Folks, I won’t sugarcoat it: This is a deeply disturbing time to work in public policy. However, since I do in fact work in public policy, I want to spend this cycle giving more details and context for the many policy twists and turns of the last few weeks. We’ll return to our traditional format later this month. In the meantime, if you have questions about the material I’m covering today, or news in general, my ask box remains open.
Standard standing reminders still apply: we may be into my eighth year of journalism, but I summarize news within my areas of expertise. NNR summaries often contain some detailed analysis that’s outside my expertise–I’m a lawyer, not a SCOTUS case!–but all offroad adventures are marked with an asterisk. And, of course, for the things that are within my lane, I’m offering context that shouldn’t be considered legal advice. Okay, I think that’s about it for the disclaimers. Onward to the news!
Cleanup in Aisle 45:
Things took a wild turn in the Election Et Cetera section this cycle, as Biden’s abysmal debate performance basically threw the party into disarray and Trump’s immunity case caused chaos as well. Here’s some explanation of those two fronts:
- The Post-Debate Debate. Things were pretty calm ahead of Biden and Trump’s first debate reprisal–or at least, as calm as this election cycle ever gets. During the debate itself, Trump lied like usual, perpetuating the party’s false claims that Democrats kill live babies and claiming that Nancy Pelosi refused protection on January 6. But many outlets were more focused on President Biden’s presentation during the debate, where he came across as discombobulated and enfeebled. Though Biden’s fundraising campaign went into overdrive, several House Democrats began calling for him to step aside almost immediately – and those numbers kept growing. This in turn prompted a flurry of scrutiny and speculation that continues as I type this, particularly as Biden made it clear that he has no plans to conclude his campaign. These stark divides within the Democratic party are deeply concerning, particularly given the threat presented by a second Trump presidency backed by Project 2025. Suffice to say, the Democratic party needs to get on the same page as quickly as possible.
- Immutable Presidential Immunity. Most folks reading this have probably heard by now that the Supreme Court issued a decision regarding Trump’s claim to Presidential immunity last week, and it… wasn’t great. It may be less clear, however, what exactly the ruling means, and how it will impact the election and landscape moving forward. The holding was not comprehensive, but the court did find that Trump has absolute immunity for “core” powers of the office, meaning that he can’t be prosecuted for things he does that are firmly within the constitutional purview of the Presidency to do (such as, for example, pardoning people and commanding the army). The court also found that a former President has presumptive immunity for all ‘official’ acts, but that “there is no immunity for unofficial acts.” The court then sent the whole thing back down so that someone could decide what on January 6 was an “official” act and what was “unofficial” (and thus could be prosecuted). President Biden issued remarks (cogently, I might add) almost immediately, noting that Trump will be “emboldened” by the decision and that the decision undermines the rule of law. He also reiterated the dissenting justices’ point that this ruling encourages an imperial Presidency with dangerously few checks and balances, and correctly observed that this decision virtually guarantees no consequences for January 6 before the election. For his part, Trump immediately celebrated his “BIG WIN” and set out to prove Biden correct. He got the hush money sentencing postponed by arguing that he now has Presidential immunity after the Supreme Court decision–despite the hush money conviction centering on events that happened before he was even President. He also successfully delayed the classified documents case on the same basis, though that case had already slowed to a snail’s pace thanks to the judge presiding over it. As I write this, Senate Democrats are considering legislation that will officially classify his January 6 actions as “unofficial actions” in an effort to get the insurrection case back on track, but it’s unclear whether that will go anywhere ahead of the election.
