Supreme Court Rules 9-0 In Favor Of The Constitution!

Another Big Win for Separation of Powers

In a shockingly rare occurrence, the United States Supreme Court (SCOTUS) on Friday had a unanimous ruling… in favor of the Constitution! I have to say, I am quite surprised, but so thrilled. And it wasn’t just any old constitutional win. It’s on the sacred Separation of Powers doctrine - my fave - and the challenge was against the ever-growing administrative state (i.e. agency power). I was on America’s Voice Live to discuss the dangers of the overreaching, ever-present administrative state, and you can watch that interview here. I have also written on separation of powers, and more specifically the importance of keeping the power-crazed administrative state in check, numerous times in the past: The Constitution Is The Answer; Regulation Nation; Our Constitution Was Written to Keep The Government In Check, Not The People; Catch Me If You Can

For anyone who may be unclear about what separation of powers is exactly, I’ll give a quick refresher from grade-school history class. (I know it’s been quite a while since most of us sat through a civics class, if ever). So, here in the United States, we have three branches of government (judicial, executive and legislative). All three branches are co-equal with one another, meaning that none is more powerful than, or has control over, the others. Each branch has its own separate powers and duties as laid out in our Constitution. The president (or governor at the state level) and their agencies are in the Executive Branch of government. The Executive Branch enforces the laws that the Legislative Branch (Congress, or state legislature) creates. The Executive Branch does not make laws. However, they can make regulations to help enforce the laws, but only if empowered by the Legislature through what is called an enabling statute (i.e. a law that gives the agency the authority to do something specific).

If you are thinking that, separation of powers… agency overreach… out-of-control administrative state, sounds a lot like my recent quarantine lawsuit, you’re 100% correct. Separation of Powers is the same doctrine upon which we (Senator Borrello, Assemblyman Tague, Congressman Lawler, and Uniting NYS) won our historic “quarantine camp” lawsuit last year against New York’s Governor Hochul and her Department of Health, “DOH”. (Note: Hochul is now, shamefully, appealing our win. You can get more details on that here).

The SCOTUS Ruling

Let’s dig in to this brand new, unanimous SCOTUS ruling. It’s a bit confusing in its constitutional holding with some twists and turns along the road here, but I’m going to walk you through it. If you feel like you maybe want to go to law school by the end of this article, then I’ll know I did a good job explaining this SCOTUS decision.

First note is that the decision was an adjudication of two different cases (one from the Fifth Circuit Court of Appeals, the other from the Ninth Circuit), which SCOTUS combined to rule upon. Remember, SCOTUS is not a court of automatic appeal, meaning the high Court can pick and choose which cases to hear. In the federal court system, a case typically starts at a federal District Court (trial court level), then appeals go up to the federal Court of Appeals for that area of the country (appellate court level), and then (if SCOTUS allows it) the final appeal goes up to SCOTUS (our highest court in the land). When you apply to SCOTUS to ask them to hear your case, it is called a writ of certiorari. Oft times, SCOTUS will accept a case if there is a split in lower court decisions on the same issue, so that the high Court can settle the difference of opinion. That’s what happened here, as the Fifth and Ninth Circuits had opposite rulings on the same legal issue.

The cases are AXON ENTERPRISE, INC. v. FEDERAL TRADE COMMISSION, et al. on writ of certiorari to the United States Court of Appeals for the Ninth Circuit, and SECURITIES AND EXCHANGE COMMISSION, et al. v. MICHELLE COCHRAN, on writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

In both Axon and Cochran, the plaintiffs sued a federal agency (the FTC in Axon, and the SEC in Cochran), in a federal District Court (trial court level), alleging that the agency was about to engage in an unconstitutional proceeding against plaintiff. By way of background, the laws that the FTC and the SEC were trying to enforce in these two cases required that if the agency was charging someone with a violation of that law, the dispute would first be held by and adjudicated by the agency itself (through an administrative law judge, “ALJ”). Thereafter, if the plaintiff did not like the outcome of that hearing, their recourse was to appeal to a federal Circuit Court of Appeals. Here, both Axon and Cochran were being threatened by their respective agency with an administrative hearing for an alleged violation of the law. Instead of going through the lengthy and costly hearing with the agency, Axon and Cochran sued their agency in federal District Court (trial court level). In other words, they didn’t follow the process prescribed by the applicable law they were accused of violating, but instead filed suit in a federal District Court in an attempt to PREVENT the agency from making them do the requisite administrative hearing. They both claimed, in essence, that the agency lacked the constitutional authority to hold said hearing in the first place!

