The U.S. Supreme Court handed down multiple landmark decisions in late June and early July 2024 on some of the most contentious issues in modern American politics and society. Minnesota Law faculty who have carefully followed cases over the past few months share their thoughts on the decisions and implications for the future.
Trump v. United States: presidential immunity
On July 1, the U.S. Supreme Court handed down a landmark 6-3 decision in Trump v. United States, ruling broadly in favor of presidential immunity. While the Court held that a President has absolute immunity from criminal prosecution for actions within his core constitutional authority and presumptive immunity for all official acts, the majority did not define what constitutes “official” and “unofficial,” says Minnesota Law Professor Richard Painter.
The decision sends the case back to a lower court to determine whether the acts alleged in the indictment were official or unofficial. Further, Professor Jill Hasday notes that the Court ruled that a President’s motives are irrelevant in distinguishing between official and unofficial acts. Painter, Hasday, and Professor Ilan Wurman share their insights into one of the most consequential decisions in Supreme Court history.
“I think the Court made a big mistake. The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. This sends a message to future presidents that they are absolutely or presumptively immune for all official acts, and I believe official acts that are criminal are the most dangerous.
I was Counsel of Record on an amicus brief arguing that this broad interpretation is a very dangerous holding for the chain of command in the military. A President could give an order that is illegal knowing he is immune from criminal prosecution for that order. But his subordinates in that chain of command are not. They would be left to determine for themselves whether following the order placed them in legal jeopardy.
The Court had the opportunity to issue a more nuanced decision that recognized, for example, that Trump’s involvement in the fake elector scheme was not official conduct. Even Justice Amy Coney Barrett suggested that this be considered personal political conduct and therefore outside the boundaries of immunity. So, it’s very troubling that the Court wasn’t willing to take a stand on something this clear.
This is not a liberal or conservative issue; it’s a potentially dangerous ruling in the hands of any president with authoritarian instincts. Donald Trump has talked about using the Justice Department to punish his political enemies, and this ruling says that a President has 100% immunity for any communications with the Justice Department.”
I believe this decision needs to be addressed through a Constitutional amendment. I think the vast majority of citizens in this country would agree that no one is above the law.” - Professor Richard Painter, S. Walter Richey Professor of Corporate Law
“Trump v. United States is an enormous victory for Donald Trump that establishes a perilous precedent. The Court focuses single-mindedly on bolstering executive power and disregards the importance of accountability and preserving the rule of law. This decision is simultaneously part of a long-running expansion of presidential power and a radical escalation of that trend.
Trump v. United States also sharply departs from the originalist principles that the Supreme Court espouses in other contexts. The Founders did not want to establish another monarch. Who is a king? Someone who is above the law.” - Professor Jill Hasday, Centennial Professor in Law and Distinguished McKnight University Professor
“The vast majority of this case is about presumptive immunity. A generous and sensible way to think about presumptive immunity is that sometimes a President does things believing he has the power to do it. Suppose it turns out that he’s wrong. Don’t we want to create a zone in which Presidents are allowed to make mistakes in the course of their official duties?
That said, the decision is not very clear about official and unofficial acts. I believe the majority is saying that there are some acts that, even if they exceed legal authority, they are still official acts. That is my sympathetic reconstruction. I wish they would have clarified that presumptive immunity is a category of acts that exceed legal authority but over which the President could plausibly believe he had authority.
I believe that the hypotheticals Justice Sotomayor cited in her dissent are nonsense. The acts that surround the 2020 election are much more borderline than shooting someone on Fifth Avenue. Not all lies are federal crimes but ordering the assassination of a political rival clearly exceeds legal authority and would be prosecutable.” - Professor Ilan Wurman
Loper Bright Enterprises v. Raimondo: regulatory authority of federal agencies
For the past 40 years, “Chevron deference” has required courts to defer to reasonable interpretations of ambiguous statutes adopted by the federal agencies charged with implementing them. But on June 28, the Supreme Court overruled Chevron deference in a 6-3 decision along ideological lines. Courts now must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency’s interpretation of the law simply because a statute is ambiguous.
