University of San Diego School of Law
THE BLUE BRIEF
Faculty Review of the 2023-2024
U.S. Supreme Court Term
Introduction
The University of San Diego School of Law is pleased to announce the fourth annual Blue Brief, a faculty review of ten carefully selected rulings from the most recent Term of the United States Supreme Court. USD has an extraordinarily distinguished law faculty, and I believe that you will enjoy reading their assessments of cases ranging across a variety of important topics, from presidential immunity and the validity of regulatory actions to gun rights, taxation and apportionment, and the rights of unhoused people.
In addressing critical issues, the Justices often rely on the insights of our faculty, and this past Term was no exception. Professor Michael Rappaport was cited by Justice Thomas in the majority opinion in Consumer Financial Protection Bureau v. Community Financial Services Association of America. Professor Michael Ramsey’s work was cited by Justice Kavanaugh in his concurrence in United States v. Rahimi. Finally, Professor Mila Sohoni was cited by Justice Jackson— joined by Justice Sotomayor—in her dissent in Labrador v. Poe.
Robert Schapiro
Dean and C. Hugh Friedman Professor of Law
This momentous Term highlighted divisions among the Justices concerning both the substance of the law and the proper method for its interpretation. The opinions reveal sharp disagreements on topics including the power of administrative agencies and the need for presidential immunity. Even when the Justices agreed on the result, they often wrote separately to explain their differing approaches. For example, the leading gun rights case, United States v. Rahimi, featured a majority opinion, a dissenting opinion, and five concurring opinions. These divisions show no signs of abating.
We are very happy to share the insights of ten of our eminent faculty on these important Supreme Court decisions. We are eagerly awaiting the opening of the Court’s new Term this fall, and we look forward to reporting back to you in the summer of 2025 with the latest developments.
Warm Regards,
Robert Schapiro
I.Miranda McGowan
Professor of Law
Trump v. Anderson Limits States’ Disqualification of Candidates for Federal Office
The Colorado Supreme Court decided that Donald Trump would not appear on the state’s ballot because he had engaged in insurrection against the United States on January 6, 2021. Trump v. Anderson reversed and held that states have no power to disqualify insurrectionists. The case limits state and federal congressional power, expands the Court’s power relative to Congress, and eliminated a source of risk to the Trump campaign.
Section 3 of the Fourteenth Amendment provides that “no person shall” hold federal or state office if, “having previously taken an oath … as an officer of the United States … to support the Constitution,” they have “engaged in insurrection … against” the United States or “given aid or comfort” to those who have. The original purpose was to disqualify former Confederate officials from holding federal office.
For almost 150 years, few have paid any attention to Section 3. Then, last summer, two
prominent originalist law professors posted an article arguing that Section 3 disqualified former President Donald Trump from running for or serving as president (or from holding any other federal office) because of, as the article put it, his “participation in the attempted overthrow of the 2020 presidential election.”
Rarely has a law review article made such a splash. Within weeks, citizens and state officials in 36 states challenged Mr. Trump’s eligibility to run for President. State and federal courts came to different conclusions about whether Section 3 disqualified Mr. Trump.
In early January, the Court granted certiorari in the Colorado case. Oral arguments took place in early February, and the opinion was issued in early March. The Court moved notably faster on this case than the other appeals involving Mr. Trump.
On its surface, the Court’s decision looks unanimous. Nine justices agreed that states (as
opposed to the federal government) do not have the power under Section 3 of the Fourteenth Amendment to prevent people from running for federal office. The per curiam opinion reasoned that the structure and purpose of the Fourteenth Amendment is “to expand[] federal power at the expense of state autonomy.” As part of that Amendment, Section 3 could not have “silently” granted states the power to determine the eligibility of federal office holders. “[F]ederal officers owe their existence and functions to the united voice of the whole, not of a portion, of the people.”
prevent or remedy violations of Section 3. Justice Sotomayor (joined by Justices Kagan and Jackson) accused the majority of unnecessarily deciding “novel constitutional questions” that “insulate [both the] Court” and Mr. Trump “from future controversy” while potentially exposing the country to leaders who have betrayed the Constitution. Justice Barrett chided the Court for deciding this issue and unnecessarily exacerbating national tensions surrounding Mr. Trump’s reelection bid.
The case limits state and federal congressional power, expands the Court’s power relative to Congress, and eliminated a source of risk to the Trump campaign.
But the per curiam opinion also decided an additional issue, ruling that Section 3 is not “self-executing,” and over this issue, the Court fractured. The per curiam held that a person can only be disqualified under Section 3 if Congress passes legislation specifically designed to
These four justices are right that the Court did not need to decide the issue of Congressional power. Justice Sotomayor made a strong case that the Court could be wrong about it too. Section 3’s “no person shall” sounds self-executing. Its “no person shall” mirrors the “no state shall” of the Fourteenth Amendment’s privileges or immunities, due process, and equal protection clauses, and they are self-executing. Also self-executing are “[o]ther constitutional rules of disqualification, like the two-term limit on the Presidency.”
On this point, the per curiam opinion reads Section 5 of the Fourteenth Amendment, which expands Congress’s power, to limit Congress’s power. Since the 1990s, the Court has—often in bitterly divided judgments—held that Congress can pass legislation under the Fourteenth (and Fifteenth) Amendments only to prevent or remedy violations of the Amendment as the Court has interpreted the amendment. Using this reasoning, the Court has struck down or significantly limited important parts of the Violence against Women Act, the Religious Freedom Restoration Act, the Americans with Disabilities Act, and under a similar section of the Fifteenth Amendment, the Voting Rights Act. Increasingly, the Court’s “duty to say what
the law is” includes its prerogative to expand its own power at Congress’s expense.
The holding that states cannot disqualify presidential candidates because the Fourteenth Amendment aims to limit state power is sound. The Court’s additional, unnecessary holding is of a piece with its increasing tendency to aggrandize its own power.
