Written by Aislin Murphy, L’26
The 2024 SCOTUS term, with all its precedent setting and overturning, will no doubt go down as one of the more controversial, politically-charged Supreme Court terms in modern memory. The mid-summer decisions of Loper Bright v. Raimondo and Trump v. US particularly exemplify this controversy, the former granting the Judiciary far more power in agency rulemaking than it has had in forty years and the latter granting the President complete immunity from criminal prosecution for official acts.[1] Notably missing from this term’s decisions were opinions advancing the political, civil, or human rights of any Americans who do not serve in the Oval Office or on the bench. Those average Americans– Republican or Democrat– will now face political repercussions as both decisions effectively stall the court system when folks on either side of the aisle attempt to hold the Executive– President or agency– accountable
Loper Bright
Loper Bright v. Raimondo was brought by several commercial fishing groups who disagreed with the National Marine Fisheries Service’s interpretation of the Magnuson-Stevens Fishery Conservation and Management Act of 1976.[2] This legislation required fisheries to pay for devices meant to monitor their compliance with NMFS’s standards.[3] “Both the U.S. Court of Appeals for the District of Columbia Circuit and the U.S. Court of Appeals for the 1st Circuit applied the Chevron framework to the rule”; both ruled in favor of the agency until review was taken up by the Supreme Court on appeal from the fisheries.[4]
The Chevron framework refers to the Supreme Court standard for judging agency deference created in the 1984 case Chevron USA, Inc. v. Natural Resources Defense Council, Inc.[5] The deference test is a two-step analysis: (1) Has Congress already directly spoken on the term in question? and (2) Is the statute “silent or ambiguous” on the proper interpretation of the term?[6] If the answer to both of these questions is no, under the Chevron framework, an agency’s interpretation of a statute must be deferred to so long as it is also “permissible.”[7]
This framework allowed for agencies who made it to the second step to be awarded deference more often than not during the forty years that Chevron deference was the law of the land.[8] For the forty years prior to Chevron, Skidmore v. Swift & Co. provided the framework for which agencies could receive deference; in short, the test gave some weight of authority to the agencies but ultimately allowed the judiciary to decide how persuasive agency authority should be on a case by case basis, as opposed to the automatic deference Chevronnecessitates.[9]
The Court held in the majority opinion that Chevron deference is not consistent with the Administrative Procedure Act, and thus is overruled.[10] Justice Thomas went so far as to opine that “Chevron deference also violates our Constitution’s separation of powers” as it requires judges to act not within their own constitutionally-charged power of hearing and deciding cases independently, but to defer to the Executive.[11]Throughout the majority opinion, Skidmore is cited positively, effectively reinvoking the Skidmore agency deference test and thus stripping rulemaking power away from the Executive and instead giving it to the Judiciary.
The impact the Loper Bright decision has on the ability for agencies to properly respond to novel or timely issues is extreme.[12] There will be more instances of court proceedings involving agencies’ use of rulemaking power and interpretation will likely be applied unevenly depending on the locale and the political leanings of the Courts in which those cases are being heard. The process of passing a bill through a split-majority Congress in eras in which environmental, social, and economic legislation are highly politicized is long and arduous, if not nearly impossible. Where agencies may have been able to respond faster than Congress to instances of novel or timely issues, they must now be prepared with an even greater wealth of fact-based evidence for their policies in preparation for potential shutdowns because of politicized court proceedings; this will likely necessarily slow agencies’ response times for emergencies as well.
