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Yes, the court gave Trump a win on Monday — but don't be fooled: Even there, the Supreme Court was consolidating power for itself. That wasn't all on Monday, either.
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There was a lot of discussion on Monday about the U.S. Supreme Court making Donald Trump — or any president — king.
In two key ways, however, the immunity ruling advanced the effort of the conservatives on the court to give themselves the key powers in our governmental system. What’s more, they did so on a day where they took their final step — for this term — to enlarge and consolidate their power over the regulatory decisions of our federal government.
In short, even where the court appears to give power to someone else, be sure to look behind the curtain and see if Chief Justice John Roberts still has his hands on the strings.
Two ways the immunity ruling is another SCOTUS power grab
Trump declared victory, and the ruling has already thrown the various prosecutions against him — itself a statement — into chaos, it’s true.
But, look one layer deeper, and the “separation of powers” questions that formed the basis for Roberts’s opinion for the court reveal a far different picture: The Supreme Court is in charge.
First, the ruling took the power away from Congress to create criminal laws that apply to the president, be they generally applicable laws or even criminal laws specific to the presidency.
As Justice Ketanji Brown Jackson wrote in dissent:
[W]hile Congress (the branch of our Government most accountable to the People) is the entity our Constitution tasks with deciding, as a general matter, what conduct is on or off limits, the Court has now arrogated that power unto itself when that question pertains to the President. In essence, the Court has now imposed its own preclearance requirement on the application of Congress’s laws to a former President alleged to have committed crimes while in office.
Second, Roberts also reserved the power to the Supreme Court itself to determine when the immunity that he found hidden in the Constitution applies to a given action.
As was seen on Monday, the court can do so in ways that don’t make any sense. Why are Trump’s discussions with Justice Department officials — asking them to make up voter fraud investigations — a “core” presidential power? Because Roberts — along with all five other Republican appointees — decided it was.
Essentially, because the president has removal power, any discussions with Justice Department officials are an exercise of that core power.
No, really, that’s what Roberts held is the law:
Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. …
The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.
As Justice Sonia Sotomayor wrote in dissent:
That conception of core immunity expands the “conclusive and preclusive” category beyond recognition, foreclosing the possibility of prosecution for broad swaths of conduct. Under that view of core powers, even fabricating evidence and insisting the Department use it in a criminal case could be covered.
Or as Jackson noted in a footnote, “While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death.”
This was in the top category of absolute immunity. In the middle, “outer perimeter” category, where there is “at least” a presumption of immunity for all “official acts,” there are two aspects reserved for the courts: whether that presumption is rebutted in any case would be a decision for the courts and whether official acts receive absolute immunity was left as an open question.
Finally, as to the categorization of whether something is an official act or not is a determination left largely undefined and for later resolution by the courts. When Roberts wrote that “[d]istinguishing the President’s official actions from his unofficial ones can be difficult,” what it ultimately means is that the court’s conservatives will get to decide.
In other words, Monday’s decision contained a robust immunity given to all presidents, but the contours of it are left undefined in several key ways such that the Supreme Court has the power to define or clarify the scope of that immunity — not Congress or the current executive. Essentially, it also means the Supreme Court also maintains significant power over any former president seeking to avoid prosecution, including — at least for now — Trump.
This SCOTUS term’s four-step agency power grab
On Monday, the Supreme Court also issued its decision in Corner Post v. Board of Governors of the Federal Reserve System. As I warned last week could happen in my coverage of Loper Bright Enterprises v. Raimondo, the conservatives used Corner Post to open up virtually every regulation to challenge through the seemingly technical matter of deciding an Administrative Procedure Act “claim accrual” case.
While APA claims — the way most federal rules are challenged — used to have to be brought within 6 years of the rule being finalized, the court’s conservatives essentially eliminated the statute of limitations on Monday. In the opinion by Justice Amy Coney Barrett, the court held that the APA’s six-year clock has nothing to do with the rule. Instead, that clock only starts running when an individual — or business — can claim it is “injured” by the rule.
Calling it “straightforward,” Barrett opened every rule to a challenge every time a new company choose to files its incorporation documents in Amarillo, Texas, to bring a challenge before Judge Matthew Kacsmaryk — or anywhere, but, we know what’s coming.
As Jackson wrote in dissent, “After today, even the most well-settled agency regulations can be placed on the chopping block.“
Here’s the big-picture look then at what the court’s conservatives did in four decisions obliterating agency power — cutting down congressional and executive power and building up the judiciary’s power — issued over the past week:
Loper Bright: Agencies no longer receive deference in their rulemaking efforts unless the law declares explicitly that an agency is to receive such deference. (Even that, Roberts wrote, is “subject to constitutional limits.” In other words, this, too, is a power Roberts reserved to the court.)
Corner Post: All new companies — or newly injured individuals — can challenge almost any federal agency rule for the first six years after they begin operating.
Ohio v. EPA: Courts can block rules as being “arbitrary or capricious” if a majority of the Supreme Court decides that the agency didn’t respond adequately to virtually any comment submitted during the rulemaking notice and comment period.
SEC v. Jarkesy: To the extent agency enforcement actions are seeking fines, they almost certainly have to be brought in court, where the individual or company targeted for enforcement can get a jury trial.
There is much more to consider about these rulings and their consequences in the weeks ahead, but that brief summary is helpful to see just how expansive these decisions are — and how they all consolidate power before the courts.
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