Why Supreme Court ethics legislation is problematic: Carrie Severino
Judicial Crisis Network's Carrie Severino weighs in on the debate over Supreme Court oversight on 'Sunday Night In America.'
The Supreme Court can look forward to a slower pace this term after consecutive blockbuster terms, but that’s not to say that it won’t hear cases with significant impacts. The major cases the court has agreed to hear so far do not include headline-grabbing social issues like affirmative action and abortion, but will grapple with core issues of the constitutional balance of power and the future of the administrative state.
We only know a fraction of the term’s cases so far. The justices will continue to add more cases to hear on the merits.
They also receive applications for review on its emergency docket – typically difficult questions on which the justices are asked to decide whether to give temporary relief without issuing final dispositions. There is a chance that cases involving social media content moderation, abortion clinic buffer zones, abortion pill regulation, and state bans on gender transition procedures for minors will make their way to the high court in one form or another.
The emerging theme among the court’s cases on its merits docket so far is the constitutional separation of powers. (AP Photo/J. Scott Applewhite, File)
The emerging theme among the court’s cases on its merits docket so far is the constitutional separation of powers. The Constitution divides the federal government into three branches – the legislative, executive, and judicial – and forbids each of them from exercising the powers given to the other branches.
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But this separation is under serious threat. Congress has spent generations creating the administrative state and giving its alphabet soup agencies the sort of legislative and judicial power that the Constitution assigns elsewhere.
The threat to democracy that the administrative state poses is obvious. Its bureaucrats wield vast power over our lives but are not truly accountable to any of us.
And too often, Congress has been glad to abdicate its constitutional responsibilities. In Consumer Financial Protection Bureau v. Community Services Association of America, the court faces a challenge to the funding mechanism of the Consumer Financial Protection Bureau (CFPB).
Sen. Elizabeth Warren speaks during a TV interview on Capitol Hill on July 12, 2023. (Al Drago/Bloomberg via Getty Images)
The brainchild of Sen. Elizabeth Warren, D-Mass., the CFPB is funded by the Federal Reserve and has the authority to choose the amount of its annual public funding in perpetuity, subject only to a cap, for powers that are executive at their core. That circumvents the Constitution’s appropriations clause, which provides that no money may be drawn from the treasury except through congressional appropriations.
Securities and Exchange Commission v. Jarkesy involves a challenge to the practice of agencies prosecuting enforcement actions within their own tribunals, staffed by agency employees called administrative law judges (ALJs), rather than in court. The Wall Street Journal reported several years ago that ALJs ruled in favor of the agency 90% of the time.
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Hedge fund manager George Jarkesy, who was subjected to an SEC enforcement proceeding alleging fraud, challenges his deprivation of a trial by jury under the Seventh Amendment. He additionally claims that Congress improperly delegated to the agency unfettered authority to have its own tribunal hear the fraud claims and that ALJs were unconstitutionally insulated from presidential control.
Members of the Supreme Court, from left, Justices Amy Coney Barrett, Neil M. Gorsuch, Sonia Sotomayor and Clarence Thomas, Chief Justice John Roberts, and Justices Ketanji Brown Jackson, Samuel A. Alito, Elena Kagan and Brett M. Kavanaugh on Sept. 30, 2022, in Washington, D.C. (Collection of the Supreme Court of the United States via Getty Images)
In Loper Bright Enterprises v. Raimondo, the court faces the question of whether to overrule Chevron v. Natural Resources Defense Council (1984) and to reject the notion that courts should defer to any "reasonable" agency interpretation of "silent or ambiguous" statutory text. In this case, the National Marine Fisheries Service dubiously claims implicit power under the Magnuson-Stevens Act to compel a wide variety of domestic vessels to carry and pay federal observers who enforce agency regulations.
For decades, so-called Chevron deference allowed agencies to exploit vague language to justify actions that breached Congress’ original understanding of text. In recent years, the court has been less likely to find statutory text ambiguous, and its application of the non-deferential "major questions doctrine" demands "clear congressional authorization" for agency actions of broad economic and political significance.
The court has been chipping away at Chevron for years, and its demise would be a fitting capstone of the court’s administrative law decisions.
This term’s cases pose a multi-front challenge to the unaccountable administrative state. The court may not reach every question before it, but it has more opportunities to protect the separation of powers than it has had in a long time.
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In Moore v. United States, the justices will consider whether the Mandatory Repatriation Tax (MRT) is authorized under the 16th Amendment, which permits Congress to impose income taxes that do not have to be apportioned among the states according to population. The MRT was based on the ownership of assets whose appreciation in value was unrealized by the taxpayer, making it look more like a tax on property beyond the scope of the amendment instead of an income tax.
This case is of particular significance at a time when wealth tax proposals by President Biden and Warren, among other Democrats, have become the subject of national debate.
Another case, Acheson Hotels, LLC v. Laufer, poses a question about standing in a particularly egregious example of gaming the judicial system. In this case, a woman sued a hotel, alleging that they violated the Americans with Disabilities Act by not including enough information on their website about disability accommodations.
The district court said she couldn’t sue because she didn’t even have any plans to visit the hotel, but the First Circuit reversed the lower court on appeal. Now she is trying to avoid review by invoking disciplinary action against her earlier legal team for its shady practices as an excuse to dismiss her claim.
But the hotels say that if this case is dismissed without a final ruling on standing by the Supreme Court, they’ll continue to be vulnerable to nuisance lawsuits that are aimed at extracting settlements because companies don’t want to spend the money to defend against repeated frivolous claims.
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In United States v. Rahimi, the court will consider whether Congress exceeded its constitutional authority when it enacted a prohibition on the possession of firearms by people who are subject to domestic violence restraining orders barring them from harassing, stalking or threatening an intimate partner or child. Expect the court to apply its Second Amendment test looking to historical firearm regulation benchmarks in New York State Rifle & Pistol Association v. Bruen (2022) rather than the justices’ own policy preferences in deciding this case.
In Alexander v. South Carolina State Conference of the NAACP, the justices will again consider a challenge to a congressional map alleged to be racially gerrymandered. Unlike last term’s similarly themed case of Allen v. Milligan, this does not involve a challenge to precedent under the Voting Rights Act.
Instead, the court in Alexander is asked to decide whether the lower court committed clear error in concluding that the South Carolina state legislature, in violation of the Constitution, engaged in intentional race discrimination in drawing its map. The state legislators argue that the district was drawn to achieve political and race-neutral goals and that the enacted map outperforms the challengers’ alternatives in following those objectives.
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The court enters this term after a torrent of abuse that has included the intimidation of justices and their families – including an assassination attempt – and more recently a transparent campaign to smear originalist justices and bully them with destructive legislative proposals.
For Supreme Court justices as well as for others, no good deed goes unpunished. But our reward as a country for an originalist majority that withstands the abuse and sticks to its principles is the visible evidence that fidelity to the Constitution cultivates its promise of a more perfect union.
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