For the general public, this means that the Executive may be even slower than before to respond to hot button issues that affect our everyday lives– things like environmental and public health issues– with legislation, and, when they eventually do, there will now be valid grounds to take agencies to court for largely political disagreements.[13] Arguably, Chevron deference will still be in place in most courts: “Because most judges are honestly trying to find the best answer possible and they are certainly clever. And since Loper Bright is useless to most cases, the judges will figure out a way to get back to Chevron. They won’t mention it, because Chevron ‘is no longer law’, but they’ll do it.”[14] However, Loper Bright expands what was already breeding ground for corruption.[15] If a judge is indeed being influenced by outside political sources, the Loper Bright decision allows them to disregard agencies’ vast resources and evidence governing their legislation and statute interpretations in favor of whatever political agenda they would like to push.[16]
This necessarily has a substantial effect on both Republicans and Democrats: efforts made to lobby agencies for the legislation either party wants may prove to be moot if the case makes it to a court that does not favor that ideology. Further, at present, with a relatively young, conservative-packed Supreme Court, Democrats can look forward to cases brought by Republicans against “liberal” agency actions successfully shutting down pro- environment and public health legislation if and when those cases make their way to the Supreme Court.
Trump v. US
Presidential immunity refers to the ability of a sitting or former president to remain immune to, or exempt from, certain legal proceedings.[17] In the 1982 case Nixon v. Fitzgerald, the Court held that both sitting and former Presidents are entitled to absolute immunity from money damages liability predicated on his official acts.[18] This decision implicated only civil lawsuits for actions undertaken by the President while he was in office.[19] Fifteen years later, in Clinton v. Jones, the Court ruled that a sitting President does not have immunity from civil actions stemming from unofficial acts taken prior to his term in office, nor is he protected from having to defend against those civil actions while in office.[20]
Trump has been entangled in other Supreme Court decisions involving aspects of Presidential immunity twice before.[21] In 2020, the Court created a balancing test to determine if Congress has a valid legislative purpose in subpoenaing information from a sitting President, after Trump implicated Executive Privilege to defend not complying with the subpoena, in Trump v. Mazars.[22] The Court in Trump v. Vance held that the Constitution does not entitle a sitting President to absolute immunity or a heightened standard for resisting a state criminal subpoena.[23]
Thus, the question of when and how Presidential immunity applies to a former President’s alleged criminal actions taken while he was in office was left undecided until the landmark 2024 Supreme Court case, Trump v. US.[24] The opinion of the Court lays out that the President shall have absolute immunity against criminal prosecution regarding official acts that are a “exercise of his core constitutional powers”. [25] As for other official “acts within the outer perimeter of his official responsibility,” the President is to enjoy a presumptive immunity that must be overcome by the government.[26] The opinion also stipulates that the President does not have any immunity for alleged offenses involving unofficial acts; this decision, however, brings up another issue: how the lower courts (in particular the District Court to which this case has been remanded in part) are to judge whether an act is official or unofficial.[27]
To this point, the Court provides a framework for lower courts by vacating claims in the indictment concerning Trump’s investigation of and alleged threats of firing members of the Executive before and during the insurrection; because the President is charged constitutionally with the power to investigate, hire, and terminate members of the Executive branch, exercising this power is necessarily an official act.[28] Further, Trump has presumptive immunity regarding his alleged criminal interactions with former Vice President Pence, as he also has the constitutional power to meet with other members of the Executive.[29]
The Court did not come to a decision on the officiality of Trump’s alleged attempts to convince state officials that votes against him were fraudulent and “to submit fraudulent slates of Presidential electors to obstruct the certification proceeding,” holding that that issue is fact-specific and for a lower court to decide.[30] Similarly, the Court charged the District Court with deciding if the “content and context” of Trump’s communications with the general public constitute official acts.[31]
The inclusion of Part V– a section dedicated to denying that the Court’s decision was politically-motivated but rather “more farsighted”– in the majority opinion implies that even the majority knew this would be a weighty, controversial decision.[32] Justice Sotomayor’s pithy dissent provides further argument against the majority opinion and sums up the main controversy with the decision: “Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”[33]
The impact of his case cannot be overstated: there is an adverse, weakening effect on Congress, courts, and the People as a whole.[34] Congress’ criminal statutes no longer apply to the President, so long as the alleged criminal offense was also an official act. Courts have less footing to hold Presidents accountable for wrongdoing; if the People want to hold a President accountable, impeachment is the only option left. Certainly, there are fewer effective modes with which the President– whether Republican or Democrat– can be held accountable, which necessarily has a massive impact on the general public regardless of party affiliation.
