This July 4th, Celebrate SCOTUS
The Supreme Court's momentous decisions of the past several days remind us that the Constitution is still alive and well, at least most of the time.
A Happy Fourth of July to all who celebrate.
I look forward to celebrating my first Fourth of July with family at my relatively new home in the foothills of the Blue Ridge Mountains of Virginia. My grill and fireworks will be ready, and the Betsy Ross flag will be fully displayed. What the Commonwealth of Virginia and Loudoun Country’s restrictive ordinances won’t allow me to shoot, I should be able to see from the nearby regional park. It’s nice living high on a ridge with great views.
But when I light those fireworks or bite into my grilled burger, I’ll be sure to hoist a glass or two of Virginia’s finest vinifera and toast the US Supreme Court.
Not all their members, certainly not the diversity hires, who soiled themselves with silly, frightful, wildly inaccurate, and even inciteful analogies. You know, the one that it is now legal for a president to order a Seal Team 6 hit on his political opponent (umm, no), and that makes the president into King or free to take bribes for official actions. Biden stupidly embraced these absurdities in his four-minute-with-a-teleprompter reaction, after which he took no questions. But certainly, a solid majority reminded us repeatedly of the importance of serious, sober-minded justices and their fealty to the greatest political document ever devised by man, the Constitution of the United States.
I love the Constitution mostly for its embrace of natural law, as outlined in the Declaration of Independence, its granting of limited powers to the federal government, and its system of checks and balances to prevent the concentration of power that our founders and framers detested (i.e., Kingly power and tyranny).
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The Trump vs. The United States (I bet lefties love that title) opinion on presidential immunity was wholly consistent with the understanding of existing law and devoid of any real surprise. But it was far from the most important one. Here’s my non-lawyer, non-constitutional, but political and practical take on the most important decisions worth celebrating or watching.
Let’s start with the Trump immunity case. It helps to read the opinions, including the dissents. Even lefty Justice Sonia Sotomayor’s descent into this lunacy in Trump versus The United States:
Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act). Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder…When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. 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.
That’s nuts; never mind that no sane military commander sworn to uphold the Constitution would go along with such craziness. She said, “In every use of official power, the President is now a king above the law.” If that were true, Biden could cancel the 2024 election, dictate law without Congress, hire and fire people at will (good luck with that), and, as Biden has tried repeatedly, tell the US Supreme Court to pound sand on student loan “forgiveness.” Evidence suggests that Biden’s family is already taking bribes for the promise of (or access to) official action, so there’s that. None of that is possible in a vast majority of cases. He (nor she) is immune from ordering someone’s murder. Sotomayor soiled herself on this one.
At least Barack Obama, who ordered a drone strike (authorized by Congress) on American citizens, is probably breathing easier.
Acknowledging that the court wasn't perfect is important, as with any human institution. The biggest of those was Murthy v. Missouri, a censorship case. The plaintiffs alleged that the federal government, particularly health agencies, pressured social media networks to censor people. Aside from the attorneys general of Missouri and Louisiana, the plaintiffs included Jill Hines, who runs the Louisiana Health Freedom Network, and Jim Hoft, publisher of the conservative “Gateway Pundit.” It’s not a favorite blog of mine, given its propensity to conspiracy theories.
In a 6-3 decision written by Amy Coney Barrett, the court found that the plaintiffs “lacked standing” despite winning at the District (western Louisiana) and 5th Circuit Court of Appeals (Texas, Mississippi, and Louisiana). Barrett admitted that Hines made “the best showing of all the plaintiffs” but failed to establish the threat of future or ongoing harm.
Justices Samuel Alito, Clarence Thomas, and Neal Gorsuch disagreed and cited Hines as particularly likely to prove her claim in court. Meanwhile, one of the defendants, the Stanford Internet Observatory, is being wound down.
