Today, the Supreme Court released its final decisions of the 2023-2024 Term, including the long-awaited decision in Trump v. U.S., in which the Court held 6-3 that a former President enjoys immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Other decisions released today were Moody v. NetChoice, LLC, in which the Court remanded two blockbuster social media moderation cases for further review, and Corner Post, Inc. v. Board of Governors of the Federal Reserve System, which in conjunction with last week’s Loper Bright decision, further erodes the administrative state.
What You Need to Know
- Question Before the Court: Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?
- What Happened at the Oral Argument: In a preview of how the majority opinion would ultimately deal with the case, the Court spent precious little time on the actual conduct of the former president central to this case, with Justice Kavanaugh noting to the government’s lawyer, “I’m not focused on the here and now of this case, I’m very concerned about the future.” This posture led to a series of hypotheticals, as several of the justices attempted to find the boundaries of what might constitute an “official act.” In response to one such hypothetical, Trump’s advocate made the assertion that an ordered assassination of a political rival might be considered an official act depending on the circumstances involved. At another point, he asserted that the president calling for a coup to remain in power “may well be an official act.”
- What Did the Court Decide: In a 6-3 decision split along ideological lines, the Court remanded the case back to the D.C. District Court for further proceedings to determine which of the charges brought against Trump are “official acts.” Writing for the majority, Chief Justice Roberts described the contours of presidential immunity under which the lower courts should operate, finding that a President “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.” The majority went so far as to hold that to preserve a President’s ability to take “bold and unhesitating action” while in office, a President’s motives cannot be questioned in determining whether an action should be categorized as “official” and that evidence of an official act that is relevant to a prosecution of unofficial acts cannot be introduced and considered by a jury. The end result, as Justice Sotomayor points out in the principal dissent, is to “completely insulate Presidents from criminal liability” such that “the person charged with ‘taking Care that the Laws be faithfully executed’ can break them with impunity.” Justice Sotomayor examined the text of the Constitution, as well as the “history and tradition” that the Roberts Court majority so often purports to adhere to , finding no support for the new immunity protections and concluding that the majority “invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” Justice Jackson, who joined the principal dissent in full, wrote separately to further expound upon what today’s decision means for the project of accountability, drawing from criminal law principles.
- What to Make of the Result: The Court’s decision in this case is nothing short of terrifying. During oral argument, several justices insisted they were uninterested in the underlying facts of this case but what may occur in the future. Yet, in the majority opinion, such worries for the future are swatted away condescendingly, with concerns raised by the dissent characterized as “fear mongering on the basis of extreme hypotheticals about a future where the President ‘feels empowered to violate federal criminal law.’” But as Justice Sotomayor’s dissent points out, this opinion now lies about like a loaded weapon at a time when authoritarianism is on the rise at home and abroad. In a statement released earlier today, ACS said: “Analysis of the Court’s decision should also put Trump v. United States in the context of recent history to appreciate the extent to which the Court is fundamentally restructuring our government and society to suit its ideological preferences. In decisions like Trump, Loper Bright, Corner Post, Biden v. Nebraska, and SEC v. Jarkesy, the Court has asserted that while the President can break the law with a type of immunity typically only enjoyed by kings and autocrats, the regulations his or her agencies promulgate can be overridden by an all-powerful Court who simply disagrees with the policies advanced, and Congress has little say on either account. This is not what the Constitution demands.”
Today, the Supreme Court issued a 6-3 decision in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, holding that the Administrative Procedures Act’s six-year statute of limitations for facial challenges of final regulations does not begin until the plaintiff is injured by the regulation, rather than at the time the regulation is made final. This case opens the floodgates for challenges to longstanding federal regulations and is yet another example the Court undermining separation of powers and the ability of federal agencies to do their jobs.
What You Need to Know
- Relevant Background: Section 702 of the Administrative Procedure Act (APA) provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action” may seek judicial review. Section 2401(a) of Title 28 of the United States Code generally requires that the complaint to commence such an action must be “filed within six years after the right of action first accrues.”