Following the Trump v. US decision, liberal-leaning media outlets largely reported that this decision was a result of Trump’s court-packing tendencies, pointing also to the Court’s overturning of Roe v. Wade in 2022.[35] Pull quotes from Justice Sotomayor’s dissent dominated headlines and began circling social media[36]. This response will likely mobilize Democratic voters in the upcoming election to advocate and vote for Vice President Kamala Harris, who has made a point of opposing controversial Supreme Court rulings during her vice presidency.[37] For diehard Republican voters, this decision will likely be taken exactly as Trump has been describing it as: “a big win for our Constitution and for democracy.”[38] The multiple conservative-agendapushing decisions from the post-Trump Supreme Court will strengthen the fanaticism as they are touted as successful relics of his presidency.
While undoubtedly disappointing and wildly limiting for democracy as a whole, when Trump v. US is taken in context with the US Supreme Court’s prior decisions regarding Presidential immunity, it’s unsurprising that this is where our current conservative- packed Court has landed on the issue.[39] A basic study of Constitutional Law presents a history of providing privileges and immunity to the President that everyday citizens, especially middle class and poor citizens, do not enjoy and will never access.[40] However this decision is posed, a win for pro-Trump Republicans or a call for Democrats to mobilize against Trump,it is only another chapter in America’s long history of loosening Democratic ideals and standards for the Executive.
The effect Trump v. US and Loper Bright will have on the general public’s ability to hold the Executive branch, President or agency, accountable is substantial. The absence of any decision that dramatically increases the average American’s access to political or civil rights or privileges and the inclusion of decisions that restrict access to basic human rights– like the City of Grants Pass v. Johnson decision that allows states to criminalize homelessness– paints a stark picture of a Supreme Court packed with Justices motivated more by politics and power than a love for the People.[41]
Photograph of the Supreme Court, Sup. Ct. of the U.S., https://www.supremecourt.gov/about/courtbuilding.aspx (last visited Sep. 9, 2024).
[1] Loper Bright Enterprises v. Raimondo, No. 22-451, 603 U.S. ___ (June 28, 2024); Trump v. United States, No. 23-939, 603 U.S. ___ (July 1, 2024). See e.g. Leonardo Cuello, Supreme Court (Yet Again) Destroys Long-standing Precedent in Another Power Grab: This Time Federal Agencies Greatly Weakened (June 28, 2024), https://ccf.georgetown.edu/2024/06/28/supreme-court-yet-again-destroys-long-standing-precedent-in-another-power-grab-this-time-federal-agencies-greatly-weakened/.
[2] See Leah Malone & Emily Holland, What the Supreme Court’s Loper Bright Decision Means for ESG, and Other Key Trends (July 4, 2024), https://corpgov.law.harvard.edu/2024/07/04/what-the-supreme-courts-loper-bright-decision-means-for-esg-and-other-key-trends/#4.
[3] See id.
[4] See id.
[5] Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
[6] Loper Bright Enters. v. Raimondo, No. 22-451 slip op. at 4 (June 28, 2024).
[7] See id.
[8] Cong. Rsch. Serv., Chevron Deference in the Courts of Appeals 3 (June 8, 2023).
[9] Skidmore v. Swift & Co., 323 U.S. 134 (1944).
[10] Loper Bright Enters. v. Raimondo, No. 22-451 slip op. at 1 (June 28, 2024).
[11] Loper Bright Enters. v. Raimondo, No. 22-451 slip op. at 1 (June 28, 2024) (Thomas, J., concurring).