Hailed by some political conservatives as a victory for reduced government, the decision set off a host of concerns from other commenters about what will happen to hundreds of regulations when they wind up in court. Professor Kristin Hickman, one of the country’s leading administrative law experts, breaks down this landmark decision.
“It’s hard to boil Loper down to a precise formulation of what is prohibited now because the justices never agreed on what Chevron deference was in the first place. Chief Justice Roberts equates deference with a rote, mechanical abdication of independent judgment. But deference can mean something more tepid, like a slight favoring of the agency. Roberts doesn’t like the term ‘deference,’ but the Skidmore standard, which the Court in Loper Bright said it now prefers, uses similar terms such as ‘respect’ and ‘weight.’ I think all we have done is shift the terms of debate.
Because the justices couldn’t agree on the details of what Chevron required, there were nuanced questions and disagreements among lower court judges about how to apply Chevron in the process of evaluating statutory meaning. Sometimes one got the sense of lower court judges losing the forest for the trees. By overturning Chevron, the Supreme Court has effectively swept away all that underbrush and thinned out those trees in an effort to try to help everyone see the forest again.
What we do know is that this decision assigns the resolution of statutory ambiguity to the judicial branch, with executive agency expertise considered merely as one of several factors under the weaker Skidmore standard of review.
For all the disagreement about Chevron over the past four decades, when you look at the cases collectively, I do think the lower courts generally had settled on a relatively well-bounded understanding of Chevron deference. Now, lower courts are in a position of asking ‘What do we do now?’ In an attempt to clarify, the Supreme Court increased uncertainty. Chevron had a lot of problems, which can be a sign that a doctrine needs to go. But if you’re replacing it with another doctrine that isn’t clear, you haven’t improved the situation.” - Associate Dean for Research & Intellectual Life Professor Kristin Hickman, McKnight Presidential Professor in Law, Distinguished McKnight University Professor, Harlan Albert Rogers Professor in Law
United States v. Rahimi: gun rights
The U.S. Supreme Court’s 2022 Bruen decision threw considerable questions into the topic of gun rights by introducing an originalist framework for evaluating Second Amendment challenges. This session’s 8-1 decision in the Rahimi case provided some clarification, according to Professor Jill Hasday and Visiting Professor Megan Walsh, director of the Gun Violence Clinic at Minnesota Law. The Court ruled that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment. In other words, the right to keep and bear arms is not unlimited.
“While Bruen was supposed to make it harder for judges to use their personal opinions, the effect was the opposite. Although there is debate among Second Amendment scholars about how much clarity on Bruen the Court gave us with this Rahimi decision, I think it is a good result. It shows that the Second Amendment allows for common sense regulation, like keeping those who are dangerous from having access to guns. It doesn’t solve all the problems created by Bruen, but it does give the courts more guidance in how to apply a test that is very hard to apply. In essence, the Rahimi decision clarified the Court’s test in a way that will allow more regulations of guns to be found constitutional.” - Professor Megan Walsh, director of the Gun Violence Prevention Clinic
“This case turned out to be a great opportunity to expose flaws in the framework the Court adopted in Bruen, which instructed lower courts to look to Founding history to assess the constitutionality of modern gun regulation. That framework has at least two problems. First, judges are not historians and are ill-equipped to conduct the sort of historical inquiry proposed in Bruen. Second, societal and legal norms have shifted since the Founding, in part because voting rights now extend beyond property-holding white men. For example, husbands no longer have a legal right to “correct” their wives with physical violence. Mr. Rahimi might have been able to keep his guns in the Founding Era, but the Court saw the value of taking his guns away in the present. The majority responded by loosening the Bruen framework so that courts assessing the constitutionality of gun regulations can now draw on broad historical themes—like America’s history of taking guns away from dangerous people—rather than limiting themselves to asking how a particular plaintiff would have fared in a Founding-era court.” - Professor Jill Hasday, Centennial Professor in Law and Distinguished McKnight University Professor
Moody v. NetChoice, LLC and NetChoice v. Paxton: limits on social media
In a 9-0 ruling, the Court remanded the cases on the grounds that the Fifth and Eleventh Circuit courts had not conducted a proper analysis of the facial First Amendment challenges to the Florida and Texas laws that regulate social media platforms. The cases tested whether states can limit content moderation on global social media platforms. Professor Alan Rozenshtein, who specializes in law and technology and free speech, analyzes the Court’s decision.
