July 23, 2024 | Volume 31, Issue 20
This Report summarizes opinions issued on June 28 and July 1, 2024 (Part I).
OPINIONS
Trump v. United States, 23-939.
By a 6-3 vote, the Court granted the President extensive immunity from criminal prosecution for official acts during his time in office. A federal grand jury indicted former President Donald Trump for acts committed while he was President following the November 2020 election. In very general terms, “[t]he indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results.” Trump filed a motion to dismiss the indictment on grounds of Presidential immunity. The district court denied the motion, and the D.C. Circuit affirmed. In an opinion by Chief Justice Roberts, the Court vacated and remanded.
The Court looked to Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), for guidance in categorizing the President’s powers and concomitant immunity. Where “the President acted within the scope of his exclusive authority”―such as the pardon power, the removal power, and the power to recognize foreign countries―”Congress cannot act on, and courts cannot examine, the President’s actions[.]” “It follows,” held the Court, that Congress “may not criminalize the President’s actions within his exclusive constitutional power”: he is absolutely immune. Sometimes, though, the President “’acts pursuant to an express or implied authority of Congress,’” or in a “’zone of twilight’” where “’he and Congress may have concurrent authority.’” The Court held that the President has broad immunity even in that area based on the “’unique position’” the President occupies in “’the constitutional scheme,’” and the need for the President to be “’energetic, vigorous, [and] decisive.’” Those reasons led the Court in Nixon v. Fitzgerald, 457 U.S. 731 (1982), to grant the President absolute immunity from damages liability for acts performed in his official capacity. The Court reasoned here that “[p]otential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.” The Court acknowledged that “[t]he President, charged with enforcing federal criminal laws, is not above them.” But it concluded that, “[t]aking into account these competing considerations, . . . the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.” “The President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” By contrast, ruled the Court, the President possesses no immunity for his unofficial acts.
The Court then provided guidance on “how to differentiate between a President’s official and unofficial actions” by looking at some of the specific allegations against Trump. At the outset, though, the Court declared that “the immunity we have recognized extends to the ‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they are not ‘manifestly or palpably beyond [his] authority.’” Further, “[i]n dividing official from unofficial conduct, courts may not inquire into the President’s motives.” That very inquiry, the Court said, would “intrud[e] on the Article II interests that immunity seeks to protect.” The first allegation the Court assessed was that “Trump met with the Acting Attorney General and other senior Justice Department and White House officials to discuss investigating purported election fraud and sending a letter from the Department to those States regarding such fraud.” Further, “after the Acting Attorney General resisted Trump’s requests, Trump repeatedly threatened to replace him.” The Court held that these allegations “plainly implicate Trump’s ‘conclusive and preclusive’ authority”; he is therefore absolutely immune from prosecution for that alleged conduct. The Court next addressed allegations that “Trump pressured the Vice President to reject States’ legitimate electoral votes or send them back to state legislatures for review.” The Court held that “[w]henever the President and Vice President discuss their official responsibilities, they engage in official conduct.” Noting that “the Vice President’s Article I responsibility of ‘presiding over the Senate’ is ‘not an “executive branch” function,’” however, the Court remanded to allow the lower courts to assess whether the Government has rebutted the presumption of immunity.
The Court then turned to allegations that Trump attempted to convince state officials to change electoral votes for Trump and to gather Trump’s electors and send in “false certifications that they were legitimate electors.” The Court noted the parties’ opposing views on this alleged conduct: Trump argued that it was official conduct intended “to ensure the integrity and proper administration of the federal election”; the Government argued that the President had no official authority to engage in those acts. The Court concluded that “this alleged conduct cannot be neatly categorized as falling within a particular Presidential function,” and remanded to allow the district court to determine whether the conduct was official or unofficial. Finally, the Court addressed allegations regarding Trump’s conduct related to the events of January 6, including his public speech and his Tweets. The Court stated that determining whether a President’s speech is official or unofficial “must be fact specific,” and again remanded to the district court for its initial analysis.
The Court next held that the Government may not use immunized official conduct as evidence to prove the President is criminally liable for unofficial conduct. Stated the Court, “[i]f official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the ‘intended effect’ of immunity would be defeated.” Finally, the Court rejected arguments made by Trump and the Government. On the former, the Court disagreed with Trump’s contention “that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution.” Not so, held the Court. “By its own terms, the Clause does not address whether and on what conduct a President may be prosecuted if he was never convicted.” On the latter, the Court rejected the Government’s contention that, while “the President’s official acts are entitled to some degree of constitutional protection,” he is not entitled to any immunity―he can only make “as-applied challenges in the court of the trial.” The Court disagreed, holding that pretrial review, as comes with immunity, is necessary to ensure that the President doesn’t act with undue caution.
Justice Thomas filed a concurring opinion to express his view that the Special Counsel who is prosecuting Trump may not have been lawfully appointed, for he is “not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires.” Justice Thomas stated that “[n]one of the statutes cited by the Attorney General” when he appointed the Special Counsel “appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose.” Justice Thomas acknowledged that “the Court gave passing reference to the cited statutes as supporting the appointment of the Special Prosecutor in United States v. Nixon, 418 U. S. 683, 694 (1974),” but noted that the Court “provided no analysis of those provisions’ text.”
Justice Barrett filed an opinion concurring in part. She “would have framed the underlying legal issues differently,” viewing immunity as “shorthand” for a two-step inquiry. Justice Barrett would first assess “whether the relevant criminal statute reaches the President’s official conduct. Not every broadly worded statute does.” If the statute does reach that conduct, “the prosecution may proceed only if applying it in the circumstances poses no ‘dange[r] of intrusion on the authority and functions of the Executive Branch.’” Justice Barrett disagreed with the part of the Court’s opinion holding “that the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of the President.” Justice Barrett also stated in a footnote that she believed “the President’s alleged attempt to organize alternative slates of electors . . . is private and therefore not entitled to protection.”