[12]See e.g. Leonardo Cuello, Supreme Court (Yet Again) Destroys Long-standing Precedent in Another Power Grab: This Time Federal Agencies Greatly Weakened (June 28, 2024), https://ccf.georgetown.edu/2024/06/28/supreme-court-yet-again-destroys-long-standing-precedent-in-another-power-grab-this-time-federal-agencies-greatly-weakened/.
[13] See e.g. Leonardo Cuello, Loper Bright Decision Will Collapse on Itself, Policy Evidence is More Important than Ever Before in Driving Progress (June 28, 2024), https://ccf.georgetown.edu/2024/07/31/loper-bright-decision-will-collapse-on-itself-policy-evidence-is-more-important-than-ever-before-in-driving-progress/.
[14]See id.
[15] See id.
[16] See id.; see also S. Comm. on the Judiciary, Durbin Reveals Omissions of Gifted Private Travel to Justice Clarence Thomas from Harlan Crow (June 13, 2024).
[17] Diane Faulkner, What Is Presidential Immunity? (June 21, 2024), https://law.usnews.com/law-firms/advice/articles/what-is-presidential-immunity.
[18] Nixon v. Fitzgerald, 457 U.S. 731 (1982).
[19] See id.
[20] Clinton v. Jones, 520 U.S. 681 (1997).
[21] See Trump v. Mazars USA, LLP, 591 U.S. 848; Trump v. Vance, 591 U.S. 786.
[22] Trump v. Mazars USA, LLP, 591 U.S. 848.
[23] Trump v. Vance, 591 U.S. 786.
[24] Trump v. United States, No. 23-939, 603 U.S. ___ (July 1, 2024).
[25] Trump v. United States, No. 23-939 slip op. at 1-2 (July 1, 2024).
[26] Id. at 3.
[27] Id. at 2-7.
[28] Id.
[29] Id. at 16-32.
[30] Id. at 6.
[31] Id. at 7.
[32] Id. at 42.
[33] Trump v. United States, No. 23-939 slip op. at 30 (July 1, 2024) (Sotomayor, J., dissenting).
[34] Kyle Midura, What does the Supreme Court immunity ruling mean for Trump? 6 questions answered (July 1, 2024), https://www.pbs.org/newshour/politics/what-does-the-supreme-court-ruling-mean-for-trump-6-questions-answered.
[35] See e.g. Mike Lillis & Mychael Schnell, Democrats take aim at Supreme Court with eyes on November (July 6, 2024), https://thehill.com/homenews/house/4756788-democrats-supreme-court-november/.
[36] See e.g. Lindsay Whitehurst, Sotomayor’s dissent: A president should not be a ‘king above the law’ (July 1, 2024) https://apnews.com/article/supreme-court-immunity-trump-president-jan-6-2350bee785c85282a97af9485b94b982.
[37] See e.g. The White House, Vice President Kamala Harris Launches Reproductive Freedoms Tour (Dec. 19, 2023) https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/19/vice-president-kamala-harris-launches-reproductive-freedoms-tour/.
[38] Brooke Singman, Trump touts Supreme Court’s presidential immunity ruling as ‘big win for our Constitution and for democracy’ (July 1, 2024), https://www.foxnews.com/politics/trump-touts-supreme-courts-presidential-immunity-ruling-big-win-our-constitution-democracy.
[39] See e.g. Nixon v. Fitzgerald, 457 U.S. 731 (1982); Trump v. Mazars USA, LLP, 591 U.S. 848.
[40] See e.g. Nixon v. Fitzgerald, 457 U.S. 731 (1982); Trump v. Mazars USA, LLP, 591 U.S. 848 (2020); Hirabayashi v. United States, 320 U.S. 81 (1943); Korematsu v. United States, 323 U.S. 214 (1944); Trump v. Hawaii, 585 U.S. 667 (2018).
[41] City of Grants Pass v. Johnson, No. 23-175, 603 U.S. ___ (June 28, 2024).