“The oral arguments in these cases were confusing and chaotic. And the usual ideological coalitions were not evident. In the last few years, the Supreme Court has dealt with some of the most contentious issues in American society: abortion, gun rights, affirmative action, and presidential immunity. While the Court wasn’t unanimous on those issues, at least its conclusions were clear. But that is not the case here. Are these platforms like newspapers, with the right to choose what is on their platform? Or are they ‘common carriers,’ like phone companies that are subject to different regulation? This decision answered very little, although it gave some hints as to how at least some of the justices might rule in the future.
There is a tsunami of Internet and First Amendment cases in the lower courts, and several are headed to the Supreme Court. Every case poses fascinating and novel questions that have the potential to have a huge impact on the internet, which has become central to how we live. Zooming out, what I found most interesting about these cases is how they show that, of all the issues in American politics and society, the Supreme Court seems to have decided that the internet is the hardest and scariest issue of all — and we haven’t even gotten to AI.” - Professor Alan Rozenshtein
Ohio v. Environmental Protection Agency: air pollution across state lines
The Court, in a 5-4 decision on June 27, paused the EPA’s plan to limit the flow of air pollution across state lines while the plan is challenged in a lower court. In developing the “Good Neighbor Provision,” the EPA had concluded that 23 states did not have plans to adequately control downwind pollution to other states. In staying the EPA’s plan, the Court is signaling a newly watchful review of agencies, says Professor Jack Whiteley, an environmental law scholar.
“The case is about the procedural question of what happens to the EPA plan while the lawsuit proceeds. But to answer this question, the Court considers in part how likely each side is to win on the merits—and the majority thinks that the EPA is likely to lose in the end, concluding that the EPA probably acted arbitrarily or capriciously by failing to explain itself in response to issues raised in the notice and comment period.
I am unpersuaded by the majority opinion. It is hard for me to find the argument that the Court says was raised before and went unanswered by the agency. Indeed, the four dissenting justices take the view that this argument not only wasn’t specifically raised before the EPA, but also wasn’t really raised even in the Supreme Court briefs, and only crystallized during oral argument. This being the case, it seems odd for the majority to be so convinced that the EPA is likely to lose on the merits.
Technically, the ruling has a narrow application. The EPA ozone plan won’t go into effect while the lawsuit proceeds and ozone pollution will continue to exceed safe levels in a variety of states and harm the people who live there. However, the fact that a majority of justices said that they think the EPA is likely to lose on the merits will influence how the lawsuit unfolds in the lower court.
It has been a difficult few years for the environment at the Supreme Court, with the majority striking down EPA climate rules as well as limiting the agency’s ability to regulate under the Clean Water Act. In its own narrower way, Ohio v. EPA follows this trend. It strikes me that the majority of the Court is willing to exert a keener eye over what the EPA is doing.” - Professor Jack Whiteley
Campos-Chaves v. Garland: in absentia removal orders
The Federal Immigration Litigation Clinic, under the direction of Professor Nadia Anguiano ‘17, joined with co-counsel to represent Mr. Campos-Chaves in this case regarding the notice noncitizens must receive when the Department of Homeland Security (DHS) seeks to remove them from this country. In a 5-4 decision, the Court held that noncitizens could be ordered deported if they do not appear for their removal hearings even if DHS failed to provide them with a compliant notice to appear (NTA). To comply with the statute, the NTA must be a single document that includes the date and time of the initial hearing, as the Court itself previously held in two separate cases in 2018 and 2021. But, under the Court’s new ruling, the NTA’s noncompliance could be excused if the immigration court later sends the noncitizen a separate document with date-and-time information. Anguiano discusses the potential long-term impact of the Campos-Chaves ruling.
