SCOTUS 2024: Administrative Law, Abortion, Guns, Presidential Immunity, & Ballot Access

Episode Notes

Transcript

Steven D. Schwinn:

To not recognize evolutions in society, changes in the economy, changes in social relationships, changes in the law and understandings of equality and equity issues like that is just taking a blinkered approach to individual rights.

Speaker 2:

Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California. I write a blog named May It Please the court and have two books out titled How To Get Sued and The Sled, and I’ve got a new book coming out tentatively called Bad Decisions, 10 famous Trials that Changed History. Today we’re going to be talking about administrative law, abortion guns, presidential immunity, and ballot access to the former president. These are just some of the upcoming cases that will come before the high court in 2024. How will the justices rule and how could the rulings change the course of our legal system for years to come along with our democratic system and to help us better understand these cases? We’re joined today by returning guest Steven D. Schwinn from the University of Illinois Chicago School of Law. He teaches constitutional law, comparative constitutional law, human rights, and especially designed legal writing class on civil rights. Steve is the founding editor-in-chief of the American Constitution Society, Supreme Court Review and the founding co-editor of the Constitutional Law blog. One of my favorite blogs and welcome back to the show, Steve

Steven D. Schwinn:

Craig, thanks so much for having me again. It’s a true honor.

J. Craig Williams:

Well, Steve, let’s start a little bit with your background, how you got involved with covering scotus? I mean, that’s a pretty narrow little niche, maybe not so much these days.

Steven D. Schwinn:

Well, no, as involved as the court is with public policy and politics, you’ve got to follow the court to be on top of what’s going on in the political world. I’ve been doing this for about 20 years as long as I’ve been teaching constitutional law and my approach in the law classroom with my students is to try to stay on top of what’s going on in the real world. I think internalizing it based on what’s happening in the courts and particularly the Supreme Court Supreme is really the best way for my students to understand constitutional law, and so that’s why I do it.

J. Craig Williams:

Well these days you have to because it changes all the time.

Steven D. Schwinn:

It’s one of those topics in law school that changes all the time, and it’s one of the reasons that I truly love my job. It keeps me on my toes and forces me to stay on top of things.

J. Craig Williams:

I think when I was back in law school, I seemed to think that the Constitution was static, but you’re noticing that it’s, I’m noticing that it’s changing. What’s your impression on whether or not we’re going to see some substantial changes as we go through 2024?

Steven D. Schwinn:

Craig? I think we’re going to see some very substantial changes in 2024 in some of the cases that we’ll talk about in some of the cases that we’re not slated to talk about in particular, one area that I’ve long had my eye on is the Supreme Court’s treatment of the administrative state, the large bureaucracy that sits in Article two under the presidency in our constitutional system, the Supreme Court has long been on a tear to limit the powers of the administrative state, and there are two or three cases up this term that will sharply limit the power of the administrative state if the Supreme Court continues on its trend line,

J. Craig Williams:

And a couple of those are administrative law judges and another one about whether an administrative agency can impose a criminal penalty.

Steven D. Schwinn:

That’s exactly right. Yeah. Core powers of agencies like the Securities and Exchange Commission, the case that you’re referring to and the core funding mechanism for the Consumer Financial Protection Bureau. These are huge cases, and then of course, there are two cases on the docket this term dealing with the So-called Chevron doctrine. That is the deference that the federal courts give to administrative agencies in interpreting federal law and enforcing that federal law. These are all huge cases in terms of the separation of powers and the role of administrative agencies in our separation of powers system

J. Craig Williams:

And jury trials

Steven D. Schwinn:

And jury trials too. Yes, right. Could we ask for more? Right.

J. Craig Williams:

So what do you think the issues are in those cases and why are we seeing such an attack on the administrative entity that we have underlying the legislative branch?

Steven D. Schwinn:

So this is a long running effort on the part of political conservatives to limit the power of the administrative state that they see moving in a progressive or liberal direction. And so we’ve seen arguments kind of bubble up in terms of limiting the power of the administrative state in various different ways. This is a multi-pronged effort to limit the power of the administrative state and to return the power to Congress. Now, what I mean by that is opponents of the administrative state argue that there’s too much law making going on in the Article two branch of our constitution in the administrative bureaucracy, and that these are unaccountable bureaucrats who are making law in significant ways that touch on every area of American life today.