- Facts of the Case: In July 2011, the Board of Governors of the Federal Reserve System (the Board) issued Regulation II, which placed a cap on the interchange fees that are paid in connection with debit-card transactions. In April 2021, the North Dakota Retail Association and the North Dakota Petroleum Marketers Association (collectively, the Associations) filed a complaint, challenging Regulation II under the APA. The Board moved to dismiss, arguing that the statute of limitations had run out. In an effort to circumvent the statute of limitations, the Associations amended their complaint and added as a plaintiff Corner Post, which incorporated in 2017 and began operating a truck stop and convenience store in 2018. The plaintiffs argued that, as it related to Corner Post, the statute of limitations did not begin to run until it had opened in 2018. The district court rejected this argument and dismissed the case, holding that section 2401(a)’s statute of limitations began running when Regulation II was published in July 2011. Corner Post sought review by the Supreme Court.
- Question Presented: Whether a plaintiff’s APA claim “first accrues” under 28 U.S.C. § 2401(a) when the agency issues a rule or when the rule first causes the plaintiff to suffer a “legal wrong” or be “adversely affected or aggrieved.”
- Oral Argument: During the oral argument this past February, the justices questioned how the statutory language should be parsed and considered what effects might follow if parties were allowed to bring facial challenges more than six years after a final agency action. For example, Justice Jackson asked whether this could risk destabilizing industry and noted that “we have settled rules that govern all sorts of industries, the healthcare industry, the finance industry, and people have adjusted themselves around them.”
- The Decision: The majority in Corner Post reasoned that “accrues,” as used in the APA’s stature of limitations, is well understood to mean that the clock begins “only after the plaintiff suffers the injury required,” rather than at the time the defendant acts. The Court held that this is the “standard rule for limitations periods” under its precedent and that therefore, though Regulation II was made final in 2011, the statute of limitations as it related to Corner Post did not begin to run until 2018. The Court acknowledged that Congress could create a “statute of repose” that places an outer limit on filing causes of action measured from the time of the government’s final act or omission, but the Court was unwilling to infer such an intent in this instance.
- The Dissent: In a dissent joined by Justices Kagan and Sotomayor, Justice Jackson criticizes the majority for ignoring the Court’s precedent that the term “accrues” is context specific. In the administrative context, she argues, this has long meant that statues of limitations run from the time of agency action. She also notes that in facial challenges to agency action, such as the present case, the plaintiff’s injury is irrelevant. She argues, therefore, that the Court’s conclusion is “baseless,” and effectively eliminates any limitations periods for facial challenges to agency action.
- Potential Impact: The Court’s holding that section 2401(a)’s limitations period does not begin to run for a particular party until that party is injured by a final agency action enables newly formed entities to bring facial challenges to agency rules and regulations that have been in place for decades. In other words, the Court’s decision effectively destroys the finality that Congress chose to provide by establishing the statute of limitations.
Today, the Supreme Court overruled Chevron in a 6-3 decision in Relentless, Inc. v. Department of Commerce and 6-2 decision in Loper Bright Enterprises v. Raimondo (from which Justice Jackson recused herself). The Chevron doctrine has directed courts to respect agency authority for 40 years and has become a pillar of administrative law. However, the doctrine has increasingly been villainized by anti-regulatory interests, which have blamed the decision for contributing to the growth of the administrative state.
What You Need to Know
- What Was Before the Court: Whether the Court should overrule Chevron or more narrowly clarify whether statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute constitutes an ambiguity requiring deference to the agency.
- What Chevron Said: In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984), the Supreme Court held that courts should defer to a federal agency’s interpretation of a statute that it administers when the statute is ambiguous or silent as to an issue and the agency’s interpretation is reasonable. The Chevron doctrine has served an important role over the past four decades in directing courts to respect agency authority and enabling federal agencies with the necessary expertise to understand and deliberate on the specialized areas within the agencies' purview.
