Back when the October 2023 Term was opening, I did a blog post here about how the Supreme Court’s Term was loaded with important, but fundamentally boring, administrative law cases. Cases dealing with the Chevron deference doctrine (Loper), where courts defer to administrative agencies and their interpretation of their own statutes, and the constitutionality of the SEC’s administrative courts (Jarkesy) are extremely important to the day-to-day functioning of our federal government and its allocation of powers, but they don’t make for intrinsically interesting front page headlines or screaming posts on X/Twitter.
Then in the course of a little over a week right before the holidays, things got very interesting indeed. The Supreme Court now has three cases before it forcing it to get involved in the 2024 presidential election, which it tried so hard to avoid in 2020, and the Court will also hear a challenge to the FDA’s approval of abortion pills, injecting it back into that heated issue as well. No longer a sleepy, little administrative law term. Much to do and much controversy to become involved in over the next six months to come.
In the immunity case, Special Prosecutor Jack Smith asked the Supreme Court to reject Donald Trump’s assertion of presidential immunity in the criminal case brought against Trump for attempting to obstruct the certification of the 2020 election results by interfering with the counting of electoral college votes in Congress. Judge Chutkan rejected Trump’s immunity claim, appropriately in my opinion, and Trump immediately appealed to the D.C. Circuit.
Claims of immunity are among the limited class of matters which can be immediately appealed on an interlocutory basis, under the “collateral order” doctrine of Cohen v. Beneficial Finance. The rationale is that if the defendant has to go through a trial before he can raise the immunity issue on appeal, the benefits of immunity are eviscerated and the defense rendered moot, since the immunity doctrines are based on the idea that the official ought to be immune from litigation in the first place.
From there matters grew even more interesting. Before the D.C. Circuit could take any action at all, Smith asked the Supreme Court to intervene, invoking the “certiorari before judgment” doctrine, which permits the Supreme Court to reach down into the Circuit to pull cases upstairs. The Supreme Court’s basic jurisdiction statute permits it to grant review of any case that is “in” the Court of Appeals, even prior to the decision, judgment or mandate of that Court.
The Supreme Court ultimately decided not to take the case out of the hands of the D.C. Circuit, so that Court will have to rule on Trump’s immunity assertion first, and it can be expected to do so quickly. Argument is scheduled in the D.C. Circuit on January 9. From there, the decision will then go back to the Supreme Court again. How all that plays out will impact the timing of the trial before Judge Chutkan, and thus the impact of any trial on the election campaign.
It is hard for me to see that there is any merit in Trump’s assertion of immunity. The leading case on presidential immunity is Nixon v. Fitzgerald, a 1982 decision on which I had the privilege as a junior associate in helping write the brief. While that case recognized a Presidential immunity doctrine, the Court made it clear it was only in civil, not criminal cases, and there are compelling reasons to differentiate between the two. How can a nation that prides itself on the principle that no man is above the law allow one man, the President, to be exempt from criminal process?
Indeed, the other two leading cases, United States v. Nixon and Clinton v. Jones, make it clear that the President is subject to criminal process, namely a grand jury subpoena, while in office, for his conduct in office (Nixon), and that the President is not immune from civil discovery, while in office, for conduct which occurred prior to his assuming that office (the Paula Jones case, which involved a deposition that led to President Clinton’s impeachment for perjury, for lying about his involvement with Monica Lewinsky). These cases lead logically and easily to the conclusion that Trump should have no immunity from criminal prosecution for his conduct while in office, especially for a prosecution taking place after his departure from office. But, since no former President has ever been prosecuted before…fortunately there has not been reason until now…the specific question has never before had to be addressed.
It appears the Supreme Court will have no choice but to become involved, and the only question is when. The “when” is of course important to the election. Ironically, the “certiorari before judgment” doctrine, rejected in Trump’s case, was how Nixon v. Fitzgerald came before the Court (inside baseball, I know…I told you I was involved and part of the litigation team).
The Supreme Court also just decided to hear a case involving the core “obstruction” statute being utilized to prosecute January 6 defendants. That statute makes it a crime to “corruptly” obstruct, impede or interfere with an official proceeding, in this case the proceeding before Congress to count the electoral college votes. The statute is also featured in Smith’s indictment of former President Trump. Again, to me this should be a simple question. Of course there was obstruction and of course it was corrupt.
But this Court has placed what in my mind are inappropriately narrow restrictions on the federal mail and wire fraud statutes (think Bridget Kelly in Bridgegate, where the Supreme Court ultimately absolved her, or Bob MacDonald in Virginia), and I could see this Court ruling that while the January 6 insurrectionists may have sought to obstruct an official proceeding they didn’t do so “corruptly,” i.e., with actual fraudulent intent or conduct. Nope, no fraud. They were open and notorious in what they were doing. The potential implications for the Trump prosecution and the 2024 election are clear.