J. Craig Williams:

Have you read the Code of Federal Regulations?

Steven D. Schwinn:

Right? Tell me about it. Extremely detailed, extremely Lenivy, right, and if you hold the CFR, the Code of Federal Regulations up against the United States Code, the actual law that Congress passed, what you see is that agencies are very, very good at filling in significant gaps that Congress intentionally left open for administrative agencies to interpret federal law over time, as we see changes in society, changes in technology, changes in the economy and so forth. And so there are good reasons to allow administrative agencies to engage in this kind of rulemaking and interpretation of federal law, but at the same time, we’re seeing these arguments that administrative bureaucrats are not politically accountable in the way that members of Congress are and that they really shouldn’t be making these kinds of rules and laws.

J. Craig Williams:

Those rules and laws have made an awful lot of changes, say for example, in the EPA.

Steven D. Schwinn:

Well, that’s exactly right, and that’s where we’ve seen the court make some significant moves in recent terms limiting the power of the Environmental Protection Agency. Now, this term we’re likely to see the court limit the power of the Securities and Exchange Commission and the Consumer Financial Protection Bureau to independent agencies that operate in really important areas of American life securities regulation and consumer financial protection and the court’s rulings here I think are going to be significant for those agencies, but may also sweep well beyond those agencies to touch on other agencies that are similarly organized.

J. Craig Williams:

Well, let’s talk a little bit of a switch into the FDA Alliance for Hippocratic Medicine in Danko, the access to abortion pill. That seems to be kind of a parallel here where you have the Supreme Court jumping in and saying, well, maybe we shouldn’t be following these doctors’ recommendations.

Steven D. Schwinn:

Well, that’s exactly right. And the FDA case, the Alliance for Hippocratic Medicine actually follows nicely on our discussion about the courts restricting the power of the administrative agencies in order to see this. Let me give you a little bit of background on the case. This case involves the Food and Drug Administration, the FDA’s approval of a drug called Miry. Miry is the first of two drugs used in a medication abortion. What that means is these are drugs that induce an abortion for women early in their pregnancy, and it’s a true two drug combination miry and then a second drug, the FDA approved miry in 2000 and approved it as a drug that could be used up to seven weeks in pregnancy, but it had to be prescribed in person by a doctor in 2016, and then again in 2019, the FDA changed those rules a little bit to make Opry Stone more widely available.

It allowed Opry Stone to be used up to 10 weeks of pregnancy. It allowed it to be prescribed by non-doctor medical professionals, and it even allowed it to be prescribed by telehealth and mail opponents of abortion challenged the FDA’s initial approval of miry going all the way back to the year 2000, and also challenged those more recent changes. In 2016 and 2019, a federal judge ruled in their favor, the Fifth Circuit affirmed, and now the court case is going to the Supreme Court. The court issue here is did the FDA properly assess the risks and benefits of Mifepristone when it first approved the drug and when it made the changes in 2016 and 2019? Now, I should say Mifepristone is an extraordinarily safe drug. It’s been used for decades in this country and other countries around the world with an outstanding safety record, but opponents of abortion have targeted Opry Stone as their next effort after the Dobbs case a couple of years ago to limit women’s access to abortion.

J. Craig Williams:

Well, how does this all play into the court’s push for originalism and the major questions doctrine?

Steven D. Schwinn:

Right, great question. So what the court is going to be looking at here is whether the FDA properly assessed the drug Mifare stone and the changes that it made in 2016 and 2019. What the court in particular is going to be assessing is whether the lower courts determined that the FDA sort of violated standards of good rulemaking in making the changes in 2016 and 2019, that liberalized access to the drug and made it more available for women who are seeking an abortion. The case doesn’t touch so much on originalism as a constitutional interpretation, but it touches quite a bit on major questions doctrine, or at least potentially does Craig in this way. If the FDA’s move in 2016 and 2019, these more recent liberalization and making the drug more available to women, if the court sees that as a so-called major question, then the court may be leaning against the FDA in liberalizing access to the drug

J. Craig Williams:

And basically saying this is an abortion issue that Congress has to consider. You just can’t weasel around our Roe versus Wade ruling. Right.