Justice Sotomayor filed the principal dissenting opinion, which Justices Kagan and Jackson joined. She began by saying: “Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.” Justice Sotomayor asserted that the “official-acts immunity” recognized by the Court “has ‘no firm grounding in constitutional text, history, or precedent.’” First, “[t]he Constitution’s text contains no provision for immunity from criminal prosecution for former Presidents”―whereas it authorizes immunity in the Speech and Debate Clause, and some state constitutions immunized governors. Plus, she said, the Impeachment Judgment Clause contemplates “criminal process as a backstop.” Turning to history, Justice Sotomayor pointed to Hamilton’s statement in The Federalist No. 69 that former Presidents would be “liable to prosecution and punishment in the ordinary course of law.” And she found no word of supposed immunity at the Constitutional Convention or from other Founding-era commentators.
Turning to the Court’s test for assessing presumptive immunity, Justice Sotomayor complained that “[i]t is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes. Nor should that be the standard. Surely some intrusions on the Executive may be ‘justified by an overriding need to promote objectives within the constitutional authority of Congress.’” She criticized the Court’s application of the balancing test in Nixon v. Fitzgerald, asserting that the “balancing here should lead to the opposite result” given (among other things) the weighty public interest in criminal prosecutions. Justice Sotomayor found “many facets of criminal liability . . . that make it less likely to chill Presidential action than the threat of civil liability.” “First, in terms of probability, the threat of criminal liability is much smaller.” “Second, federal criminal prosecutions require ‘robust procedural safeguards’ not found in civil suits.” “Third, because of longstanding interpretations by the Executive Branch, every sitting President has so far believed himself under the threat of criminal liability after his term in office and nevertheless boldly fulfilled the duties of his office.” In her view, “[i]t is a far greater danger if the President feels empowered to violate federal criminal law, buoyed by the knowledge of future immunity.” She faulted the majority for overlooking the public’s “paramount interest” in preventing Presidents from “us[ing] the powers of their office for personal gain or as part of a criminal scheme.” And she criticized the Court for addressing the President’s immunity for the exercise of his core constitutional powers, since no such powers are at issue in this case.
Justice Sotomayor next disagreed with the Court’s holding “that acts for which the President is immune must be redacted from the narrative of even wholly private crimes committed while in office.” She said that rule “has no basis in law,” and that limiting instructions can ensure that official-acts evidence is used only for its proper purpose. Justice Sotomayor noted that the Court, when reviewing the specific allegations, failed to “designate any course of conduct . . . as private, despite concessions from Trump’s counsel. . . . If the majority’s sweeping conception of ‘official acts’ has any real limits, the majority is unwilling to reveal them in today’s decision.” She closed by saying that “[t]he Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now ‘lies about like a loaded weapon’ for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation.”
Justice Jackson also filed a dissenting opinion. She described the “procedural paradigm of rules and accountability that operates in the realm of criminal law” in the ordinary case. She then contrasted that with the rules that operate now with respect to the President, which amount to “an exemption from criminal law.” She closed by saying: “In short, America has traditionally relied on the law to keep its Presidents in line. Starting today, however, Americans must rely on the courts to determine when (if at all) the criminal laws that their representatives have enacted to promote individual and collective security will operate as speedbumps to Presidential action or reaction. Once self-regulating, the Rule of Law now becomes the rule of judges, with courts pronouncing which crimes committed by a President have to be let go and which can be redressed as impermissible. So, ultimately, this Court itself will decide whether the law will be any barrier to whatever course of criminality emanates from the Oval Office in the future. The potential for great harm to American institutions and Americans themselves is obvious.”
Loper Bright Enterprises v. Raimondo, 22-451.
By a 6-3 vote, the Court overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which “sometimes required courts to defer to ‘permissible’ agency interpretations of the statutes those agencies administer—when a reviewing court reads the statute differently.” The Magnuson-Stevens Fishery Conservation and Management Act (MSA) provides that fishery management plans may require domestic vessels to carry observers to collect data. The MSA specifies three groups that must cover the costs associated with carrying observers. A regional fishery management council adopted fishery management plans, and a subsequent rule, that required vessels operating in the Atlantic herring fishery (not among the three specified groups) to pay those observer costs in some situations. Petitioners are businesses the operate in the Atlantic herring fishery who challenged the rule in two different courts, asserting that the MSA does not authorize a council to mandate that they pay for observers. In both cases, the district courts ruled for the Government. A divided panel of the D.C. Circuit affirmed one of those rulings, holding that there was some ambiguity on the issue, and that the agency’s interpretation was “reasonable” under Chevron’s second step. The First Circuit affirmed the other district court ruling, holding that the agency’s interpretation “does not ‘exceed[] the bounds of the permissible.’” In an opinion by Chief Justice Roberts, the Court vacated both opinions and remanded.
The Court began by declaring that the Framers “envisioned that the final ‘interpretation of the laws’ would be ‘the proper and peculiar province of the courts’”―a principle the Court “embraced” as early as Marbury v. Madison, 1 Cranch 137 (1803). And while the Court recognized early on that Executive Branch interpretations should be given “respect,” those interpretations did not “supersede” the Judiciary’s judgment. During the New Deal period, while courts often deferred to agency findings of fact, “the Court did not extend similar deference to agency resolutions of questions of law.” The Court pointed to Skidmore v. Swift & Co., 323 U.S. 134 (1944), as explaining that the Executive Branch’s judgment should be given weight (the amount of which depended on the context), but not deferential review. Found the Court, “[n]othing in the New Deal era or before it thus resembled the deference rule the Court would begin applying decades later to all varieties of agency interpretations of statutes.” That set the backdrop for Congress’s enactment of the Administrative Procedure Act in 1946. Its most relevant provision is §706, which directs that “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”
The Court concluded that “[t]he APA thus 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 . . . . And it prescribes no deferential standard for courts to employ in answering those legal questions. That omission is telling, because Section 706 does mandate that judicial review of agency policymaking and factfinding be deferential.” The Court found that the APA’s history supports its interpretation, as “[s]ome of the legislation’s most prominent supporters,” as well as “respected commentators” at the time, insisted that courts decided questions of law independently and without deference. That said, the Court observed that courts exercising their independent judgment can “seek aid from the interpretations of those responsible for implementing particular statutes.” Plus, “some statutes ‘expressly delegate[]’ to an agency the authority to give meaning to a particular statutory term”; authorize an agency “to ‘fill up the details’ of a statutory scheme”; or empower an agency “to regulate subject to limits imposed by a term or phrase that ‘leaves agencies with flexibility,’ such as ‘appropriate’ or ‘reasonable.’” (Citation omitted.) Putting statutes of that sort to the side, the Court held that “[t]he deference that Chevron requires of courts reviewing agency action cannot be squared with the APA.” The Court observed that “[n]either Chevron nor any subsequent decision of this Court attempted to reconcile its framework with the APA.” And, ruled the Court, they cannot be reconciled, for Chevron “requires a court to ignore, not follow, ‘the reading the court would have reached’ had it exercised its independent judgment as required by the APA.
