During the 2023 Supreme Court term, the Supreme Court will decide a number of interesting issues. Cases involving the First and Second amendments, life issues and the administrative state have all made the docket. Recently though, the Supreme Court has granted two cases that touch on issues related to Former President Donald Trump.
The two cases involving President Trump have as their backdrop January 6. Fischer v. United States is a case involving one of the thousands of attendees at the Capitol who is being prosecuted for obstruction of an official proceeding and was sentenced to time in prison. This charge is a very familiar charge for the Jan 6 political prisoners; Fischer will argue that the text and intent of this statute don’t cover what occurred on the Capitol grounds that day because this statute was designed in the aftermath of Enron, a corporation that destroyed documents when an investigation was ongoing. The Supreme Court may toss this use of the statute and that would not only impact Mr. Fischer, but it would require many other people to be re-sentenced. When the Court agreed to hear this case, Defendants who were ready to be sentenced, have asked for a pause in their cases to see if the DOJ’s use of this statute is permissible and some judges have granted a pause.
The reason why this case is important is because the Supreme Court has disfavored overly broad readings of statutes. If the DOJ can use a broad reading of a statute that loosely describes prohibited conduct, everyone is under threat from an overbearing government.
A constitutional outcome in Fischer will no doubt destroy part of Citizen Jack Smith’s case against former President Trump for Jan 6, because two of the four charges are obstruction charges, but far more important for former President Trump than a possible conviction about Jan 6 is what the Colorado Supreme Court decided. The Colorado Supreme Court decided that Former President Trump is not eligible to appear on primary ballots because President Trump was an “officer of the United States” who participated in the “insurrection” that occurred on January 6.
The problems with the Colorado Supreme Court’s decision are multiple including the use of hearsay evidence (i.e. the Jan 6 report), standing for the party who wants him removed from the ballot, whether States are the correct forum to decide issues involving federal candidates, not to mention that President Trump has not been charged with nor convicted of insurrection and whether the President is an Officer of the United States, as used in the text.
The reason why this case is important is because if a State can decide that the 14th amendment Section 3’s text applies today, any voter can seek to have a major party candidate removed because the candidate arguably violated Section 3. Once this principle has been established, the language will become more expansive and soon, you could lose your right to vote for the candidate of your choice. Multiple other states have ruled opposite Colorado including Michigan, Oregon, Minnesota, but Maine’s Secretary of State relied upon the CO ruling to remove Trump as well.
Over the past few Terms, the revival of restrictions on the administrative state has begun to increase the liberty for the citizens. These cases include West Virginia v. EPA, NFIB v. OSHA and Nebraska v. Biden. The administrative agencies have lost in each one of those cases because the agency was exercising power not given to them and the power was given to Congress. This term, two cases have the power to restrict the administrative state are SEC v. Jarkesy and Loper Bright v. Dept. of Commerce.
SEC v. Jarkesy is about whether this Securities and Exchange Commission enforcement action violates the Seventh amendment (and its requirement of a jury trial) and whether the agency is permitted to choose in house agency action instead of prosecuting these cases through the federal courts.
The reason why this case is important is because more agencies would have to bring their enforcement actions through federal courts instead of electing to use an in-house judge where the agencies have a higher likelihood of winning the cases against citizens.
Loper Bright v. Dept of Commerce, and its paired case Relentless v. Dept. of Commerce, is about whether the Chevron doctrine should be overturned. The facts of this case are no doubt important to the plaintiffs, but the reason why this case is important to everyday Americans is because Chevron deference has been used in a variety of different cases and impacts nearly every federal agency. Chevron deference requires that federal courts defer to federal agencies when the agency has written a rule about an ambiguous statute if the agency’s rule is reasonable. The constitutional problem with Chevron is that interpretation of federal statutes is the role of the Courts, according to the Constitution, and administrative agencies are not mentioned in the federal constitution, as we have 3 branches of the government, not 4. So, the Court is being asked to take back its constitutional role to interpret statutes and not defer to an agency’s interpretation of an ambiguous statute. This case has the potential to be as big as Dobbs for the administrative State.
