SCOTUS Analyses
Analysis: Nash on Trump v. United States
Jonathan R. Nash
The US Court of Appeals for the District of Columbia had issued a unanimous opinion broadly denying the existence of any presidential immunity from criminal prosecution. The US Supreme Court’s opinion, in contrast, was nuanced.
The court concluded that immunity can be available to a president facing prosecution for official acts undertaken as president. In reaching this conclusion, the court acknowledged that no provision of the Constitution explicitly grants immunity from criminal prosecution to the president. Instead, the conclusion follows from the structure of the Constitution, existing precedent on presidential immunity, and practical considerations. The separation of powers inherent in the constitutional design provides the president with authority and freedom to act within the presidential sphere. The separation of powers undergirds Supreme Court cases recognizing presidential immunity from civil lawsuits arising out of a president’s official acts, and recognizing presidential authority to resist subpoenas for documents and information.
The court explained that “[c]riminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession,” and that “[p]otential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decision-making than the potential payment of civil damages.” And, from a practical perspective, the threat of criminal prosecution after a president leaves office might generate “hesitation to execute the duties of his office fearlessly and fairly.” Indeed, “[a] President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office.”
With the justification for immunity thus elucidated, the court then took a nuanced approach to when that immunity would be available. The court set out a taxonomy of acts that will determine whether, and to what extent, a president can assert immunity from criminal prosecution. First, a president enjoys no immunity from prosecutions undertaken with respect to unofficial acts. The court thus rejected the broad claim of absolute immunity for all acts that former President Trump had sought. Second, the president enjoys absolute immunity from criminal prosecution undertaken with respect to acts falling with the core of presidential authority—that is, those acts authorized and recognized by the Constitution itself. Finally, with respect to acts that are official yet lie outside the core of presidential power, a president enjoys a presumption of immunity from criminal prosecution.
The court also explained that, in deciding whether an act is official—and therefore subject to at least presumptive immunity from prosecution—or unofficial—and therefore not subject to an assertion of immunity—a “court[] may not inquire into the President’s motives” for undertaking that act. In other words, an act undertaken by the president should be categorized as official if it qualifies in an objective sense for that categorization, even if the president at the time had unofficial (e.g., personal) motives for taking that act in the first place. Moreover, the court explained, immunity precludes a prosecutor from using “official conduct for which the President is immune . . . to help secure his conviction, even on charges that purport to be based only on his unofficial conduct.”
Strongly worded dissents by Justice Sotomayor (joined by Justices Kagan and Jackson) and Justice Jackson excoriated the majority opinion for putting the president above the law. However, as the majority saw it, the dissents “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”
Of potentially greater practical import is the decision concurring in part filed by Justice Barrett. She expressly declined to join the part of the majority opinion that precluded the introduction of evidence of official acts to help secure a conviction, stating instead that “on this score, I agree with the dissent.” She acknowledged the majority’s concern that allowing evidence of official acts into evidence could prejudice the jury, but concluded that “the rules of evidence are equipped to handle that concern on a case-by-case basis.”
The opinion of Justice Barrett still leaves a majority holding on the evidentiary point, but that majority is only five-to-four on that point, not six-to-three. It is quite possible that, once various cases wend their way through the courts, that the court will be called upon to apply its Trump v. United States holding. And, if that happens, it is conceivable the presentation of the question of immunity in more particular contexts will generate a different majority.
Nash is Robert Howell Hall Professor of Law. His areas of expertise are administrative law, civil procedure, courts and judges, environmental law, federal courts, law andeconomics, legislation and regulation, and property law.
Analysis: Nevitt on Loper Bright Enterprises
Mark Nevitt
The court’s recent decision in Loper Bright Enterprises has enormous implications for environmental law and prospective climate action. While agencies and courts are digesting the ruling, there are four initial takeaways for environmental law.
Less Deference to the EPA and Federal Agencies
Following Loper Bright, federal agencies will be afforded far less deference on matters of statutory interpretation. Loper Bright overruled Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., a landmark case that previously guided questions of statutory interpretation. Chevron held that courts would defer to a federal agency’s interpretation of ambiguous statutory language, as long as that interpretation is reasonable. Chevron deference is now dead. So any environmental rulemaking that goes beyond a clear statutory mandate will be closely scrutinized by federal courts. Many environmentalists are upset about this loss of agency deference, particularly as several existing environmental statutes have been used as a vehicle to address environmental and climate matters.
But the news may not be all bad for environmentalists. After all, an administration hostile to environmental rulemaking may desire to interpret existing statutory language. Recall that the Chevron case involved a Reagan-era interpretation of the Clean Air Act that was deregulatory in nature and would have led to weaker environmental protections. As Professor Cass Sunstein noted, “Chevron told left-of-center judges: Hands off!” So agency interpretation can cut both ways, depending on who is making the rules and interpreting existing statutes.
Greater Power to the Judiciary
As agencies are now afforded far less deference, where will statutory interpretive power lie? The judiciary, with federal courts now poised to have even greater authority over agency interpretation and decision-making. For some, Loper Bright is a necessary reset, merely reaffirming both Marbury v. Madison (“It is the province of the judiciary to say what the law is”) and the Administrative Procedure Act (APA) of 1946. Justice Roberts, writing for the majority, noted that Chevron deference was inconsistent with the APA:
“The APA codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment.”