Our country and our Congress are intensely divided over Donald Trump’s fitness and eligibility to again serve as President, and Congress will not pass legislation implementing Section 3. This unnecessary holding means that, whatever the character of Mr. Trump’s actions on January 6, 2021, the Constitution will have little to say about it.
Miranda McGowan
II.
Kevin Cole
Professor of Law
United States v. Rahimi Clarifies the Second Amendment Right to Bear Arms
United States v. Rahimi marked the Court’s first clarification of the Second Amendment right to bear arms since the 2022 Bruen decision, in which the Court took a historical approach and controversially struck down a New York law sharply limiting the right to carry handguns in public. (A week before Rahimi, the Court invalidated a Trump administration regulation treating bump stocks as machine guns, but that decision was based on the underlying federal statute; the opinion didn’t even mention the Second Amendment.) Lower courts have been in considerable disarray since Bruen; conflicting decisions on significant issues are listed on pages 4-6 of this amicus brief by Second Amendment scholars.
In Rahimi, the Court upheld a federal statute, 18 U.S.C. § 922(g)(8)(C)(i), criminalizing possession of firearms by those subject to certain domestic violence restraining orders. In doing so, it clarified how lower courts should apply the Bruen test. But many questions
remain unanswered—and answering them may prove difficult.
Eight of the Court’s nine justices joined Chief Justice Roberts’s opinion for the Court. (Only Justice Thomas, Bruen’s author, dissented.) But of those eight justices, only the Chief Justice and Justice Alito rested on the majority opinion. Justice Sotomayor, joined by Justice Kagan, wrote a concurring opinion, as did Justice Jackson. These justices expressed their concern with the historical approach taken in Bruen. While agreeing that Bruen should not invalidate the Rahimi statute, these justices asserted that Bruen erred in looking at history to the exclusion of assessing the costs and benefits of gun regulation in contemporary society—sometimes referred to as “a means-end test.”
For the near-term future, the three concurring opinions by Justices Gorsuch, Kavanaugh, and Barrett are more important. All these justices
are originalists, but their separate opinions show, as elaborated here and here, that they don’t agree on what originalism requires. Their differences didn’t matter in Rahimi. But they might in future cases, even in other areas in which the Court has recently relied on history, like marriage and reproductive rights.
In Rahimi, the statute’s permissibility depended on the existence of a relevant “historical analogue” for the law. The Rahimi majority said the Fifth Circuit erred by searching for a “historical twin” of the regulation when holding the statute unconstitutional. Such an approach would “trap[]” the law “in amber.” Just as the right to bear arms is not limited by history to “muskets and sabers,” modern regulations can be permissible even if they aren’t “identical to ones that could be found in 1791.”
The majority pointed to two relevant historical analogues: “surety” laws and “going armed” laws. “Surety” laws required dangerous individuals to post bonds that would be forfeited if they broke the peace. “Going armed” laws imposed imprisonment and forfeiture of weapons on those “riding or going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land.” These laws are “relevantly similar” to the Rahimi statute in both “why” and “how” they burdened the right to bear arms. Why? To protect people from threats. How? Temporary restrictions that were limited to those found by a court to pose a danger.
Justice Thomas’s dissent illustrates the indeterminacy of Bruen’s historical approach. “Surety” laws passed the “why” test: they “applied to the threat of future interpersonal violence” and even were “expressly available to prevent domestic violence.” But Justice Thomas found
them to fail the “how” requirement. They did not greatly burden the right to bear arms—they simply imposed the equivalent of a fine for using them to breach the peace.
The Court clarified how lower courts should use history, but many questions remain unanswered—and answering them may prove difficult.
As for “going armed” laws, Justice Thomas thought they failed both prongs of the test. Their purpose was to prevent conduct that alarmed the public, not to prevent private violence. On the burden prong, forfeiture of arms used in a crime does not preclude the convict from keeping or acquiring other weapons. And while criminal punishment disarms a person while confined, the disarming ends with release, and nothing happens without the elevated procedural protections of the criminal process, like proof beyond a reasonable doubt of past illegal behavior. Indeed, for Justice Thomas, the criminal process is the answer to the question of how to address threats: Rahimi “is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution.”
Rahimi left open a number of questions—it doesn’t even resolve whether the statute under consideration could be applied in all situations it might cover. Moreover, the majority’s emphasis on the finding of dangerousness and
the “temporary” deprivation of arms under the statute—only while a restraining order is in force—raises questions about several gun regulations, including the commonly prosecuted crime of being a felon in possession of a firearm.
Kevin Cole
Caley Petrucci
Assistant Professor of Law Director, Center for Corporate and Securities Law
The Limits of the SEC’s Enforcement Powers in Securities and Exchange Commission v. Jarkesy
The Court’s long-awaited decision in Securities and Exchange Commission v. Jarkesy substantially curtailed the ability of federal agencies to enforce their mandates. More precisely, the Court held that the Securities and Exchange Commission (SEC) cannot use in-house administrative proceedings to impose fines and other financial penalties in securities fraud cases. Is this decision a win for due process and the Seventh Amendment? Or is it, as the dissent describes it, “a wrecking ball to … stable government practice?”
Although Congress passes laws, it is agencies that enforce them. During the Great Depression and the aftermath of the Wall Street Crash of 1929, Congress passed a series of laws to address securities fraud, protect investors, and increase market transparency: the Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Advisers Act of 1940. To enforce these laws, Congress established the SEC, a regulatory agency. Congress later expanded the
SEC’s enforcement powers when it passed the Dodd–Frank Act in response to the financial crisis of 2008.
After investigating George Jarkesy and his firm, Patriot 28, for securities fraud, the SEC brought an enforcement action before an administrative law judge. Jarkesy was found liable for securities fraud and ordered, in part, to pay $300,000 in civil monetary penalties. Jarkesy and his firm challenged the enforcement action, claiming that the process violated his Seventh Amendment right to a jury trial.