Unpacking the SCOTUS Barrage:
- Unabashed Administrative Agency Attacks. These cases are the biggest deal that you may or may not have heard about. I urge everyone reading this to think of Loper Bright (and to a lesser extent, Corner Post and SEC v. Jarkesy) as occupying the same role that the Dobbs decision played regarding abortion in 2022 and Students for Fair Admissions played vis-à-vis affirmative action in 2023 – the Supreme Court undid a long-standing and extremely established doctrine yet again with these cases. The Chevron doctrine, in essence, required courts to give deference to administrative agencies regarding those agencies’ interpretation of laws that they have to enforce. The general logic is that these agencies have strong expertise in their areas of practice; expertise that, as Justice Kagan notes in her dissent, courts don’t necessarily have. Now that Chevron is repealed, courts… don’t have to do that, and can just reject agency judgment and substitute their own. In Corner Post, the court compounded this mess by expanding authority to sue federal regulators for decisions they make. In SEC v. Jarkesy, the court removed the SEC’s authority to hold tribunals in many financial fraud proceedings. The dissenting justices in these three cases are absolutely right that these decisions will have all kinds of implications for federal regulations, and the decisions benefit large corporations that don’t want to be regulated much more than anyone else. Expect all kinds of messes as conservatives and corporations all test the boundaries of their newfound lack of accountability. The Washington Post has put together a handy-dandy list of likely train wrecks, but it’s by no means exhaustive.
- Abortion Case Aborted. Though it didn’t receive as much bruhaha as the immunity case or Chevron mess (for understandable reason), the emergency medical care abortion case had implications for our ongoing reproductive health battles and I want to cover it as well. This case started out with an accidental (perhaps “accidental?”) leaked opinion, much like happened with the Dobbs decision two years ago. A few days later, this was followed with an actual opinion along the same lines that simply dismissed the whole thing. (You may recall that something similar happened with the mifepristone case only a week or two before this.) What this means as a practical matter is that Idaho again has to pause its abortion restriction law while the whole thing goes through the ordinary avenues of the lower courts–essentially, SCOTUS punted this question, which in this case is probably a good thing. As a result, the question of whether federal emergency treatment laws preempt state laws that prohibit life-saving abortions is still a live issue, and we will likely see it come up again.
- Other Cases to Know. The Supreme Court also issued a potpourri of (mostly garbage) cases over the last few weeks that may be falling through the cracks right now, simply because there was such a Gish gallop of awful going on. Among the other cases to note: 1) Snyder v. U.S., which held that bribery is cool as long as the payment comes after the corrupt act; 2) the Grants Pass case, which held that criminalizing homelessness is not cruel or unusual punishment; 3) the Harrington case, which voided a massive Purdue opioid settlement and bankruptcy plan; and 4) Murthy v. Missouri, which held that conservative rando conspiracy theorists did not have the standing to sue Biden over content moderation policies.
Looking Ahead:
- Coming Down the Pike. I also want to draw attention to a few cases that SCOTUS agreed to hear next session that I think might be impacted by the stuff I wrote about above. SCOTUS plans to hear the Tennessee ban on gender affirming care for minors gender affirming care in the fall, which is an Equal Protection case but may be impacted by some of the Chevron mess (because the court may opine on definitions of ‘sex discrimination’ that are rooted in law and regulation). I also think the Chevron repeal, in conjunction with the SEC case, may impact the FDA e-cigarette decision case they agreed to hear – though I do have colleagues who disagree with me on that one, because the 2008 Tobacco Control Act provides explicit authority to the FDA. (Frankly, I just don’t think we can trust this court to stay on the rails for basically anything.) Obviously, the Corner Post case paves the way for all kinds of frivolous forced birth lawsuits – we might see something work its way up to SCOTUS extra quickly, the way we saw with Idaho v. United States and EMTALA preemption this year. And of course, though I can’t predict what exactly Trump is likely to wave under their noses between now and January 1, I wouldn’t bet against him filing something regarding one of his billion cases.
So that’s what I have for you, and I’m sorry, there are no news refunds even when we’re doing election and SCOTUS deep dives. For making it through, you deserve this duck grooming video and a more functional government. I’ll be back next time with your regular news structure, and I hope you will be back as well–but in the meantime, feel free to ping the National News Roundup ask box, which is there for your constructive comments. Send me questions! Send me feedback! Send me a better Supreme Court!
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