Under Jack Smith’s theory, Lincoln, Truman, Clinton and Biden could all have ended up in the dock.

By David B. Rivkin, Jr., and Elizabeth Price Foley

April 24, 2024, in the Wall Street Journal

The Supreme Court hears oral arguments Thursday in Trump v. U.S., in which Donald Trump argues that the Constitution precludes his prosecution for his role in the Jan. 6, 2021, riot. Mr. Trump’s detractors insist that recognizing presidential immunity would put him above the law. They’re wrong. Immunity for official actions is a necessary part of the constitutional structure, and criminal prosecution isn’t the only way to hold a president accountable for unlawful official acts.

Because no previous president ever faced criminal charges, the question before the justices is novel. But the high court has addressed the unique constitutionally driven relationship between the presidency and the courts. In Kendall v. U.S. ex rel. Stokes (1838), it declared: “The executive power is vested in a President; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power.”

Franklin v. Massachusetts (1992) dealt with the question of when statutes enacted by Congress apply to the president. The ruling noted that “the President is not explicitly excluded” from the Administrative Procedure Act, “but he is not explicitly included, either.” Under such circumstances, “out of respect for the separation of powers and the unique constitutional position of the President . . . textual silence is not enough to subject the President to the provisions.”

More fundamentally, in Nixon v. Fitzgerald (1982), the court held that separation of powers demands absolute immunity from civil lawsuits for acts falling within the “outer perimeter” of the president’s official responsibilities. Absolute immunity is necessary because the president “occupies a unique position in the constitutional scheme,” and the specter of litigation “could distract a President from his public duties.” That applies with even greater force to the threat of criminal prosecution.

Special counsel Jack Smith argues that “no President need be chilled in fulfilling his responsibilities” because there are “strong institutional checks to ensure evenhanded and impartial enforcement of the law,” including grand jury indictment, due process and the government’s burden of proving guilt beyond a reasonable doubt. But even if the prospect of conviction is remote, the threat of prosecution impairs the presidency.

Further, the most important institutional check, the norm against politicized prosecutions, has so broken down that not only Mr. Smith but district attorneys in New York and Atlanta have rushed to bring Mr. Trump to court. Imagine how other presidents might have fared if they had to worry about prosecution for official acts:

• Abraham Lincoln suspended habeas corpus without congressional authorization. In Ex Parte Merryman (1861), Chief Justice Roger Taney, acting as a circuit judge, held that the power to suspend habeas lies solely with Congress. Lincoln ignored Taney’s ruling and continued his suspension of habeas until the end of the Civil War. No one suggested that Lincoln be prosecuted for false imprisonment, false arrest or kidnapping.

• Harry S. Truman seized domestic steel plants during the Korean War, violating statutes that authorized the president to seize private property only in narrow circumstances. The Supreme Court declared his actions unconstitutional in Youngstown Sheet & Tube Co. v. Sawyer (1952). But no federal prosecutors suggested they could prosecute him for “conspiracy against rights,” or “conspiracy to commit an offense against the United States,” the charges Mr. Smith has brought against Mr. Trump.

• Bill Clinton, George W. Bush, Barack Obama and Joe Biden all unilaterally ordered military actions as commander in chief. Critics accused them of usurping Congress’s power to declare war, but nobody seriously suggested that they be prosecuted for murder, torture, war crimes or misappropriation of government resources.

The president isn’t the only official to enjoy immunity for official acts. In Yaselli v. Goff (1927), the Supreme Court affirmed a lower court’s conclusion that federal prosecutors have absolute immunity from civil liability because the “public interest requires that persons occupying such important positions . . . should speak and act freely and fearlessly in the discharge of their important official functions.” In Kalina v. Fletcher (1997), the justices held that even under Section 1983—a civil-rights law authorizing lawsuits against state officials who violate federal constitutional rights—prosecutors enjoy absolute immunity for acts undertaken in their “role as an advocate.” This is because that role is unique to prosecutors, and the public’s interest “in protecting the proper functioning of the office, rather than the interest in protecting its occupant, . . . is of primary importance.”

The court reached the same conclusion about judges in Pierson v. Ray (1967), which held that Section 1983 didn’t abrogate judges’ absolute immunity for “acts committed within their judicial jurisdiction,” because such immunity is “for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.”

In Gravel v. U.S. (1972), the justices held that the Speech and Debate Clause extends absolute immunity to members of Congress and their aides for official actions. This is to protect a member of “a co-equal branch of the government” from “executive and judicial oversight that realistically threatens to control his conduct as a legislator.”

