This term, extreme right-wing justices on the Supreme Court have abandoned settled law; constitutional principles; and their own institutional integrity for the purpose of advancing an antidemocratic, far-right policy agenda. The 6-3 right-wing majority on the Supreme Court engaged in an unprecedented power grab, laying the foundation for an antidemocratic, deregulatory, and corporatist agenda to thrive. They decreed in a series of cases that presidents are immune from criminal liability for actions taken in office and that both public agencies and Congress have little authority to protect the American people from powerful, monied interests. The combination of these cases lays the groundwork for an excessively powerful commander-in-chief and a judiciary equipped to thwart efforts to advance a progressive agenda. This court is paving the way for an illiberal democracy or autocracy where the “Leader”—like Victor Orban in Hungary, Recep Erdogan in Turkey, or Xi Jinping in China—controls the courts, schools, and media, and any act of defiance against the government is met with prosecution or persecution.
Trump v. U.S. creates de facto total presidential immunity
The outcome in Trump v. US offends the very foundation of a constitutional democracy, where no one is above the law. Chief Justice Roberts’ opinion in Trump v. U.S. attempts to hoodwink the public over the implications of declaring that any president can be immune from criminal liability so long as the crime is committed under the veneer of an “official action”. As Justice Sonia Sotomayor notes, “Even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune.” This holding creates nearly limitless immunity for presidential acts—official and unofficial—given the wide breadth of powers granted by Article 2, Section 3 of the Constitution, which directs presidents “take care that the laws be faithfully executed.”
Based on the majority’s opinion, a future president could be immune from criminal liability should they order the assassination of a political rival, deploy a military coup to hold onto power, or mobilize the Department of Justice (DOJ) to crack down on dissent. This opinion is a gift for a leader with authoritarian tendencies. At a minimum, the DOJ will be fully politicized and weaponized, as the court’s extreme majority ended the independence of the DOJ in a sentence stating the “President may discuss potential investigations and prosecutions with the Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed.’” This gives future presidents full authority to direct the DOJ and FBI to investigate and prosecute political rivals or even individuals against whom a president has a personal vendetta. According to this court, President Richard Nixon likely did not need his pardon; he would have faced no criminal liability for interfering with the FBI investigation into the burglary at the Democratic National Committee’s offices at the Watergate.
Under this court’s holding, the president directing federal officials to fabricate evidence for the purposes of prosecuting a criminal case against his political enemies would be an “official act” subject to immunity. He can also legally grant pardons to those who he directed to engage in illegal acts or simply sell them to the highest bidder. If past actions predict the future, a president who has already been convicted of 34 felony counts and tried to violently overthrow American democracy could view this as the ability to act with absolute impunity.
The administrative law cases elevate the Supreme Court as the nation’s primary policymaker
In nearly the same breath that the court has placed unencumbered power into the hands of presidents, it has stripped significant power from public agencies that serve the American people. The six MAGA extremist justices have decided that their vision of how the federal government should operate—which stands in stark contrast to a century of precedent—must apply, making the courts the chief policymakers for the nation. In the major administrative law cases handed down this term—Securities Exchange Commission v. Jarkesy, Loper Bright/Relentless v. Dept. of Commerce, and Corner Post v. Federal Reserve—the court severely inhibited the ability of public agencies and civil servants to protect Americans from corporate malfeasance and powerful special interests.
First, in Jarkesy, the court made it far more difficult for public agencies to hold fraudsters accountable for violations of federal law. The court ruled that agencies, such as the SEC, can no longer use administrative processes to seek civil penalties for statutory violations like fraud. In effect, the SEC cannot enforce statutory fraud violations against sophisticated business entities without going through the already overburdened federal courts, making the process more time-consuming and expensive for taxpayers. Moreover, the decision could prevent agencies such as the Federal Trade Commission, National Labor Relations Board, and Federal Communications Commission from efficiently enforcing their statutes that protect American consumers and workers. In practical terms, these agencies will simply not have the capacity to go after most people or entities that break the law.
In Loper Bright/Relentless, the court struck down the 40-year-old Chevron precedent that directed courts to give deference to public agencies’ reasonable interpretation of ambiguous statutes. The court undermined decades of congressional legislation by effectively saying that subject-expert agencies—that were often involved in the legislative drafting process—will face an uphill battle in drafting regulations based on their experience and interpretation of legislative intent and statutory language. Rather, courts get to decide the exact meaning of, often purposefully, inexact statutory phrases such as “additional factors,” “on the basis of sex,” or “take reasonable steps,” even when Congress provided agencies the flexibility to adapt to unforeseen and changing circumstances. In this ruling, the court denies agencies the flexibility and authority to protect Americans from changing technological, societal, and environmental conditions.
Lastly, in Corner Post, the court compounds the problems it created in Loper Bright/ Relentless by eliminating the six-year statute of limitations to file a facial challenge to a regulation. Until this ruling, litigants making facial challenges to agency actions had six years from when the rule was finalized to file suit, after which they could file “as applied” challenges based on enforcement. Now, any litigant is permitted to file a facial challenge, claiming that the entirety of a regulation is illegal, at any time. Even though the court stated that all previous cases employing Chevron deference were permitted to stand, this decision obviates that reasoning and opens every federal regulation to challenge, whether it was finalized six years or 60 years ago. This will result in a tsunami of litigation against agencies and improperly elevate the court above Congress and the agencies as the nation’s primary policy maker.
The court is antidemocratic and requires reform
Six right-wing Supreme Court justices have decreed that there are only two power centers under their version of the Constitution: a president with nearly unchecked powers to act as he wishes and a Supreme Court to rubber-stamp his actions, disempowering Congress from executive oversight and protecting Americans from right-wing interests. In doing so, the court attempts to use technical legal jargon to obfuscate their nakedly unprincipled and unmoored power grab.
Since the Supreme Court is now openly showing its disdain for American democracy, significant court and administrative law reform is paramount. Term limits should be instituted effective immediately as should a binding code of ethics to ensure that justices are not subject to the corrupting influence of the billionaire class. Congress should also immediately amend the statute of limitations to bring a facial challenge to regulations and codify the Chevron doctrine to ensure that agencies are able to act with the efficiency and flexibility necessary to meet changing conditions.
This article was published by the Center for American Progress.
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