10 Aug The Supreme Court and America’s Constitution

“Don’t judge a book by its cover.” – The Lonely Realist

Every issue has at least three sides: your side; the opposite side; and what is arguably the right side. Don’t be deceived into believing that there is only one “right side” or that you own “rightness.”

Take the abortion issue (Roe v. Wade and Dobbs v. Jackson Women’s Health Organization), a subject TLR discussed at length in September 2021. TLR has long held the view that, as a Constitutional law matter, Roe v. Wade was wrongly-decided. The Founders enumerated in the Constitution those powers that are subject to Federal rather than State jurisdiction. The authority to address subjects such as abortion was not an enumerated Federal power. It therefore was retained by the States. As TLR wrote, “The Supreme Court’s 1973 decision in Roe v. Wade divided Americans for half a century. It tribalized politics, pitting American against American. [That’s because, for some, life begins at conception while, for others, life begins when a fetus becomes viable outside the womb.] Dialogue was impossible because the two positions are fundamentally irreconcilable.” TLR nevertheless disagreed with the Supreme Court’s decision in Dobbs to reverse Roe v. Wade: “A cornerstone of jurisprudential conservatism is adherence to the legal doctrine of stare decisis, which provides that once the Supreme Court has decided a case, its legal conclusion becomes etched in stone. Derived from centuries of English common law, stare decisis requires courts to treat prior decisions as binding legal precedents, not to be disturbed other than to rectify an egregious wrong or to account for changes in society’s understanding of the facts underlying a legal principle.” The activist Dobbs Court ignored stare decisis and its effect has been to further “tribalize politics.”

The Supreme Court’s recent decision in United States v. Trump unfortunately also has furthered tribalization. This “election fraud” case against former President Trump resulted in the Supreme Court holding that former Presidents have absolute immunity from criminal prosecution for actions taken within their constitutional authority. Former Presidents accordingly are entitled to presumptive immunity for all “official acts,” but not for “unofficial acts.” From a Constitutional law perspective, the holding seems obvious – “official” acts are subject to impeachment proceedings and “unofficial” acts can trigger criminal prosecution. As an example, a President who engages in an act of war against a foreign country without a prior Congressional declaration of war, as President Johnson did in the Gulf of Tonkin and President Trump did in assassinating Qasem Soleimani, should be immune from criminal prosecution. Those acts clearly are “official.” Lower courts now will wrestle with whether a President who attempted to “obstruct the collecting, counting, and certifying of election results” acted “officially” or “unofficially.” The Supreme Court also was consistent in following its practice of issuing the narrowest possible legal opinion, leaving it to lower courts to fact-find and explore and clarify legal standards. What is important is acknowledging that the Supreme Court in United States v. Trump adhered to its historical practices (noting that there were several sentences of dicta that have been taken out of context) and did not evidence prejudice or suggest what the outcome of the criminal proceedings against Donald Trump ought to be.

Which contrasts with the decision in the former President’s classified documents prosecution, a different United States v. Trump, where Mr. Trump stands accused of removing classified documents from the White House and secreting them in various locations at Mar-a-Lago, his home in Florida. On July 15, seemingly timed with the first day of the Republican National Convention, Judge Aileen Cannon dismissed the case on the basis that the Special Prosecutor who brought the case was appointed in violation of the Constitution’s “appointment clause.” For substantive legal reasons (in addition to questions concerning Judge Cannon’s impartiality) that include the Judge’s misstating of both the law and applicable legal precedent, TLR expects that the 11^th Circuit Court of Appeals, a majority of whose judges were appointed by Republican Presidents and to which the Department of Justice has appealed, will reverse. TLR’s view is consistent with views expressed by the substantial majority of Constitutional law experts. In contrast to the Supreme Court’s remand of United States v. Trump discussed in the preceding paragraph, Judge Cannon’s decision reasonably can be viewed as inconsistent with America’s Rule of Law.

A final point concerning the Supreme Court and America’s Constitution requires revisiting TLR’s discussion of Loper Bright v. Raimondo, the case that overruled “Chevron deference” and that many believe will cause the dismantling of America’s “administrative state.” That is precisely what Justice Ketanji Brown Jackson advised in her dissent in Corner Post v. Board of Governors of the Federal Reserve System, predicting a “tsunami of lawsuits against agencies that … has the potential to devastate the functioning of the Federal Government.” Although that is correct – a legal tsunami seems inevitable –, TLR has long disagreed with the rationale of Chevron in encouraging permitting Congress to grant law-making authority to Federal agencies, for example by explicitly delegating to those agencies the obligation to fill-in legally-required “blanks”  in laws passed by Congress. Law-making is the Constitutional duty of Congress, not of the Executive OR the Judicial Branches. Loper Bright reallocates the Constitution’s balancing of powers by re-assigning law-making authority from the Executive Branch to the Judicial Branch (substituting a “judicial state” for an “administrative state”) rather than allocating it back where it belongs – to America’s Legislative Branch. As TLR has repeatedly pointed out, Congress has not been doing its job. It is at fault for failing to compromise when necessary exercise its legislative authority. Congress for many years and in many contexts has ceded law-making to the Executive Branch, both to Federal administrative agencies and to Presidents by allowing them to issue Executive Orders that otherwise require legislative action. Perhaps the Loper Bright and Corner Post decisions will provide the necessary wake-up call. However, Loper Bright also raises the same stare decisis concern as Dobbs – that is, shouldn’t the Supreme Court instead of reverting to judicial activism have adhered to the centuries-old common law process that resulted in stability and consistency in the Rule of Law by affirming existing precedent, including Chevron?

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Prior TLR commentaries can be found here.

Finally (from a good friend)