To Rule or Not To Rule

How SCOTUS’s recent rulings have changed everyday American policy.

Walker Wambsganss

12 August 2024

Introduction

I was sitting in my office a few weeks ago on June 28th, just chugging along in my intern duties and scouring the popular website SCOTUSBlog. You see, I had carved out a little niche in my internship a week or so before. I loved the judicial system and knew that its highest court’s judgments could affect my office, and as such I posited the following proposal to my superiors: whenever the Supreme Court of the United States (SCOTUS) released a new decision, I wanted to brief it for my office and give them the summary and the case’s possible effects. 

Thankfully, my intern coordinator agreed, and as such I was biding my time at my desk, anxiously awaiting what possibly ostensive decisions SCOTUS might release for me that day. I wondered to myself: would these rulings be wide-reaching and heavy-handed commands, such as in Idaho or Harrington? Or would their judgment be more subtle yet as definitive, like in Jarkesy or Murthy? 

All of a sudden, the headline was right in front of me: “Supreme Court strikes down Chevron, curtailing power of federal agencies.” 

There are few times in life where we see history occurring right in front of us. If the history books are to be true, then the Supreme Court handing the amount of recent monumental cases to the American public is an anomaly… right? 

Well, sure, but we can’t say that it wasn’t coming. With the recent political narratives and vitriol, like the ones we’ve written about previously (Causes and Consequences), seeing rulings that seem destined to incite political furor have been bound to show up in our inboxes any day now. 

Even after the end of SCOTUS’s decision period, and well into its Summer recess, I was pondering these cases. I had seen the predicted outrage and balancing sympathies, the furor and joy, and I had felt encumbered by uncertainty. It didn’t seem right that, even though I believed these rulings were sound, others held such resentment for them. It was then that I came across an opinion written by the Solicitor General of Idaho, Alan Hurst. It started with a funny title: “The Supreme Court is doing its job[.]” 

As I read further, I realized that the writer of this opinion was quite on the money. He explained that, while “[i]t’s entertaining to boil down complex Supreme Court decisions into pointed summaries that whip up partisan audiences… understanding the full truth requires a little more work.” Hurst wrote that the underlying cause of the current political bitterness isn’t necessarily the Supreme Court. In fact, the cause is us, the American public. 

This paper attempts to achieve the full truth of these cases. I believe that the only way to solve ignorance and arrogance alike in public discussion–on both sides of the aisle–is to find the truth of the matter and advocate for it. With this value and criterion in mind, I will delve into a select number of cases and find what each of these rulings mean for the American people, our everyday lives, and the governmental systems which we live under. 

Loper Bright v. Raimondo, 603 U.S. ____ (2024)

In 1976, Congress passed the Magnuson-Stevens Fishery Conservation and Management Act (MSA). In this Act, Congress extended the United States territory to 200 nautical miles from its coast, naming this area as the “exclusive economic zone” of the United States. Congress tasked the National Marine Fisheries Service (NMFS) with enforcing the MSA, and it established a series of councils comprised of “representatives from the coastal States, fishery stakeholders, and NMFS” to “develop fishery management plans” and issue final rules. One of the rules that NMFS made concerned ““a mechanism for specifying annual catch limits . . . at a level such that overfishing does not occur[.]”” A later part of this law allowed for ““one or more observers be carried on board” domestic vessels “for the purpose of collecting data necessary for the conservation and management of the fishery.”” 

Furthermore, this law required certain fishers to carry observers. “If NMFS determine[d] that an observer is required, but decline[d] to assign a Government-paid one, the vessel [had to] contract with and pay for a Government-certified third-party observer. NMFS estimated that the cost of such an observer would be up to $710 per day, reducing annual returns to the vessel owner by up to 20 percent.” 

Loper Bright sued the NMFS, saying that “the MSA does not authorize NMFS to mandate that they pay for observers required by a fishery management plan.” The 1984 Chevron ruling made it so that, if there was ambiguity in statutory law—law passed by Congress—in a given case, the courts would defer to the appropriate administrative agencies (AAs), as they were considered to be governmental experts in those questions. Both the District of Columbia District and Circuit Courts ruled for the Government, and the District Court noted in its decision that “even if these petitioners’ “arguments were enough to raise an ambiguity in the statutory text,” deference to the agency’s interpretation would be warranted under Chevron.” After Loper Bright appealed, SCOTUS granted a writ of certiorari.

