October 26, 2023
The U.S. Supreme Court began its current term this month. Between now and June 2024, the court will consider a range of cases. Some of them will impact the meaning and reach of critical constitutional principles, such as separation of powers, freedom of speech, and property rights. The court is also expected to add additional cases to its agenda throughout the term, some of which may further affect freedom of speech.
Decisions of which petitions for certiorari the court will grant – i.e., which lower court decisions it will review – are made when four justices vote to take a case. Although there are no formal rules for which cases the Supreme Court will take, typically such a case raises a legal issue on which it would be helpful for the court to establish precedent. For example, a case that has resulted in different conclusions from different appeals courts – so that the same law is applied differently based on which part of the country a case arises in – would be a good candidate.
Here are three issues the court has agreed to address this term.
Power of Executive Agencies
Loper Bright Enterprises v. Raimondo and a companion case involving the same issue ask the court to revisit a 1984 case, Chevron v. Natural Resources Defense Council, on the power of executive agencies. The earlier decision established the principle (referred to as “Chevron deference”) that a court will always defer to an administrative agency’s regulation if that regulation is “reasonable.” Both on paper and in practice, that is a very deferential standard. This rule has been criticized because in our constitutional system, an agency’s power is intended to be limited to applying existing laws enacted by the legislature.
The argument in this case is that Congress passed a law regarding federal observers on fishing boats but did not specify how their salaries would be paid. The National Marine Fisheries Service issued a rule that the fishing boat owners would have to pay, and that rule has been challenged in this case.
The issue raised in this case is obviously foundational. If courts always defer to agencies, it creates a political incentive for elected lawmakers to draft intentionally vague laws, because doing so passes accountability for some of the most controversial and specific policy decisions to executive branch agency regulations. In short, judicial deference to executive agencies leads to these agencies exercising legislative power – creating laws in the absence of specific direction from Congress. This involves the concept of separation of powers.
Regulations on Speech
National Rifle Association v. Vullo involves the New York Department of Financial Services (DFS), which allegedly told “financial institutions doing business with” the National Rifle Association (NRA) that they could be penalized for that association. Specifically, the NRA claims that DFS
(1) warned regulated institutions that doing business with Second Amendment advocacy groups posed “reputational risk” of concern to DFS; (2) secretly offered leniency to insurers for unrelated infractions if they dropped the NRA; and (3) extracted highly-publicized and over-reaching consent orders, and multi-million dollar penalties, from firms that formerly served the NRA.
The U.S. Court of Appeals for the Second Circuit rejected the NRA’s claim. According to the NRA’s petition to the Supreme Court, the appeals court suggested that the government can’t be found to have retaliated against someone for their speech unless the government cannot show any government interest in its actions. In other words, if the government gives a reason for retaliating against a speaker, it is allowed to retaliate. This barrier to bringing a viable lawsuit against a government agency for retaliation could undermine free speech, since an agency can always manufacture a rationale for its decisions.
This case gives the court an opportunity to give guidance to government agencies about how they interact with those they regulate when those regulations can implicate the rights of individuals and organizations with controversial opinions.
Regulations on Property Use
Sheetz v. County of El Dorado raises an issue the court has discussed before. The court has held in the past that the constitutional requirement to compensate a property owner when the government takes property applies when a government regulation decreases the value of the property. These prior decisions involved executive agency decisions, but this term’s case involves legislation that imposed a “traffic mitigation impact fee” on homeowners.
The California Court of Appeals adopted a rule that if an imposition that affects the value of property is made by the state legislature, the compensation requirement does not apply. This is how courts in a couple of states have ruled, but the Ninth Circuit reached a different conclusion. This case will allow the Supreme Court to settle this discrepancy.
The attorneys for the homeowner in the case argue that the court should prevent “the government from using [the legislative] process to get for free what the Constitution requires the public pay for.” This raises important considerations for the principle of property rights, and it would be helpful for the Supreme Court to clarify those requirements.
Cases the Court is Considering
Two cases the court has been asked to take could have implications for free exercise and other First Amendment principles.
The first, Vitigliano v. County of Westchester, challenges a New York restriction on conversations between people within eight feet of one another outside abortion clinics. A Catholic mother who would like to try to peacefully talk with women who are seeking an abortion is the plaintiff. The Supreme Court upheld a similar law in 2000, so this case asks the court to revisit that prior decision.
In the second, Tingley v. Ferguson, a Christian therapist challenged a Washington law that prohibits counseling intended to “change an individual’s sexual orientation or gender identity.” He argued that this law prohibits his free speech by censoring his conversations with clients about sexuality.
These decisions will have important implications not only for governments, but also for many individual Americans. The court’s role in our system is to ensure that enacted laws – the Constitution and laws made under its authority – are faithfully applied to specific disputes. In doing so, the court is to be the guardian of our established laws. That role makes the court’s work particularly important and worth watching.
Insights: analysis, research, and informed commentary from Sutherland experts. For elected officials and public policy professionals.
- The U.S. Supreme Court has just begun its 2023-24 term, in which it will address legal issues that may set precedent for lower courts.
- The court has accepted important cases about the power of executive agencies, regulatory actions that might limit free speech, and government takings of property without compensation.
- The court will also consider other issues it may address, including at least two important free speech cases.
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