Like prosecutors, judges and congressmen, a president threatened with prosecutions for official acts couldn’t exercise his duties with full vigor. Unlike those other officials, the president is the singular head of a branch of government, making his ability to exercise his powers all the more essential.

That leaves the question of whether the actions for which Mr. Trump was charged were official or, as Mr. Smith asserts, private. In McDonnell v. U.S. (2016) the court held that an “official act” is an action on any matter that is “pending . . . before a public official,” and includes the president’s “using his official position to exert pressure on another official, knowing or intending that such advice will form the basis for an ‘official act’ of another official.”

Mr. Trump acknowledges that “no court has yet addressed the application of immunity to the alleged facts of the case.” The justices should draw a line and extend absolute criminal immunity to actions within the outer perimeter of the president’s duties. Then it would be for the lower courts to decide on which side of the line these actions fall.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/whats-at-stake-in-the-trump-immunity-case-president-supreme-court-1f00dc9c

He found the partisan spectacle distasteful even before Obama’s inaccurate declamation about the Supreme Court in 2010.

By David B. Rivkin, Jr., and James Taranto

March 6, 2024, in the Wall Street Journal

Justice Samuel Alito’s first State of the Union address was a happy occasion, but things went downhill after that. “The Supreme Court now has two superb new members,” President George W. Bush told the nation on Jan. 31, 2006. Justice Alito had been confirmed that same day, Chief Justice John Roberts four months earlier. Both were in the audience—justices get front-row seats—and both eventually came to regard the annual ritual as a burden. Justice Alito hasn’t attended one since 2010.

“Unless you’re there on the floor, you don’t really appreciate what’s going on,” Justice Alito told the Journal in an interview last spring. “The members [of Congress] are extremely vocal. . . . I remember during one where President Bush was speaking, and the leaders behind us were saying, ‘Bulls—! That’s bulls—!’ They’re always making these comments, and loud enough so you could hear it two or three rows away.”

That’s awkward for members of the court, whose official role requires them to rise above partisanship. Applause lines are even trickier, since silence can seem like dissent. “We sit there like potted plants, and then we look out of the corner of our eye to see whether any of our colleagues are going to stand up, or the Joint Chiefs are,” Justice Alito said. “There are some times when you have to stand up. Like, ‘Don’t we honor the brave men and women who are fighting and dying for this country?’—you can’t not stand up for that. But then you say, ‘Isn’t the United States a great country’—you stand up—‘because we are going to enact this legislation’—maybe you have to sit down.”

In January 2010, the court itself became the target of a presidential declamation. “With all due deference to separation of powers,” President Barack Obama said, “last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”

As Democratic lawmakers arose behind the justices and clapped, TV cameras caught Justice Alito shaking his head and mouthing the words “not true.” He was right, as even the New York Times’s Linda Greenhouse acknowledged. Citizens United v. FEC didn’t touch the Tillman Act of 1907, which to this day prohibits corporate campaign contributions. It struck down provisions of a different law, enacted in 2002, and overturned precedents dating only to 1990 and 2003.

Justice Alito was surprised by Mr. Obama’s error. “I imagine the State of the Union speech is vetted inside out and backwards,” he told us. “Somebody should have seen that this statement was inaccurate.” He also failed to realize he was on camera: “My mistake was that I didn’t think about the fact that the text is distributed to the media ahead of time. They knew that the president was going to talk about the Supreme Court, so they had their cameras on us. . . . That’s why it’s a sore point.”

Justice Alito isn’t the first member of the court to shun the State of the Union. John Paul Stevens never attended. Antonin Scalia last went in 1997, Clarence Thomas in 2006. “It has turned into a childish spectacle,” Scalia said in 2013. “I don’t want to be there to lend dignity to it.”

Chief Justice Roberts was only a little less pointed in March 2010, six weeks after the Obama-Alito kerfuffle. “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless, I think is very troubling,” he told students at the University of Alabama Law School. “To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there.”

The chief justice has nonetheless continued to attend and is expected to do so again on Thursday night. As with those applause lines, you can’t even abstain without making a statement.

