Two Supremely unhappy outcomes for governance, public and corporate

The US Supreme Court (image: Jesse Collins, CC BY 3.0, via Wikimedia Commons)

The US Supreme Court issued two unhappy decisions in the past two weeks, the first on a matter of public governance – presidential immunity from prosecution on official actions – the second on corporate governance and regulation – the so-called Chevron Deference. Let’s consider an argument why the first decision is wrong but constitutionally understandable, while the second seems a constitutional mistake.

I tread here with caution, making no claim of expertise in constitutional law. Instead I invite you to listen to an argument concerning each case, including how the two differ with respect to the role of the court in deciding any case.

Presidential immunity

In Trump v. United States, the court ruled that presidents, sitting and past, are immune from prosecution for actions undertaken as part of their official duties. The decision sparked equally voluminous and noisy protests and cheers in the fraught divisions of the American populous in this messy election years. We’ve all heard, and many read, about the decision. But I suspect few have read the decision itself, let alone interpreted its meaning:

Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts. (p. 1)

The indictment Trump sought to vacate alleged that he had conspired to overturn the 2020 election result by spreading “knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results” (p. 1). Trump argued that a president has absolute immunity from criminal prosecution “for actions performed within the outer perimeter of his official responsibilities, and that the indictment’s allegations fell within the core of his official duties” (p. 1).

Trump did not ask for absolute immunity for any action, and the court did not grant it. Indeed, the court narrowed his claim for action “within the outer perimeter”, granting only “presumptive immunity” for official acts, while not acknowledging directly where Trump’s even more vaguely defined “outer perimeter” might lie and whether it was included among the somewhat less vague “official acts” of office.

The court’s decision was based on the principle of the separation of powers between the executive, legislative and judicial branches of government. Presidents can be tried by Congress for official acts and removed from office. That’s never happened, though Bill Clinton was prosecuted by the House and Donald Trump was too, twice. Both were found not guilty by the Senate. It’s understandable that a cautious Supreme Court would tread with particular caution into this area.

But “presumptive” immunity still gives the judicial branch scope to pursue a former president for crimes. It just sets a particularly high threshold to take a case forward. A president’s “conclusive and preclusive constitutional authority” must also set a high threshold for any presidential immunity claim to achieve. So far, so understandable.

Moreover, Trump’s motion was pre-emptive, to declare illegal the pending cases for his actions around the January 6, 2021, storming of the Capitol building by his followers. Those cases haven’t come to trial yet, so the evidence of whether Trump’s actions were conclusively or preclusively within his authority hasn’t yet been tested, or even whether those actions were “official acts” that deserve presumptive immunity. The decision makes a further point:

… unlike the political branches and the public at large, the Court cannot afford to fixate exclusively, or even primarily, on present exigencies. Enduring separation of powers principles guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law (p.8).

This, too, is understandable. The case is indeed one of “lasting significance” (p. 8), explaining the court’s caution. The court stated simply that lower courts should review the facts of any case first, that is, before the Supreme Court would examine any remaining constitutional issue.

Yet the case is also one that focuses on “present exigences”, which is why this case came to the Supreme directly, rather than through a customary chain of cases in lower courts. The main “exigency” is the plaintiff currently seek to holds the power to vacate the complaints against him. Thus, one can argue, the court might have used this petition to define or at least indicate the rough boundaries of what actions are constitutionally conclusive or preclusive to help lower courts decide as these cases are heard and thus where “absolute immunity” fades and “presumptive immunity” begins and ends.

I’ve argued before that in the events of January 6, 2021, Trump acted not as president, but as a candidate for the presidency. Such action – like political campaigning in general – are not the acts of an officer of government. The president is not entitled to determine how votes are counted in any election, and especially not for the presidency.

Consider: Government funds cannot be used for campaign purposes, which is why an incumbent president must pay to use Air Force One to fly to campaign events. As president, he needs the equipment on board the plane to deal with any official emergencies. But his official duties do not involve taking his person or his political entourage with him on that plane. Such a distinction in the ruling would give lower courts a reasonably clear standard by which to assess where the boundaries lie.

This line of argument suggests that in deciding Trump v. United States, the court has shifted the power away from the courts, towards the executive, a understandable stance for a body whose role is determining constitutionality. But absent the boundary definitions, it’s the wrong way to do it.

Moreover, the principle on which it is based is the opposite of the one the same 6-3 majority used just three days before. Let’s look now at that.

Corporate governance and regulation

In Loper Bright Enterprises et al. v. Raimondo, et al., the court ruled that when regulatory actions show that the regulations are ambiguous, courts must exercise independent judgement, rather than deferring to the government agency that sets the regulation. Here’s the wording in this decision about what the court called the “Chevron doctrine”:

The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled (p. 1).

The case is named for Loper Bright Enterprises, but it includes other companies making similar arguments. Raimondo refers to the US Secretary of Commerce, and includes other defendants, including government regulatory bodies.

The “Chevron Deference”, as it is often called, resulted from a 1984 Supreme Court ruling that federal courts must defer to a government agency’s interpretation of a law or statute. The 1963 Clean Air Act sought to regulate the “source” of air pollution, without a legal definition of the word. When the Environmental Protection Agency decided in 1981 to introduce a wide definition of “source”, against which the Natural Resources Defense Council Inc., an advocacy group, protested. In the Chevron case, the court ruled that absent a definition in the law, the agency was entitled to provide and change its interpretation, unless Congress changed the law. The 1984 ruling was unanimous; the 2024 split along familiar lines, with Republican appointees giving courts the right of interpretation and Democrat appointees dissenting.

This decision arguably violates the constitutional separation of powers. Congress could change the law to make the definition less ambiguous. The executive branch could change how the agency defines its, as the court ruled in 1984. The Loper Bright Enterprises v. Raimondo decision isn’t the first time the Supreme Court has arrogated power to the judiciary. Indeed, the whole notion of judicial review of legislation began with a court decision in 1803 and the Marbury v. Madison case, so one can see the logic of the court’s ruling now.

But there are other, democratic remedies available to the parties without the court overturning its own precedent: fresh legislation from a new Congress; fresh instruction to agencies from a new president. The 1984 ruling might have impeded efforts to do so and thus required action by this court. But it needn’t have opted for the other side, that courts should decide how to resolve ambiguity.

In dissent, Justice Elena Kagan wrote that the Chevron Deference rule has been used in many cases since 1984.

And the rule is right. This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent. Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court.

Congress has vested this discretion in the hands of the executive branch. What the Loper ruling does is arrogate legislative intent and executive discretion to the courts.

The majority opinion, written by Chief Justice Roberts, gives a nod to the executive branch prerogative:

The Court recognized from the outset, though, that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes. Such respect was thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time. (p. 2)

But it with a slap across the face: “‘Respect,’ though, was just that. The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it” (p. 2).

On the one hand, on the other

In Trump v. United States, the Court gives more than “due respect” not just to the executive but to the person holding the presidency, with “absolute” immunity for at least some actions, though it won’t say which ones. In Loper v. Raimondo, it drains the power of the executive branch, while disrespecting the court’s own precedents.

Both seem, on the basis of this line of argumentation, to be cases of

NB: William Baude’s opinion column in the New York Times gives a different and subtle reading of these and other recent Supreme Court judgements.

Helen Cox Richardson’s piece on Trump vs. United States is strong on the implications.