Category Archives: Courts

One More Thought

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Or maybe two….

My first concerns Corner Post, Inc v Board Of Governors of the Federal Reserve System. In this case, the Supreme Court ruled 6-3 that newly created businesses really are allowed to argue against decades-old regulations, here the Fed’s long-standing cap on credit card fees that card issuers are allowed to charge.

Justice Ketanji Brown Jackson wrote in dissent,

The tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright [which removed Chevron defense] have authorized has the potential to devastate the functioning of the Federal Government.

In an era of burgeoning regulatory, vice Congressional, governance of our economy, and in an era where Federal government officials routinely ignore Federal law (immigration) and Court rulings (student debt “forgiveness”) to go about doing whatever an official feels like doing whenever one of them feels like doing it, it’s hard to see the downside of limiting the functioning of the Federal Government, much less to see any “devastation.” The tsunami of lower court lawsuits is simply the dam holding back private citizens’ and our businesses’ objections to such overreach finally bursting. The flood has every chance of flushing away a large part of that overreach detritus before it abates. And abate it will, just as even tsunamis do.

My second thought concerns the worry of Kevin King, a partner with Covington & Burling, regarding the Federal government’s reduced legal ability to blow off the objections of us private citizens and our businesses to government behaviors and the resulting potential for significant differences in interpretation of statutes by courts to develop:

The risk is that you’re going to get variation over geography, a patchwork of decisions[.]

Again, I say, “Yeah, and?” King’s worry seems centered on the possibility that the federated republican democracy nature of our constitutional governance, where the several States are, in their aggregate and individually, the equal of the central government regarding domestic matters might be starting to reassert itself. Furthermore, those geographic disparities are simply the noisy nature of democracy and a reflection of the plain fact that the citizens of one State might not have the same imperatives as the citizens of other States.

There’s also that Commerce Clause in our Constitution, a clause too long dormant, that can be put to the use for which it was devised and included—to smooth over (not paper over) the larger differences among the States where those differences too much impact the separate doings of other States.

Both of these are outcomes to be welcomed, not feared. Especially are they not to be obstructed.

Presidential Immunity

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Justice Sonia Sotomayor waxed hysterical in her dissent to the Supreme Court’s ruling on Presidential immunity from prosecution for alleged crimes committed while in office.

Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Maybe some broader context is in order.

Consider, for instance, our individual right to commit piracy on the high seas, so long as that, too, is done with the express permission of our Federal government (the immunity parallel is that the sovereign, We the People, have granted a considerable measure of permission to a President by electing him to that office).

The Federal government’s authority to authorize piracy by us private citizens exists in so many words in Article I, Section 8, of our Constitution:

To…grant Letters of Marque and Reprisal….

It’s instructive that that clause comes immediately on the heels of this clause:

To define and punish Piracies and Felonies committed on the high Seas….

It’s hard to get any clearer than that: our Constitution authorizes our Congress to define what piracy is and then to authorize us private citizens to commit what otherwise would be that piracy by sailing as privateers under Congress-issued Letters of Marque.

Immune, immune, immune, indeed.

 

H/t AJ Jacobs, writing in The Free Press

A MAGA Supreme Court?

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Who says the current Supreme Court is a MAGA court? Relatedly, who objects to Making America Great Again?  The Wall Street Journal‘s editors provided some insight to the Court’s rulings for last year and this.

First, an aggregate statistic: of all the cases decided in 2023, nearly 46% were decided unanimously, the second highest percentage of unanimity of the prior four years—second only to 2022’s unanimity rate. And both of those years had those evil Trump appointees Justices Neil Gorsuch, Bret Kavanaugh, and Amy Coney Barrett. That court also had the Progressive-Democratic Party’s darlings, Justices Sonya Sotomayor, Elena Kagan, and Ketanji Brown Jackson.

Some 2024 cases decided unanimously:

  • Colorado can’t remove Donald Trump’s name from its ballot as an “insurrectionist” under the 14th Amendment
  • pro-life doctors lack standing to sue the Food and Drug Administration over the abortion pill mifepristone
  • the National Rifle Association can sue a New York regulator for coercing insurers to stop doing business with gun-rights groups

Among the 8-1 and 7-2 cases:

  • Justice Clarence Thomas writing for the Court to uphold Progressive-Democrat Senator Elizabeth Warren’s (MA) CFPB funding scheme
  • a refusal to close the constitutional door to a wealth tax
  • government can, indeed, disarm an alleged—not convicted at trial—domestic abuser via a civil restraining order

Of 22 cases decided by 6-3 votes, 11 had “mixed” majorities. Among these:

  • three conservative and three liberal Justices ruled that the federal government had unconstitutionally pressured social-media websites to delete user posts
  • six Justices, including Ketanji Brown Jackson, ruled that prosecutors had stretched the law too far in charging a number of January 6 rioters with obstructing Congress

Who says, and who objects? The Progressive-Democratic Party’s politicians dishonestly proclaim this Supreme Court, which adheres to the text of our Constitution and the statute(s) before it, an extremist and MAGA court, using the latter adjective as though it were a pejorative. The Progressive-Democratic Party’s politicians object to Making America Great Again—here demonstrated by their sneering at the concept of MAGA.