Steven D. Schwinn:

I think that’s right, and it’s not entirely clear how much, if at all, the major questions doctrine will play a role in this case, but I think you’re right to ask the question and see it as a potential here. The court has been expanding its application of the Major Questions doctrine ever since it created the doctrine a couple of terms ago. It’s been expanding it in the areas of environmental protection, but also, if you remember last term President Biden’s student loan program, the Major Questions doctrine made an appearance and it very well could make an appearance in this case. If it does, that will represent even a greater expansion of judicial intrusion on the administrative state.

J. Craig Williams:

Right. Well, Steve, at this time, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer Layer. I’m joined by Steven d Schwinn from the University of Illinois Chicago School of Law, where he is the Associate Dean for research and faculty development and a professor of law, and we’ve been talking about the Major Questions doctrine, and I posed originalism in there, but let’s jump into that originalism discussion and get into the Second Amendment because we’ve now got a question of whether a domestic abuse order can prohibit the possession of guns.

Steven D. Schwinn:

Craig, this is an extraordinary case. United States versus Rahimi, this is a case that tests the constitutionality of a federal law that makes it a crime for a person who is under a domestic violence restraining order to possess a firearm. Now, this law to a lot of people makes a lot of good sense, right? People who are subject to a DV protective order are exactly the people that we don’t want possessing firearms because they’re particularly dangerous. They’ve demonstrated that they’re not law abiding and that they’re not particularly responsible persons in the language of the court. Still, the lower court struck this federal law under the Second Amendment applying the methodology that the court first set out in the Bruin case a couple of terms ago. Now, the Bruin case was a Second Amendment case challenging a New York law on concealed carry restrictions. The big turn that the court made in the Bruin case was to move away from, so-called means ends analysis in assessing individual rights under the Second Amendment and move toward a history and tradition approach.

What this meant was the court said that if a government seeks to restrict gun ownership or possession, the burden is on the government to show that there’s a history and tradition in our American system going all the way back to English common law system, that there’s a history and tradition of similar kinds of regulations. Now, what this history and tradition approach meant in the Rahimi case with regard to DV protective orders is that the government had to demonstrate that there was a history and tradition in our legal system of preventing individuals who are under a DV protective order from possessing firearms.

J. Craig Williams:

How could that be? It didn’t even exist.

Steven D. Schwinn:

Exactly right. I mean, the whole idea of a DV protective order is such a relatively recent innovation in our system, much less regulating firearm possession by individuals who are under such a protective order. It just doesn’t line it up, and that’s exactly what the Fifth Circuit said. It said, the government cannot meet its burden in demonstrating that we have a history and tradition of this kind of law, and therefore the law is invalid under the Second Amendment. The Supreme Court heard oral argument on this in the fall, and it’s a case that I think is going to put the justices in knots. This is a court that is committed to originalism and original understanding of the Constitution. It’s applying this history and tradition approach that it really crafted in the Bruin case, and now it’s dealing with what the Fifth Circuit would say is the logical extension of its own reasoning, and that is striking a pretty commonsensical law at oral argument.

The court was seemed to be looking for ways to uphold the law and was drawing on language in some of the court’s Second Amendment cases that said the Second Amendment only protects law abiding citizens, non-dangerous people or responsible persons and the like. And that Rahimi himself had demonstrated that he is not law abiding and that he is dangerous and that he’s not responsible. And so if anybody is a kind of poster child for non possession of a firearm while they’re under an DV restraining order, it really is rahimi and the court seem to recognize and acknowledge that. So I do expect the court to probably uphold this federal law against the Second Amendment challenge. It’s not entirely obvious to me how they’re going to do that and how they’re going to navigate their own ruling in Bruin, but I expect that that’ll be the outcome of the case.