The Court rejected the proposition that “statutory ambiguities are implicit delegations to agencies.” A presumption must “approximate reality,” and the reality is that ambiguities flow from “an inability on the part of Congress to squarely answer the question at hand, or from a failure to even ‘consider the question’ with the requisite precision” or are simply “unintentional.” And in the end, “agencies have no special competence in resolving statutory ambiguities. Courts do. . . . The very point of the traditional tools of statutory construction―the tools courts use every day―is to resolve statutory ambiguities.” Agency expertise does not, the Court said, compel a different result. “Congress expects courts to handle technical statutory questions.” And a court can have the agency’s expertise “at its disposal.” Nor was the Court persuaded by “a desire for the uniform construction of federal law.” “Given inconsistencies in how judges apply Chevron, it is unclear how much the doctrine as a whole (as opposed to its highly deferential second step) actually promotes such uniformity. In any event, there is little value in imposing a uniform interpretation of a statute if that interpretation is wrong.” (Citation omitted.) Next, the Court rejected the argument that “interpretation of ambiguous statutory provisions amounts to policymaking suited for political actors rather than courts.” To the contrary, “resolution of statutory ambiguities involves legal interpretation. That task does not suddenly become policymaking just because a court has an ‘agency to fall back on.’”
The Court concluded that “Chevron’s justifying presumption is . . . a fiction,” which has led the Court to “impos[e] one limitation on Chevron after another.” For example, the Court adopted a “threshold requirement—sometimes called Chevron ‘step zero’—[that] largely limits Chevron to ‘the fruits of notice-and-comment rulemaking or formal adjudication.’” The Court also declined to apply Chevron to major questions, “to agency interpretations of judicial review provisions, or to statutory schemes not administered by the agency seeking deference.” (Citations omitted.) “Confronted with this byzantine set of preconditions and exceptions, some courts have simply bypassed Chevron, saying it makes no difference for one reason or another. . . . This Court, for its part, has not deferred to an agency interpretation under Chevron since 2016.”
All of the above set the stage for the Court’s conclusion that none of the stare decisis considerations militate in favor of preserving Chevron. First, the doctrine’s reasoning is flawed and the Chevron decision itself failed to grapple with the APA. Second, “[e]xperience has also shown that Chevron is unworkable.” Whether a statute is ambiguous is indeterminate, and the Court (as just described) has “been forced to clarify the doctrine again and again.” “At this point, all that remains of Chevron is a decaying husk with bold pretensions.” Finally, the Court concluded that Chevron has not “been the sort of ‘stable background rule’ that fosters meaningful reliance.” Indeed, under the doctrine, “a statutory ambiguity, no matter why it is there, becomes a license authorizing an agency to change positions as much as it likes.” The Court added, however, that “we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.”
Justice Thomas filed a concurring opinion “to underscore a more fundamental problem: Chevron deference also violates our Constitution’s separation of powers.” It does so, he said, “in two ways. It curbs the judicial power afforded to courts, and simultaneously expands agencies’ executive power beyond constitutional limits.” Justice Gorsuch wrote a 34-page concurring opinion to separately “address why the proper application of the doctrine of stare decisis supports” the Court’s decision. After reviewing the common law’s understanding of stare decisis and the Framers’ understanding of the judicial power, Justice Gorsuch said he draws three lessons. “First, a past decision may bind the parties to a dispute, but it provides this Court no authority in future cases to depart from what the Constitution or laws of the United States ordain.” “Second, . . . [w]hile judicial decisions may not supersede or revise the Constitution or federal statutory law, they merit our ‘respect as embodying the considered views of those who have come before.’” “Third, it would be a mistake to read judicial opinions like statutes. . . . A later court assessing a past decision must [] appreciate the possibility that different facts and different legal arguments may dictate a different outcome.” Justice Gorsuch concluded that “each of these lessons . . . weigh firmly in favor of the course the Court charts.”
Justice Kagan filed a dissenting opinion, which Justices Sotomayor and Jackson joined. She wrote up front: “Who should give content to a statute when Congress’s instructions have run out? Should it be a court? Or should it be the agency Congress has charged with administering the statute? The answer Chevron gives is that it should usually be the agency, within the bounds of reasonableness. That rule has formed the backdrop against which Congress, courts, and agencies—as well as regulated parties and the public—all have operated for decades. It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest. And the rule is right. This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent.” Turning to the latter point, Justice Kagan maintained that Congress “would select the agency” “because agencies often know things about a statute’s subject matter that courts could not hope to” (such as, to use an example she provided from an actual case, whether an alpha amino acid polymer qualifies as a “protein”). Also, “Congress would value the agency’s experience with how a complex regulatory regime functions, and with what is needed to make it effective.” Further, Chevron’s presumption reflects that resolving statutory ambiguities, as Congress well knows, is ‘often more a question of policy than of law.’”
