The Supreme Court's October, 2023 term ended last Monday (very late, by the normal standards of the justices, anxious to get on with their 3-month summer vacations by the end of June). The final decision of the term, issued on July 1 along with two other opinions, was Trump v. United States, one of the court's most controversial (and far-reaching) decisions ever on presidential power, with Chief Justice John Roberts ruling that presidents enjoy broad immunity from criminal prosecution. Somewhere, Richard Nixon, who declared during one of his interviews with David Frost that "When the president does it, that means that it is not illegal," must be smiling.
Even without the immunity decision, however, this would have been remembered as a blockbuster term, overshadowed only by the Dobbs v. Jackson Women's Health decision two years ago that overturned the 50 year-old precedent Roe v. Wade and its progeny. Among other things, the court found that "bump stocks," which easily turn semi-automatic firearms into automatic weapons, are not covered by the federal statute prohibiting machine guns, and therefore cannot be banned by the Bureau of Alcohol, Tobacco, Firearms and Explosives. Instead, new federal legislation would be required to specifically cover them.
Indeed, the primary thing the court will be remembered for this term, apart from the Trump immunity decision, is that, like in the bump stock decision, it continues to limit the authority of administrative agencies, and frequently concludes that such agencies have gone "too far." The Friday before the immunity decision, it struck down the 40-year old precedent in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. The Chevron case had held that in cases of ambiguity in a federal statute, federal courts should defer to an agency's interpretation if the agency's reading of the law was based on a permissible construction of the statute. Now, all such questions will have to be decided by federal judges instead.
In the same way, the court invalidated a fine imposed by the Securities and Exchange Commission (SEC) against a securities trader named Jarkesy, whom the SEC had accused of securities fraud. The court held that if the SEC seeks civil penalties for securities fraud, the Seventh Amendment entitles the defendant to a jury trial.
Jarkesy demonstrates as well as anything else that despite the protests of the Supreme Court's current majority that it relies on "textual" readings of statutes or the Constitution, and that it attempts to divine the "original meaning" of the Constitution, its decisions are driven only by the results the majority seeks, and that it uses these claims of "textualism" and "originalism" to disguise that this court has, effectively, simply become the judicial arm of the conservative legal movement.
As one example, the relevant language from the Seventh Amendment (in case your copy of the Constitution isn't handy) states, "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." Whatever the SEC's enforcement proceedings may be, they are not "suits at common law." There was no SEC under the common law (which arose in England during the Middle Ages). Indeed, the SEC didn't exist at all until the Securities Act of 1933 and the Securities Exchange Act of 1934 were adopted in response to the go-go stock trading on Wall Street before the stock market Crash of 1929.
But no matter — the conservative legal movement's main goal has long been the hobbling of administrative agencies. And here's a real tell: The case in which the court struck down the Chevron doctrine, Loper Bright Enterprises v. Raimondo, involved a technical question whether owners of U.S. herring fishing vessels had to pay the cost of federal monitors who go out on the craft to make sure that the vessels aren't overfishing.
The case appears to have a kind of David v. Goliath feel to it – family fishermen v. the big, bad government. But the attorneys who represented the boat owners (for free) were paid for by Americans for Prosperity, a group funded by Charles Koch, chairman of Koch Industries, who has spent most of his life (and multi-billion-dollar fortune) fighting government regulation.
This court is rapidly trying to return us to the days of the nineteenth century, when there was little government oversight of business. Thanks to cases like Jarkesy and Loper Bright, it has largely succeeded.
So we beat on, boats against the current, borne back ceaselessly into the past.
Frank Zotter, Jr. is a Ukiah attorney.
No comments:
Post a Comment