Mostly Immune

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The Supreme Court, last Monday, issued its ruling on former President Donald Trump’s (R) Presidential immunity case. In a 6-3 ruling, the Court held that he has that for official acts committed while in office. Chief Justice John Roberts, writing for the Court, in part:

Under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.

The necessity of a strong measure of (criminal prosecution) immunity is absolutely essential. Roberts made this point early on [citations omitted]:

The President “occupies a unique position in the constitutional scheme,” … as “the only person who alone composes a branch of government,”[.] The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.”  They “deemed an energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.'” The purpose of a “vigorous” and “energetic” Executive, they thought, was to ensure “good government,” for a “feeble executive implies a feeble execution of the government.”
…
Appreciating the “unique risks to the effective functioning of government” that arise when the President’s energies are diverted by proceedings that might render him “unduly cautious in the discharge of his official duties,” we have recognized Presidential immunities and privileges “rooted in the constitutional tradition of the separation of powers and supported by our history.”

It’s necessary to keep in mind, too, that the Framers wrote President as an energetic, vigorous, decisive, and speedy executer of the laws and as one whose ability to act decisively and speedily is necessary to the protection of the community against foreign attacks in an environment of a failing Articles of Confederation. That treaty didn’t even have a feeble executive, rather it was devoid of any sort of Executive or executive power altogether. The treaty itself was so feeble that it was powerless to fund itself; and it was (soon to be) fatally unable to act against the steady drumbeat of British violations of the Treaty of Paris that codified our independence and against British incursions into our nascent nation’s western territories.

I have a problem, though, with absolute immunity for anyone for criminal acts, whenever they may have been conducted. A line does need to be drawn—and I don’t have any ideas on where, yet—between prosecuting a President for his criminal acts and making up crimes, à la Jack Smith, in order to prosecute a President that some don’t like.

Maybe a line drawn on consequences: the prosecutor and “senior” members of his team who go after a President or former President on some alleged criminality, on that President’s/former President’s acquittal, go straight to jail to serve, without parole, the mid-range sentence that the alleged crime calls for. Consecutively, if multiple crimes are charged and acquitted.

One of the questions that follow this ruling will hinge on the circle: is a criminal act an official act? Can it be? There is some case law that bars things done “under color of law;” that principle would seem to apply to “under cover of official act.”

It’s not going to be an easy question to resolve.

The Court’s ruling can be read here.

A Couple of Supreme Court Rulings

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The Supreme Court announced its ruling in a case centered on Chevron Defense, and rescinded that precedent [citations omitted].

The only way to “ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion,” is for the Court to leave Chevron behind.

And

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

The Court also announced its ruling, a couple of days prior, in SEC v Jarkesy that the SEC—government regulatory agencies in general—seeking monetary punishments must do so through an Article III court and a jury trial. As summarized in The Wall Street Journal,

The Court’s decision means most complaints by agencies seeking penalties will have to be charged in federal courts, where defendants enjoy more procedural rights including to legal discovery. Agencies also won’t benefit from a home-court advantage. They win nearly every case in their own tribunals, as you might expect.

And, especially decisively, Chief Justice John Roberts, writing for the Court wrote

A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator. Rather than recognize that right, the dissent would permit Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch. That is the very opposite of the separation of powers that the Constitution demands. Jarkesy and Patriot28 are entitled to a jury trial in an Article III court.

Justice Neil Gorsuch wrote a concurring opinion that expanded on the CJ’s ruling and strengthened it IMNSHO [citation omitted].

The Seventh Amendments jury-trial right does not work alone. It operates together with Article III and the Due Process Clause of the Fifth Amendment to limit how the government may go about depriving an individual of life, liberty, or property. The Seventh Amendment guarantees the right to trial by jury. Article III entitles individuals to an independent judge who will preside over that trial. And due process promises any trial will be held in accord with time-honored principles. Taken together, all three provisions vindicate the Constitution’s promise of a “fair trial in a fair tribunal.”

I put these two rulings together in this article because I see considerable synergy between them. No longer are our courts expected to defer to the judgment of Executive Branch regulators.

That means that even—especially—in both criminal and civil trial courts, after Jarkesy now the courts of first recourse for regulators seeking punishments, the judgment of regulators can be only that—judgment/opinion—and regulators’ judgments can carry no more weight than those of any other expert witness either party to the case might call to the stand—and they are just as vulnerable to showings that the expert isn’t all that.

Especially important, regulators must make their case in front of a jury of their accused’s peers.

That’s good for American liberty.