J. Craig Williams:

How in the world can the Supreme Court under their originalism theory here a case that would involve the United States Air Force? It’s kind of a sarcastic question. I said, how in the world could the Supreme Court under their originalism theory hear a case involving the United States Air Force since it didn’t exist when the Constitution

Steven D. Schwinn:

Was written? Exactly. Oh, goodness gracious. Yeah, and that, yeah, exactly. And the similar idea comes up in Rahimi because again, we just didn’t even have DV restraining orders for such a long period of our history and so many other things with regard to Second Amendment rights and so many other things with regard to other rights we just have not had over our country’s history. And so to not recognize evolutions in society, changes in the economy, changes in social relationships, changes in the law and understandings of equality and equity issues like that is just taking a blinkered approach to individual rights. But Craig, that’s where the court is these days.

J. Craig Williams:

Right. I’ll get to it at the end of the show, but my personal opinion is I’m waiting for the musket opinion out of the Supreme Court.

Steven D. Schwinn:

I think that’s got to be the next thing, and I’m actually looking forward to reading this ruling because the court is really going to have to do some logical acrobatics to get around its ruin ruling, and I’m intensely curious to see how it’ll do that.

J. Craig Williams:

Right. Well, let’s jump to another intensely curious issue, presidential immunity from January 6th. We’ve got special Counsel Jack Smith that knocked at the window. It didn’t work, and the potential SCOTUS review this coming up as a result of what apparently was a kind of a hostile, hostile bench when that question came to the circuit.

Steven D. Schwinn:

That’s exactly right. So this case went to the DC circuit after the Supreme Court denied review before judgment of the district court ruling, and what that means is the Supreme Court simply declined to step in early before the appellate court had a bite at the apple. The appellate court did take its bite at the apple at oral argument on January 9th, and this was a skeptical, or as you say, hostile bench to former president Trump’s really extraordinary claims of absolute immunity from prosecution for his involvement in the January 6th insurrection. What he claimed was that he is absolutely immune from prosecution for any of his actions that led to the January 6th insurrection. Here he’s adopted an argument that we really have never seen before in American history that a former president is categorically absolutely immune from criminal prosecution for acts taken during their presidency.

J. Craig Williams:

And there we are. Quilt. Steve, let’s take time to take another break to hear a quick word from our sponsors. We’ll be right back and welcome back to lawyer, lawyer. I’m back with Steven Dhir, Schwinn from the University of Illinois Chicago School of Law. We’ve been discussing the first of a couple of President Trump’s or former President Trump’s issues. What do you think the impact of the ruling is going to be? What’s your prediction on the outcome of the codis taking up the presidential immunity issue?

Steven D. Schwinn:

So I think what’ll happen is the DC Circuit will rule against former President Trump. I think the Supreme Court will take it up and probably similarly rule against Trump, although maybe not, but at that point, I’ll tell you, Craig, I think that Trump will have succeeded in what he’s trying to do here. I don’t think Trump’s trying to actually win the case. I think what he’s trying to do is stall the case in hopes that he gets elected to the presidency in the 2024 election and then he can order this investigation and this prosecution halted. This is a strategy that we saw him employ throughout his presidency that is try to stall in the courts, try to run the clock in the courts until either he’s able to take some other action or the action becomes moot. And he was successful in that strategy and in a number of different ways during his presidency, and I think very well may be successful in that strategy in this case if he were to get elected in 2024. But I’ll tell you, even if he doesn’t get elected in 2024, this case is likely to drag out well beyond 2024 and 2025, and so it’s not entirely clear whether Trump will see any accountability for his role in the January 6th insurrection.

J. Craig Williams:

What makes you think it will extend out that long

Steven D. Schwinn:

Trump has made a number of spurious arguments in the lower courts, not just on immunity, but other things as well that have been pretty transparently designed simply to delay the process? I expect that he will continue to do that through the appellate process and through the Supreme Court. If and when the Supreme Court rejects his claim for immunity, the case will go back to the trial court for trial that’s currently slated for early March, 2024, just a couple of months away. But I expect that Trump will continue to employ delay tactics even at the trial court, even if it’s able to go forward on March 4th. And even if it is able to go forward on March 4th, and even if he were convicted in the trial court, he’ll appeal that conviction and the appeal of that conviction then could take certainly months or years at the least. And so I think we’re in this for the long haul.