It is true, Justice Kagan said, that “courts often construe legal texts.” But “Chevron’s first step takes full advantage of that talent.” Chevron deference comes in the picture only when a court cannot discern a statute’s meaning—”if the court must admit that standard legal tools will not avail to fill a statutory silence or give content to an ambiguous term.” Then she turned to some examples she provided earlier in her opinion of actual cases: “When does an alpha amino acid polymer qualify as a ‘protein’? How distinct is ‘distinct’ for squirrel populations? What size ‘geographic area’ will ensure appropriate hospital reimbursement? As between two equally feasible understandings of ‘stationary source,’ should one choose the one more protective of the environment or the one more favorable to economic growth? The idea that courts have ‘special competence’ in deciding such questions whereas agencies have ‘no[ne]’ is . . . malarkey.” Turning to the APA and its history, she found both “compatible with Chevron deference.” Justice Kagan insisted that §706 does not set forth a standard of review and therefore does not preclude deference, and noted that another section of the APA specified de novo review. And she maintained that “in the years immediately preceding the APA, courts became ever more deferential to agencies.”
Finally, Justice Kagan criticized the majority’s application of stare decisis. She said that “Chevron is entitled to a particularly strong form of stare decisis, for two separate reasons. First, it matters that ‘Congress remains free to alter what we have done.’ . . . . Second, Chevron is by now much more than a single decision. This Court alone, acting as Chevron allows, has upheld an agency’s reasonable interpretation of a statute at least 70 times.” And lower courts have applied Chevron thousands of times. Justice Kagan accused the Court of “bootstrap[ping]”―refusing to apply Chevron for eight years and then using that as an excuse to jettison the doctrine. Nor, Justice Kagan insisted, is Chevron unworkable. Under myriad legal doctrines, including basic contracts law, courts must determine whether a term is ambiguous. “There are ambiguity triggers all over the law. Somehow everyone seems to get by.” Justice Kagan found Chevron’s exceptions merely reflections of Congress’s likely intent and “nothing much” in terms of difficulty. Finally, she maintained that “the most important stare decisis factor—call it the ‘jolt to the legal system’ issue—weighs heavily against overruling Chevron.” That is because, she said, “Congress and agencies alike have relied on Chevron—have assumed its existence—in much of their work for the last 40 years.”
Moody v. NetChoice, LLC, 22-277; NetChoice, LLC v. Paxton, 22-555.
The Court vacated the two lower judgments, one of which upheld a Texas law and one of which enjoined a similar Florida law that require large social-media companies to host certain third-party communications and to notify users, and provide an explanation, when they censor the user’s speech. The Court vacated the judgments because it concluded that the Fifth and Eleventh Circuits failed to “properly consider[] the facial nature of NetChoice’s challenge.” The Court went on to criticize the Fifth Circuit’s decision upholding Texas’s statute, stating general First Amendment principles the courts should follow on remand.
The largest social-media companies, such as Facebook and YouTube, make content-moderation decisions that lead them to “remove, disfavor, or label various posts based on their content.” “In 2021, Florida and Texas enacted statutes regulating internet platforms, including the large social-media companies just mentioned. The States’ laws differ in the entities they cover and the activities they limit. But both contain content-moderation provisions, restricting covered platforms’ choices about whether and how to display user-generated content to the public. And both include individualized-explanation provisions, requiring platforms to give reasons for particular content-moderation choices.” The Florida law applies to social-media platforms “that have annual gross revenues of over $100 million or more than 100 million monthly active users”; the Texas law applies to social-media platforms that have over 50 million monthly active users. NetChoice and the Computer & Communications Industry Association (collectively, NetChoice), a pair of trade associations, brought facial challenges against the Florida and Texas laws. District courts in both states issued preliminary injunctions against the laws’ operation. The Eleventh Circuit upheld the injunction of Florida’s laws as to the provisions relevant here. “The court held that the State’s restrictions on content moderation trigger First Amendment scrutiny under this Court’s cases protecting ‘editorial discretion.’” And it found the Florida law “unlikely to survive intermediate—let alone strict—scrutiny, because a State has no legitimate interest in counteracting private censorship by tilt[ing] public debate in a preferred direction.” (Internal quotation marks omitted.) The Fifth Circuit, by contrast, “reversed the preliminary injunction before it. In that court’s view, the platforms’ content-moderation activities are ‘not speech’ at all, and so do not implicate the First Amendment. But even if those activities were expressive, the court continued, the State could regulate them to advance its interest in ‘protecting a diversity of ideas.’” (Citation omitted.) In an opinion by Justice Kagan, the Court vacated and remanded.
The Court first explained why it was vacating both circuit court decisions. “NetChoice chose to litigate these cases as facial challenges, and that decision comes at a cost.” Neither the parties nor the lower courts “has paid much attention to that issue,” but it greatly complicates the case. That is because the laws apply not only to the social-media “giants” such as Facebook and YouTube, but also to an email provider like Gmail, an online marketplace such as Etsy, and a payment service like Venmo. Whether the Florida and Texas laws violate the First Amendment might have different answers “as between regulation of Facebook’s News Feed (considered in the courts below) and, say, its direct messaging service (not so considered). Curating a feed and transmitting direct messages, one might think, involve different levels of editorial choice, so that the one creates an expressive product and the other does not.” Because neither the Fifth nor Eleventh Circuits addressed the laws’ impact on “the laws’ full range of applications,” the Court vacated their decisions and remanded to “enable the lower courts to consider the scope of the laws’ applications, and weigh the unconstitutional as against the constitutional ones.”
The Court nonetheless found “it necessary to say more about how the First Amendment relates to the laws’ content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below. That need is especially stark for the Fifth Circuit.” The Court stated that “[t]he Fifth Circuit was wrong in concluding that Texas’s restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression. And the court was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds.” The Court explained that its precedents―such as Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U.S. 1 (1986), Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994), and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995)―establish “that expressive activity includes presenting a curated compilation of speech originally created by others.” The Court found distinguishable two cases where “the compelled access did not affect the complaining party’s own expression,” PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), and Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006). The Court found that these cases collectively establish three general points. “First, the First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude. . . . And that is as true when the content comes from third parties as when it does not.” “Second, none of that changes just because a compiler includes most items and excludes just a few.” And “[t]hird, the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas.” The Court next explained that all of these principles fully apply to modern technologies.