- Background: Our federal government works by having Congress pass and the President sign into law broad legislation, which is then interpreted by federal agencies. Congress does not have the time, expertise, or clairvoyance to legislate on every possible detailed aspect of health policy, workplace safety, social security benefits administration, food and drug safety, land use, environmental policy, etc. Instead, Congress relies on federal agencies to interpret federal statutes and issue more detailed regulations to achieve the objectives it sets out. The Chevron doctrine supports agencies as they use their expertise to serve the American people and, in the course of doing so, must interpret statutory language that is at times unclear.
- What the Court Decided: The Court overruled Chevron and held that the Administrative Procedures Act, which prescribes the procedures for agency rule making, requires that courts exercise their independent judgment in resolving statutory ambiguities, that ambiguities are not delegations to agencies, and therefore no deference is due an agency’s interpretation of the statutes it administers.
- Practical Effect: Today’s decision is yet another instance in which this Court has chosen to strengthen the power of the federal judiciary at the expense of the other branches. As Justice Kagan observed in her dissent, “In one feel 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.” The majority’s decision invites courts to second-guess agency experts and upend any federal agency rule that does not align with the judge’s own policy preferences. The Court did not need to go so far. Both Loper Bright and Relentless asked the Court to decide a much narrower question—whether the statutory language authorized the rule at issue. However, the Court chose only to review the Chevron challenge, creating a situation in which the Court’s decision could have far-reaching effects even if it did not resolve the specific dispute of the parties before it. Importantly, the majority clarified that the decision in these cases, “does not call into question prior cases that relied on the Chevron framework,” leaving in place the holdings cases in which the Court previously found agency action lawful. Importantly, the majority clarified that the decision in these cases, “does not call into question prior cases that relied on the Chevron framework,” leaving in place holdings in cases in which the Court previously found agency action lawful.
Today, the Supreme Court dismissed as improvidently granted the writs of certiorari in Moyle v. United States, a case that was poised to determine whether the federal Emergency Medical Treatment and Labor Act (EMTALA) preempts Idaho’s Defense of Law Act, which criminalizes abortion only with an exception when “necessary to prevent the death of the pregnant person.” At the heart of this consolidated case was the troubling question of just how dire a pregnant person’s medical emergency needs to be to receive abortion care in Idaho and states with similarly restrictive bans. Unfortunately, this question remains unanswered for now.
What You Need to Know
- Question Before the Court: To what extent does Idaho’s Defense of Life Act conflict with the federal EMTALA and to the extent that a conflict exists, does EMTALA preempt the state’s abortion ban?
- What Happened at the Oral Argument: The justices sought clarity from advocates for both sides on the scope of the conflict between the two laws, seeking to understand the amount of “daylight” between the two. Idaho maintained that the scenarios brought up in the federal government’s briefs would all be covered under the state’s “necessary to prevent” death exception whereas the federal government, and many amicus briefs from physicians and medical experts, disagreed. In a particularly animated exchange with Solicitor General Prelogar, Justice Alito advanced a dangerous line of argument regarding language within EMTALA to advance the cause of fetal personhood. EMTALA includes language that requires stabilizing care also be provided to an “unborn child,” which Justice Alito seemed to suggest would prompt a weighing of fetal interests versus a pregnant person’s interests by a physician. The Solicitor General responded that the law was designed to require hospitals to provide care in situations where the pregnant person’s health was not in danger but their pregnancy was in peril, creating an obligation of care flowing through the pregnant person, not in contrast to their own health.
- What Did the Court Decide: In a very brief per curiam decision, the Court dismissed the writs of certiorari granted in this consolidated case as improvidently granted and vacated the stays previously put in place by the Court. But beyond the brief order lies clear disagreement among the justices on how the Court handled this case and what the future holds for EMTALA. Justices Kagan and Barrett each wrote concurring opinions, the former because Idaho’s arguments never justified emergency relief or early consideration and the latter because “the shape of these cases has substantially shifted” since cert was granted. Justice Jackson, concurring in part and dissenting in part, noted that the Court had already inserted itself into the ongoing litigation to the detriment of pregnant Idahoans experiencing medical emergencies and their doctors and that three days after the petition in this case was granted, the Fifth Circuit affirmed a similar case in which the federal government was enjoined from enforcing EMTALA’s requirements in Texas. And then there was Justice Alito, writing in dissent, picking up and advancing the dangerous theories he advanced during oral argument in regards to fetal personhood.