Stay with me here. I know this next part is a bit confusing, but give me a chance to go deeper. Both plaintiffs were alleging agency overreach because the agencies’ structures were unconstitutional in that they breached separation of powers. Specifically, plaintiffs argue that the ALJ’s (who have two layers of protection against accountability and thus removal) are insufficiently accountable to the President, in violation of separation-of-powers principles. Additionally, one plaintiff attacks the combination of prosecutorial and adjudicatory functions in a single agency. So the plaintiffs argue that the agencies, as they are currently structured, are unconstitutional in much of their work.

Are you still following me? I hope so, because there’s another sharp turn in the road here.

Justice Kagan, who delivered the opinion of the Court, noted:

Our task today is not to resolve those challenges; rather, it is to decide where they may be heard.

So, she explains that SCOTUS is not ruling on whether or not the agencies are unconstitutional in their structure and their work. But SCOTUS is instead ruling on whether or not the plaintiffs can bring their lawsuits against the agencies in federal District Court to have that court hear the case and rule on the constitutional issue, OR do plaintiffs need to follow the statutory procedure of first going through the agency hearing, and then appealing to an appellate court if they do not like the outcome of that hearing. SCOTUS ruled that both plaintiffs can indeed bring their cases in federal District Court, and need not go through the administrative hearing process because their challenge is to the constitutionality of the agency’s power, not a challenge to the agency’s decision against them.

How is this a win for Separation of Powers and the Constitution?

Because SCOTUS is saying the plaintiffs will get their day in court, so to speak. In other words, the agencies (SEC and FTC) cannot adjudicate on whether or not they have the power to adjudicate the alleged violations by plaintiffs. Such an important point there. I’ll repeat it in a slightly different way: agencies cannot decide whether or not they have the power to determine if their act is constitutional or not! It sounds logical, right? And yet, agencies constantly try to do just that.

For example, in my quarantine lawsuit against the governor, the Attorney General (in one of their many defenses to my attack on their quarantine regulation) tried to argue that something called “agency deference” should prevail. Agency deference is the legal notion that a court should defer to an agency when an agency action is being challenged in court. Agency deference is real, but it applies when a plaintiff is challenging an agency decision, NOT when a plaintiff is challenging whether or not the agency has the constitutional power to exist, or to do something in particular. For example, if an agency finds that you violated a rule, and they fine you, and you sue them, courts are reluctant to overrule the agency’s decision that you violated a rule and therefore got fined. However, if you are suing the agency claiming they lack the power to even make that rule in the first place, that is a constitutional question, and courts will not defer to agencies to decide whether or not they breached the constitution.

As in this SCOTUS decision, in my quarantine case the court agreed with my argument that my plaintiffs and I were not challenging a decision by the DOH, but instead we were challenging the DOH’s power to make the quarantine regulation in the first place! We said, the DOH does not have the power to make this regulation (for all of the reasons I laid out in my papers), and the judge agreed, and thus struck down their quarantine regulation as impermissible, as it clearly violated separation of powers. You can read our judge’s decision on the Uniting NYS website here.

Okay, so who’s ready for law school?

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Other SCOTUS Separation of Powers Victories

This new SCOTUS decision is just one in a growing number of wins for our Constitution. Here are a few other recent wins:

• Biden’s Environmental Protection Agency (EPA), an agency in the Executive Branch under the President, made a regulation limiting power plant emissions. The regulation conflicted with the federal Clean Air Act. SCOTUS ruled that the EPA did not have the power to make that “regulation” and struck down the regulation as unconstitutional. WEST VIRGINIA ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL.

• Biden’s Occupational Safety and Health Administration (OSHA), an agency in the Executive Branch under the President, made a regulation requiring all employers in the US with 100 or more employees to require those employees to get the C19 shot or mask/test in order to go to work. SCOTUS ruled that OSHA did not have the power to make that “regulation” and therefore struck down the regulation as unconstitutional. NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL., v. DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY
  AND HEALTH ADMINISTRATION, ET AL.

• Biden’s Centers for Disease Control and Prevention (CDC), an agency in the Executive Branch under the President, made a regulation imposing a nationwide eviction moratorium whereby prohibiting landlords from evicting tenants due to non-payment of rent. SCOTUS ruled that the CDC did not have the power to make the “regulation”, and therefore, SCOTUS struck down the regulation as unconstitutional. ALABAMA ASSOCIATION OF REALTORS, ET AL. v.
  DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.

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