Chief Justice Roberts, writing for the 6-3 majority, agreed and held that the SEC’s use of an administrative proceeding violated Jarkesy’s Seventh Amendment rights. By its text, the Seventh Amendment provides that in “[s]uits at common law” there is a “right of trial by jury.” The majority reasoned that “[t]he SEC’s antifraud provisions replicate common law fraud” and distinguished the facts in Jarkesy
from those in other cases where a “public rights” exception allows proceedings without a jury. Thus, the majority held that the right to a jury trial applies when the SEC seeks civil monetary penalties in securities fraud cases. In a concurring opinion, Justice Gorsuch, joined by Justice Thomas, emphasized the constitutional grounds for opposing administrative proceedings.
The Court’s ruling will have a considerable and immediate impact on the SEC and the federal administrative state more broadly.
Justice Sotomayor, joined by Justices Kagan and Jackson, dissented, arguing that the decision ignores “longstanding precedent.” In rejecting the majority’s interpretation of the public rights doctrine, the dissent noted a long line of cases establishing that Congress has, for years, granted agencies the power to adjudicate certain matters, and award civil penalties without a jury. The dissent warned of the “momentous consequences” of the decision and the threat it poses to “the constitutionality of hundreds of statutes” and enforcement powers of “dozens of agencies.”
The Court’s ruling will have a considerable and immediate impact on the SEC and the
federal administrative state more broadly. Going forward, the SEC may struggle to enforce civil penalties because it will need to file suit in federal court to do so, which is magnitudes more time consuming and costly than an administrative proceeding. As a practical matter, Jarkesy may force the SEC to bring fewer enforcement actions. Moreover, the decision may have the effect of changing the remedies that the SEC seeks in securities fraud cases. Those who violate securities law can be subject to monetary penalties, which are generally “legal remedies,” or they can be subject to “equitable remedies” such as disgorgement or an injunction. Monetary penalties, like those at issue in Jarkesy, are one of the SEC’s most potent enforcement tools and can be as high as $725,000 per violation. In the wake of Jarkesy, the SEC would need to bring such claims in federal court. But the SEC could continue to use administrative proceedings if it seeks only equitable remedies, which fall outside the scope of the Seventh Amendment.
Beyond the SEC, Jarkesy may curtail the enforcement powers of numerous additional agencies. Congress has enacted over 200 statutes that empower federal agencies to impose civil penalties for statutory violations. More than two dozen agencies are authorized to use in-house proceedings to enforce these penalties, including the Department of Justice, Consumer Financial Protection Bureau, Food and Drug Administration, Department of the Treasury, Environmental Protection Agency, and Federal Communications Commission. Like the SEC, these agencies may struggle to enforce civil penalties in federal courts given the increased time and cost of doing so. Moreover, while some of these agencies have the choice between an in-house administrative proceeding
or filing suit in federal court, others are only authorized to pursue enforcement through in-house proceedings.
The Court’s decision in Jarkesy is not the first decision that limits the power of agencies, nor is
it likely to be the last. While it is a win for those accused of securities fraud who are now entitled to a jury trial, the consequences of the decision on an agency’s ability to protect the public remain to be seen.
Caley Petrucci
Michael Ramsey
Warren Distinguished Professor of Law
IV. Presidential Immunity from Criminal Prosecution in Trump v. United States
Trump v. United States arose after U.S. Department of Justice Special Counsel
Jack Smith brought criminal charges against former President Donald Trump for Trump’s actions in connection with the events of January 6, 2021. Trump claimed constitutional immunity from criminal prosecution for all official acts he took as President, unless he was first impeached and convicted. Smith, on behalf of the United States, denied that Presidents have any immunity from criminal prosecution, and the lower courts agreed. Trump sought review in the Supreme Court, and the Justices agreed to hear the case on an expedited basis in Spring 2024.
Chief Justice Roberts delivered the Court’s judgment on July 1, 2024, with Justices Thomas, Alito, Gorsuch, and Kavanaugh joining his opinion in full, and Justice Barrett adding a concurring opinion that agreed in substantial part. Justice Sotomayor, joined by Justices Kagan and Jackson, dissented, with Justice Jackson also writing a separate dissent
The Court’s majority took somewhat of a middle ground between the contending arguments, although—depending on how parts of it are interpreted on remand—the result seems much more favorable to Trump than to the government. The majority identified three categories of presidential actions in connection with immunity. First, as Trump had conceded, Presidents have no immunity for unofficial or private actions. Second, in areas of “conclusive and preclusive” presidential authority under the Constitution, Presidents have absolute immunity. Finally, for official actions not in the core area of presidential authority, Presidents have “at least” a “presumptive immunity,” which the government may be able to rebut by showing that a potential prosecution would not interfere with the President’s ability to discharge the President’s constitutional authority.
Methodologically, the majority opinion rested mostly on the precedent of Nixon v. Fitzgerald, a 1982 case that found constitutional immunity
for the President from civil suits involving official presidential actions. According to the Court in Fitzgerald, allowing civil suits would unduly interfere with the President’s exercise of constitutional executive powers. The debate between the majority and the dissent in Trump v. United States principally turned on the implications of Fitzgerald for criminal cases. According to the majority, exposure to criminal prosecution posed at least as much, if not more, potential to interfere with the President’s ability to carry out executive powers under the Constitution. For the dissent, criminal prosecutions had substantially more safeguards, including control by the U.S. Department of Justice and the requirement of a grand jury. The dissent also emphasized in strong terms the danger of Presidents unchecked by criminal laws, a danger the majority thought to be overstated.
Notably, the majority had little to say about the Constitution’s original meaning, apart from some generalized discussion of separation of powers and a brief response to the dissent. The dissent argued that presidential immunity lacked support in constitutional text and that founding-era sources indicated a general view that Presidents would be subject to criminal laws. The majority denied that founding-era sources spoke clearly against immunity but did not build much of an originalist case in its favor. Instead, as indicated above, it relied principally on the Fitzgerald precedent and the practical implications of subjecting Presidents to criminal liability.
