The impact of this is not to be understated: every single regulation issued by the executive branch is now potentially suspect, given the often-tortured interpretations of existing law which underlie so many of them. The decision of how the executive branch may apply federal law now rests with the courts and with Congress, restoring the mutually-reinforcing system of checks and balances which the founders envisioned and which the previous 40 years of law have so perilously undermined. As Justice Neil Gorsuch put in his concurring opinion, Chevron was “[a] revolution masquerading as the status quo.” Just so. Thank heaven that that revolution is – finally – defeated.
The bureaucrats’ day did not improve after Loper-Bright, however. That same day, another tool which the administrative state has used to silence its critics – malicious prosecution on nonexistence offenses – was also gutted in Fischer v. US, which held that the prosecution of January 6th defendants on the specious charge of “obstructing an official proceeding” was nonapplicable, because the charge in question was clearly meant to apply to the destruction of documents and other forms of evidence tampering, rather than to acts of political protest. What’s more, unlike Loper-Bright, Fischer’s majority opinion gained the vote of one of the court’s liberals. Justice Ketanji Brown Jackson – ironically, President Biden’s sole appointment to the highest court – joined the majority opinion, while issuing a surprisingly sensible concurrence, explaining that “Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis.” This is the sort of thing liberals used to say (and mean it), and so we must applaud Justice Jackson for this rare moment of clarity. Unfortunately for the man who appointed her, and his attorney general, that clarity is likely to hamstring their attempt to persecute their political opponents. Hundreds of January 6th defendants’ cases are now substantially complicated, if not nullified by the ruling. And so, in one more way, the administrative state has had its hands tied when it comes to silencing its critics.
As if this were not enough, this Monday, the court stuck in yet another dagger. In Corner Post v Board of Governors, the six conservative justices found that the six year “statute of limitations” on when a regulation can be challenged starts not after the regulation is passed, but rather whenever any entity is harmed by that regulation, In effect, anyone who suffers harm from a regulation now has six years to sue, no matter how old that regulation is. In yet another moment of clarity (though this time from the dissent), Justice Jackson observed about this case: “The tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government.” She is, once more, correct, and we are all the happier for it.
But let’s not mince words: we all know what the real whopper was, and it arrived shortly after Corner Post. That is to say, in Trump v. United States, the court found that a president enjoys absolute immunity for any of his core constitutional duties, and the presumption of immunity for anything else “official,” something which very much includes any and all interactions between that president and officials in his own administration. Not only does this case likely reduce Jack Smith’s absurd indictment of President Trump to splinters, as now every charge must be adjudicated by a district court to determine whether it fell within the scope of President Trump’s powers as president (in other words, whether it’s chargeable at all), but it also absolutely obliterates one of the most insidious powers which the deep state weaponized against Trump before, during, and after his first term in office: namely, it makes clear that anything he orders them to do is just that: an official presidential order. It is not, in other words, a potential crime under any circumstance. Their only option for a bureaucrat in the face of this, therefore, must be to either resign or follow the orders of the president, which is who they are supposed to answer to in the first place.
This immunity is perhaps the most vital weapon any president faced with an entrenched bureaucracy can have. We all remember the flurry of leaks after Trump was elected: the phony “evidence” cooked up by the Clinton campaign which was passed off as raw intelligence. The relentless lawfare waged against Trump from within his own justice department by Special Counsel Robert Mueller. The multiple (pointless) impeachment inquiries. The persistent allegation that every decision Trump made which conflicted with the “interagency consensus” must be somehow criminal. We also know now what the point of this relentless legal warfare was: to force Trump to bend the knee to the unelected “fourth branch of government” which believed it had the right to run Washington unimpeded by the wishes of the people’s chosen representative. They were able to temporarily vindicate that right of rule, thanks to the fact that no one knew how the law was supposed to work when a former president is prosecuted. They might have been able to vindicate it in Trump’s second term had they backed off when he left office.
But they didn’t. Like Icarus with his wings of wax, they let their hubris – and their hatred for Trump – carry them away so greatly that Trump was forced to take the issue to the Supreme Court in order to try to remind them that the president is, actually, immune to charges arising from his discharge of his duties. The justices have now agreed, and as a result, the deep state lost its most effective weapon. We almost have to feel sorry for them; this is a level of being hoist on one’s own petard that is practically Shakespearean. And now, taken together, not only will agencies be second-guessed by courts and the legislature constantly, but their ability to claim that a president’s legitimate (but unfashionable) exercise of his powers is an impeachable offense is nonexistent. A president can only be impeached for high crimes and misdemeanors. Thanks to the court, we now know that none of his official acts were crimes, high or otherwise. In short, the people – and their elected representatives – are back in charge, and in a supreme irony, they are back in charge thanks entirely to the one branch of the federal government which is not elected at all.
Which is why we, at least, are grateful for the existence of the Supreme Court. To be sure, they have not called things perfectly. Their decisions in Murthy v Missouri and in the NetChoice cases certainly suggest that this court is too willing to defer to censors at private companies, and too skeptical of claims that federal power can coerce those censors in any way. However, in the aftermath of these many cases curtailing federal power, perhaps that skepticism was less a reflection of the past and more a prediction of the present: after all, the main weapons which the federal government might use to enforce compliance on private companies – lawsuits and regulation – have been severely curtailed, thanks to the other cases. Needless to say, for President Trump, whose remaining indictments have been complicated to the point of irrelevance, this term was an unqualified victory. For America, it may be, as well. But one thing is certain: this term has been a victory. The administrative state is now presumptively suspect, and the president is now absolutely allowed to clean house. We can only hope that President Trump himself will take that opportunity in the (rather likely) event that he returns to the White House next year.