- What to Make of the Result: In the end, the Court kicked the can down the road on the question of whether EMTALA preempts state abortion bans when it comes to care for pregnant people experiencing a medical emergency and in need of stabilizing care that includes abortion care. While Idahoans now arguably have the benefit of EMTALA while litigation proceeds in the lower courts, Texans do not because of the Fifth Circuit injunction still in place there. Time is of the essence when patients present requiring critical care, and the Court today chose to delay, past the elections and extending the uncertainty they created.
On Friday, the Supreme Court issued an 8-1 decision in United States v. Rahimi, upholding a federal law which disarms domestic abusers. The decision comes on the heels of the landmark 2022 decision, New York State Rifle & Pistol Association v. Bruen, which ruled that gun regulations are presumptively unconstitutional if they are not consistent with nation’s “historical tradition of firearm regulation.”
The Court’s new ruling establishes that to survive the Bruen test, the government need not identify a direct “historical twin” so long as they can identify analogous historical principles, but concurrences and dissents acknowledged uncertainty on what level of generality would be sufficient to resolve future cases.
What You Need to Know
- Relevant Precedent: Last year, the Supreme Court issued a landmark decision on gun regulations in New York State Rifle & Pistol Association v. Bruen, holding that state laws restricting access to guns are unconstitutional unless they were “consistent with this Nation’s historical tradition of firearm regulation.” The decision was widely criticized, with many scholars predicting that it would disturb many previously accepted gun safety regulations.
- Law at Issue: In Rahimi, the Court is considering the constitutionality of a federal law that prohibits anyone subject to a domestic violence restraining order from possessing firearms. The law requires a court to determine, after notice and a hearing, that the subject to be restrained poses a threat to an intimate partner or that partner’s children, but it does not require a criminal conviction.
- Facts of this Case: In 2020, a Texas state court imposed a civil restraining order on Zackey Rahimi, after he assaulted his ex-girlfriend, threatened to shoot her if she told anybody about it, and fired a gun at a witness to the assault. Among other conditions, the restraining order forbade Rahimi from possessing firearms. After several subsequent incidents in which Rahimi opened fire in public, law enforcement executed a search of Rahimi’s home where they recovered firearms. Rahimi was charged and convicted of violating the federal law described above. Rahimi appealed his conviction to the Fifth Circuit, arguing that the law disarming him was unconstitutional, and the Fifth Circuit ruled in his favor.
- Question Presented to the Court: Whether the Second Amendment bars the government from prohibiting individuals who are subject to a domestic violence restraining order from possessing firearms.
- What happened at the Oral Argument?: The justices focused in large part on what level of specificity the Court requires when considering history and tradition as part of the “text, history, and tradition” analysis in Bruen. The justices seemed receptive to the government’s argument that history and the Court’s own precedent support the government disarming certain categories of citizens who pose a higher risk of future danger if armed. Justice Jackson repeatedly probed the underlying validity of the history and traditions test, noting that Native people and slaves were originally excluded from the Second Amendment and questioning whether “only certain people's history counts.” Justice Gorsuch signaled that, even if the law is held to be facially constitutional, as-applied challenges may raise more difficult constitutional questions in the future.
- What Did the Court Decide?: After examining Founding Era laws and regulations, the Court found that there is a historic tradition supporting the principle that individuals found by a court to pose a credible threat to the physical safety of others may be temporarily disarmed. Specifically, the Court pointed to surety laws, which required persons found to pose a threat of future violence to others to post a bond, and “going armed” laws which allowed for people who menaced others with firearms to be disarmed or imprisoned. Justices Sotomayor, Gorsuch, Kavanaugh, Barrett, and Jackson filed concurring opinions, while Justice Thomas dissented, arguing that that laws identified by the majority were too dissimilar to the law disarming domestic abusers.