The implications of Trump v. United States largely depend on how it is applied to particular facts, with many of those applications being far from obvious. The Court gave only limited
guidance, remanding the case for further development by the district court. In particular, its application depends on drawing two critical lines, which may be subject to considerable debate. The first is between core areas of “exclusive and preclusive” presidential authority (where the President has absolute immunity) and other areas of official presidential authority, where the President’s immunity may be only “presumptive.” Powers expressly given to
How big a win it was— and how few legal checks it leaves on Presidents—remains to be seen as lower courts, commentators, and the executive branch struggle with it on remand and thereafter.
the President in the Constitution’s text, such as the pardon power, seem clearly to fall within the core. The majority also specifically identified discussions with other executive officers as to law enforcement as an area of absolute immunity, indicating a fairly broad conception of the core. But the majority did not systematically expound the distinction between core and non-core powers, leaving a good
portion of the allegations against Trump in this particular case to the district court to assess.
The second uncertain distinction, of likely even greater importance, is between official and unofficial presidential actions. Again the majority did not provide a systematic account of the distinction, leaving its application mostly to the district court. The majority did say, however, that the distinction did not turn on investigation of a President’s motive in taking an action (thus, presumably issuing pardons or initiating prosecutions for personal motives would be considered official actions).
Nonetheless, it would seem that presidential actions not authorized by the Constitution might be considered unofficial. The dissent— continuing a hypothetical that arose in the lower courts—worried that if a President ordered the assassination of a political opponent, that would be considered an official action subject to
at least presumptive immunity. But Presidents do not have constitutional authority to order assassinations (at least of U.S. citizens in peacetime), so one might instead suppose such an action to be unofficial. Similarly, President Nixon’s involvement in the Watergate burglary (which at the time was not thought to be subject to immunity) might be considered unofficial because Presidents generally do not have constitutional authority to conduct domestic surveillance without a warrant.
In sum, Trump v. United States was a major win for Trump, as it found considerable immunity from criminal prosecution for official presidential actions. How big a win it was—and how few legal checks it leaves on Presidents—remains to be seen as lower courts, commentators, and the executive branch struggle with it on remand and thereafter.
Michael Ramsey
Mary Jo Wiggins
Professor of Law
Harrington v. Purdue Pharma and the Limits of Bankruptcy Protection for Mass Tort Defendants
During the peak of the opioid epidemic, it seemed unlikely that our nation’s highest court would be asked to rule on a complex plan to mitigate the consequences of that horrifying scourge. However, that is exactly what happened in Harrington v. Purdue Pharma L.P., where the Supreme Court held, 5-4, that the Bankruptcy Code (“the Code”) does not authorize a release and injunction that discharges claims against a nondebtor without the consent of affected claimants.
Purdue Pharma, L.P. (“Purdue”) produced and marketed Oxycontin, using a deceptive sales campaign to push Oxycontin into doctors’ offices nationwide. Purdue’s dubious claim was that Oxycontin could be used liberally without a substantial risk of addiction. Purdue, owned and controlled by the Sackler family, eventually earned $34 billion in revenue. In 2007, an affiliate of Purdue pleaded guilty to felony misbranding charges. Purdue and the Sacklers were sued by individuals, families, and state
governments. Prior to this, the Sacklers raided Purdue of about $11 billion. In 2019, Purdue filed for Chapter 11 bankruptcy.
During Purdue’s bankruptcy reorganization, the Sackler family proposed to repay Purdue about $4 billion of the $11 billion in exchange for extinguishing all claims Purdue might have against the Sacklers and permanently voiding all claims against them by future victims. Purdue submitted these terms in its reorganization plan to the bankruptcy judge, who approved the plan. The district court struck it down, however, finding that nothing in the Code allowed a bankruptcy court to approve a plan that voided claims against third parties who had not filed bankruptcy without the consent of affected claimants. (Most creditors who voted on the plan supported it, but fewer than 20% voted.)
Purdue and the Sacklers then negotiated a new agreement wherein the Sacklers contributed an additional $1.2-$1.7 billion. This persuaded
several major creditors to acquiesce, but other creditors and the U.S. Trustee continued to resist. The Second Circuit Court of Appeals ruled in favor of the plan, and the U.S. Trustee appealed.
The Supreme Court’s devotion to textualism in bankruptcy produces a victory for mass tort victims and a loss for those seeking to use the bankruptcy code to shield wealth.
A majority of the Court (Justices Gorsuch, Thomas, Alito, Barrett, and Jackson) held that no provision of the Code allows a Chapter 11 plan to provide a bankruptcy discharge to the Sacklers, who had not filed for bankruptcy themselves or offered their own assets for distribution to creditors, without the consent of affected claimants. Writing for the majority, Justice Gorsuch focused on the text of Section 1123(b)(6), which provides that a plan “may” also “include any other appropriate provision not inconsistent with the applicable provisions of this title.” Justice Gorsuch rejected the view that the section should be given the “broadest possible construction,” preferring instead to interpret it in light of its “surrounding context.” Invoking the canon of ejusdem generis (a statute
should be given the scope a reasonable reader would), Justice Gorsuch concluded that Section 1123(b)(6) cannot allow a bankruptcy court to assume a power extremely different from the powers contained in the rest of Section 1123(b). The majority fortified its conclusion by citing the Code’s larger statutory scheme and the history of reorganization practice prior to the Code.
The plan’s proponents argued that the plan must be approved because the Sacklers would withhold any participation that did not grant them broad immunity, and opioid victims would have their recovery delayed intolerably. Justice Gorsuch discarded this argument for two reasons. First, rejecting the plan might incentivize the Sacklers to agree to consensual releases on terms more favorable to the opioid victims. Second, it is not the Court’s role to settle policy disputes. The majority clarified that its holding neither applies to consensual thirdparty releases nor defines what constitutes a consensual release.
The dissenters (Justices Kavanaugh, Roberts, Sotomayor, and Kagan) would have approved the plan on the basis of their interpretation of Section 1123(b)(6), the history of bankruptcy practice, and the pleas of many affected victims. Although the dissent is not without merit, the majority opinion provides a much more cogent analysis.