For these reasons, the Court stated that “the Fifth Circuit got its likelihood-of-success finding wrong. Texas is not likely to succeed in enforcing its law against the platforms’ application of their content-moderation policies to the feeds that were the focus of the proceedings below” (Facebook’s News Feed and YouTube’s homepage). That is because, in short, “Texas’s law profoundly alters the platforms’ choices about the views they will, and will not, convey. And we have time and again held that type of regulation to interfere with protected speech.” Next, the Court found that “the interest Texas relies on cannot sustain its law.” “Texas has never been shy, and always been consistent, about its interest: The objective is to correct the mix of speech that the major social-media platforms present.” “But,” said the Court, “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.”
Justice Barrett filed a concurring opinion to note the complexities added to the cases by the plaintiffs bringing them as facial challenges. Justice Jackson filed an opinion concurring in part and concurring in the judgment. She, too, emphasized the facial nature of the case and said that the lower courts must parse “how the regulated entities actually function before deciding if the activity in question constitutes expression and therefore comes within the First Amendment.” Justice Thomas filed an opinion concurring in the judgment, though disagreeing “with the Court’s decision to opine on certain applications of th[e] statutes.” He wrote at length to express his view that federal courts “lack authority to deem a statute ‘facially’ unconstitutional.” That is because, he said, “[f]acial challenges are fundamentally at odds with Article III. Because Article III limits federal courts’ judicial power to cases or controversies, federal courts ‘lac[k] the power to pronounce that [a] statute is unconstitutional’ as applied to nonparties.” He then addressed at length why that is so.
Justice Alito filed an opinion concurring in the judgment, which Justices Thomas and Gorsuch joined. Justice Alito agreed that the facial challenges must fail, for now. But he disagreed with the Court’s decision to discuss First Amendment principles and their application to the challenged laws. Starting with the former point, Justice Alito stated that “NetChoice made the deliberate choice to mount a facial challenge to both laws, and in doing so, it obviously knew what it would have to show in order to prevail. NetChoice decided to fight these laws on these terms, and the Court properly holds it to that decision.” He then addressed whether NetChoice could show, as it must to prevail on its facial challenge, that the two states’ laws “lack a plainly legitimate sweep.” In that regard, he noted that “[b]ecause not all compilers express a message of their own, not all compilations are protected by the First Amendment.” Next, “[t]o show that a hosting requirement would compel speech and thereby trigger First Amendment scrutiny, a claimant must generally show three things. . . . First, a claimant must establish that its practice is to exercise ‘editorial discretion in the selection and presentation’ of the content it hosts.” “Second, the host must use the compilation of speech to express ‘some sort of collective point’—even if only at a fairly abstract level.” “Finally, a compiler must show that its ‘own message [is] affected by the speech it [is] forced to accommodate.’” With those principles in mind, Justice Alito concluded that NetChoice failed to show that the content-moderation provisions are facially invalid. “First, NetChoice did not establish which entities the statutes cover.” “Second, NetChoice has not established what kinds of content appear on all the regulated platforms, and we cannot determine whether these platforms create an ‘inherently expressive’ compilation of third-party speech until we know what is being compiled.” And “[t]hird, NetChoice has not established how websites moderate content.”
Justice Alito closed by criticizing the Court for addressing “whether the Texas law’s content-moderation provisions are constitutional as applied to two features of two platforms—Facebook’s News Feed and YouTube’s homepage.” Not only is that discussion unnecessary, he said, it “rests on wholly conclusory assumptions that lack record support.” “Most notable is the majority’s conspicuous failure to address the States’ contention that platforms like YouTube and Facebook—which constitute the 21st century equivalent of the old ‘public square’—should be viewed as common carriers.” Justice Alito said it is “dubious” to assert (as NetChoice did) “that there is no constitutionally significant difference between what newspaper editors did more than a half-century ago at the time of Tornillo and what Facebook and YouTube do today.” In particular, he noted that “[n]o human being could possibly review even a tiny fraction of th[e] gigantic outpouring of speech” on Facebook and YouTube, meaning it is “hard to see how any shared message could be discerned.” Further, “[t]he platforms . . . play no role in selecting the billions of texts and videos that users try to convey to each other. And the vast bulk of the ‘curation’ and ‘content moderation’ carried out by platforms is not done by human beings. Instead, algorithms remove a small fraction of nonconforming posts post hoc and prioritize content based on factors that the platforms have not revealed and may not even know.” All told, he concluded, the Court should have proceeded with more caution.
Corner Post, Inc. v. Board of Governors of the Federal Reserve System, 22-1008.
By a 6-3 vote, the Court held that a claim accrues, for purposes of the Administrative Procedure Act’s six-year limitations period, “when the plaintiff has the right to assert it in court—and in the case of the APA, that is when the plaintiff is injured by final agency action.” This case concerns interchange fees, which merchants must pay to banks that issue debit cards when those cards are accepted as a form of payment. The Dodd-Frank Act empowered the Federal Reserve Board to set standards for assessing whether interchange fees are “reasonable and proportional to the cost incurred by the issuer with respect to the transaction.” “Discharging this duty, the Board promulgated Regulation II, which sets a maximum interchange fee of $0.21 per transaction plus .05% of the transaction’s value. The Board published the rule on July 20, 2011.” (Citations omitted.) In 2014 the D.C. Circuit rejected a challenge to Regulation II brought by a group of retail-industry trade associations and individual retailers. In 2018, Corner Post―a truckstop and convenience store―opened for business. And in 2021, it joined an APA suit brought against the Board again alleging “that Regulation II is unlawful because it allows payment networks to charge higher fees than the statute permits.” The district court dismissed the suit as barred by the APA’s statute of limitations, 28 U.S.C. §2401(a), and the Eighth Circuit affirmed. “The Eighth Circuit held that held that ‘when plaintiffs bring a facial challenge to a final agency action, the right of action accrues, and the limitations period begins to run, upon publication of the regulation.’ On this view, §2401(a)’s 6-year limitations period began in 2011, when the Board published Regulation II, and expired in 2017, before Corner Post swiped its first debit card. Corner Post’s suit was therefore too late.” In an opinion by Justice Barrett, the Court reversed and remanded.