The issue before the Supreme Court in Loper Bright was whether or not the National Marine Fisheries Service’s rule was allowable under Chevron, the Administrative Procedure Act, and the Constitution of the United States.

“Chevron rested on “a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.”” 

The Supreme Court found that, “[a]lthough the Court did not at first treat Chevron as the watershed decision it was fated to become, the Court and the courts of appeals were soon routinely invoking its framework as the governing standard in cases involving statutory questions of agency authority.” After examining prior cases which utilized Chevron and this case itself, SCOTUS found that Chevron “triggered a marked departure from the traditional judicial approach of independently examining each statute to determine its meaning.” The Court later found that “Chevron defies the command of the APA[,]” and thus the case does not comply with United States statutory law. 

“Chevron affirmatively destroys [reliance interests] by allowing agencies to change course even when Congress has given them no power to do so.” Therefore, SCOTUS ruled 6-3 to vacate and overrule Chevron and return administrative power to Congress and the courts.

Trump v. United States, 603 U.S. ____ (2024)

In August of 2023, “a federal grand jury indicted former President Donald J. Trump on four counts for conduct that occurred during his Presidency[.]” This indictment alleged that “Trump conspired to overturn [the 2020 election] by spreading knowingly false claims of election fraud[.]” The former President argued that “a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, and that the indictment’s allegations fell within the core of his official duties.” Commensurately, the former President moved to dismiss the indictment. Both the District of Columbia (DC) District and Circuit Courts denied this motion. SCOTUS granted certiorari as part of its October 2024 term. The issue before the Court was whether or not the current or former President(s) of the United States have immunity for actions performed in an official capacity.

Article II vests power to the President to perform his duties “of “unrivaled gravity and breadth.”” As such, “[a]n Act of Congress... may not criminalize the President’s actions within his exclusive constitutional power.” Additionally, the Constitution states that “the executive Power shall be vested in a President of the United States of America.” 

In delivering the Court’s opinion, Chief Justice Roberts noted that “[n]ot all of the President’s official acts fall within his “conclusive and preclusive” authority.” The Court specified that “[t]he reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive constitutional authority do not extend to conduct in areas where his authority is shared with Congress.” In explanation, the Court found that the President must be ““unduly cautious”” in the performance of his duties. The Court referenced Nixon v. Fitzgerald, which stated that “a former President is entitled to absolute immunity from “damages liability for acts within the ‘outer perimeter’ of his official responsibility.”” If a President, current or former, were charged with crimes which stemmed from his exacting of his responsibilities, “the President would be chilled from taking the “bold and unhesitating action” required of an independent Executive.” It was because of this reasoning that SCOTUS decided 6-3 that former President Donald Trump possesses immunity from prosecution for official acts. 

SEC v. Jarkesy, 603 U.S. ____ (2024)

In 2013, the Securities and Exchange Commission (SEC) started to enforce the Securities Act of 1933 and the Securities Exchange Act of 1934 against two persons: George Jarkesy and his business, Patriot28 (the “respondents”). After these “enforcement action[s]” were taken, “[t]he SEC chose to adjudicate the matter in-house before one of its administrative law judges, rather than in federal court where respondents could have proceeded before a jury.” 

Jarkesy allegedly “launched two investment funds, raising about $24 million from 120 “accredited” investors[.]” The term “accredited investors” refers to individual investors, financial institutions like banks and venture capital funds, and “certain investment professionals[.]”

Since its inception in 1934, the SEC has had the option to adjudicate its enforcement actions in its own court system. As SCOTUS itself says, the SEC can either “adjudicate the matter itself[,]” or “it can file a suit in federal court.”

Now, these forums differentiate litigation procedure significantly. For example, in an SEC adjudication, the fact-finder is the SEC itself. Additionally, the Commission’s “Division of Enforcement prosecutes the case.” This is in stark contrast to federal courts, where a federal jury is tasked with fact finding in a federal court proceeding. In fact, in an SEC adjudication, “there are no juries.”