Harrington brings into sharp relief the tension between textualism and pragmatism in statutory interpretation. Over the last several decades, textualism has become the Supreme Court’s preferred methodology for interpreting the Code, and textualism won the day again. Although textualism has weaknesses, it is
well-suited to deciding bankruptcy cases because the Code reflects a carefully considered statutory scheme where predictability and certainty are absolutely critical.
From a practical perspective, the majority opinion will likely give mass tort victims in bankruptcy more leverage in negotiations with wealthy third parties like the Sacklers. Victims should be able to insist that these parties file for bankruptcy themselves, or, alternatively,
fully satisfy all claims or submit to much more narrow releases if they want to shield themselves from liability. Either or both of the latter two conditions will make it more likely that a thirdparty release will be consensual, thus bringing it outside of the purview of Harrington altogether. Besides advancing a superior way to interpret the Code, Harrington should result in more justice for mass tort victims in bankruptcy, providing a necessary corrective to large-scale individual and corporate malfeasance.
Mary Jo Wiggins
Michael Rappaport
Hugh and Hazel Darling Foundation Professor of Law Director, Center for the Study of Constitutional Originalism
Loper Bright Enterprises v. Raimondo Overrules the Chevron Doctrine
In what promises to be one of the most important decisions governing the power of administrative agencies in many decades, the Supreme Court in Loper Bright Enterprises v. Raimondo overruled its landmark 1984 opinion in Chevron v. NRDC. Under Chevron, administrative agencies were entitled to largely automatic and strong deference when they interpreted the statutes that they enforce. Now, courts will review agency interpretations based on their own independent judgment, conferring deference only when there is a genuine indication that Congress intended it.
Under the Chevron decision, an agency had significant power to determine the extent of its own authority. Unless the statute governing the agency had answered the specific question at issue—in other words, unless the statute was unambiguous—the agency was given deference and could select any reasonable interpretation of the statute. That deference gave the agency significant discretion to decide on what action
to take. It also often allowed an agency to reverse the decisions it had reached under a previous administration, leading to a back and forth on regulations, such as net neutrality and fuel economy standards, that created great instability.
Loper Bright eliminated this Chevron regime by requiring courts to determine the meaning of a statute without conferring automatic deference on an agency. This change significantly limits the power of an agency to pursue its policy goals. Under this regime, courts can still take an agency’s expertise into account when reviewing its decision. But the courts must be persuaded by the agency’s arguments, rather than being required to accept them. An agency’s interpretation will be deemed especially persuasive when it was initially reached at the time the statute was enacted and when the agency has followed it consistently over time. This feature will make it difficult for agencies to switch back and forth between
interpretations as presidential administrations change with elections.
Loper Bright also allows Congress to require that the courts confer deference on agencies if Congress believes that agency expertise makes that desirable. But to accomplish this result, Congress must actually pass a statute that genuinely indicates that the agency should be given that deference. Under Chevron, however, the courts generally assumed that when a statute was ambiguous, Congress had intended to confer deference—a questionable assumption given the many reasons why a law might be ambiguous.
To overturn Chevron, the Court had to reach two conclusions. First, it had to hold that Chevron was mistaken. Here, the Court argued that the Chevron approach to interpreting agency statutes was inconsistent with the Administrative Procedure Act (APA), the law that generally governs federal administrative agencies. The APA stated that courts should decide all questions of law, suggesting that agencies do not have a role in that enterprise. By contrast, the APA makes clear that other types of agency decisions, such as factual findings or policy decisions, should be given deference.
Moreover, when the APA was enacted, the law governing agency interpretations did not employ Chevron deference. For at least several generations before the APA was passed, agencies did not enjoy deference. While in the immediate five years prior to the APA being enacted, the courts did sometimes confer deference on agencies, they did so in much narrower circumstances than Chevron did. Chevron was thus an invention of the Supreme
Court in 1984, one that it reached without even citing the APA.
Now, courts will review agency interpretations based on their own independent judgment, conferring deference only when there is a genuine indication that Congress intended it.
The second conclusion that the Court had to reach to overturn Chevron was that the doctrine of stare decisis—which generally protects judicial precedents—allows Chevron to be eliminated. Here, Chief Justice Roberts concluded that the “stare decisis considerations most relevant here”—the quality of the precedent’s reasoning, the workability of the rule it established, and reliance on the decision— all supported overturning Chevron. Interestingly, and perhaps surprisingly, the Court noted that reliance interests did not argue for retaining Chevron because Chevron empowered agencies to change the law and therefore to upset reliance interests. Moreover, to protect reliance interests, the Court held that the specific holdings of prior judicial decisions that had relied on Chevron would not be overturned. Thus, the Court adopted a kind of prospective overruling of a past precedent—an overruling that applied the
new rule to future cases but not to previously decided cases.
While Justices Thomas and Gorsuch wrote concurrences defending the overruling based on the Constitution and on the appropriate rule of stare decisis, respectively, Justice Kagan wrote a passionate dissent defending Chevron as not merely defensible as precedent but as “right.” In Justice Kagan’s view, Chevron largely concerned questions that should be decided by executive agencies. These issues involved either policy questions that the executive, as a political
branch, should decide, or technical matters that expert agencies rather than generalist judges should decide. She also argued that the overturning of Chevron represented a judicial power grab over policymaking.
In the end, Loper Bright appears to introduce a new regime for the interpretation of agency statutes. It is a regime that gives more responsibility to courts but allows Congress to change that regime and an agency to succeed under that regime by being persuasive.
Michael Rappaport
Michelle Layser Associate Professor of Law
Moore v. United States and the Definition of Income
In Moore v. United States, taxpayers challenged a law that taxes shareholders on undistributed earnings of a foreign corporation. They argued that such earnings are not “income” within the meaning of the Sixteenth Amendment, which authorizes Congress to tax income. In a 7-2 opinion written by Justice Kavanaugh, the Supreme Court upheld the law. The narrow opinion held that Congress has the power to tax either an entity or its owners on the entity’s income (for example, by attributing a corporation’s earnings to its shareholders). The majority avoided the definitional issue raised by the taxpayers, leaving important questions about the constitutional requirements for income and wealth taxation unresolved.
