Tuesday, June 25, 2024

I’ve been thinking about topics versus outcomes when it comes to court cases. It’s SCOTUS opinion-palooza season, the time when we get a flurry of significant and high-profile opinions toward the end of the court’s term.  And while as of the time of this writing, we don’t yet have opinions handed down on our two Chevron Doctrine cases, several opinions that have been issued recently are worth a look, because it’s hard to miss the emerging pattern.

Notice that in each of these cases there is a topic.  In fact, it is probably the topics that have been the focus of most news coverage of the opinions you’ve seen. You might have heard about the Mifepristone case, the bump stocks case, the Starbucks case, the vaccine mandate case, the eviction moratorium case, or the student loan debt forgiveness case.  Half of America seems outraged and enraged by the topical outcomes – which half depends on which case you’re talking about in any given moment.

No matter the topic in these wildly different cases, there is really only one central question that is the throughline for (nearly) all of them.  That’s important because SCOTUS (arguably) doesn’t handle topics, it handles questions.  And the question these cases are implicitly asking has to do with the Separation of Powers.

Do you see the pattern yet?

In each of these cases, the issue raised had little or nothing to do with the substantive topics.  With the exception of the Mifepristone case, the question in each had to do with who had the authority to act, not whether the action should be legal.  I say with the exception of the Mifepristone case, because it too was attempting to head to that who has the authority to do what? question, but the plaintiffs were found to not have proper standing, so the ultimate question about authority of the action itself was moot.  The question will undoubtedly come back up, with a different group of plaintiffs.

Having placed that caveat on the Mifepristone case, here’s my take on what the cases were actually about:

  • Mifepristone – Were the actions of the FDA appropriate, or should Congress be required to further legislate?
  • Cargill (bump stocks) – Can the ATF of Administration B criminalize behavior that Administration A declared previously not criminal? Or should Congress be required to further act and clarify?
  • Starbucks – Which actions can the NLRB take absent specific legislation from Congress?

I won’t add the earlier opinions regarding the vaccine mandates, eviction moratoriums or student loan debt forgiveness, for two reasons.  First, I think you can already clearly see the pattern.  Second, I am intentionally not making points about the political or societal merits or demerits of any topic or individual outcome.

What I am instead focusing on are the deeper questions of who had the proper authority to act and who actually acted.  And that’s by no means the “easier” discussion.  These cases all relate to the question of the appropriate authority of the executive branch.

And though people may not realize it, they do have an opinion on what, at first glance, looks to be a purely administrative issue.

Your first reflexive instinct is likely to lean in favor of administrative actions taken by a chief executive aligned with your political leanings.  Or perhaps your initial reaction is to oppose the administrative actions of a chief executive whose administrative action is in conflict with your political leanings. It is a natural, comfortable place to be. But if you stay in that space, you will soon end up in a pretzel of principles.  Because there is little ideological consistency, if you take that approach.

A shorthand phrase is often employed when describing what the court seems committed to do.  That phrase goes something like this: SCOTUS to Congress; “Do Your Job!” And it’s true that sometimes an administration acts because Congress can’t come to consensus on a matter and the public or situation requires action, pronto.

However, it’s also sometimes true that an administration doesn’t want to accept the level of compromise required to shuttle an idea or a bill into law.  So, they ink it themselves.

Other times, some members of Congress don’t want to take the vote.  In those cases, if the White House is occupied by someone from their political team, sometimes the administration will “take the hit.”  It will take action via executive order or regulatory action, thereby saving members of Congress from having to “take a tough vote,” meaning one they don’t want to have to campaign on back home.

It’s not simply a matter of a lazy or dysfunctional Congress, though that can be true.  It’s not simply a matter of a chief executive who is crazed with power, though that can be true too.  Sometimes it’s just a matter of plain political convenience.

You see, sometimes an issue is in the national spotlight and conversation – but one team or another doesn’t want to take it up for one reason or another.  “The president has the authority to take action” you might hear at these times.  But that is where the pattern of these cases becomes so important.  Most of the time, a few years later as cases take their time to wind through the court system, these actions are found unconstitutional to one degree or another.  Think what you want, for example, about the current president’s executive action on immigration.  Most of it will likely be found unconstitutional by the court in a few years.  A time well after the political climate of today will have passed.

All this is foundation to say, our Chevron Doctrine cases are being brought in the same era as these other Separation of Powers questions.  The court’s overall direction remains consistent and clear.

While I learned a long time ago it’s foolish to attempt to predict the future, I think we might well want to prepare for some significant change to the weight given to the directives of the executive branch.  We should be prepared for a greater restriction of those powers in the near future.

I’m aware that roughly one half of you will think that’s a travesty now.  But might rejoice at it on January 20, 2025.

And that the other half of you will think it’s terrific now.  But might see it as cruelly or unfairly hobbling the next office holder.

That’s the tricky thing about topics, they almost never answer the actual question.

Change is coming.  We’re going to help you remain prepared.

Until Next Time,

Mary Schuster
Chief Knowledge Officer
October Research, LLC