July 2, 2024
Permission to republish original opeds and cartoons granted.
What a Week: Regulatory State Gets Crushed, Biden’s Political Viability Ends
By Rick Manning
Some distant day in the future, historians are going to look back at America and it is quite possible that the seven days between June 25 and July 1, 2024 will be viewed as one of the most consequential weeks of the 21st century.
The president glitched enough in a national debate that the question facing the public changed from his opponent’s fitness for office to the president’s competence. The likely result of the revelation to 51 million viewers that the president is not mentally competent is his being either voluntarily or legally removed from both the White House and the ballot for re-election.
His family met over the weekend to determine whether he should keep in the fight or end his re-election bid or immediately retire from the presidency and public life. At the same time, it was leaked that Michigan Governor Gretchen Whitmer told national Democrats that her state could not be won with the incumbent president on the ballot. For those Electoral College followers, without Michigan, the Democratic nominee has little pathway to win the election.
Whitmer, California Governor Gavin Newsom and the Obamas all voiced public support for the ailing president, while clearly sending signals to everyone that might listen that should the president make the choice to drop, they just might be the right person to reluctantly fill-in for the fallen hero.
The vice president, who would be the immediate beneficiary should the president choose to retire immediately, voiced her vigorous support for her running mate in the immediate aftermath of the debate. She did so all while discovering that none of the traditionally liberal pundits were reassuring the American people that she was up to the job.
Perhaps she should have had a clue throughout the three and a half years of the Biden presidency. Every time she was called to step up, she either ignored the assignment (see the southern border) or unleashed an abrasive cackle while providing a word salad that cringed everyone.
The week also saw the 90 year legacy of Franklin Delano Roosevelt, the administrative state, significantly emasculated by the Supreme Court. In four decisions combined with one from an earlier term (West Virginia v. EPA), the Court neutered the bureaucrats who’ve run roughshod over elected government for close to a century.
In Jarkesy v. Securities and Exchange Commission, the Court held that those accused of violating Agency regulations have a right to a jury trial, rather than being subjected to the whims of agency judges, known as Administrative Law Judges. Imagine the concept, an accused American being allowed to have their case tried before a jury of his peers. Incredibly, that right had been deprived of those accused of violating regulations until the Supreme Court forced the deep state to follow the Constitution.
Another Supreme Court decision, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce wiped away one of the landmark expansions of administrative state power by overturning Chevron v. Natural Resources Defense Council. The 1984 case gave rise to something called Chevron deference, which SCOTUSBlog.com described as follows, “if Congress has not directly addressed the question at the center of a dispute, a court was required to uphold the agency’s interpretation of the statute as long as it was reasonable.”
In practice, the Chevron deference made controversial decisions by unelected regulators virtually unchallengeable as the bureaucrats were deemed to be right, even if the Court disagreed with their decision based upon the facts. The effect of the decision is that the doctrine which made the expansion of the administrative state inevitable and exponential is toast. By putting controversial decisions back in the hands of the federal courts, at least those who oppose the regulatory expansion have a fighting chance to have the rule of law followed.
Before too many people jump up and down in either grief or joy, the Court chose to grandfather the 18,000 or so cases that relied upon the whim of federal bureaucrats.
But before the week ran out, the Court also opened the door for challenging these very decisions if a plaintiff can show recent harm. In a case dealing with a truck stop owner who claimed harm due to Consumer Financial Protection Board rules related to credit card fees, the Court ruled that the Agency could be sued, opening the door for thousands of private actions against the government for recent harms caused by regulations that were reliant upon Chevron deference for existence.
CNN Supreme Court analyst, Steve Vladeck, succinctly stated the impact saying, “Today’s ruling is especially significant in light of Friday’s decision overruling Chevron, because it means that even old agency rules can be challenged anew so long as they produce any contemporary harm.”
Not long before that, the Supreme Court also slapped the Bureau of Alcohol, Tobacco and Firearms for their decision to ban the possession of bump-stocks, which use the recoil of a firearm to pull the trigger to fire a single round. The ATF decided to rewrite federal law by declaring these devices a machine gun part, even though the law explicitly defines a machine gun as firing multiple rounds with a single pull of the trigger. The Court rebuked the ATF for rewriting the law, noting that was Congress’ job, not theirs.
Novel concept: Congress writes the laws, the president signs them and those who work for the president then enforce them.
As a late night television commercial might say, but wait there’s more.
The Court also ruled that an agency cannot require fishermen to pay for federal monitors on their boats to enforce regulations. Why does this matter? An agency, in Relentless v. Department of Commerce, was allowed to force fishermen to pay for federal monitors to oversee their activity. The Court found that this was a blatant overreach and expansion of the Commerce Department’s power was unconstitutional using it to overrule Chevron v. NRDC.
In ending the Chevron deference in both the Loper and the Relentless decisions, the Court made it clear and unambiguous that the bureaucratic deference in Court is over.
The past seven days should rightfully be viewed as the week when the power in America shifted dramatically away from the executive branch’s bureaucracy and toward Congress, the Courts and individual freedom. It was a week when Constitutional governance with the consent of the governed at its center was restored to the center of American law.
As for the hapless president, his legacy is written in the blood of our thirteen servicemembers who died in his disastrous Afghanistan withdrawal. Whether he stays or goes, he will be replaced, but the permanent bureaucracy has had its wings dramatically clipped, and should the election go toward those who support individual rights and freedom in November, the federal employees themselves will most likely find significant reduction in their numbers as Congress moves to cut their numbers and take their own legislative hatchet to the regulatory regime that has dictated American society for far too long.