The Tax Cuts and Jobs Act of 2017 imposed a one-time, shareholder level tax on the undistributed earnings of foreign corporations owned by U.S. shareholders (the Mandatory Repatriation Tax or MRT). Charles and
Kathleen Moore owned shares in KisanKraft, an American-controlled corporation in India, which had undistributed earnings subject to the tax. As a result, they owed $14,729 in taxes on KisanKraft’s income even though they had not received any distributions from the corporation. They paid the tax and then sued for a refund, arguing that the tax was unconstitutional because it taxed unrealized income. “Realization” generally refers to the conversion of an intangible right into money or other property. For example, a corporate shareholder realizes income when dividends are paid because the distribution converts some of their shares’ value into money. In contrast, the Moores themselves did not realize income because they never received money or property from KisanKraft, even though KisanKraft realized income.
The Moores argued this violated the Constitution. The Constitution distinguishes between “direct taxes” and other types of taxes. Direct taxes must
be apportioned among the states. This means the aggregate amount of direct taxes collected from taxpayers in each state must be in proportion to states’ populations. The precise definition of “direct taxes” is unclear, but the Sixteenth Amendment expressly authorizes Congress to tax “incomes, from whatever source derived, without regard to any census or enumeration” (emphasis added). In other words, income can be taxed without apportionment.
would tax unrealized income. A victory for the Moores would potentially undermine the constitutionality of such proposals.
The majority avoided the definitional issue raised by the taxpayers, leaving important questions about the Constitutional requirements for income and wealth taxation unresolved.
The Moores argued that the MRT did not tax “income” within the meaning of the Sixteenth Amendment because it taxed unrealized income. Instead, they argued, it was a direct tax subject to apportionment and, since it was not apportioned, it was unconstitutional. Although the MRT did not affect many taxpayers, this argument had broader implications. Several proposals championed by wealth tax proponents, including President Biden’s proposed “Billionaire Minimum Income Tax,”
The District Court dismissed, and the Court of Appeals for the Ninth Circuit affirmed the dismissal. The Supreme Court granted review on the question of “[w]hether the Sixteenth Amendment authorizes Congress to tax unrealized sums without apportionment among the states.” However, the majority declined to resolve this question. It focused on a different issue: Can Congress “attribute an entity’s realized and undistributed income to the entity’s shareholders or partners, and then tax the shareholders or partners on their portions of that income?” Their answer was yes.
The majority began by reviewing business tax regimes. Namely, the income of partnerships and some corporations (called S corporations) is attributed to their owners, who are taxed as if they had earned the income directly. Controlled foreign corporations like KisanKraft are also subject to laws that attribute some of their income (known as “subpart F income”) to shareholders. Longstanding precedents affirmed the constitutionality of these regimes.
The majority reasoned that “the Moores cannot meaningfully distinguish the MRT from similar taxes such as taxes on partnerships, on S corporations, and on subpart F income.”
In upholding the MRT, the majority seemed concerned about maintaining the structure of the tax system, noting that a contrary holding “could render vast swaths of the Internal Revenue Code unconstitutional.”
Their narrow holding was “limited to: (i) taxation of the shareholders of an entity, (ii) on the undistributed income realized by the
entity, (iii) which has been attributed to the shareholders, (iv) when the entity itself has not been taxed on that income.” It did “not resolve [the] disagreement over realization.”
However, the concurring and dissenting opinions provide some clues as to how the Court may resolve that issue in the future. Justice Jackson’s concurring opinion suggested she believes there is no constitutional requirement for realization. However, Justice Barrett’s
concurrence (joined by Justice Alito) and Justice Thomas’s dissent (joined by Justice Gorsuch) suggested that at least four justices may believe the Sixteenth Amendment does include a realization requirement. Together, these opinions suggest that the Court may be open to revisiting the issue, and at least four justices may be inclined to hold that realization is a constitutional requirement. If so, such a holding would likely also render many proposals to tax wealth unconstitutional.
Michelle Layser
Maimon Schwarzschild
Professor of Law
National Rifle Association of America v. Vullo: Government Pressure to “Cancel” Free Speech is Unconstitutional— At Least if the Pressure is Flagrant Enough
In late May, 2024, the Supreme Court decided the first of several cases involving corporate censorship or “cancellation” of free expression. In National Rifle Association of America v. Vullo, the Court ruled unanimously that the NRA has a First Amendment claim that is sufficient to survive a motion to dismiss in its lawsuit against the New York State Department of Financial Services (DFS) for pressuring banks, corporate financial institutions, and insurance companies to stop providing business services to the NRA because of its stance on guns and the Second Amendment
As alleged in great detail by the NRA’s lawsuit, then-DFS Superintendent Maria Vullo convened meetings with insurance executives and, speaking in the names of DFS and then-Governor Andrew Cuomo, expressed a desire to weaken the NRA. Vullo pointed out that the insurance companies were in technical violation of certain DFS rules in matters unrelated to guns or the NRA, and
suggested that DFS would overlook these if the companies stopped providing insurance to the NRA. Soon thereafter, Vullo issued “Guidance Letters” suggesting that banks and insurance companies would fulfill “their corporate social responsibility” by cutting ties with the NRA, and would court “reputational risk” by failing to do so.
New York law vests the DFS with extensive licensing, rulemaking, and enforcement authority over financial services and insurance. New York is a world financial center: any risk to the legal ability of banks or insurers to do business there would clearly be of grave concern. And “reputational risk” is a term of art: it can be a factor for the licensing of a bank or insurance company.