J. Craig Williams:

I’ve said it before and I’ll say it again when I went to the Supreme Court and walked down the hallway, there are lamps there that are on the backs of turtles symbolizing the slow and steady base of justice.

Steven D. Schwinn:

It really is, and I’ve got to say the courts have institutional constraints in moving quickly. I think you’re exactly right, but the Supreme Court did not do speedy justice any favors here by declining the Special Counsel’s request for expedited review prior to the appellate court ruling. They really played directly into Trump’s hands in trying to delay this process as long as he possibly can.

J. Craig Williams:

Do you think that was intentional?

Steven D. Schwinn:

It’s hard to say. The Supreme Court I think is going to benefit from the DC circuit’s consideration of the case on the one hand, and so there’s a good reason to allow the ordinary process to run its course. But on the other hand, Craig, I got to tell you, the immunity claims that Trump is pitching here are so I don’t want to sound partisan about this, but they’re just so outlandish and off the wall.

J. Craig Williams:

I was going to say outrageous.

Steven D. Schwinn:

Yeah. Yeah, and it’s hard to imagine that the Supreme Court couldn’t easily have plucked up this case and simply rejected those claims.

J. Craig Williams:

Well, we have another opportunity that they have to pluck up the case. We’ve got the Colorado Supreme Court and the Minnesota Supreme Court disagreeing in Maine now the Secretary of State disagreeing on whether Trump should even be on the ballot.

Steven D. Schwinn:

Indeed, and so the court has granted cert in Trump versus Anderson. It’s the Colorado case, but you’re exactly right that we’ve got Maine going with Colorado and Minnesota and some other states now declining to remove Trump from the primary ballot for the 2024 election. This involves section three of the 14th Amendment. We’ve heard a lot about this in the press. What Section three says is that anybody who has taken an oath to support the Constitution as an officer of the United States and then engaged in insurrection or rebellion is therefore ineligible to serve as an officer. What Trump has argued is that this is not applicable to him because the presidency is not an office of the United States.

J. Craig Williams:

Doesn’t he take an oath of office?

Steven D. Schwinn:

Well, he does, but what he said is that he took the oath as president, not as an officer of the United States under the language of Section three. Now, that’s slicing the baloney pretty thin, but that’s his position, and given the textual approaches that we’ve seen from the Supreme Court, in other cases

J. Craig Williams:

Surprise you,

Steven D. Schwinn:

It wouldn’t surprise me. It wouldn’t blow my socks off to see the court go with Trump on that issue. Then the other thing, of course, that he says is that he didn’t engage in an insurrection. The big issue in the background here is a question who gets to decide Section three qualification or disqualification for the presidency? The text itself of the Constitution is not clear on that point, and because we’ve had so few opportunities to consider these cases over our country’s history, we don’t have really any kind of history and tradition of any particular branch or official making this decision. Well,

J. Craig Williams:

We have Congress making the decision. The other congressmen from the south can’t become congressmen.

Steven D. Schwinn:

Well, that’s exactly right, and there is an argument that Congress needs to step in and write legislation that would disqualify Trump if he were to be disqualified under Section three. Of course, Congress has not done that, so that’s why we get rulings from the Colorado Supreme Court or the Main Secretary of State on this issue. What they’re doing is employing state law to determine whether a candidate is qualified for the ballot in the same way that they would determine whether a candidate is, for example, a natural born citizen and therefore qualified or not qualified for the ballot and making that call themselves.

J. Craig Williams:

Well, how do states’ rights play into this? I mean, we hear an awful lot from the Supreme Court about states’ rights. Why can’t the states make the decisions about who’s on their ballots and who’s not?

