Supreme court

• In a democracy, it’s natural to think that “the people” are in charge, or should be.
• Of course, hundreds of millions of people can’t participate actively in governing day to day.
• Still, the idea of representative democracy is that those who make the rules are elected by, and accountable to, everyone else.
• Depending on how the court rules, its decisions could throw vast swaths of the federal government into disarray.

Why professional bureaucracies matter

• In the process, they found they needed to grant significant discretion to experts in bureaucratic agencies.
• Imagine how cumbersome and contentious it would be if, for example, Congress had to pass a new law every time a harmful chemical was identified.
• Instead, elected lawmakers have authorized the EPA to regulate chemicals that its experts determine are harmful.
• It also prevents regulators from becoming politicized and corrupt, as often happens when elected officials have tight control over administrators.

The Supreme Court weighs in

• Over the past two decades, though, it has gained support among mainstream conservatives.
• And with former President Donald Trump’s appointment of justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the Supreme Court, it is now taken seriously at the highest levels.
• Many observers expect that the court will sharply cut back agencies’ discretion to interpret federal laws in deciding how to regulate.
• But they could seriously restrict agencies’ ability to do the critical work of governing a complex modern society.

Can regulation be more democratic?

• Today, however, it often manifests as lengthy and expensive lawsuits, which favor wealthier groups.
• What passes for popular participation is a cumbersome process through which members of the public may submit comments about proposed rule changes.
• Depending on the context, citizen juries’ conclusions could be adopted as agencies’ final actions or could trigger further expert review.
• As I see it, this approach is an attractive alternative to the extreme and destructive solutions that could emerge from the Supreme Court.

Samuel Bagg does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

• On March 19, 2024, Trump filed his brief with the U.S. Supreme Court in the case brought by special counsel Jack Smith for Trump’s alleged criminal attempts to overturn the 2020 election.
• To support his contention, Trump cites Supreme Court cases, the Federalist Papers, and other writings from legal scholars.
• If a student of mine had submitted a brief making the arguments that Trump and his lawyers assert in their Supreme Court filing, I would have given them an F.

Sitting in judgment

• But it is not standard practice to characterize those cases and documents as saying one thing when they say the complete opposite.
• Trump begins by citing Marbury v. Madison from 1803, which is one of the court’s most consequential cases.
• Trump also argues that, according to the Constitution, “federal courts cannot sit in judgment directly over the President’s official acts.” This assertion is contrary to scores of cases where federal courts have reviewed presidential acts.
• That act grants the secretary of education the authority to “waive or modify” student loan programs during national emergencies.

Citing Kavanaugh

• But the main legal question remains – whether a president holds, as Trump claims, absolute immunity from criminal investigations and prosecutions for a president’s official acts.
• From a policy perspective, Trump claims that “functional considerations” warrant the absolute immunity that he seeks because if a president is subject to criminal liability, that legal exposure “will cripple … Presidential decisionmaking.”

• To further this claim, Trump relies on a 2009 law review article by Judge Brett Kavanaugh, then of the U.S. Court of Appeals for the District of Columbia Circuit, who now sits on the Supreme Court.
• Trump quotes Kavanaugh, who wrote that “a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President,” which Trump provides as evidence of support for the position that a president requires absolute immunity.
• But even a cursory reading of Kavanaugh’s article reveals that Kavanaugh argued only for a deferral of a criminal prosecution until after a president leaves office.

Civil cases vs. criminal cases

• Trump urges the court to extend the presidential immunity established in this civil case to criminal matters.
• But he overlooks the fundamental difference between the civil justice system and the criminal justice system.
• The purpose of the civil justice system is to make an injured party whole again.
• But the purpose of the criminal justice system is to protect society, because crimes are understood to be harms against the public.

Wayne Unger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

• MSU fired two of NCLA’s three clients, all of whom had naturally acquired immunity to Covid, for refusing the vaccine.
• NCLA further urges the Court to hold that MSU’s policy failed to meet that standard.
• NCLA’s petition presents the Supreme Court with an ideal opportunity to correct this widespread misunderstanding before another emergency pandemic breaks out.
• The Court needs to update the precedent to reflect current constitutional law.”
  “CDC’s flawed guidance was not subject to direct court challenge, because it was deemed mere guidance.

• Cicero Institute challenges the notion that homelessness policy must be solely punitive in nature, advocating instead for comprehensive strategies that address the root causes of homelessness, like untreated mental illness and addiction.
• It highlights successful initiatives from across the country that demonstrate the efficacy of holistic approaches in addressing homelessness while respecting individual rights—including prohibitions on dangerous street camps.
• In its decision, the Ninth Circuit essentially recognized a “constitutional right” to camp on public property.
• The amicus brief underscores the Institute's unwavering commitment to defending the rule of law and ensuring that justice prevails.