SCOTUS is going into July, destroying executive agency powers along the way

In SEC and EPA decisions, the SCOTUS conservatives are on a "power grab," Justice Sotomayor told us in dissent. Also: We got the EMTALA disposition.

“You had one job.”

By 10:30 a.m. Thursday, we knew that the U.S. Supreme Court would not be able to finish issuing its decisions for the term by the end of June.

The court is hearing fewer cases than in the past but for the third time in the past six years will be going into July before completing issuing decisions in argued cases.

We still have more opinions on Friday, and will — at least — have opinions on Monday as well.

To let you know the way in which we find out when the opinions are coming to an end: The chief justice announces whether it will be the final day of opinions before finishing on the penultimate day. He did not do so on Thursday. (This is the way the Supreme Court world works. It is not how it should work, but, here we are, so I let you know what I know whenever I can do so!) Later Thursday, the court added a Monday decision day to its calendar.

We did get four opinions on Thursday, including the actual disposition in the Emergency Medical Treatment and Labor Act (EMTALA) case. I’ll have a bit on that below, but I want to first focus on the administrative law cases, which, as Justice Sonia Sotomayor put it dissenting in one of them, are better described as a “power grab” by the court.

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Taking two hammers to executive agencies

Chief Justice John Roberts and Justice Neil Gorsuch made it more difficult for the federal government to operate on Thursday.

In one case, the conservatives — against Sotomayor’s strident dissent for the liberal justices — blocked administrative agencies in many instances from acting administratively to enforce the law. How many instances? Roberts demurs on that point.

In another case, the conservatives — against Justice Amy Coney Barrett’s strong dissent for herself and the liberal justices — made it easier for opponents of new regulations to block them from going into effect while litigation is ongoing. How much easier? Since Gorsuch doesn’t even acknowledge that’s what he’s doing, we don’t know.

The 6-3 decision in Securities and Exchange Commission v. Jarkesy could upend the ability of executive agencies to enforce decades of law, forcing them to bring virtually any enforcement actions that seek fines in court. The opinion by Roberts holds that such a decision is required under the Seventh Amendment’s right to a jury trial.

Roberts reached this result by focusing intensely the remedy — i.e., the fine — which he holds is “all but dispositive.” As such, he wrote, the Seventh Amendment jury right applies in George Jarkesy Jr.’s case — levied a $300,000 penalty in a securities fraud enforcement action — unless the “public right” exception applies. Although Sotomayor highlighted a problem even with that, his treatment of the “public right” exception is perhaps even more troubling because, in claiming it was avoiding an inappropriate expansion of the exception, his opinion ultimately further — and perhaps substantially — restricted it.

The “public right” exception is, if you’re not this majority, quite simple and sensible. When Congress wants to address a problem that it believes ordinary lawsuits — specifically, those that could have been brought in England at the Seventh Amendment’s passage — aren’t solving, it can attempt to address the problem by creating a new law that addresses the government’s “sovereign” interests and puts an agency in charge of enforcing those interests administratively. No jury trial is needed.

This was most clearly laid out in a 1977 case, Atlas Roofing Co. v. Occupational Safety and Health Review Commission, but is represented in cases before and since.

For the new majority, however, that is nothing. Without overruling it and with only giving the laziest attempt at distinguishing it, Roberts instead focuses on other cases that no one thought limited that key principle to insist that they did just that. Because the 10b-5 securities fraud rules at issue “target the same basic conduct as common law fraud, employ the same terms of art, and operate pursuant to similar legal principles,” Roberts and the conservatives held on Thursday that it doesn’t matter that the rules have a different purpose or are directed at protecting the government’s interests — and not private interests.

Of the court’s treatment of Atlas Roofing, Sotomayor did not hold back in her dissent: “In a world where precedent means something, this should end the case. Yet here it does not.”

This is not, moreover, just about SEC fraud enforcement. As Sotomayor explained:

Make no mistake: Today’s decision is a power grab. Once again, “the majority arrogates Congress’s policymaking role to itself.” Garland v. Cargill, 602 U. S. 406, 442 (2024) (SOTOMAYOR, J., dissenting). It prescribes artificial constraints on what modern-day adaptable governance must look like.

Cargill is the court’s decision from earlier this month blocking the bump stock ban. As with her dissent in that decision, she read from her Jarkesy dissent on the bench Thursday. She wants people to know what the court is doing. The Supreme Court does not livestream the audio of decision announcements, however, despite obviously having the capacity to do so as it does with oral arguments. Instead, anyone not at the court needs to wait until the fall, when the audio is turned over to the National Archives.