In short order, several insurers and financial institutions cut their ties to the NRA. The chairman of one of the NRA’s insurers “placed a distraught telephone call to the NRA” saying
that the company was severing its ties with the NRA to avoid “losing [its] license to do business in New York.” The DFS entered into consent decrees with several insurers, who undertook not to underwrite any further NRA-endorsed insurance programs—such as “affinity” insurance schemes for members—even if such programs would otherwise be lawful.
The Second Circuit Court of Appeals held that Vullo’s alleged actions were permissible government speech and legitimate law enforcement, not unconstitutional coercion. The Circuit Court also held that even if the NRA’s Complaint stated a First Amendment violation, the law was not clearly established and hence Vullo was entitled to qualified immunity.
Reversing the Second Circuit, the Supreme Court affirmed that the government and its officers have the right to express their views on public issues. But the government violates the First Amendment if it employs threats or coercion to suppress lawful advocacy. This is true whether the coercion is directed against the speaker, such as the NRA itself, or against intermediaries providing essential services like banking or insurance to the speaker.
A question that remains open after Vullo is where the line is drawn between the government legitimately expressing its own policy views, and the government implicitly threatening or coercing private persons, thereby discouraging or suppressing the expression of differing views.
In another case before the Supreme Court, Murthy v. Missouri, the Biden Administration and various federal agencies are charged with pressuring social media platforms to block or
A question that remains open is where the line is drawn between the government legitimately expressing its own policy views, and the government implicitly threatening or coercing private persons.
censor conservative views—considered by the Administration to be misinformation—on topics such as Covid policy and election integrity. In that case, the Biden Administration vigorously defended the propriety of exerting its influence in the way it did.
In Vullo, the pressure and thinly veiled threats by New York State authorities against the NRA’s insurers were evidently flagrant enough, if the NRA can substantiate them, to discredit the State’s course of conduct and the Second Circuit’s decision condoning it. Seemingly at odds with its stance in Murthy—or perhaps in hopes of enhancing its credibility in that case—the Biden Administration filed an amicus brief in Vullo, essentially on behalf of the NRA. The Supreme Court’s decision was unanimous, reinstating the NRA’s case, and was written by Justice Sotomayor. Justice
Jackson filed a brief and uneasy concurrence, but did not dissent.
Much government pressure will seem less flagrant, however. In future cases where it may be more debatable whether the government’s efforts to influence or to narrow public discussion are threatening or coercive, the Supreme Court will very likely no longer be in unanimous agreement.
But New York State clearly went too far. As Justice Sotomayor wrote: “Vullo was free to criticize the NRA … She could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy. Because the [NRA] plausibly alleges that Vullo did just that, the Court holds that the NRA stated a First Amendment violation.”
Maimon Schwarzschild
Dov Fox
Herzog Research Professor of Law Director, Center for Health Law Policy & Bioethics
Doctors Had No Standing to Challenge Abortion Pill Ban in Food and Drug Administration v. Alliance for Hippocratic Medicine
The healthcare clinics where people go for surgical abortion have shuttered at a rapid clip since 2020, owing first to the COVID-19 pandemic and then to the criminal bans triggered by the fall of Roe, which brought medical and legal risks to in-person doctor’s visits. These developments helped to make medication abortion the most common way that Americans end a pregnancy today. Medication abortion uses a couple drugs, the main one a prescription hormone-blocker called mifepristone.
The Food and Drug Administration approved mifepristone in 2000, and in 2021 lifted its in-person mandate to get the pill at a hospital or health clinic, a requirement that it had otherwise reserved for drugs like opioids and antipsychotics that pose substantial risks of dangerous side effects, abuse, or overdose. For mifepristone, studies reliably show that it is effective for at least the first ten weeks of pregnancy and as safe as aspirin, including
when it’s administered over the counter or by mail at home, without the need to test blood, conduct ultrasounds, or undergo anesthesia.
The sweeping abortion bans in half of all states cover medication abortion too. Even so, people in these states can have the pills delivered to their doorstep in a discrete package at little or no cost from providers both here and abroad. That pipeline flowed faster after a handful of states that support abortion access enacted “shield” laws that try to give clinicians legal cover to conduct telehealth appointments and mail abortion pills to women in places that deny access.
Against this evolving landscape, a group of anti-abortion doctors called the Alliance for Hippocratic Medicine challenged the FDA’s approval of mifepristone and its expansion of access to the drug, for example, permitting nonphysicians like nurse practitioners to prescribe it. The U.S. Supreme Court, in its first abortion
case since overruling Roe two years ago, held that the Alliance doctors didn’t have a right to bring those challenges because they couldn’t demonstrate that the FDA’s actions had caused them any actual or imminent injury. Unable to show harm, they lacked standing to sue.
ground that organizations shouldn’t be able to sue on behalf of their members, rejecting the doctrine of associational standing that would afford plaintiffs two chances to raise the same challenge, once as members of an association and, if that fails, as individuals.
But the Court’s decision doesn’t end the legal battle over abortion pills.
Writing for a unanimous Court, Justice Brett Kavanaugh explained that the Alliance doctors themselves don’t prescribe mifepristone and have never had to treat a patient experiencing a rare serious adverse event from mifepristone (common side effects include sharp cramping and bleeding similar to an unusually heavy period). Nor did the Alliance doctors present evidence that the FDA’s actions increased the patients who sought treatment from them, diverting their time and resources from other patients. Finally, federal and state conscience laws protect them from being required to perform emergency abortions, even if continued pregnancy would threaten a woman’s life or health.
The Supreme Court’s decision reversed lower court rulings in favor of the Alliance. In concurrence, Justice Clarence Thomas wrote that he would have denied standing on the
FDA v. Alliance for Hippocratic Medicine leaves mifepristone—for now—available wherever abortion is otherwise legal, and doctors can continue to prescribe it virtually via telehealth. But the Court’s decision doesn’t end the legal battle over abortion pills. In effect, it leaves access in the hands of whichever administration takes over should the next president wish to exert that control over future FDA actions. Meanwhile, Idaho, Kansas, and Missouri have already brought new plaintiffs before lower courts to argue that they have the standing that the Alliance doctors lacked to challenge the FDA’s past decisions on mifepristone. And after the Court’s decision in Loper Bright Enterprises v. Raimondo overruling the Chevron doctrine, courts are no longer bound by that forty-year precedent to defer to agency judgment like the scientific expertise that the FDA exercised in evaluating the safety and efficacy of mifepristone.
