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U.S. Supreme Court
We are in the midst of dramatic changes in many areas of constitutional law. Thirty years ago, I wrote the first edition of a constitutional law casebook. I have just completed the seventh edition, and never has so much changed from the prior edition or since I began writing the book.
In just the last two years, the U.S. Supreme Court has overruled Roe v. Wade; dramatically expanded gun rights; found that teachers have a First Amendment right to pray at school events; imposed a major limit on federal administrative agencies; ended affirmative action by colleges and universities; and held that people have a First Amendment right to refuse to comply with anti-discrimination laws when it forces them to engage in expressive activity with which they disagree.
On Oct. 2, the court begins the October 2023 term. About half the docket is set with the cases in which review was granted before the justices adjourned for their summer recess. The court will continue to take cases to be argued this term until mid-January. Based on what is on the docket now and what is likely to be granted, three areas seem to be especially important: administrative law, gun rights, and the internet and social media.
Administrative law
In the last two years, the Supreme Court has used the “major questions doctrine” to invalidate important aspects of federal regulatory power. The major questions doctrine provides that federal administrative agencies can act as to major questions of economic or political significance only if there is clear direction from Congress. In West Virginia v. Environmental Protection Agency, in 2022, the court ruled 6-3 that the EPA lacked authority under the Clean Air Act to regulate greenhouse gas emissions from coal-fired power plants. In Biden v. Nebraska, this year, the court used this doctrine to invalidate the Biden administration’s student loan forgiveness program that would have benefited 43 million Americans.
This term, there are several cases that portend even greater limits on federal administrative power. In Consumer Financial Protection Bureau v. Community Financial Services Association of America, Limited, to be argued Oct. 3, the court will review a decision of the U.S. Court of Appeals for the 5th Circuit that declared an entire agency unconstitutional. The Fifth Circuit ruled that the Consumer Financial Protection Bureau is unconstitutional because it receives funding directly from the Federal Reserve, which collects fees from member banks rather than from yearly appropriations from Congress.
Securities and Exchange Commission v. Jarkesy, which has not yet been set for argument, could radically change administrative law. In a stunning decision, the Fifth Circuit ruled that Congress had violated the Seventh Amendment by empowering the commission to bring administrative proceedings seeking civil penalties. The Fifth Circuit also held that Congress had improperly delegated legislative power to the SEC by giving the agency authority to choose, in particular cases, to seek civil remedies by instituting administrative proceedings rather than filing suit in district court. And the Fifth Circuit held that it was unconstitutional for the Securities and Exchange Commission to bring administrative enforcement proceedings against those violating federal law.
If the Supreme Court agrees, countless federal agencies will be greatly hindered in their ability to enforce the law. It will be the most dramatic limit on federal agency power since the 1930s.
But it is not even the administrative law case that is likely to receive the most attention. In 1984, in Chevron v. Natural Resources Defense Council, the justices held that federal courts should give deference to agencies when they are carrying out their authority under federal statutes. For example, this means that when the Environmental Protection Agency is acting to enforce the Clean Air Act or the Clean Water Act, courts should defer to the agency’s view of the law and what is needed to protect the environment. Business has long opposed this and wants to empower courts to overrule more regulations. Loper Bright Enterprises v. Raimondo, which has not yet been set for argument, expressly poses the issue of whether the court should end Chevron deference. (Disclosure: I wrote an amicus brief for Sen. Sheldon Whitehouse, D-RI, and three other senators in Loper Bright Enterprises v. Raimondo.)
And the high court is likely to take yet another administrative law case from the Fifth Circuit: Alliance for Hippocratic Medicine v. FDA. A federal district court invalidated the Food and Drug Administration’s approval of mifepristone, a drug used to induce abortions. This is the first time a court overturned FDA approval of a drug. The Fifth Circuit reversed in part, allowing the drug to remain on the market, but it invalidated FDA regulations that made access easier.
Gun rights
In New York State Rifle & Pistol Association v. Bruen, in 2022, the Supreme Court held that gun regulations violate the Second Amendment unless they were a type that historically existed. For all other constitutional rights, the government can act if it meets the appropriate level of scrutiny, such as by showing that its action is necessary to achieve a compelling interest. But the court rejected that for the Second Amendment.
Following Bruen, in United States v. Rahimi, the Fifth Circuit declared unconstitutional a federal law that makes it a crime for a person under a restraining order in a domestic violence case to possess a firearm. Zackey Rahimi, a Texas man, assaulted his girlfriend and threatened to shoot her if she told anyone about the assault. A Texas court entered a domestic violence restraining order against Rahimi and barred him from possessing a gun. About a year later, while the order was still in effect, Rahimi was a suspect in a series of shootings. Police officers searched his home pursuant to a warrant and found a pistol, a rifle and ammunition. Rahimi was convicted of violating the federal law and sentenced to six years in prison.
But the Fifth Circuit reversed his conviction and declared the federal law unconstitutional, violating the Second Amendment because there were not restrictions on firearms in domestic violence cases in 1791 when the amendment was ratified. The Supreme Court granted review and will hear oral arguments Nov. 7.
Internet and social media
Looking ahead to what else may be on the docket, it is easy to see that this could be the most important term yet in cases dealing with the internet and social media. Two cases to be heard on Oct. 31—O’Connor-Ratcliffe v. Garnier and Lindke v. Freed—involve whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social media account when the official uses the account to communicate about job-related matters with the public.
In Biden v. Missouri, the Fifth Circuit upheld an injunction against the White House, the FBI, the Center for Disease Control and others from communicating with social media platforms to coerce or encourage them to remove false speech. Justice Samuel Alito, as circuit justice, stayed the Fifth Circuit’s order and the Supreme Court seems destined to hear the case.
Perhaps most important, there are petitions for certiorari pending in two cases of great significance concerning the ability of state governments to regulate the internet: NetChoice v. Attorney General, State of Florida and NetChoice v. Paxton. Florida and Texas adopted laws that prohibited internet and social media platforms from engaging in content moderation and imposing stringent disclosure requirements. The U.S. Court of Appeals for the 11th Circuit declared the Florida prohibition on content moderation to violate the First Amendment as impermissible government control of private media companies. The Fifth Circuit, though, came to the opposite conclusion and upheld the Texas law. The conflict between the circuits makes Supreme Court review very likely, and the stakes are enormous in terms of how the internet and social media can be regulated. (Editor’s note: The court granted certiorari in these cases Friday. See “Supreme Court to consider laws that block social media from removing certain content and users.”)
In conclusion
These, of course, are only some of the cases already on the docket and many more will be added. Among matters that could come to the court is whether former President Donald Trump is disqualified from again running from president by Section 3 of the 14th Amendment. Although the cases now are in lower courts, it seems imperative that this be resolved relatively early in the election season and thus may come to the court on an expedited basis.
The one sure thing is that the October 2023 term will be another monumental year in the Supreme Court.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
Updated Sept. 29 to note new grants of certiorari.
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