So, government pressure on social media networks, especially Facebook, to block communications on COVID-19 and elections is kicked down the road for a future case. Fortunately, there is another - Berenson (as in Alex, author, blogger, and former New York Times reporter) vs. Biden. Berenson’s case, now in litigation, asserts that White House Covid advisor Andy Slavitt and other officials used their positions to pressure Facebook and Twitter to censor Berenson, including terminating his account. The case is strong, and Berenson has receipts. Still, given the lack of new threats of ongoing or future censorship, he may experience the same “standing” problem since new Twitter-now-X owner Elon Musk has reinstated Berenson’s account. This is the actual tweet (pre-Musk) that got Berenson canceled from Twitter:
Everything Berenson said in this tweet was correct and affirmed by epidemiologists and other experts. The case has been pending the now-completed outcome of the Murthy and National Rifle Association vs. Vullo, another First Amendment case. In that one, the Supreme Court unanimously found that the hated NRA proved that a government official, Maria Vullo, who worked for the New York State Department of Financial Services, pressured banks and insurance companies to terminate their relationship with the NRA.
Several leftist, anti-gun groups have been pressuring financial institutions to do that for years, not just the NRA but also gun manufacturers, ammunition makers, and more. A few took the bait. But no biggie; the banks and insurance companies largely ignored the pressure. But a government official? That’s a very different kind of fish. Very Soviet.
Keep an eye on Berenson v. Biden. I have a funny feeling that it will make its way to the Supreme Court during the 2026 term. Meanwhile, the Biden Administration can return to cleverly pressuring social media networks to censor unapproved opinions and reporting so long as they don’t go “too far.” That’s disconcerting.
On NRA vs. Vullo, The vote was 9-0, and Sonia Sotomayor, the same justice who thinks King Donald Trump will send Seal Team 6 to kill his opponents, wrote the opinion. “Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that.” Bravo.
Chief Justice John Roberts's opinion in Trump vs. the United States should be read and understood fully. I found it instructive and persuasive. Sotomayor’s absurd and wildly false notions make her look like she suffered from temporary insanity. She should know better. So should Joe Biden and his incompetent staff for endorsing and echoing her bizarre, extra-legal, and profoundly ignorant comments.
The most important decision by far was Loper Enterprises vs. Raimondo (US Secretary of Commerce), which reversed a 40-year-old decision establishing “Chevron deference.” That suit, applauded by Republicans and conservatives at the time, said agencies enjoy great deference when making rules and regulations in the face of congressional ambiguity.
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The origins are interesting. President Reagan’s Environmental Protection Agency head, Ann Gorsuch (the late mother of Justice Neal Gorsuch), promulgated a rule that the National Resources Defense Council didn’t like. It related to the Clean Air Act and how to implement a 1977 law regarding the treatment of devices in manufacturing plants in jurisdictions that weren’t meeting federal air quality standards.
Reagan’s EPA, led by Gorsuch, took a different, “looser” interpretation. The NRDC sued. Chevron, an international energy company and major oil producer, countersued and won, citing the EPA’s expertise. Republicans and conservatives cheered when the courts ruled for Chevron. Over the years, the tables turned as agencies, with newfound powers, massively expanded the administrative state largely free of judicial accountability. The final word of agencies was, well, the final word. Unelected, unaccountable bureaucrats making law (some liberals chafe at the word, unaccountable, since bureaucrats can technically be held to account. By whom, it hasn’t been clear, and the evidence is wanting). Courts would defer to agency expertise thanks to the new construct created in the Chevron decision.
I remember dealing with that as a food lobbyist in the late 1990s, looking for ways to challenge what I thought was the Food and Drug Administration's overreach. Forget it; counsel always advised against going to court as a fool’s errand.
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In the Loper decision, the court reversed Chevron and reasserted its power to decide, not federal agencies, based on law. Congress can no longer defer difficult decisions in legislation to federal agencies. They’ll have to legislate and curb their own legendary deference to agencies. Congress may now have to look at beefing up its regulatory oversight function, which practically doesn’t exist. It’s long overdue.
The Loper case was interesting. Loper Enterprises is a fishing company. Decades ago, Congress enacted the Magnuson-Stevens Act to regulate seafood harvests to maintain sustainability, especially for things like clams off the shores of northeastern states (I ran into it as a Campbell Soup lobbyist as we scrambled to find new suitable clam beds to feed America’s appetite for Clam Chowder). The Biden Department of Commerce told Loper that since they (the agency) could not place a “monitor” on their boats to ensure compliance, they would have to pay $700 per day to cover the cost. Loper said that would bankrupt them and went to court. Such a demand by the government was outside the law’s scope.