Her two points are important, related, and match my coverage of the oral arguments in the case, which I headlined, “The SEC case is really about Congress's power to let agencies address today's problems.“

First, she is saying that this is a matter that has long been left to Congress and the executive. Now that it has the votes, and in accord with conservative political opposition to the “administrative state,” Roberts took the power for the judiciary.

Second, Roberts wrote a decision decimating a significant power that the government has exercised unquestioningly since at least 1977. Along with the “major questions doctrine” and the still-undecided challenges to agencies under Chevron deference, Thursday’s decisions continue a path that the Roberts Court is taking us down of “making governing difficult,” as I put it in 2022.

The decision in the other administrative law case decided Thursday has greater immediate effects than Jarkesy’s $300,000 penalty, blocking the Environmental Protection Agency’s Clean Air Act “Good Neighbor“ rule for the states that remained subject to it during litigation.

This decision, too, could have spillover effects like the Jarkesy decision.

The 5-4 decision in Ohio v. EPA is notable for its being a decision on an argued application for a stay pending appeal. It is also notable for the fact that the conservatives lost Barrett’s vote. Not only that, but she wrote the dissent for herself and the three liberals.

Barrett’s dissent takes aim at the court’s action in light of the stay application — which fits with concerns about the shadow docket expressed repeatedly now by Barrett (and Justice Brett Kavanaugh, but he, apparently, let that go on Thursday) — and, only slightly more tentatively, on the merits. As Barrett led the dissent:

In short, Barrett is saying: Why is the majority doing this now — especially since they’re probably wrong?

Substantively, I have one primary concern about the fallout of this case outside of the EPA. This was a challenge asserting that the EPA’s action violated the Administrative Procedure Act because it was “arbitrary or capricious.”

At one point, Barrett, quoting from a leading case addressing APA challenges, wrote, “A rule is arbitrary and capricious if the agency ‘entirely failed to consider an important aspect of the problem.’ … But we will ‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.’”

At one point, after dismissing the Justice Department’s arguments in defense of the EPA rule, Gorsuch wrote:

The dissent is not “suggesting” that. That’s the standard.

Whether this makes it easier for APA challenges to federal agency rules to succeed — or at least succeed at stopping them from going into effect during litigation — is not certain yet, but Thursday’s EPA ruling, as with Jarkesy, sure seems to be doing work to overturn or at least water down precedent without ever saying so.

EMTALA happens, for real this time

We got the disposition from the Supreme Court actually dismissing the EMTALA case, Moyle v. US, as “improvidently granted” and dissolving the stays on Thursday.

The injunction against Idaho’s abortion ban, insofar as it conflicts with EMTALA, will remain in effect now while it is considered on appeal at the U.S. Court of Appeals for the Ninth Circuit. This is how it should have been.

In Thursday’s opinions, Barrett wrote for herself, Roberts, and Kavanaugh that she agreed with the DIG because “the shape of these cases has substantially shifted since we granted certiorari.”

Honestly, what did they expect from this sort of a cert before judgment grant — which was likely aimed at preventing an opinion upholding EMTALA against Idaho’s abortion ban from being issued by the Ninth Circuit before the justices heard it. Instead of waiting for a circuit split, which is their normal practice, they actively worked to prevent the possibility of it.

Whatever the debates over why the DIG — Was it a political punt, and, if so, did they not know about the upcoming election in January? Could no one get five votes for merits resolution? Did someone switch their opinion after argument? After opinion drafting began? — an important lesson here is that when the court is overeager to grab a case, things can and often do go wrong.

As a final note, reminder, warning, or however you take it: The pre-printed signs of the anti-abortion protesters outside of the Supreme Court left no doubt of their aims and that Thursday’s ruling, as Justice Ketanji Brown Jackson wrote, is just “delay.”

“EMERGENCY ROOMS ARE NOT ABORTION CLINICS,” one sign declared.

“MAKE ABORTION UNTHINKABLE,” the other sign stated.

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Law Dork in the news

I joined The Tent earlier this week to talk SCOTUS and these final decisions. Here it is on Apple podcasts.

I’ll have more media appearances and events in the coming days, including the Georgetown Law Supreme Court Term in Review event on Monday, so stay tuned!