Court, however, shirks that duty and thus permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.
The dissent recounts much, much more evidence that thoroughly establishes the White House’s pressure campaign on social-media providers, its clear effect on the social-media organizations and thence on the plaintiffs, and its redressability by the Court. The dissent concludes,
In sum, the officials wielded potent authority. Their communications with Facebook were virtual demands. And Facebook’s quavering responses to those demands show that it felt a strong need to yield. For these reasons, I would hold that Hines is likely to prevail on her claim that the White House coerced Facebook into censoring her speech.
For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech.
The following passage from the dissent expresses just how egregiously the Court’s majority has failed in its responsibility to defend our constitutional order from a blatant violation by the Executive Branch:
That is regrettable. What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.
The Court’s majority dodged an important decision and placed its hopes in the American people to decide whether to reelect a president who oversaw this awful incursion against one of our fundamental rights. We may hope that the people will get it right, yet the Court’s decision works against that by inviting further suppression of political speech.
A major purpose of the U.S. Supreme Court is to prevent the other two branches of government from engaging in unconstitutional actions. The Court’s majority failed in that basic responsibility. Alito writes in the dissent, “Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.”
I, too, respectfully dissent.
Source: U.S. Supreme Court
Cartoon
via Townhall Cartoons
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