The author is president of Americans for Limited Government.
To view online: https://townhall.com/columnists/rickmanning/2024/07/02/what-a-week-regulatory-state-gets-crushed-bidens-political-viability-ends-n2641234
Supreme Court rules presidents including Trump have absolute immunity for exercising constitutional powers and presumptive immunity for official acts, kicks case back to lower courts
By Robert Romano
The U.S. Supreme Court confirmed in a 6 to 3 ruling that former President Donald Trump, and all sitting and former presidents, for that matter, enjoy absolute immunity from criminal prosecution for exercising their core constitutional responsibilities and at least presumptive immunity for anything stemming from official acts taken as president.
That is the initial outcome of the Trump v. United States case on presidential immunity as it relates to potentially official acts by former President Donald Trump when he challenged the results of the 2020 election while still in office, including urging Congress to reject the electors of Arizona, Pennsylvania and Georgia.
On Dec. 1, 2023, U.S. District Judge Tanya Chutkan dismissed Trump’s claims of presidential immunity as a former president, saying that former presidents could be prosecuted even for official acts while in office: “Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass. Former Presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”
Chutkan did so without any analysis about whether the acts in question were official or were private or whether the official acts in question were core powers that Congress would have no power to criminalize, it was simply a blanket denial that any analysis at all was necessary at the district court level to get the case to trial.
The Court stated, upholding the precedent set in Nixon v. Fitzgerald in 1982 finding absolute immunity from civil lawsuits stemming from former President Richard Nixon’s official acts taken as president, such as firing federal employees, stating as it related to a criminal prosecution, the standard is only heightened, “the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
But it is not a blank check: “As for a President’s unofficial acts, there is no immunity. Although Presidential immunity is required for official actions to ensure that the President’s decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct.”
In Trump’s initial brief asking for the stay on the district court’s ruling, his lawyers had outlined the conduct for which he was charged that they say fell within the President’s duties, arguing he had the power to investigate claims of election fraud in 2020 and then to communicate to the executive branch, the legislative branch and the states his position on those questions.
First, addressing the federal indictment, Trump says he communicated using official channels “matters of paramount federal concern” with his election fraud allegation: “using official channels of communication, made a series of tweets and other public statements on matters of paramount federal concern, contending that the 2020 federal election was tainted by fraud and irregularities that should be addressed by government officials.”
Second, Trump also communicated these concerns to the Justice Department: “President Trump communicated with the Acting Attorney General and officials at the U.S. Department of Justice—which he oversaw as an integral part of his official duties as chief executive—about investigating suspected election crimes and irregularities, and possibly appointing a new Acting Attorney General.”
Third, Trump similarly communicated these concerns to states: “President Trump communicated with state officials about the administration of the federal election and urged them to exercise their official responsibilities in accordance with the conclusion that the 2020 presidential election was tainted by fraud and irregularities.”
Fourth, Trump communicated the same concerns to the Vice President and to Congress: “President Trump communicated with the Vice President in his capacity as President of the Senate, the Vice President’s official staff, and other members of Congress to urge them to exercise their official duties in the election certification process in accordance with President Trump’s contention that the election was tainted by fraud and irregularities.”
And fifth, then alternate slates of electors were convened for the Vice President and Congress to consider on Jan. 6, 2021: “other individuals organized slates of alternate electors from seven States to ensure that the Vice President would be authorized to exercise his official duties in the manner urged by President Trump… According to the indictment, these alternate slates of electors were designed to validate the Vice President’s authority to conduct his official duties as President Trump urged.”
Here, Trump has argued that those were all things he had the power to do as president, even if they were not all core elements of the executive’s powers.
Now those questions must be decided first at the district court level, meaning it would be up to Special Counsel Jack Smith to prove either that the cases against Trump constitute unofficial acts subject to criminal penalty, and/or that to the extent there were official acts, like communicating with the Justice Department to investigate election fraud or even with Vice President Mike Pence to do with his constitutional responsibilities in certifying the Electoral College, that a criminal prosecution would not otherwise unduly interfere with the functioning of the Presidency.
On those counts, the Court ruled that Trump is presumptively immune, and remanded the case back to lower courts to offer Smith the opportunity to rebut that presumption.
Similarly, the case was remanded for discussions that Trump had had with non-federal officials, including state election officials and private actors as potentially being unofficial acts, but allowing that Trump had argued that he was still trying to ensure the fairness of election in his official duties, stating all of those factors “requires a fact-specific analysis of the indictment’s extensive and interrelated allegations.”
So, it’s hardly a slam dunk for Trump. The case goes back to lower courts so that a proper analysis of what acts were official and which were unofficial must occur before the prosecutions can proceed. The undue haste with which the district and circuit courts skipped past this analysis in a bid to get the prosecutions done before the 2024 election was rebutted, and now the cases, including those in Georgia, Florida and Washington, D.C., must proceed accordingly at the lower level.
That might upset a political timeline for Trump’s prosecutions from the perspective of his Democratic prosecutors, but the dangers this poses to the exercise of presidential responsibilities while in office necessitate that a proper constitutional analysis be conducted every step of the way. Lower courts might disagree with the Supreme Court’s ruling, but that does not obviate the need for them to still conduct the analysis. It’s a fair ruling, and guarantees that when the analysis proceeds back to Supreme Court, it will be based on the facts of the case, and not blanket assertions that former presidents simply have no immunity for anything.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.