The Court explained that §702 of the APA “authorizes persons injured by agency action to obtain judicial review by suing the United States or one of its agencies, officers, or employees. . . . Thus, a litigant cannot bring an APA claim unless and until she suffers an injury.” It then explained that §704 makes judicial review available only for “final agency action.” The Court next turned to the statute of limitations, 28 U.S.C. §2401(a), which provides: “[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” (Emphasis added.) The Court concluded that “[a] right of action ‘accrues’ when the plaintiff has a ‘complete and present cause of action’—i.e., when she has the right to ‘file suit and obtain relief.’ An APA plaintiff does not have a complete and present cause of action until she suffers an injury from final agency action, so the statute of limitations does not begin to run until she is injured.” (Citation omitted.)
The Court stated that the term “accrue” had a “well-settled meaning” when Congress enacted the APA statute of limitations in 1948: a right does not accrue “’until the plaintiff can file suit and obtain relief.’” “Conversely,” the Court has “’reject[ed]’ the possibility that a ‘limitations period commences at a time when the [plaintiff] could not yet file suit’ as ‘inconsistent with basic limitations principles.’” The Court found nothing in the language of §2401(a) that counters that traditional rule. Accordingly, found the Court, §2401(a) “operates as a statute of limitations rather than a statute of repose that puts an outer limit on the right to bring a civil action.” (Internal quotation marks omitted.) The Court rejected the Board’s contention “that facial challenges to agency rules are different, accruing when agency action is final rather than when the plaintiff can assert her claim.” The Board pointed to “the many specific statutory review provisions that start the clock at finality,” but the Court emphasized that §2401(a) does not expressly do so. “Congress could have created a separate residual provision for suits challenging agency action and pegged its limitations period to the moment of finality, using statutes like the Emergency Price Control Act as a model. It chose a different path.”
The Court noted that “[t]he standard accrual rule that §2401(a)’s limitations period exemplifies is plaintiff specific—even if repose provisions like the Hobbs Act eschew a ‘challenger-by-challenger” approach. The Board’s rule would start the limitations period applicable to the plaintiff not when she had a complete and present cause of action but when the agency action was final and, theoretically, some other plaintiff was injured and could have sued. But §2401(a)’s text focuses on a specific plaintiff: ‘the complaint is filed within six years after the right of action first accrues.’ (Emphasis added.)” (Citation omitted.) After rejecting the Board’s reliance on two of the Court’s precedents as support for its position, the Court rejected the “policy concerns” raised by the Board. The Court noted that “[r]egulated parties ‘may always assail a regulation as exceeding the agency’s statutory authority in enforcement proceedings against them’ or ‘petition an agency to reconsider a longstanding rule and then appeal the denial of that petition.’ So even on the Board’s preferred interpretation, ‘[a] federal regulation that makes it six years without being contested does not enter a promised land free from legal challenge.’” (Citation omitted.) The Court added that its rule “vindicates the APA’s ‘basic presumption’ that anyone injured by agency action should have access to judicial review.”
Justice Kavanaugh filed a concurring opinion “to explain a crucial additional point: Corner Post can obtain relief in this case only because the APA authorizes vacatur of agency rules.” That is because “[t]he APA empowers federal courts to ‘hold unlawful and set aside agency action’ that, as relevant here, is arbitrary and capricious or is contrary to law. 5 U.S.C. §706(2). The Federal Government and the federal courts have long understood §706(2) to authorize vacatur of unlawful agency rules, including in suits by unregulated plaintiffs who are adversely affected by an agency’s regulation of others.” Justice Kavanaugh noted that the Government has recently changed its position on that, but stated that its “newly minted position is both novel and wrong” ”in light of the text and history of the APA, the longstanding and settled precedent adhering to that text and history, and the radical consequences for administrative law and individual liberty that would ensue if vacatur were no longer available.” He then explained these points at length.
Justice Jackson filed a dissenting opinion, which Justices Sotomayor and Kagan joined. She noted early on that “this case is the poster child for the type of manipulation that the majority now invites—new groups being brought in (or created) just to do an end run around the statute of limitations.” Justice Jackson stated that “[w]hen a claim accrues depends on the nature of the claim.” That principle matters here because “the §2401(a) catchall applies to different causes of action, and those causes of action establish different legal claims.” Further, she said, §2401(a) “does not say that the clock starts when the plaintiff’s right of action first accrues; rather, §2401(a) starts the clock when ‘the right of action first accrues.’ (Emphasis added.) In other words, the limitations provision here focuses on the claim being brought without regard for who brings it.” Turning to what “accrue” means in the APA context, Justice Jackson wrote that “Congress has repeatedly made clear, through various statutory enactments, that in the administrative-law context, the statute of limitations for filing a claim that seeks to invalidate the agency action runs from the moment of final agency action.” And, turning to history, she said that “[e]ven before 1948, Congress consistently started limitations periods in the administrative-law context at the moment of the last agency action.”
Turning to text, Justice Jackson asserted that “[o]ne cannot expect for Congress to have explicitly stated that accrual in §2401(a) starts at the point of final agency action when §2401(a) is a residual provision that also applies to claims that do not involve agency action at all.” She found further support for her reading in “[t]he way that courts review agency actions. . . . Courts do not look at what happened to the plaintiff or what happened after the rulemaking―they look only at the rule and the rulemaking process itself.” Justice Jackson next stated that the Court’s ruling “undermines each of the central goals of all limitations provisions”: repose, elimination of stale claims, and certainty. Finally, Justice Jackson stated that the Court’s ruling is “extraordinarily consequential. In one fell swoop, the Court has effectively eliminated any limitations period for APA lawsuits, despite Congress’s unmistakable policy determination to cut off such suits within six years of the final agency action. The Court has decided that the clock starts for limitations purposes whenever a new regulated entity is created. This means that, from this day forward, administrative agencies can be sued in perpetuity over every final decision they make.” In her view, “[t]he tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government.”
