I’m sure you’re familiar with this common colloquialism. Every June we wait with bated breath for the Supreme Court to render their opinions on matters critical to the nation. This year was no different as the Court pushed the release of their decisions regarding the 1st Amendment, the January 6th defendants, the federal bureaucracy and presidential immunity to the final day of their session. The Court even added one day to their term.
The Court has traditionally stayed neutral and declined cases that are purely political in nature. In fact, Chief Justice John Roberts has stated many times that he did not want to politicize the Court. Many people believe his actions as Chief Justice have politicized the Court more than any prior Court, and I agree with that sentiment.
The Framers intended the Judiciary to be the branch least likely to infringe upon individual rights. Article III of the Constitution is much more brief than Article I, which established the Legislature, and Article II, which established the Executive Branch. The Supreme Court is the only court established in the Constitution. The other federal courts are created by and under the jurisdiction of Congress. The purpose of the Supreme Court is to decide Constitutional questions, disputes between the states, and a few other matters.
The Framers also inserted safeguards into the Constitution to protect against judicial tyranny. These safeguards are in place because members of the Federal Judiciary are appointed by the President and confirmed by the Senate. Since decisions by Federal justices can directly impact individual citizens, those justices are not directly accountable to those citizens, and there are more ways to impeach a Justice than any other federal officer. The Constitution does not grant judges lifetime terms on the bench so, a justice serves in times of “good behavior.”
Let us dig into a few of the opinions SCOTUS handed down in the last week and how they affect us. These are not official legal opinions. This is my take after reviewing several sources. For a deeper dive, I recommend The Federalist, SCOTUS Blog and Constitutional attorneys like Convention of States Action (COSA) National Endorser Mark Levin.
Murthy v. Missouri
This case was brought by Missouri Attorney General Andrew Bailey on behalf of Missouri, the State of Louisiana and five individuals. The contention of the plaintiffs was that the federal government violated the 1st Amendment by colluding with Big Tech and social media platforms to suppress content contrary to the government narrative on COVID-19 and information harmful to the Biden Administration.
During the pandemic, research and treatment protocols that disagreed with the recommendations from the CDC, NIH, WHO and other organizations were suppressed or removed from social media. These were called conspiracy theories and the authors were ridiculed. Much of this research from Drs. Peter McCullough, Robert Malone, Jay Bhattacharya and others were proven to be correct. (Listen to this interesting interview with Dr. Jeff Barke on the COSA Voice of Liberty podcast from July 2020) This collusion between the federal government and Big Tech was exposed first in The Twitter Files by Matt Taibbi and Michael Shellenberger. This is a clear violation of the 1st Amendment.
The Court ruled that the plaintiffs in this case did not have legal standing to bring this action. This is confusing as many of the plaintiffs were the ones shadowbanned or deplatformed from social media. I wonder if the outcome would have been different if other states would have had the courage to stand with Missouri and Louisiana. For now, it appears the federal government can collude with Big Tech and the media to silence free speech and freedom of the press.
Relentless v. Department of Commerce
and
Loper Bright Enterprises v. Raimondo
This case dealt with the reach of the federal bureaucracy. The National Marine Fisheries Service told a group of New England fishermen they needed an observer on their vessel to ensure no regulations were being violated. The agency stated they did not have funding in their budget for the officials, so the fishermen had to pay for the observers. The fishermen pushed back all the way to the Supreme Court. They won.
This decision overturned the 1984 Court opinion in the case of Chevron v. Natural Resources Defense Council. That decision gave the federal government bureaucracy the ability to draft regulations, enforce regulations and to adjudicate those regulations. It also established the principle of "Chevron Deference." This principle stated when the authority of a regulatory agency is in question, the Court would side with what the regulatory agency said their authority is.
The Chevron decision was a massive expansion of federal government control. Congress created these agencies to enact policies that would be uncomfortable for elected officials to defend in campaign season. And, most of these agencies do not have any constitutional authority to exist. Congress has abdicated its legislative role and funds these agencies with minimal oversight. The overturning of Chevron will affect every alphabet agency in Washington D.C. This is a huge victory but it will not be meaningful unless we act in our own interests as self-governing citizens.
Presidential Immunity
This question has induced hyperventilation on the Left and a plethora of ‘misinformation’ (dare I use that term?) As you may be aware, President Trump has been accused of several acts surrounding the 2020 Presidential Election. The Department of Justice’s position is that President Trump can be prosecuted for anything he has done to contest the legitimacy of the 2020 Presidential Election. Here, President Trump’s team argued that a president has complete immunity from prosecution for any actions taken while in office. Both positions are incorrect.
The Supreme Court determined a president has complete immunity from prosecution for “official acts” while in office. The Court instructed the lower D.C. Courts to re-examine the case in the context of what were “official acts” and what were not.
Despite what the mainstream media or Justice Sotomayor in her unhinged dissenting opinion claim, this is not an expansion of presidential authority. The Court is ruling on this for the first time because former presidents have never been prosecuted by a subsequent administration. A President must have the ability to carry out their constitutional responsibilities and confer privately with their advisors and other world leaders without concern that they may be prosecuted by a political opponent.
We have a current example that demonstrates Justice Sotomayor’s fear is unfounded. (She opined that President Trump could call in a drone strike against Joe Biden and would be shielded from prosecution as a result of the majority opinion in this case.) And yet, the Supreme Court has issued opinions that a President does not have the constitutional authority to release a student loan borrower from the financial obligations they entered into. Joe Biden has violated this specific Court Order four times as of this writing. If a President had complete immunity to do anything they wanted while in office, there would be no point for SCOTUS to render this decision.
If this were not the case, the Office of the President would be crippled. As it specifically relates to President Trump contesting the 2020 Presidential Election, it has been alleged having an alternate set of presidential electors is obstruction. This is not true. There is no such thing as “fake electors.” In the 1960 presidential election, there was a dispute over the electors from Hawaii. Richard Nixon was declared the electoral winner in Hawaii, and challenger John F. Kennedy disagreed. As a result, the Kennedy Campaign assembled an alternate slate of electors in case the Nixon electors were not accepted by the House.
There is nothing illegal about this. Electors are not officially certified until the state House of Representatives accepts them. If there is a dispute on the floor of the House where a state’s electors are rejected, they are no longer valid electors. If an alternate slate of electors is not there to be presented to the House for consideration, that state will not have a vote in the Electoral College.
The responses to these decisions are further evidence of too many people not understanding the process. The process is complicated. There is no question about it. This is why we must continually pursue the truth. This is made easier when we are firmly rooted in constitutional principles and understand our founding. This is the relentless mission of Convention of States Action to educate self-governing citizens. We are happy you have joined us on this journey to save our republic while we still can.
In liberty,
Brett
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