Congress could also enact a national ban on abortion, including medication abortion, or revive the Comstock Act, a nineteenth-century obscenity law that forbids the mailing of lewd or obscene writings, or objects that could be put to uses deemed indecent or immoral. During oral arguments in FDA v. Alliance, Justices Thomas and Alito had suggested that under the Comstock Act, mailing or receiving information or items related to abortion constitute a federal crime. But the Court’s opinion did not ultimately mention the long-defunct statute,
an expression of Victorian ideas to police sex and gender. If the next mifepristone challengers can prove that they were harmed by the FDA’s actions, then the future of medication abortion could turn on whether Justices Alito and
Thomas can convince three more justices to resuscitate that zombie law and extend its reach to cover the abortion pills that are central to abortion access writ large.
Dov Fox
Donald Dripps
Warren Distinguished Professor of Law
Grants Pass v. Johnson Rejects Eighth Amendment Challenge to Anti-Camping Ordinances
In Grants Pass v. Johnson, the Court rejected an Eighth Amendment challenge to the city’s anti-camping ordinances. The plaintiffs claimed that the city punished homeless people based on status, rather than conduct. Under Robinson v. California, punishing status as such violates the constitution’s prohibition of “cruel and unusual punishments.”
One of the city’s ordinances, (GPMC) 5.61.020, prohibited sleeping “on public sidewalks, streets, or alleyways.” Another, (GPMC) 5.61.030, forbade “[c]amping” on public property. The city defined “camping” as setting up or remaining at a “campsite.” “Campsite” was in turn defined as “any place where bedding, sleeping bag[s], or other material used for bedding purposes, or any stove or fire is placed ... for the purpose of maintaining a temporary place to live.” A third ordinance, (GPMC) 6.46.090, prohibited both “camping” and “overnight parking” in city parks.
The city’s municipal code authorized the police to issue traffic-ticket-like citations for violations. Repeated violations could lead to an order prohibiting presence in city parks for thirty days. Anyone found in violation of such an order was subject to prosecution for criminal trespass, with a potential penalty of up to thirty days in jail and a $1250 fine. In holding the statute unconstitutional, the Ninth Circuit relied on its previous decision in Martin v. Boise, which held that “an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.”
The Supreme Court reversed, repudiating the Ninth Circuit’s Martin doctrine. Justice Gorsuch wrote for a six-justice majority that the city prohibited “actions like ‘occupying a campsite’ on public property … .” On its face the ordinance did not target the homeless. It made “no difference whether the charged defendant
is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.” There was no record of enforcement in case like those hypothesized. Still, the ordinance on its face reached the cases Justice Gorsuch described.
Understood as a prohibition on conduct that homeless people are more likely to violate than others, the city’s ordinances were more like the law against public intoxication upheld after Robinson in Powell v. Texas. Powell had argued that the public intoxication laws punished the status of being an alcoholic, just as the law in Robinson had made it a crime to be addicted to narcotics. The Powell Court rejected this argument. Much criminal conduct is strongly impelled by sympathetic circumstances, but so long as a voluntary act is required for conviction there is no violation under Robinson. Even addicts who face withdrawal symptoms if they quit can be convicted of possessing illegal drugs, let alone extrinsic crimes like theft that are motivated by cravings for another fix (see Moore v. United States).
Litigation over anti-camping ordinances will continue. Both the majority and the dissent noted that rejection of the Eighth Amendment argument left open other challenges based on due process, selective prosecution, and the void-for-vagueness doctrine. To these might be added claims under the Fourth Amendment’s protection of the right to freedom from arrest in public spaces, and challenges under the religion clauses in cases like Grants Pass where the available shelter requires religious observances.
Justice Sotomayor took the unusual step of reading her dissent from the bench, a dissent
joined by Justice Kagan and Justice Jackson. Given how clearly Powell pointed toward reversal this seems surprising. Powell may be harsh, but not equivocal. If the constitutionality of a criminal law depended on whether the prohibited act was “voluntary,” major criminal law doctrines about actus reus, duress, and necessity would become the province of the federal courts rather than legislatures.
Litigation over anticamping ordinances will continue, as both the majority and the dissent noted that rejection of the Eighth Amendment argument left open other challenges.
Given the increasingly familiar conservativeliberal split, it may be that the dissenters saw in Grants Pass another chapter in the story of the Roberts Court invoking originalism to undo the work of the Warren Court. There’s some basis for the concern. Justice Gorsuch quoted from the statement by the plurality in Powell that the cruel-and-unusual punishments clause “‘has always been considered, and properly so, to be directed at the method or kind of punishment’ a government may ‘impos[e] for the violation of criminal statutes.’”
The justices have long agreed that the Eighth Amendment forbids torturous “methods or kinds” of punishment. If, however, “cruel and unusual” means only torturous methods, it would not limit the application of the death penalty (provided the execution did not involve torture). If Justice Gorsuch meant that the Eighth Amendment is “directed” exclusively at “the method or kind of punishment,” the Court’s landmark death penalty decisions would be vulnerable to reconsideration on originalist grounds.
Powell predated the landmark death penalty decisions in Furman and Gregg. Those decisions and their extensive progeny prohibit the standardless imposition of the death penalty—a permissible method of punishment. The Powell language of course doesn’t mention the guideddiscretion regime in capital cases, because that regime didn’t exist when Powell was decided. If the dissenters apprehend an originalist reconsideration of Furman—and the potential wave of executions that could follow—the vigor of the dissent becomes more understandable.
Donald Dripps
The Law School is grateful to the law librarians at USD’s Pardee Legal Research Center, and in particular to Elizabeth Parker and Sasha Nuñez, for their hard work on these essays.