Most recently, the Colorado Supreme Court has ruled, 4-3, that former President Trump should be kept off the ballot in that state because of the “insurrection” clause of the 14th Amendment, that bars from “office” any person who, having previously taken an oath to uphold the Constitution, participates in an “insurrection” against the government. The clause was obviously intended at Confederate officeholders. How could we permit Jefferson Davis, the president of the Confederacy, to serve in Congress, much less as President of the United States after his role in the Civil War? The Maine Secretary of State made a similar determination.
Again, to me this ought to be easy. How is the Presidency not an “office” of the federal government? Sorry, Prof. Steven Calabresi, who has flip-flopped on this issue. You were right the first time, before the flop. And how were the events of January 6 not an “insurrection”, just as much as Shay’s Rebellion in western Massachusetts or the Whiskey Rebellion in Pennsylvania, both in the 1790s? You don’t have to have a four-year Civil War for there to be an insurrection. And, as the courts in Colorado ruled, the weight of the evidence demonstrates that Trump was involved.
Indeed, President Trump himself tried to argue that the George Floyd protests were an insurrection, to justify attempting to call out the military. Many southern governors also argued that the civil rights protests in the 50s and 60s were insurrections, to justify calling out the National Guard in their states, in turn forcing President Eisenhower and Attorney General Robert Kennedy at different times to respond by federalizing the Guard in some instances to have them protect persons seeking to integrate schools and other public facilities, rather than protecting the segregationists who were also at times referred to as insurrectionists.
But of course there are serious implications for democracy if any court were to remove a candidate for President from the ballot, so the Supreme Court must tread cautiously. Inevitably, however, the Court will have to become involved. It will be interesting to see how the Supreme Court’s “originalists” and “textualists,” put there by the Red Team, bob and weave, when on this issue to me the text and original intent are so clear.
Oh sure, there are things the Supreme Court can say, in addition to denying that former President Trump is an insurrectionist, or that he never held an “office” of the United States. The “insurrection” clause contains no remedies or procedures, and perhaps Congress should have passed enabling legislation. But there are no remedies in other constitutional eligibility provisions for the presidency, such as the 35 minimum age requirement, or the natural born citizenship requirement (which Trump used to lie bout President’s Obama’s place of birth, claiming it was Kenya rather than Hawaii). But, if Marbury v. Madison means anything, it is that the Supreme Court has the power and the obligation to decide what the Constitution permits or requires. More bobbing and weaving ahead? And how will Justice Thomas deal with the inevitable recusal questions that will arise out of his wife’s behavior around the last election, including the events of January 6, 2021?
In the middle of all of this, the Supreme Court has also been forced to agree to hear another abortion case, this one about the FDA’s approval of abortion pills. Notwithstanding the Court’s Dobbs decision, abortion pills have continued to flow, based upon the FDA’s approval of them. A Red State case challenging that approval was brought before Judge Matthew Kacsmaryk, an extremely conservative Trump-appointed judge noted for his antipathy to abortion, under Northern District of Texas case assignment rules that guaranteed he would be assigned. He struck the FDA’s approval, taking a more extreme version of judicial intervention into administrative law doctrine than even the Supreme Court is likely to adopt this Term in Loper. His decision was largely affirmed by the conservative 5th Circuit, in a decision written by Judge Ho, also known for his ultra-conservative tendencies and opinions. The Supreme Court stayed the effectiveness of these rulings, forcing itself into the position of having to grant review. It would be an extreme departure from prior administrative law doctrine indeed not to defer to the FDA’s approval of these drugs as clinically safe and effective. And under the Supremacy Clause, federal law, including drug approvals, controls over state efforts to ban them. While this case, like Loper and Jarkesy, is also an administrative law case, it certainly involves a more hot-button issue.
Unlike the administrative law cases that dominated the Court’s docket back in October, these are all headline-grabbing decisions. Chief Judge John Roberts did an excellent job of keeping the Supreme Court out of the 2020 election fights, leaving the issues to state courts and the lower federal courts. He knows how much Bush v. Gore cost the Court in its credibility. In that case, supposed originalists and textualists invoked the Equal Protection Clause in a case involving hanging chads to appoint a President, when the clause was supposed to have been intended to help put an end to slavery. That decision was, in my opinion, not just wrong, but egregiously wrong, unprincipled and result-oriented in the extreme. The cases the Court is now being asked to decide are more closely tethered to text, precedent and history, as outlined above. But even so the Court will not be able to avoid controversy for having to inject itself into the upcoming election, no matter how it rules. And, in the new abortion case, the Court will have to acknowledge that, instead of sending the issue of abortion back to the States, as Justice
Alito stated in his Dobbs opinion was his goal, federal law still matters. The Supreme Court has to be involved in such matters, whether it wants to or not. And just like that.
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