- Practical Impact: As Justice Jackson noted in her concurrence, the Bruen decision and its novel “history and tradition” test has led to inconsistent rulings among lower courts considering challenges to gun regulations and placed heavy burdens on state governments and legislatures to identify “historical twins” to proposed gun regulations. The Court’s new ruling is likely to result in more flexible historical inquiries being applied in lower courts, and more gun regulations being successfully defended.
On Friday, the Supreme Court issued a 5-4 decision in Campos-Chaves v. Garland (consolidated with Garland v. Singh, and Garland v. MendezColin). The case concerns the circumstances in which a noncitizen can move to rescind an in absentia removal order after receiving a defective Notice to Appear.
The Court had previously ruled that Notices to Appear (NTA) must specify the time and date of a noncitizen’s removal hearing, and that the government’s failure to provide this information renders an NTA invalid. On Friday, the Court ruled that even if a noncitizen receives an incomplete NTA, if they subsequently receive a notice of hearing specifying the date and time of their hearing and fail to attend, they are not eligible to apply for rescission of their removal order. The decision removes a key incentive for the government to issue legally compliant NTAs, and places greater burdens on noncitizens to protect their rights.
What You Need to Know
- Law at Issue: Federal law requires that the government provide a written “notice to appear” (NTA) to individuals subject to deportation orders, which specifies “the time and place at which the proceedings will be held,” and a “notice of hearing” (NOH) if the time and place of the hearings are changed or postponed. Noncitizens who receive in absentia orders of removal can move to reopen their cases if they do not receive either statutorily required notice. For years, the government has sidestepped its legal obligations by issuing so-called NTAs with the time and place of hearings “TBD.” In the 2018 case Pereira v. Sessions, the Supreme Court ruled 8 to 1 that a document that fails to provide time and place information is “not a notice to appear.” The Court also remarked that a valid NOH presumes that the Government has already served an NTA that specifies a time and place because “otherwise, there would be no time or place to ‘change or postpone.”
- Facts of this Case: Moris Esmelis Campos-Chaves, a citizen of El Salvador, entered the United States without legal authorization in January 2005. Immigration and Customs Enforcement (ICE) initiated deportation proceedings against him. He was initially served with an NTA that listed the time and location as “to be determined.” A subsequent NOH, with specific time and location information included, was later sent. Campos-Chaves did not appear at the hearing, and an immigration judge ordered his removal in absentia. In 2018, after the Supreme Court’s decision in Pereira, Campos-Chaves filed a motion to reopen his case because his NTA lacked place and time information. The immigration judge denied his motion, the Board of Immigration Appeals dismissed his appeal, and the Fifth Circuit denied Campos-Chaves’ petition to review the BIA decision.
- Question Presented to the Court: Whether non-citizens who are ordered removed after being issued defective NTAs (lacking place and time information) supplemented by later NOHs (including places and dates) can move to reopen their cases.
- What Happened at the Oral Argument: Justices from across the ideological spectrum expressed skepticism of the government’s arguments that noncitizens who have been ordered removed after receiving defective NTAs should not be allowed to reopen their cases. Several Justices emphasized the clear language of the statute and language from past SCOTUS decisions criticizing the government’s practice of issuing incomplete NTAs.
- What Did the Court Decide?: The Court ruled that noncitizens who receive in absentia removal orders after receiving notice of the time and place of their removal hearing may not seek to have their removal orders rescinded, even if they never received a valid NTA. Justice Jackson (joined by Justices Sotomayor, Kagan and Gorsuch) wrote for the dissent, arguing that this ruling “defies the plain text and context of the statute, sidesteps our precedents, and upends the careful in absentia removal framework Congress has crafted.”
- Practical Effect: The Court’s ruling forecloses relief for individuals subject to deportation orders who have received defective NTAs and may incentivize the government to continue to issue incomplete NTAs to noncitizens.