The court has already addressed numerous environmental cases in recent years (Sackett v. EPA, West Virginia v EPA) and the court has already granted cert on environmental law cases for the coming term. Loper Bright ensures that the court will play an even more important role in shaping environmental law for the foreseeable future.
Less Agency Authority for Climate Action
Following Loper Bright, agencies will struggle to use existing federal environmental statutes to reduce greenhouse gas emissions and address climate change more generally. Since Massachusetts v. EPA, the Clean Air Act has been the legislative vehicle to address federal efforts to reduce greenhouse gas emissions. While Massachusetts v. EPA is still good law, future climate action predicated on the Clean Air Act will face far greater scrutiny.
Greater Variability in Decision-Making
I also envision greater uncertainty in how environmental law and regulations are interpreted as different courts may well interpret statutory language in different ways. This could lead to a patchwork of regulatory standards, causing greater uncertainty. For example, the relatively pro-environment Ninth Circuit may well have a different read of existing environmental law than the more conservative Fifth Circuit. But time will tell how this will unfold, particularly if this divide creates greater regulatory uncertainty for business and environmental groups. Business interests have a special interest in some modicum of stability and certainty. And interpretative uncertainty can complicate long-term planning and efforts to comply with environmental law.
In sum, the end of Chevron deference will lead to a shift in the balance of power from federal agencies to federal courts. Because the court in Loper Bright grounded its reasoning on statutory and not constitutional grounds, Congress could theoretically reinstate Chevron at some future date — but that appears unlikely in the short and medium term.
Nevitt is an associate professor of law whose areas of expertise are environmental law, climate changelaw, national security law, constitutionallaw, and natural resources law.
Analysis: Zhang on Moore v. United States
Alex Zhang
If you didn’t understand the previous paragraph, don’t fear, and read on. The target of Moore is not some obscure provision of the 2017 tax legislation. Instead, it was a preemptive challenge of potential federal taxes on wealth and unrealized gains. Decades of extraordinary capital accumulation have made our age one of record economic inequality. As a result, lawmakers like Elizabeth Warren have proposed taxes on the net worth of ultra-billionaires. Congress does not, in general, tax income until realized. For example, your holdings in Apple stocks are not taxed until you sell them.
This practice—aptly named the realization doctrine—has enabled the richest Americans to reduce their income-tax bills, often to zero. The strategy is elegant and easy. Buy assets that appreciate, borrow against them as collateral to receive funds to live on (borrowed funds are not income under the Tax Code), and die holding such appreciated assets (bequests upon death of appreciated assets are granted full income-tax forgiveness). Both academics and politicians (e.g., President Biden) have thus proposed taxing gains as they accrue rather than upon realization. Especially as to liquid assets like publicly traded stocks, accrual-tax regimes are quite sensible and would raise much-needed funds in a time of astonishing budget shortfalls.
But under the logic of the Moore petitioners, such taxes would be unconstitutional. The 1787 Constitution required Congress to apportion “direct taxes” in accordance with each state’s census population. Ratified in 1913, the Sixteenth Amendment made clear that “taxes on income” need not be apportioned. According to the Moore petitioners, the Sixteenth Amendment only granted Congress the power to tax realized income. In their view, if Congress could not tax accrued but unrealized income under the Sixteenth Amendment, it must apportion accrual taxes in accordance with state population. Apportionment is generally unfair and politically unfeasible. Congress has not attempted an apportioned tax since the 1860s. A constitutional realization requirement would thus doom most proposals of structural tax reform. It would also render unconstitutional swaths of the current Tax Code. Before oral argument, some commentators predicted that Moore could be the most important tax case in a century.
The Court did not take the bait. Instead, it resolved the case on narrow grounds. Writing for the majority, Justice Kavanaugh held that the MRT does not tax unrealized income. That is, while the petitioners-shareholders did not realize any income, the corporation that earned the income (and in which petitioners held shares) did. The proper inquiry is thus whether Congress has the power to attribute the income—realized by the corporation but undistributed to the shareholders—to the petitioners. The majority said yes.
Along with the Chief, Justices Sotomayor, Kagan, and Jackson joined the majority opinion. Justice Jackson also penned a concurrence. Citing academic perspectives, mine included, Justice Jackson emphasized that there was no constitutional realization requirement. After all, the text of the Constitution states no such limit. Joined by Justice Alito, Justice Barrett concurred in the judgment, and grounded her decision in a concession made by the Petitioners. Joined by Justice Gorsuch, Justice Thomas dissented.
Moore was not the bombshell most feared it would be. It also gave no stamp of approval on proposed federal taxes on unrealized gains or wealth. Instead, the court’s narrow decision leaves the important constitutional questions for another day. But the opinions are revealing. There are clearly four votes at the Supreme Court in favor of a constitutional realization requirement. With persuasion and changes in judicial personnel, a fifth vote may not be hard to find. Will the Supreme Court become a key player in crafting federal tax policy? Time will tell.
Zhang is an assistant professor of law whose areas of expertise are tax law and policy, tax-exempt organizations, and administrative law.
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