Mr. Taranto is the Journal’s editorial features editor. Mr. Rivkin practices appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/why-samuel-alito-shuns-the-state-of-the-union-obama-supreme-court-polarization-6e1ed0a9

By David B. Rivkin, Jr., and Elizabeth Price Foley

February 29, 2024, in the Wall Street Journal

Many observers thought the Supreme Court would decline to consider Donald Trump’s claim that presidential immunity shields him from prosecution for his conduct on Jan. 6, 2021. But on Wednesday the justices announced that they will hear the former president’s case in April. Mr. Trump could eventually face a trial on those charges, but the justices had little choice but to take up this question because the lower court’s ruling was so sweeping and dangerous.

Mr. Trump claims that his allegedly criminal actions were “official acts” taken as president. The U.S. Circuit Court of Appeals for the District of Columbia held that it didn’t matter if they were—that no president is entitled to immunity from “generally applicable criminal laws.” That decision violates the separation of powers, threatens the independence and vigor of the presidency, and is inconsistent with Supreme Court precedent.

The justices are unlikely to decide whether Mr. Trump’s actions were in fact “official acts.” Instead, they will consider the key legal question, “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

That’s a novel question, but in Nixon v. Fitzgerald (1982), the high court held that a president enjoys absolute immunity from civil suits predicated on his “official acts,” even if they fall foul of “federal laws of general applicability.” Justice Lewis Powell wrote that such immunity is a “functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” Such lawsuits “could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.”

Mr. Trump maintains that he believed the 2020 presidential election was riddled with fraud and that his conduct on Jan. 6 was fully consistent with his constitutional obligations to “take care that the laws be faithfully executed.” Whatever the merits of that claim, it raises weighty questions of law and fact that the D.C. Circuit was wrong to brush aside—most centrally, that the president’s power is granted by the Constitution, which, as the supreme law of the land, overrides ordinary, “generally applicable” statutes.

The D.C. Circuit decision opened the door to all manner of constitutional crises. A former president could be prosecuted for ordering a military attack on an American affiliated with a foreign terrorist organization, even though such an order is clearly within his authority as commander in chief. Aggressive prosecutors motivated by ideology or partisanship could use capaciously worded criminal statutes—including those regarding mail or wire fraud, racketeering, false statements and misrepresentations—to challenge almost any presidential action, including those related to national security activities.

As with civil suits, it isn’t enough to say that the former president would have the opportunity to mount a defense in court. The mere possibility of personal prosecution for official actions would chill future presidential decisions. The D.C. Circuit casually disregards this danger, asserting simply that the “public interest” in prosecuting crimes is weightier than the risk of chilling impartial and fearless presidential action. It asserts that a president wouldn’t be “unduly cowed” by the prospect of criminal liability, “any more than a juror” or “executive aide” would be. That analogy is inapt because the president’s responsibilities are much weightier than those of jurors or aides. He alone is the singular head of a constitutional branch of government. As the justices recognized in Nixon v. Fitzgerald, the “greatest public interest” isn’t in enforcing ordinary statutes against the president. Immunity is necessary to ensure he has “the maximum ability to deal fearlessly and impartially with the duties of his office.”

The D.C. Circuit dismissed as “slight” the risk that former presidents will be politically targeted because prosecutors “have ethical obligations not to initiate unfounded prosecutions” and there are “additional safeguards in place,” including the requirement of seeking an indictment from a grand jury. These arguments border on frivolous. Not all prosecutors are ethical, and even those who are may be overzealous. Many cases have featured prosecutorial misconduct or abuse. And the justices have surely heard the saying that a prosecutor can indict a ham sandwich. Lawyers in civil cases are also bound by ethical obligations, but that didn’t vitiate the case for presidential immunity in 1982.

Jack Smith, the special counsel in the Trump cases, has asserted that federal prosecutors make decisions without regard to politics—but his conduct in this case belies that claim. His chief argument against Mr. Trump’s petition for a stay of the D.C. Circuit’s decision denying his immunity was that such a delay would cause “serious harm to the government—and to the public” because the case “presents a fundamental question at the heart of our democracy.” Many Supreme Court cases raise such questions, and Mr. Smith avoids saying what distinguishes this one. The obvious answer is the election timetable.

Mr. Smith’s demand for fast-tracking the Supreme Court’s consideration thus contradicts the D.C. Circuit’s suppositions about prosecutorial ethical probity. Trying Mr. Trump, the all-but-certain Republican nominee for president, before the election is inconsistent with Section 9-27.260 of the Justice Department’s Justice Manual, which makes clear that prosecutors “may never make a decision regarding . . . prosecution or select the timing [thereof] . . . for the purpose or affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

The question of presidential immunity is an important one for our constitutional democracy of separated government powers, and the D.C. Circuit made a grievous error in disposing of it so casually. The justices were right to halt the proceedings until they can give the issue the careful consideration it deserves.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/why-the-justices-had-to-hear-trumps-case-presidential-immunity-125803c6

Applying the Insurrection Clause to the presidency would have given rogue states too much power.