The issue before the Supreme Court was “whether the Seventh Amendment permits the SEC[,]” and by extension federal administrative agencies, “to compel respondents to defend themselves before the agency rather than before a jury in federal court.”

In delivering the Opinion of the Court, Chief Justice Roberts asked the follow up to the issue it was trying to answer: “ whether the “public rights” exception to Article III jurisdiction applies.” 

Inferring from the Chief Justice, this “public rights exception” probably stems from Article III, Section 2 of the Constitution, which says that: 

“The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

This means that all criminal cases will be tried by a jury in the state where the offense was committed–except where Congress has assigned certain crimes to certain agencies or governmental entities. To be cut and dry, SCOTUS determined that this exception didn’t apply, so it applied its jurisdiction and remanded this case to lower federal courts for a trial by jury. 

Explanations and Immediate Impacts

Now, this is all well and good, but these words are useless without understanding what they mean for our everyday lives. This section will extrapolate what each case means for us meager citizens. 

Loper Bright v. Raimondo

Explanation and History

Fair warning: this section will be longer than the ones to follow. This is simply because there is so much history to cover. 

The thing about Chevron was that it was an interesting case based on interesting intentions. In delivering the Opinion of the Court, ​​former Justice Stevens noted the following:

 “When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter... If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit, rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”

While this quote is monstrous, the former Justice actually elucidated a very important matter. That is, he explicitly outlined the powers that AAs have. First, they were to act in accordance with the mandates and powers that Congress provided. Second, they were to take certain–though limited–liberties in order to ensure that the mandates that have been explicitly directed to them be executed well. 

This seems like good law, right? Well… yes. It actually is, to an extent. 

Law itself is tricky–especially policymaking and its commensurate associate: policy-following. In many cases, it’s a matter of making sure that you check all of the boxes and do things right, for lack of a better phrase. This happens every day. In fact, you do it all the time–from filling out W-2 forms for a new job to making sure that you don’t speed. You just check legal boxes to make sure that you’re covered under the law. 

In some cases, though, law comprises a lot of semantics. Law is just words on a page, after all. While I’m certainly passionate about it, many attorneys and compliance personnel know that you can get away with a few things by squeezing through loopholes. 

Why is this pertinent, you may ask? Well, it’s actually right what we’re about to focus on with the aftermath of Chevron. 

After Chevron was decided, it introduced a new legal test for agencies and their litigative opponents to wrestle with: the aptly-named Chevron test. This test held two questions and went like this: 

1. Is the law that the relevant agency is enforcing ambiguous?

   1. If so, then pass on to question 2. 

   2. If not, then rule on the agency’s enforcement of the statute in question. 

2. Is the AA’s interpretation of the statute permissible/reasonable?

   1. If so, then defer to the agency. 

   2. If not, then rule against the agency. 

Again, this feels like good law at first glance, and at the time it was. It did not fit the Supreme Court’s modus operandi to go through each and every case involving an AA and gain copious and new knowledge on every single subject. I imagine that the justices presiding over this case didn’t have time for that, and so they left the subject matter rulings to the subject matter experts. 

However, with hindsight being 20/20, we can now see that this turned into an astounding mistake. 

As the years went on, the United States saw more and more cases being deferred to AAs by the Supreme Court. This wasn’t because they didn’t want to hear the cases. It was simply because they wanted to defer to the experts on the subjects at hand. The Chevron test eventually turned into a trump card for AAs, as SCOTUS many times assumed that what these AAs were writing in were reasonable and permissible interpretations of statutes. This snowball eventually turned into an avalanche, and, just like that, AAs started writing-in laws through implication. 

You may be asking yourself: “how could agencies do that? They don’t write or pass bills.” My response? Exactly. They don’t. However, because agencies knew that SCOTUS would defer to them, they eventually started to make Final Rules that would be arbitrary yet serving to them. In my humble view, they became their own judge, jury, and executioner.