City of Grants Pass v. Johnson, 23-175.
By a 6-3 vote, the Court held that enforcement against the homeless of a law restricting encampment on public property does not constitute “cruel and unusual punishment” prohibited by the Eighth Amendment. In Martin v. Boise, 920 F.3d 584 (9th Cir. 2019), the Ninth Circuit held that “the Eighth Amendment’s Cruel and Unusual Punishments Clause barred Boise from enforcing its public-camping ordinance against homeless individuals who lacked “access to alternative shelter[,]” which occurs when “‘there is a greater number of homeless individuals in a jurisdiction than the number of available beds in shelters.’” Many suits by the homeless followed in the wake of Martin, including this one brought against the City of Grants Pass, Oregon. Grants Pass prohibits sleeping “on public sidewalks, streets, or alleyways”; “[c]amping” on public property; and “[c]amping” and “[o]vernight parking” in the city’s parks. An initial violation might be penalized by a fine; a person receiving multiple citations may be barred from city parks for 30 days; and violations of those orders might constitute criminal trespass, punishable by up to 30 days in prison and a $1250 fine. Shortly after Martin issued, two homeless individuals filed suit challenging Grant Pass’s public-camping laws. A district court certified a class of involuntarily homeless people living in Grant Pass and “enjoined the city from enforcing its public-camping laws against the homeless.” A divided panel of the Ninth Circuit affirmed after agreeing with the district court that the city’s homeless exceed “available” shelter beds. In an opinion by Justice Gorsuch, the Court reversed and remanded.
The Court emphasized that the Eight Amendment “’has always been considered, and properly so, to be directed at the method or kind of punishment’ a government may ‘impos[e] for the violation of criminal statutes.’” By contrast, the Amendment has not focused “on the question whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense.” The one exception is Robinson v. California, 370 U.S. 660 (1962), where “the Court invoked the Cruel and Unusual Punishments Clause to hold that California could not enforce its law making ‘the “status” of narcotic addiction a criminal offense.’” But Robinson stressed its own limits, making clear it didn’t reach laws targeting conduct by addicts. And so the Court held here that, “[w]hatever its persuasive force as an interpretation of the Eighth Amendment, it cannot sustain the Ninth Circuit’s course since Martin.” That’s because the laws at issue in Martin and here forbid actions (e.g., public camping), not mere status. “Under the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.”
The Court rejected the plaintiffs and dissent’s contention that Robinson should be extended to apply here because “laws like these seek to regulate actions that are in some sense ‘involuntary,’ for some homeless persons cannot help but do what the law forbids.” The Court said it already rejected that view in Powell v. Texas, 392 U.S. 514 (1968), when it rejected a challenge to the a public drunkenness conviction of a person who claimed “his drunkenness was an ‘involuntary’ byproduct of his status as an alcoholic.” That said, the Court noted that “a variety of other legal doctrines and constitutional provisions work to protect” those in the plaintiffs’ shoes, such as the “necessity” defense and state laws such as one just passed in Oregon that “specifically address[es] how far its municipalities may go in regulating public camping.”
The Court elaborated that extending Robinson would have untoward effects, and would lead the Court to “interfere with ‘essential considerations of federalism’ that reserve to the States primary responsibility for drafting their own criminal laws.” Martin, for example, created numerous problems. City officials and law enforcement officers cannot readily determine who is “involuntarily” homeless (e.g., because the person turned down a shelter), how many homeless there are on a given day, how many shelter beds are “adequate” and “available” on a given day, and so on. And would adopting plaintiffs’ proposed rule also “require[] cities to tolerate other acts no less ‘attendant [to] survival’ than sleeping, such as starting fires to cook food and ‘public urination and defecation’”? In the end, said the Court, “[h]omelessness is complex. Its causes are many. So may be the public policy responses required to address it.” But the Eighth Amendment does not “grant[] federal judges primary responsibility for assessing those causes and devising those responses.”
Justice Thomas issued a concurring opinion to “make two additional observations.” First, he believed that Robinson should be overruled in the appropriate case. Second, the plaintiffs “have not established that their claims implicate the Cruel and Unusual Punishments Clause” because they failed to explain “how the civil fines and park exclusion orders constitute a ‘penalty imposed for the commission of a crime.’”
Justice Sotomayor issued a dissenting opinion, which Justices Kagan and Jackson joined. She began: “Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment. See Robinson v. California, 370 U.S. 660 (1962).” In particular, Justice Sotomayor concluded that the “purpose, text, and enforcement” of Grants Pass’s anti-public-camping ordinances show that they “target status, not conduct.” The ordinances’ purpose is “to criminalize being homeless,” as shown by statements made by members of the city council at a pivotal public meeting in 2013. Turning to text, Justice Sotomayor found that the ordinances’ “terms single out homeless people.” That is because “the Ordinances do not apply unless bedding is placed to maintain a temporary place to live. Thus, what separates prohibited conduct from permissible conduct is a person’s intent to live in public spaces.” (Internal quotation marks omitted.) “Put another way, the Ordinances single out for punishment the activities that define the status of being homeless.” For example, she said, “[t]he Ordinances’ definition of ‘campsite’ creates a situation where homeless people necessarily break the law just by existing.” Third, Justice Sotomayor found that “[t]he Ordinances are enforced exactly as intended: to criminalize the status of being homeless.”
