While the Supreme Court imbued the presidency with untold power, hobbled federal agency power and hollowed out the administrative state this term, it was actually amassing power to itself.
In Trump v. United States, the power grab lurks in what Chief Justice John Roberts’ majority left unsaid. That landmark case granted former presidents sweeping immunity from criminal prosecution. For actions a president takes as part of his “core constitutional powers,” he gets absolute immunity; for other “official acts” he gets “presumptive immunity.”
The core powers imagined by Roberts can be somewhat — but not completely — sussed out from the constitutional text. But the other official acts alluded to are far murkier, and the majority left them glaringly undefined in its opinion. That reserves for the Court significant power to decide what an official act is or isn’t based on the particulars of the cases (and presidents) that come before it.
“They’ve left themselves room to later stretch immunity across the board, but ducked doing that for no standard judicial reason but to deflect criticism,” Georgetown Law professor David Super told TPM. “They decided a bunch of other things, there’s no reason they couldn’t have decided that too, which makes me assume it was political.”
From the Court’s musing that everything from Trump’s pressuring of Mike Pence to overturn the election to his tweets egging on the Jan. 6 insurrectionists may be official acts, it seems they’re leaving themselves quite a bit of leeway.
And the full ramifications of the ruling hinge on how far those official acts sweep; if they swallow nearly everything the President does, he’ll be virtually inoculated from criminal prosecution (or at least, the cases will be very difficult for prosecutors to win).
“I’m hoping to see a definition of official acts that at least makes it clear that there’s a limit to the degree to which you can abuse your power with impunity,” Rebecca Roiphe, a professor at New York Law School, told TPM.
Dismantling The Administrative State
The immunity case, though, wasn’t the Court’s only thinly veiled power grab. It closed out the term with a trio of attacks on federal agencies, completing a long-held mission of the political right. The conservative justices feign that what they’re really doing in these cases is a democratic exercise: shifting power from unelected bureaucrats to Congress, so the legislature can simply pass laws in place of agency regulation. In reality, Congress is too riven by partisan strife and congressional Republicans too ideologically opposed to most regulation for that to happen.
Instead, the Court becomes the sole arbiter of what agencies can do — power that infects every part of American life, from air quality to workplace safety to drug efficacy to environmental degradation.
In the final days of its term, the Court handed down a ruling that the Securities and Exchange Commission (SEC) must adjudicate certain cases in federal courts, rather than letting the agency choose whether to adjudicate there or in house — despite the fact that Congress gave the agency that prosecutorial discretion.
“Litigants seeking further dismantling of the ‘administrative state’ have reason to rejoice in their win today, but those of us who cherish the rule of law have nothing to celebrate,” wrote Justice Sonia Sotomayor in dissent.
In another decision, Justice Amy Coney Barrett wrote for the majority that a person can sue an agency after being injured by an action it’s taken — even if the injury occurs long after the action did. The decision dramatically expands the window in which individuals can bring anti-agency lawsuits from the previous six-year statute of limitations.
Justice Ketanji Brown Jackson warned in her dissent that the ruling will create a “tsunami of lawsuits” with “the potential to devastate the functioning of the Federal Government.”
These decisions crescendoed in the landmark Loper Bright decision, in which the conservatives overturned Chevron deference, the 40-year-old precedent that was a pillar of agency power and that let agencies interpret vague congressional statutes as long as their interpretation was “reasonable.” Chevron has long been on the right-wing chopping block, with Justice Neil Gorsuch in particular often foreshadowing its death.
“In one fell swoop, the majority today gives itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law,” Justice Elena Kagan wrote. “As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”
Blake Emerson, professor of law and political science at UCLA, pointed out the irony of a majority asserting again and again that agencies are tyrannical institutions trampling on citizens’ rights, only to hand down the immunity decision on the last day of term.
“It makes a mockery of the Court’s cases about regulatory agencies, where they describe the threat posed to liberties by the CFPB or the right to a jury trial in the SEC case,” he said. “The threats to liberty in those cases, while not zero, pale in comparison to the threats to liberty by immunizing the President from criminal account.”
The Court appoints itself the ever more powerful arbiter of the executive branch’s authority, while siphoning away power from all but the presidency — for which it still reserves for itself the final say in whether he’s exposed himself to criminal prosecution. For a Court concerned with the trampling of democracy, it’s very comfortable in giving its own nine (really six) unelected members growing control.
And the activist Court has moved very quickly, making use of the right-wing supermajority to restructure the separation of powers, giving itself an upper hand.
While Court watchers had little in the way of optimism to offer, one point did emerge: The arguments against court reform get increasingly hollow as the Court runs so roughshod over precedents, checks and balances and the text of the Constitution.
“The argument against court reform is that we need courts there to make sure the government doesn’t overstep,” Emerson said. “Look at this opinion — are courts gonna do that, or are they gonna say the President can do whatever he wants, even if it’s criminal? If that’s the position of the Court, what is the argument in terms of maintaining its power?”
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