“Congress mandated that noncitizens can be ordered deported if they don’t show up at their removal hearing, but only if they receive proper notice. Our client’s notice to appear did not state the date and time of his initial hearing, as Congress required. But the Court held that the defectiveness of his NTA did not matter, and our client could be ordered deported so long as the immigration court later sent a separate document including the time and date information.
I vehemently disagree with the Court’s decision. Allowing a two-step notice process is a contorted reading of the statutory text. The majority ignores the centrality of the notice to appear and distorts the statutory scheme. As a result, the Court’s opinion puts individuals at tremendous risk of not attending their removal hearing because they are simply confused. These noncitizens may not speak English or may be recent arrivals who are victims of persecution and trauma, with heightened vulnerabilities that make the risk for confusion even greater. I believe the statute on its face is clear, as did four dissenting Justices, and that ultimately the Court’s majority bought into the government’s argument that a ruling in favor of Mr. Campos-Chaves would allow for hundreds of previous notices to be found in violation, causing a shock to the system. Even if you agree with this proposition, it is not the role of the Supreme Court to save the government from its abject violation of the statute that Congress wrote.” - Professor Nadia Anguiano ’17, director of the Federal Immigration Clinic
Department of State v. Muñoz: constitutional right to marriage
In a 6-3 decision handed down June 21, the majority ruled that a U.S. citizen does not have a fundamental liberty interest in her noncitizen spouse becoming admitted to the country, marking a major setback for U.S. citizens with foreign spouses. The U.S. Department of State denied a visa to Sandra Muñoz’s husband with little explanation. Later, Ms. Muñoz learned that the consulate official believed that her husband’s tattoos signaled he was a gang member. He had no criminal record.
A team from the Law School’s Federal Immigration Litigation Clinic (FILC), led by Visiting Assistant Professor Seiko Shastri, submitted an amicus brief, which Justice Sotomayor cited twice in her dissent. Professor Nadia Anguiano ‘17, director of FILC, shares her reaction to the decision.
“The Court’s decision is not only wrong on the law but heartbreaking on the facts. The work FILC did illuminates the racism and lawlessness of basing judgments about criminality on tattoos that carry deep significance to Latinx communities. While I’m deeply disappointed about the outcome of the case, I’m encouraged that the lower courts could cite to Justice Sotomayor's understanding that culturally significant tattoos may not alone demonstrate gang membership. Advocates can use that part of Justice Sotomayor’s dissent—which is in no way contradicted by the majority’s ruling—potentially helping other people subject to similar racism and bias, and not just in the immigration context.” - Professor Nadia Anguiano ’17, director of the Federal Immigration Clinic
Starbucks Corp. v. McKinney: unfair labor practices
The Supreme Court sided with Starbucks Corp. in an 8-1 decision, vacating a lower court’s decision on the burden of proof necessary for the National Labor Relations Board (NLRB) to be awarded a preliminary injunction against an employer. Professor Charlotte Garden, a labor and employment scholar with significant experience in union issues, co-authored an amicus brief on the case.
“In this case, both the district court and the Sixth Circuit agreed that an injunction was appropriate. The question before the Supreme Court was about which test that courts must apply in evaluating NLRB’s requests for injunctions. The Court’s decision requires a relatively stringent four-factor test, which was developed in the context of litigation between private parties, effectively making it harder for the NLRB to seek injunctive relief in cases where they believe unfair labor practices have taken place. Justice Jackson dissented, and I think she got it right – federal courts should give more deference to the NLRB, an impartial government agency that seeks injunctive relief only after beginning its own investigation. Like some of the more high-profile cases from this year, this case shifts power from federal agencies to the courts.” - Professor Charlotte Garden, Julius E. Davis Professor of Law