Steven D. Schwinn:

Oh, exactly, and states have a huge role in running elections, even presidential elections as we know from recent experience, and so I think there are serious federalism concerns here, serious state’s rights concerns and state’s ability to make their own determinations. That I think what the court’s likely to say is the problem with that approach is that we’ll get a kind of patchwork results as we’ve already started to see some states saying that Trump is disqualified and other states saying that he’s qualified for the ballot, and so the Supreme Court I think is going to want some uniformity and probably step in some way to achieve uniformity one way or the other. It’s not entirely clear to me how they’re going to go on this,

J. Craig Williams:

But that’s a federal mindset. I mean, there is patchwork uniformity or however you want to say it, there’s a lack of uniformity in the patchwork of the 50 states deciding how they’re going to run their elections and their primaries. We have Iowa caucuses and we have primaries and other states.

Steven D. Schwinn:

Totally agree. That’s exactly right. The only thing I could offer is that I suspect that this case is going to be a lot less about logic and precedent and a lot more about politics.

J. Craig Williams:

Oh, it sure is. Well, let’s get into one last thing before we end this, and we might be going over a little bit in time here, but let’s talk about Fisher versus the United States and whether or not the January 6th defendants that are in criminal prosecution right now, whether what is it, 18 USC 1512 C applies to the obstruction of congressional inquiries?

Steven D. Schwinn:

Yeah, that’s exactly right, and so the question here is whether individuals have corruptly obstructed congressional processes that may have, well, it’s likely to have some direct effect on January 6th. Defendants it may potentially have some impact on one of the charges that Trump himself is subject to for engaging in the January 6th insurrection. Again, that’s all subject to us getting through his claims of immunity, but if we do, there is a question about what this idea of corruptly interfering covers for both the January 6th defendants and potentially for Trump himself as well.

J. Craig Williams:

How could one person have immunity in this situation and another one not?

Steven D. Schwinn:

It’s a really good question. It’s potentially one office could have immunity, but another office couldn’t

J. Craig Williams:

Or a citizen could not, as we have already seen.

Steven D. Schwinn:

That’s exactly right. Yeah, so citizens are not going to enjoy immunity from criminal prosecution for their involvement in January 6th, the president and other officers or certain other officers of the United States might arguably, and that’s what the president’s immunity claim really is all about.

J. Craig Williams:

Right. Well, this has been a tremendously interesting discussion to Steve. I really appreciate your participation and willingness to listen to some of my questions, but are there any questions I should have been asking you that I haven’t?

Steven D. Schwinn:

Well, we covered a lot of ground, Craig. I will say there’s a lot on the court’s docket this term. This is a huge term for the court, and even aside from the other, the cases that we talked about, there are a couple of cases that are likely to be significant in politics and evolution of First Amendment free speech and other doctrines. So for example, there are cases from Texas and Florida regarding those state’s restrictions on websites, self-censoring. On the one hand, there’s a case against the Biden administration for urging websites to scrub their material so that it’s truthful, especially with regard to public health.

J. Craig Williams:

And then there’s the whole religious exemption issue that we haven’t discussed. Steve, we’ve got to have you back on for another show. It’s going to be too much to talk about today.

Steven D. Schwinn:

Yeah. Well, yes, and thank you so much for having me, Craig. It’s been a pleasure and an honor.

J. Craig Williams:

Well, it’s been great. Thank you very much, Steve. We will have you back on the show, as I indicated, so that we can finish up this discussion because it’s too much to cover.

Steven D. Schwinn:

Thank you,

J. Craig Williams:

And here are a few of my thoughts about today’s topic. I absolutely love having conversations with law professors about constitutional law issues because these questions rack my brain as I read through the reviews that are in the news and media about the Supreme Court and what they’re going to be ruling on. Steve’s take is interesting on a lot of these cases, and it’s difficult to predict what’s going to happen, but certainly his insight is extremely helpful on what’s going to be happening. We’ll be covering next time the issues of the First Amendment, religious exemptions and other constitutional cases before the Supreme Court, so stay tuned. Well, if you like what you heard today, please rate us on Apple Podcast, your favorite podcasting app. You can also visit [email protected], where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer.

Speaker 2:

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