In delivering the Opinion of the Court for Loper Bright, Chief Justice Roberts wrote that “Chevron cannot be reconciled with the APA by presuming that statutory ambiguities are implicit delegations to agencies. That presumption does not approximate reality.” What he’s saying, essentially, is that you can’t execute laws that were never written and passed by Congress. For an AA to act under such a notion contradicts its very statutory purpose pursuant to the APA. 

It didn’t take too long for courts to catch on–only around 36 years–but they finally did. We actually started to see this new stormcloud of anti-Chevron doctrine tangibly forming at the SCOTUS level a day before Loper Bright was decided with Ohio v. EPA, but that case is worth another paper on its own. 

Immediate Implications

While there is quite a hubbub around Loper Bright and how it will impact America on social media, there really isn’t that much to fear. Yes, there are immediate issues–take how agencies have regulated and ruled on healthcare, for instance. That being said, agencies, commissions, and regulators alike still have the power to enforce laws, and that ultimately is what matters. 

Trump v. United States

I will be the first to admit that there has been a copious amount of mental gymnastics surrounding this case from both sides of the proverbial aisle. While I understand much of the fervor among people who are not-so-fond of Trump, I do recognize that this case is valid law–in both current application and precedent. This is why. 

As mentioned earlier, the Constitution provides the President power to to perform his duties “of “unrivaled gravity and breadth[,]”” and “[a]n Act of Congress... may not criminalize the President’s actions within his exclusive constitutional power.” A Congress may, however, remove the President from their office “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” This is Congress’s recourse for a President who has engaged in criminal acts. 

Now, this is not to take a side on the validity of Trump’s candidacy or convictions. This part is simply explaining the recourse that Congress has against a President who has committed or been accused of committing such “high Crimes and Misdemeanors.”

With this in mind, let’s move to the “official acts” part of the decision. It has been a long standing implicit doctrine that a President cannot be charged for official acts. We have seen this in wars, conflicts, scandals, and the like… just as long as those acts are performed in that President’s official capacity. 

But this leaves us with a very big outstanding question: what constitutes an official act? And this is where it gets hairy. 

At first glance, the answer is easy: an official act is any act which is performed in order to serve the organization or state/government which that person is assigned to in their position of power. However, this also splits into various scenarios. Would an act which was performed personally, but for which the opportunity for the act was garnered upon the basis of the person’s position, be an official act? Would any act, whether of personal or official nature, constitute an official act? 

There is no codified definition for an official act. The closest we can usually get on a Google search relates to bribery and gratuity laws – which was also decided on during this SCOTUS term, by the way. So, while it would be safe to assume that the definition of an official act really only relates to acts that were performed with official powers and for the organization or government which assigned those powers to that person. I don’t have an answer for the subsequent questions, as I can only speculate as to what the statutory answers truly are.

SEC v. Jarkesy

While the conclusion to Jarkesy seemed pretty nondescript, it actually decided a monumental issue: whether federal agencies had exclusive jurisdiction over cases whose subject matters it regulated. In giving the Opinion of the Court, Chief Justice Roberts wrote that “[t]he right to trial by jury is “of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right” has always been and “should be scrutinized with the utmost care.”” 

The kick here is that AAs were making a play at the Seventh Amendment with this case, and most certainly with cases before it. Some AAs have dedicated courts that only hear cases pertaining to their specific subject matter. To be a bit forgiving, AAs like the SEC were likely just trying to ensure that cases like this were heard in courts which knew the subject matter well, but, by enforcing this perceived exclusive jurisdiction, they were actually curtailing American due process rights. 

Conclusion

While there has certainly been much uproar about the Supreme Court’s recent cases, be assured that “[t]he Supreme Court is doing its job.” If nothing else, Americans’ reputation for pushing the envelope does hold true, as for every case decided this term, there will no doubt be myriads more filed with the intent of testing these cases and making sure that Americans know where the exact lines are regarding their laws, freedoms, and rights. 

One thing I would challenge you, dear reader, to think about after reading about these cases is how you think about American governance. What do you think about current law? What do you like about our statutes or rights? What do you dislike? I encourage you to critically examine your views and positions and engage judicial governance with a similar lens, for it is only by diving into our values and being secure in our beliefs that we may have a helpful discussion on what is happening around us.