Legal experts told a panel on July 10 that two recent Supreme Court decisions on presidential immunity and bureaucratic power will generate a great deal of work for lawyers and judges.
Panelists speaking at a Heritage Foundation event in Washington focused on court rulings about the extent of former President Donald Trump’s legal immunity in election interference cases and on the power of unelected agency officials to make regulations when a law is ambiguous.
The discussion took place after the court wrapped up its annual term on July 1. During that term, the Supreme Court issued 59 opinions on cases that had been argued over the preceding nine months. The justices are now on summer recess.
With presumptive immunity for official acts, the court sets a high bar by assuming that immunity applies, but at the same time, allows for the possibility that the prosecution may be able to rebut that immunity.
The decision “left a lot of questions about what the law is,” said attorney Roman Martinez of Latham and Watkins in Washington.
Jennifer Mascott, a professor at Columbus School of Law at the Catholic University of America, said, “This is totally a novel issue in the sense that this is the first time we’ve looked at the question of whether a past president can be criminally prosecuted for things he did while in office.”
The Supreme Court deliberately left some questions unanswered because as “a body of last resort,” it would prefer that multiple courts of appeal flesh out the issues first, she said.
“It just means that [special counsel] Jack Smith and others will have a lot of work to do arguing the law and the facts … as this case goes back down to the district court,” Ms. Mascott said.
U.S. District Judge Tanya Chutkan previously postponed President Trump’s election interference trial, which had been scheduled to begin on March 4. It’s unclear when the trial will take place.
Mr. Martinez said that Judge Chutkan will now have to decide if absolute or presumptive immunity applies to any of the former president’s actions that are in question.
“I think it’s a very big decision and it’s a little odd, I thought, that they kicked that back down,” he said.
Limits Reimposed on Agency Authority
On June 30, the court overturned the Chevron deference doctrine, a bureaucracy-empowering doctrine created by the court in 1984 that critics say paved the way for the explosive growth in the federal government seen over recent decades. The ruling is expected to make it more difficult for federal agency officials to generate new regulations.For years, the doctrine had provided a legal underpinning for the modern administrative state, which critics derided as an illegitimate fourth branch of government.
The court overturned the doctrine in Loper Bright Enterprises v. Raimondo and a companion case, Relentless Inc. v. Department of Commerce.
In those cases, a federal agency’s regulation compelled fishing companies to pay for human regulatory compliance monitors aboard their vessels, a burden the companies said significantly reduced their profit margins. The Supreme Court found that the agency overreached when interpreting federal law.
Mr. Martinez, who represented Relentless Inc., said the ruling doesn’t prevent federal agencies from interpreting statutes.
It simply means that “judges need to be judges—they say what the law is,” he said.
The court tried not to be “too chaotic” in its ruling, and stated that old decisions made under the Chevron framework don’t necessarily “go out the window” merely because the doctrine has been overruled, he said.
Ms. Mascott said the decision was “significant” but that didn’t mean there would be “a seismic shift.” After all, the Supreme Court hadn’t been applying the doctrine for the past 10 years, she said.