The First Amendment will be at the center of four cases this term and most of those cases will about censorship on the internet, but the government also wants to use its regulatory authority to harm a speaker simply because the government disagrees with the positions of the speaker.
In National Rifle Association of America v. Vullo, the State of NY wants to deprive the NRA of banking because the NY says guns are bad and ordinary citizens should not have them, so gun advocacy is negative. The State wants to use their voice to persuade other agencies to sever their relationship with the NRA because of their stance on guns. Some on the Left have recognized the problem with a State singling out this one group for disfavored treatment and although their groups may not stand for guns, they have submitted briefs supporting the NRA.
In the other three cases, Big Tech shares the stage for the First Amendment discussion.
In Lindke v. Freed and its partner case, the Supreme Court is being asked to decide whether government officials should have the authority to block people on their social media accounts. The issue was litigated on slightly similar facts when President Trump was in office, but the Supreme Court didn’t weigh in because President Trump was banned from Twitter and then his term ended, so the issue was moot, which resolved the cases against President Trump.
In response to banning President Trump and other accounts from social media for often political reasons, States, here TX and FL, passed laws prohibiting social media companies from banning accounts under certain circumstances. The socials are unhappy with these laws arguing that these laws restricting their right to remove who they want violates their first amendment right. NetChoice v. Paxton and its companion, Moody v. NetChoice are the cases the Court will hear about this issue.
Finally, we have the major case over Big Tech censorship that everyone remembers; the case is Murthy v. Missouri. This is the case that caused the Left to lose their minds (to the extent they had any at all) when District Judge Doughty issued an injunction against the government prohibiting them from using Big Tech to censor our posts on whatever topic the state agents dislike. The injunction was largely upheld on appeal, so the federal government appealed because people might spread too much mis or dis-information without knowledge of and question the Left’s narrative.
Both the right to life and the right to defend yourself received major decisions in 2022 and the Court now is being asked about both of those areas.
In the Court’s last major decision on guns in 2022, the Court ruled that individuals don’t need any specific reasons why they want to carry a firearm; a general desire to protect oneself is enough. United States v. Rahimi has the Court deciding whether the statute prohibiting people who have a restraining order against them from bearing arms violates the second amendment.
In Cargill v. Garland, the Court is being asked whether the bump stock fits into the federal definition of machine gun. This case matters because it’s not just about this object in this one case, but the bigger question is about how much authority should the bureaucracy (the ATF in this case) to rewrite regulations and definitions on a whim.
After Dobbs was announced in 2022, States began to pass laws protecting unborn babies. The Left, extremely upset at that development, is attempting to use other laws to say that child sacrifice must be permitted at all times because the health of the mother. Protecting the health of the mother is a valiant goal, but in this context, “health of the mother” is a phrase that is so broad that it encompasses nearly all reasons under the sun, so problems like distress from being pregnant could be argued as impacting physiological health or being too old or young could be argued as a problem because older women are more at risk of a problems with their pregnancy, while younger women have fewer financial resources, so the unborn child could be sacrificed. The vehicle that the Left wants to apply in this particular case is a 1986 law that Congress passed which requires that people receive medical treatment regardless of their ability to pay; that law is titled the Emergency Treatment and Active Labor Act. Idaho’s law allows killing the child in very few circumstances. The federal government argues that EMTALA requires hospitals in Idaho provide abortion; the District court agreed with the federal government and Idaho has appealed that decision in Idaho v. United States.
Litigation over the abortion pill, mifepristone, has been ongoing with the FDA and the Alliance for Hippocratic Medicine; the District Court ruled that the FDA improperly authorized the pill in 2000, so all distribution must end. The Left went immediately to SCOTUS and asked SCOTUS to halt that decision while the case is on appeal, which SCOTUS granted. The 5th Circuit heard the appeal and disagreed in part with the District Ct and ruled it was too late to challenge the 2000 authorization, but the regulations must be returned to what they were in 2016.
Decisions in all of these cases are expected by the end of June.
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