For all those reasons, Justice Sotomayor stated that “Robinson should squarely resolve this case.” She then insisted that “[u]pholding Martin does not call into question all the other tools that a city has to deal with homelessness,” and that the Court “overstates the line-drawing problems that a baseline Eighth Amendment standard presents.” Justice Sotomayor then noted that the Court did not decide “whether the Ordinances are valid under a new law that codifies Martin,” the Eighth Amendment’s Excessive Fines Clause, or the Due Process Clause.
Fischer v. United States, 23-5572.
By a 6-3 vote, the Court held that 18 U.S.C. §1512(c)(2)―which makes it a crime to “otherwise obstruct[], influence[], or impede[] any official proceeding, or attempt[] to do so”―must be read in light of the preceding subsection. Accordingly, ruled the Court, to prove a violation of (c)(2), “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or . . . other things used in the proceeding, or attempted to do so.” The Government prosecuted petitioner Joseph Fischer for his actions on January 6, 2021, when he forced entry into the Capitol and assaulted a police officer while both Houses of Congress were in a joint session to certify the 2020 Presidential Election. A grand jury indicted Fischer on seven counts, one of them for violating §1512(c)(2). The district court granted his motion to dismiss that count. A divided panel of the D.C. Circuit reversed and remanded. In an opinion by Chief Justice Roberts, the Court vacated and remanded.
Section 1512(c)(2), the “otherwise” residual clause, follows (c)(1), which imposes criminal liability on anyone who corruptly “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.” The Court applied the noscitur a sociis and ejusdem generis canons, which “track the common sense intuition that Congress would not ordinarily introduce a general term that renders meaningless the specific text that accompanies it.” After citing some “common sense” examples and one of its precedents, the Court ruled that “[t]he ‘otherwise’ provision of Section 1512(c)(2) is similarly limited by the preceding list of criminal violations. . . . Guided by the basic logic that Congress would not go to the trouble of spelling out the list in (c)(1) if a neighboring term swallowed it up, the most sensible inference is that the scope of (c)(2) is defined by reference to (c)(1).” Interpreted that way, (c)(2) “makes it a crime to impair the availability or integrity of records, documents, or objects used in an official proceeding in ways other than those specified in (c)(1)”―for example, by creating false evidence or by impairing witness testimony.
The Court found its reading supported by the history of §1512(c), which Congress adopted in the wake of the Enron scandal. The prior version of the statute failed to impose liability on a person who destroyed records himself, creating a loophole. Section (c) plugged the loophole. “It would be peculiar to conclude that in closing the Enron gap, Congress actually hid away in the second part of the third subsection of Section 1512 a catchall provision that reaches far beyond the document shredding and similar scenarios that prompted the legislation in the first place.” The Court next found its interpretation supported by “[t]he broader context of Section 1512 in the criminal code.” The Court concluded that the Government’s reading―that §1512(c)(2) “criminalized essentially all obstructive conduct”―”would largely obviate the need for [a] broad array of other obstruction statutes,” and would “render superfluous the careful delineation of different types of obstructive conduct in Section 1512 itself.” After rejecting some of the Government’s counterarguments, the Court observed that the Government’s position “would criminalize a broad swath of prosaic conduct”―e.g., “a peaceful protester could conceivably be charged under §1512(c)(2) and face a 20-year sentence.” All told, ruled the Court, “[i]f Congress had wanted to authorize such penalties for any conduct that delays or influences a proceeding in any way, it would have said so.”
Justice Jackson filed a concurring opinion. She joined the majority opinion, but wrote “separately to explain why and how that interpretation of §1512(c) follows from the legislative purpose that this statute’s text embodies.” Justice Jackson asserted that “the examples that Congress opts to include in the text of a statute evince its intentions concerning what the rule covers and thereby help express a particular legislative purpose.” Applied here, “(c)(1) is indisputably focused on persons who engage in a particular kind of obstructive conduct,” and (c)(2) must be read as “achiev[ing] a similar result.” Like the majority, Justice Jackson found that the statute’s “enactment history” supports the Court’s interpretation: “Nothing in the enactment history of §1512(c) suggests that Congress believed that it was creating an all-encompassing statute that would obviate the need for any other obstruction prohibitions.”
Justice Barrett filed a dissenting opinion, which Justices Sotomayor and Kagan joined. Justice Barrett found the issue straightforward. Fischer halted an official proceeding, the certification of election results. He therefore can be tried for “obstructing, influencing, or impeding an official proceeding.” Justice Barrett noted that “statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway.” Starting with plain text, she found that (c)(2) “covers all sorts of actions that affect or interfere with official proceedings.” And the term “otherwise” is a commonly used “catchall phrase”: it “prohibits obstructing, influencing, or impeding an official proceeding by means different from those specified in (c)(1), thereby serving as a catchall.” Justice Barrett disagreed with the Court’s use of the noscitur and ejusdem canons, saying that they principally apply to a list of terms that concludes with an ambiguous or general word. Here, by contrast, the Court modified the words obstructs, influences, and impedes by “adding an adverbial phrase” in front of them, borrowed from (c)(1).
Justice Barrett then criticized the Court’s anti-superfluity argument, noting that “[t]he Court’s interpretation assumes that Congress used a convoluted, two-step approach to enact a prohibition on ‘impair[ing] the integrity or availability of records, documents, or other objects for use in an official proceeding.’ So why didn’t Congress just say that? And if the Court is right about what (c)(2) means, why do we need the specific examples in (c)(1)? Those acts are already covered. The problem of (c)(2) subsuming (c)(1) is therefore not unique to my theory.” She agreed that Congress enacted §1512(c) to close the Enron loophole. But she found that (c)(2) “reflects Congress’s desire to avoid future surprises: It is ‘a catchall for matters not specifically contemplated—known unknowns.’” And Justice Barrett maintained that the Court “exaggerate[d]” the extent to which (c)(2), on her and the Government’s reading, would render other obstruction provisions superfluous. Indeed, she noted, existing obstruction statutes already overlap. Finally, in response to the majority’s reference to the consequences of her reading, Justice Barrett noted that “the Court ignores that (c)(2) requires proof that the defendant acted ‘corruptly.’”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
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