The United States Supreme Court’s rulings this term, which culminated in the release of the immunity decision, reshaped the way U.S. law applies to areas that include environmental protection, white-collar crime and public corruption.Kevin Mohatt/Reuters
Shannon Kari is a Toronto-based freelance reporter who writes about courts in Canada and the United States for The Globe and Mail and many legal publications. He was a Michener Award finalist in 2010, for his work exposing improper background checks of potential jurors in Ontario.
The U.S. Supreme Court made history this week with a ruling that bestowed broad immunity from criminal prosecution on Donald Trump for his official acts as president. But that decision was just one of many consequential moves by the court at the end of its most recent term.
The court’s other rulings, which culminated in the release of the immunity decision on Monday, reshaped the way U.S. law applies to areas that include environmental protection, white-collar crime and public corruption.
In decisions that were nearly all 6-3, with the court’s conservative wing in the majority, the Supreme Court’s justices overturned a 40-year precedent about deference to the expertise of regulatory agencies. It ruled that municipalities can seek criminal sanctions against homeless people, weakened a criminal bribery law, and gutted the Environmental Protection Agency’s ability to combat cross-state pollution.
The court also ruled that anyone facing a civil prosecution by the Securities and Exchange Commission is always entitled to a trial by judge and jury, in federal court.
The cumulative effect of a number of the decisions is to reduce the authority of regulatory agencies and make the courts the ultimate arbiter of regulatory disputes, a long-stated goal of conservative legal groups such as the Federalist Society.
“Make no mistake: Today’s decision is a power grab,” Justice Sonia Sotomayor, one of the court’s three liberals, wrote in her dissenting opinion in the securities case.
The ruling, known as SEC v. Jarksey, stemmed from the 2010 passage of the Dodd-Frank Act, which gave the SEC greater powers. The act was aimed at increasing protections for investors and consumers.
It permitted the securities regulator to seek fines and other civil penalties in hearings with administrative law judges, instead of federal court judges.
Such penalties, Chief Justice John Roberts wrote in the court’s opinion, “we have recognized could only be enforced in courts of law.” The SEC hearings, he added, violated the seventh amendment of the U.S. Constitution, which provides for the right to a jury in “suits at common law” where the value at issue exceeds US$20.
Justice Sotomayor, in her dissent, wrote that the majority’s opinion upended “long-standing precedent” in this area of the law. “Throughout our nation’s history, Congress has authorized agency adjudicators to find violations of statutory obligations and award civil penalties to the government as an injured sovereign,” she wrote.
“Today’s decision is a massive sea change. Litigants seeking further dismantling of the ‘administrative state’ have reason to rejoice in their win today, but those of us who cherish the rule of law have nothing to celebrate,” she added.
In an interview, Sambhav Sankar, senior vice-president of programs at Earthjustice, the largest public interest environmental law firm in the United States, echoed Justice Sotomayor’s views. “The Supreme Court has shown its preferences for the deregulation of American society so that corporations have more power,” he said.
“The negative impacts on agencies are twofold. First, they are going to be spending a lot of their time trying to defend old regulations long thought settled from new challenges. Second, they are going to have to work harder to justify every new regulation they think is needed.”
In the Environmental Protection Agency case, known as Ohio v. EPA, the court’s majority put on hold the EPA’s power to enforce a rule related to cross-state emissions of nitrogen oxide. (The majority opinion had to be corrected and reissued because Justice Neil Gorsuch confused nitrogen oxide with nitrous oxide, which is colloquially known as laughing gas.)
Conservative Justice Amy Coney Barrett joined her three female colleagues, all liberals, in dissent. She wrote that the majority “downplayed” the EPA’s legal role in ensuring that states meet air-quality standards and did not fully assess the highly technical evidence.
The authority of administrative agencies took another hit in Loper Bright Enterprises v. Raimondo, which overturned a 40-year precedent known as the Chevron doctrine.
Chevron, a 6-0 decision issued by the Supreme Court in 1984, stated that if a regulation is ambiguous about “the direct issue at hand,” a court must show deference to the statutory interpretation of the relevant federal agency, if that interpretation is considered reasonable.
Chief Justice Roberts, writing for the majority, wondered why deference should be shown. “It makes no sense to speak of a ‘permissible’ interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best,” he wrote. “Chevron’s presumptions are misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”
Justice Gorsuch, in a concurring opinion, said the principle of stare decisis, which holds that the court is bound by its precedent, should not prevent it from overturning rulings it believes were wrongly decided.
The dissent in this case, written by Justice Elena Kagan, was pointed in its criticism. “As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar,” she wrote. She also criticized the overturning of the doctrine and the playing down of the importance of precedent. “The majority cannot destroy one doctrine of judicial humility without making a laughingstock of a second,” she wrote.
Justice Kagan explained that many of the cases before agencies are highly technical and scientific in nature, and she argued the agencies have expertise that courts lack.
The issue of deference “is not a uniquely American debate,” Nader Hasan, a Toronto-based criminal and constitutional lawyer, said in an interview. He has argued several times before the Supreme Court of Canada and is a member of the New York State bar.
Before the decision in Loper Bright, the law in this area was similar in both countries, he explained. While the Supreme Court of Canada has revisited the definition of reasonableness, “the debate has been much less hyperbolic than in the U.S.,” he said.
“There is no one-size-fits-all standard of review,” he added, but in certain areas, there should be deference. “If it is about scientific expertise, defer to the scientists.”
Another decision last month received little publicity outside of the legal community, but it has raised eyebrows. Justice Brett Kavanaugh, writing for the majority in Snyder v. United States, reduced the scope of a federal bribery law.
The case involved a former mayor of an Indiana city. The city had awarded a US$1.1-million garbage truck contract to a local company. Afterward, the mayor approached the owners and told them, “I need money.” He asked for US$15,000, but received US$13,000. He was later convicted of bribery.
The Supreme Court overturned the conviction, and Justice Kavanaugh explained that an after-the-fact gift is a “gratuity,” and not covered by federal bribery law. He warned that otherwise many people could face prosecution for receiving gifts.
“What about a $200 Nike gift card for a county commissioner who voted to fund new school athletic facilities? Could students take their college professor out to Chipotle for an end-of-term celebration? And if so, would it somehow become criminal to take the professor for a steak dinner?” he asked.
The ruling is “detached from reality,” said Barbara McQuade, a former U.S. Attorney for the Eastern District of Michigan who currently teaches criminal law at the University of Michigan.
“It was $13,000. This is a road map for corrupt public officials on how to do it,” Ms. McQuade added. She also questioned Justice Kavanaugh’s examples. “Gift cards and burritos are not going to meet the criteria for bribery charges.”