Loper Enterprises won. Also, in light of the decision, SCOTUS sent two other cases back to lower courts. The effects will be deep, wide, and profound. Ironically, it may hamper some of Trump’s regulatory ambitions, but not many—he’s about freezing, reducing, and eliminating regulations, not expanding the administrative state. Organizations promoting regulatory zealotry will sue for failing to execute the law. Courts will now decide the fate.
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Here are a few other notable cases, quickly:
Fischer v. United States
This case has huge implications not just for some of the charges against Donald Trump but dozens of others convicted or charged for their participation in the infamous January 6th riot gone bad at the US Capitol in early 2021. From Scotusblog.com:
The Supreme Court on Friday threw out the charges against a former Pennsylvania police officer who entered the U.S. Capitol during the Jan. 6, 2021, attacks. By a vote of 6-3, the justices ruled that the law that Joseph Fischer was charged with violating, which bars obstruction of an official proceeding, applies only to evidence tampering, such as destruction of records or documents, in official proceedings.
Friday’s ruling could affect charges against more than 300 other Jan. 6 defendants. The same law is also at the center of two of the four charges brought by Special Counsel Jack Smith against former President Donald Trump in Washington, D.C.
This is huge and continues to blow a hole through what appears to be false characterizations of what happened that fateful day and the political persecutions that followed. Independent journalist Julie Kelly has done yeoman’s work detailing the abuses of the Capitol Police, the Special Committee on January 6th in the last Congress, and elsewhere. We may never know the full truth, but not for lack of trying. Too many people have bought the official government spin.
Alexander v. South Carolina State Conference of the NAACP
SCOTUS rejected a claim that South Carolina’s legislature drew congressional seats based on race. The Constitution expressly grants state legislatures wide latitude in redistricting, including for partisan purposes. The NAACP couldn’t prove that the maps were changed for racial purposes, disentangled from partisan intent, and six court members agreed. The Supreme Court does not like redistricting cases, except where the Constitution is being violated. I don’t blame them.
Security and Exchange Commission v. Jarkesy
At the risk of oversimplifying, this involved SEC-appointed judges adjudicating and enforcing their rules and regulations, including establishing civil penalties. They were sued for violating the 7th Amendment’s right to a jury trial. The court said civil penalties should be adjudicated in a court of law. This is another defanging of overly powerful federal agencies.
Moore v. United States
We’ll turn to the Tax Foundation to explain this one.
The case revolves around the question of “unrealized income.” Put simply: suppose you have a claim on some money, but the money is sequestered away in a box—a box that you can’t open immediately, or haven’t yet opened, or is located overseas. At what point can the government determine that you have earned the money, and subject it to income tax?
The plaintiffs, Charles and Kathleen Moore, owned a partial but significant stake in an Indian business called KisanKraft. Though KisanKraft was profitable, pre-2017 law typically did not tax the income of businesses like KisanKraft until the income was repatriated. The Tax Cuts and Jobs Act (TCJA) of 2017 made substantial reforms to international taxation, introducing a new tax on certain foreign earnings (called global intangible low-taxed income or GILTI) that would apply immediately, rather than upon repatriation. Furthermore, income unrepatriated as of 2017 was taxed under a provision called the Section 965 transition tax.
The Moores, who are payers of this transition tax under current law, have challenged the tax as unconstitutional, on the basis that income under the Sixteenth Amendment must be realized.
The Moores lost. Some think this opens the door to an Elizabeth Warren-style tax on unrealized income or a “wealth tax,” a longtime dream of hers. That remains to be seen. It may be legal, if dubious, from a policy standpoint. This case seems narrowly decided on the treatment of foreign income under the Trump tax cuts, but taxing unrealized income may not be unconstitutional (it’s a horrible idea, regardless).
There are several more important cases, and some are complicated. But it was a good week for the Constitution and the Article III branch: salute and Happy Fourth of July.