By David B. Rivkin, Jr., and Lee A. Casey

February 7, 2024, in the Wall Street Journal

The case of Trump v. Anderson, in which Donald Trump asks the Supreme Court to reverse a ruling that bars him from Colorado’s presidential ballot, raises many complicated legal and factual questions. The justices should ignore them and decide a simple one: Does Section 3 of the 14th Amendment, which disqualifies certain former officeholders who have “engaged in insurrection,” apply to the presidency?

As Michael Mukasey has argued in these pages, the answer is no. Those who are covered by the Insurrection Clause are specifically disqualified from serving as members of Congress or the Electoral College—not as president or vice president. They are also barred from state office and from “any office, civil or military, under the United States.” But “any office” refers to appointive posts such as judges, generals and cabinet secretaries, and “officers of the United States” are appointed, not elected.

This raises an obvious question: Why would the authors of the 14th Amendment exclude the presidency? For two compelling and practical reasons, which reinforce Section 3’s plain meaning.

First, by the time the amendment was ratified in 1868, the states had largely adopted a system whereby presidential electors, instead of being appointed by state legislatures, were chosen by popular vote after committing to a particular candidate. If no former Confederates (or more modern insurrectionists) could stand for election as presidential electors, there would be little chance of an insurrectionist president. (As Mr. Mukasey also observed, if the president were covered, there would be no reason to cover presidential electors, who wouldn’t be able to elect an insurrectionist if they wanted to.)

Second, there was no way to cover the presidency without violating the Constitution’s established federalism principles, which require states to act uniformly when dealing with federal laws and institutions. These principles are at the root of several constitutional provisions, including the equal representation of states in the Senate, the Supremacy Clause and the Full Faith and Credit Clause. These provisions are indispensable in making the federal republic functional.

Applying Section 3’s disqualification to the presidency would create exactly the uniformity problem the Supreme Court now faces—different states reaching different conclusions about what is and isn’t an insurrection in the context of a national election.

There is ample evidence that the 14th Amendment’s drafters paid great attention to federalism concerns. This is particularly true regarding the amendment’s first two sections, which dramatically reshaped the relationship between U.S. citizens and the federal and state governments by requiring states to respect federal constitutional rights. As legal scholar Kurt T. Lash recounted in “Federalism and the Original Fourteenth Amendment,” a 2019 article, radical Republicans, who favored stronger federal power, clashed with moderate Republicans determined to preserve states’ rights under the Constitution’s original Madisonian federalism architecture. It is implausible that they would have fought hard to protect federalism while permitting each state to determine presidential disqualification for itself.

In U.S. Term Limits v. Thornton (1995), the Supreme Court held that states couldn’t impose their own qualifications on members of Congress. Justice John Paul Stevens’s majority opinion discussed at length how elections to the national legislature involved the people of the U.S. rather than citizens of each state, requiring that qualifications be nationally uniform. This logic is even more compelling when it comes to the president, who is elected by the entire nation. As Alexander Hamilton wrote in Federalist No. 68, the Framers made the “appointment of the president” depend “in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment”—members of the Electoral College.

The Constitution authorizes state legislatures to determine how presidential electors are selected—and even to appoint them directly, as Colorado did in 1876—and the qualifications for serving as president are stated in the constitutional text. There is no indication that the states may interpret these for themselves. Stevens wrote that while states can adopt “election procedures” (his emphasis) that govern access to the ballot—such as signature requirements for independent candidates or “sore loser” provisions that bar a third-party run by a former candidate for a major-party nomination—they can’t set or revise qualifications for federal office.

Some of Mr. Trump’s opponents have pointed hopefully to Hassan v. Colorado, a 2012 decision of the 10th U.S. Circuit Court of Appeals in which then-Judge Neil Gorsuch upheld the state’s authority to bar from the ballot a naturalized citizen who wanted to run for president. Abdul Karim Hassan asserted an eccentric theory that the 14th Amendment vitiated the requirement that the president be a natural-born citizen. Judge Gorsuch ruled that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office”—not that state officials or judges could decide what the qualifications for federal office are.

