Two of the most accomplished attorneys in the United States came together at The Heritage Foundation last month to discuss the 2023-2024 Supreme Court term which kicks off this week. The first speaker, Paul Clement, is a Partner at Clement and Murphy, PLLC, and was the 43rd Solicitor General of the United States. The second speaker, Lisa Blatt, is a Partner and Chair of the Supreme Court and Appellate Practice at Williams and Connolly LLP.
After a short introduction, the two quickly moved to the substance of the upcoming Supreme Court term and the areas of law likely to be affected by the Court’s decisions:
Lindke v. Freed and O’Connor-Ratcliff v. Garnier
Both of these cases address the same issue:
Does an elected official violate the First Amendment when they block someone from their social media account?
Public officials have a right to maintain a personal social media account and express themselves freely on that account. Things are less clear when an official uses that account in a way that can be seen as exercising their official duties. The Supreme Court is expected to hand down a ruling that clarifies the line between state action and free speech.
The Administrative State:
SEC v Jarkesy
While Jarkesy raises multiple issues, both advocates agreed one particular issue could bring into question the Security and Exchange Commission’s (SEC) structure. Currently, the SEC uses administrative law judges (ALJ’s) within the agency to oversee disputes between regulated parties and the SEC. The head of the SEC is protected from removal by the President and its ALJ’s are protected from removal by the head of the SEC. This double layer of protection prevents someone politically accountable, such as the President, from bringing meaningful oversight to the agency. This structure has been held unconstitutional by the Court in the past, and they are likely to address its use at the SEC as well.
Loper Bright Enterprises v. Raimondo
Loper Bright involves the application of a law requiring fishing vessels in the Atlantic Ocean to allow a federal worker on board to constantly monitor the crew’s compliance with federal regulations. Fishing vessels are often small with commensurately small crews, which means the federal worker will displace a valuable crew member. Though this imposition itself is significant, the National Marine Fisheries Service went a step further. They have decided not only must the federal worked be allowed on board – the fishermen must pay the salary of the worker. The statute makes no mention of this requirement.
This case is being closely watched because the lower Court relied on a prior Supreme Court decision, Chevron U.S.A., Inc. v. Natural Resources Defense Council Inc., to allow the agency to add this requirement. The Court may decide to overrule Chevron, or it may limit what an agency can do when a statute is silent on an issue.
Moore v. United States
Does the federal government have the right to tax “unrealized gains?”
Charles and Kathleen Moore purchased equity in an Indian business in 2005. In 2017, Congress passed a law implementing a “repatriation tax.” Ultimately, the Moores paid $14,729 in tax on income they hadn’t received.
An ability to tax unrealized gains would be a dramatic expansion of the federal government’s taxing power. Many progressive politicians are calling for a wealth tax. Such a tax would require Americans to pay taxes on assets that have increased in value even if they haven’t received any income from them. The Supreme Court will decide in Moore if such a power comports with the 16th Amendment.
United States v. Rahimi
The Court significantly updated the way 2nd Amendment rights are evaluated in New York State Rifle & Pistol Association, Inc. v. Bruen last term. Lower courts must look at the history of the right when deciding if modern gun regulations run afoul of the 2nd Amendment.
In 2020, A Texas court issued a domestic violence restraining order against Zachary Rahimi. One of the requirements of the restraining order was a prohibition against possessing firearms. Rahimi challenged the restriction and won in the 5th Circuit. The Supreme Court agreed to hear the case and further clarify if the government can prohibit an individual under a domestic violence restraining order from possessing a firearm.
The upcoming Supreme Court term, yet again, promises to contain consequential opinions. The Heritage Foundation organized a great event with two of the most experienced court watchers in the country.