The meaning of “natural-born citizen” is open to dispute in certain unusual cases involving would-be candidates born overseas to American parents or in unincorporated U.S. territories (where the Constitution doesn’t fully apply). If such a dispute arose and states responded to it differently, the federal courts would have to intervene quickly to impose uniformity. To avoid precisely that sort of situation, the drafters of the 14th Amendment left the presidency out of Section 3.

A Supreme Court decision to that effect would be consistent with the doctrine that judges should avoid deciding constitutional issues unnecessarily. Was the riot of Jan. 6, 2021, an “insurrection”? If so, what does it mean to have “engaged” in it? Does disqualifying someone from office require an act of Congress or a criminal conviction? These questions may be pertinent in future cases, but not in Trump v. Anderson.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/colorado-cant-disqualify-trump-from-2024-election-c12a4bc9

The precedent strips judges and lawmakers of legitimate power and hands it to bureaucrats.

By David B. Rivkin, Jr., and Andrew M. Grossman

16 January 2024 in the Wall Street Journal

Conservatives often criticize liberal jurists for “judicial activism”—disregarding laws passed by elected legislators and imposing their own policy preferences instead. On Wednesday the Supreme Court will consider whether to overturn a precedent that went too far in the other direction by surrendering the judicial role of interpreting the law and handing it to unelected bureaucrats and agency heads.

Loper Bright Enterprises v. Raimondo is a case about fishing regulation. The National Marine Fisheries Service issued a rule requiring the plaintiffs to pay the costs of carrying federal conservation monitors aboard their vessels. The fishermen argued that the service had no legal authority to do so, but the high court’s precedent in Chevron v. NRDC (1984) obligated the U.S. Circuit Court of Appeals for the District of Columbia to defer to the government’s interpretation of an “ambiguous” statute.

Chevron was an “accidental landmark,” as legal scholar Thomas Merrill put it in 2014. At issue in the case was a Clean Air Act regulation interpreting the term “stationary source” to refer to an entire facility rather than a single smokestack. This definition enabled facilities to make changes that didn’t increase their total pollution without triggering onerous permitting requirements for “new or modified” sources. The justices upheld the regulation, deferring to the agency’s interpretation of “ambiguous” text.

For as long as they’d had the power to do so, federal courts interpreted statutes for themselves where necessary to decide a case, including in cases challenging agencies’ positions on the laws they administer. Chevron superseded that approach with a blanket rule of deference.

It’s unclear if the high court intended this fundamental change. Chevron’s author, Justice John Paul Stevens, regarded the decision as ordinary pragmatism: “When I am so confused, I go with the agency,” he told his colleagues as they discussed the case in conference.

By all indications, Chevron’s reasoning was driven by the need to assemble a court majority on a difficult interpretive question. That explains the decision’s failure to grapple with the obvious consequences of its logic. The Constitution vests the “judicial power” in the courts. “It is emphatically the province and duty of the judicial department to say what the law is,” as Chief Justice John Marshall wrote in Marbury v. Madison (1803). Chevron bucked that constitutional command without acknowledging that it did so.

Chevron deference also conflicts with the Administrative Procedure Act of 1946, which provides that a “reviewing court shall decide all relevant questions of law” and “interpret constitutional and statutory provisions.” Chevron doesn’t cite the APA.

While few appreciated Chevron’s import when it was handed down, its potential was apparent to the Justice Department. The Reagan administration seized on the decision as a corrective to the judicial activism of lower courts, especially the D.C. Circuit, in blocking its deregulatory agenda. The Chevron doctrine bulldozed the policy-driven obstacles courts had thrown up to block regulatory reforms. It gained adherents among newly appointed textualist judges like Antonin Scalia and Kenneth Starr on the D.C. Circuit, who favored judicial restraint.

But over the years Chevron became less about judicial restraint and more about agency dominance. With the movement toward textualism, led by Justices Scalia and Clarence Thomas, courts gradually returned to constrained formalism in interpreting statutes. Armed with the Chevron doctrine, however, the administrative state learned to wield its new interpretive power to maximum effect.

Deference might have been relatively harmless if agencies engaged in a good-faith effort to carry out unclear statutes. But beginning in the Clinton administration, Chevron changed the way they go about their business. Instead of asking what Congress meant, agency lawyers and decision makers hunt for ambiguities, real or imagined, to justify their policy objectives.

As agencies relied more on Chevron to pursue policy agendas, judges were forced to confront a greater range of asserted “ambiguities” with no standard to distinguish among them. Judicial review is the essential check on executive overreach, yet Chevron put a brick on the scale by committing the courts to favor the government’s positions. It is all too easy for courts, when faced with difficult or contentious interpretive questions, to waive the ambiguity flag and defer.

By aggrandizing the power of unelected bureaucrats, the Chevron doctrine also diminishes Congress. Witness the unseemly but now-routine spectacle of lawmakers hectoring the president and agencies to enact policy programs—from student-loan forgiveness to the expansion of antitrust law and greenhouse gas-regulation—rather than legislating themselves. The prospect of achieving an uncompromised policy win through executive action has replaced the give-and-take of the legislative process.

But the victories achieved in this fashion are only as durable as the current administration, and each new president takes office with a longer list of “day one” executive actions to reverse his predecessor and implement his own agenda. Donald Trump raised hackles last month when he said he would be a “dictator,” but only on “day one.” He was describing the post-Chevron presidency.

The principal argument of Chevron’s defenders is “reliance.” Ending deference to agencies, they say, would create regulatory uncertainty and threaten the viability of the administrative state. But what reliance interest can there be in a doctrine that empowers agencies to change course on a political whim, over and again?

The Supreme Court has already been moving away from Chevron deference, which it hasn’t applied since 2016. The Covid pandemic heightened the need for agency flexibility, yet none of the justices’ pandemic-policy decisions resorted to deference. In recent years, 13 states have rejected Chevron-style deference in interpreting state law without consequence.

Chevron’s rule of deference is an abdication of judicial duty, not an exercise in judicial restraint. It has proved unworkable and corrosive to the constitutional separation of powers. Forty years later, the court should correct its mistake.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is a senior legal fellow at the Buckeye Institute and an adjunct scholar at the Cato Institute. He filed a friend-of-the-court brief in support of the petitioners in Loper Bright. Both authors practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/too-much-judicial-restraint-chevron-deference-supreme-court-unintended-effect-3c898c3b

By David B. Rivkin, Jr., and Lee A. Casey

Nov. 17, 2023, in the Wall Street Journal

If you look at the Supreme Court’s new Code of Conduct as an attempt to appease the justices’ antagonists in Congress and the media, it is a total and predictable failure. But in substance it is an important rebuke to those critics. “Congress must continue its efforts to hold the judiciary accountable,” Sen. Majority Leader Chuck Schumer tweeted in response.

The code and the justices’ accompanying commentary make clear that Congress has no such authority. The justices describe the court’s unique role in America’s constitutional system and affirm several important principles:

• The Supreme Court isn’t merely a part of the judiciary; it is its head. The Constitution vests the judicial power “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Congress can no more subject the court to lower-court supervision, as some lawmakers have urged, than it can authorize a federal officer to review and reverse presidential decisions.

Moreover, aside from the impeachment power, the Constitution gives neither Congress nor the court as a whole disciplinary power over individual justices. The only substantive authority Congress has over the court’s judicial function is the power to legislate exceptions and regulations of its appellate jurisdiction.

• The decision to recuse oneself from a case is an “inherently judicial function.” As such, it is at the core of the court’s constitutional function and can’t be regulated in any manner by the political branches.

• The justices have a “duty to sit.” That means it’s improper for a justice to recuse himself from a case merely for convenience or to avoid controversy. As the justices state in the commentary, this duty is stronger for them than for lower-court judges: “The absence of one Justice risks the affirmance of a lower court decision by an evenly divided Court—potentially preventing the Court from providing a uniform national rule of decision on an important issue.”

• The “rule of necessity” requires the justices to decide a case if most or all of them would ordinarily be disqualified under the code. Recusal requirements must give way when following them would deny the litigants a judicial determination to which they are otherwise entitled.

It’s significant that all nine justices signed the document. After Justice Samuel Alito told the Journal in a July interview that Congress lacks the authority to regulate the high court, legal pundits speculated that other justices might disagree. Now all the court’s members have made clear that they share the same basic understanding of their constitutional role and authority. Any justice who disagreed could have dissented, so the code and commentary carry the same institutional weight as a unanimous decision.

The code makes plain that the justices recognize the importance of ethical constraints, but it also maintains the court’s independence, including the independence of its individual members, from recent efforts by Congress to aggrandize itself at the court’s expense.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/the-justices-ethics-code-rebukes-their-critics-f147db25