By Logan Tennerelli, Dean of Students
I met my husband, Vince Tennerelli, when we were students at the University of Chicago Law School in 2006. This year, we teamed up on September 19 for SJCL’s 2024 Constitution Day Lecture (Video of the event is below), yielding an in-person audience of 50+ people and an online audience of 20+. (Offering my Fresno City College students extra credit for coming can’t hurt, right?)
We focused on a few of this year’s Supreme Court landmark decisions. No term in recent memory has featured so many major cases on topics as varied as presidential immunity, bump stocks, and voting rights. The overarching theme: the Court, like the county, is deeply divided. Out of 59 Supreme Court decisions this term, nearly half were 6-3, split among the justices on ideological lines with a supermajority of Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, and the dissent of Sotomayor, Kagan, and Jackson.
Changes to the Administrative State
The Roberts Court will perhaps be remembered most for its power grabs. In two cases this term, it drastically curtailed the power of federal agencies, claiming greater power for the judiciary.
Because Congress is not equipped to micromanage the day-to-day administration of the legislation that it passes, it must rely on federal agencies—under the supervision of the president—to carry out laws and policies. Agencies like the Departments of Education, Health and Human Services, Energy, and Transportation regulate industries and disperse funds Congress has allocated for specific programs.
In addition to rulemaking, some agencies have the power to investigate and adjudicate allegations in-house through a system of proceedings using Administrative Law Judges (ALJs), rather than through Article III judges. In federal district court, parties in civil cases sometimes have a right under the Seventh Amendment to trial by jury. However, there is no jury right for statutory claims brought by the government in its sovereign capacity; for example, ALJS rather than juries adjudicate claims related to revenue collection, customs and immigration laws, and relations with Native American tribes.
In 2010, Congress passed Dodd Frank in response to the 2008 financial crisis. The Act aimed to improve financial market stability, protect consumers, and prevent excessive risk-taking. Congress authorized the Securities and Exchange Commission (SEC) to use ALJs to conduct evidentiary hearings and impose fines on individuals who violate Dodd Frank. On June 27, 2024, the Supreme Court ruled 6-3 in SEC v. Jarkesy that such hearings violate the Seventh Amendment.
The scope of the decision remains unclear. For example, does it apply to all agencies that use ALJs, or just the SEC? Does it apply to federal statutes that create mandatory arbitration (rather than internal adjudication)? On thing is clear: the SEC does not have the resources to bring every case before a federal court, nor do district courts have time to hear every case. Thus, the practical effect of this decision, I opined, is certain to be more white collar crime.
The following day, the Court dealt another blow to administrative agencies in Loper Bright Enterprises v. Raimondo. Loper addressed he previously settled question of how much deference federal judges owe agencies when interpreting the statutes they administer. In 1984, in Chevron USA v. Natural Resource Defense Council, the Supreme Court articulated a two-part test. First, judges examine the statute in question to see if Congress’s intent is clear. If it is, then the agency is obliged to follow the letter of the law. But if the statutory language is ambiguous, the second step requires the reviewing court to determine whether the agency’s choice in how to carry out the law is reasonable. If so, courts deferred to such interpretation.
Chevron is one of the most cited cases in American law. The pros? It helps agencies function. They can implement statutes knowing that the industries they regulate will have to follow their guidance. Moreover, experts in specialized fields are better suited than unelected judges to interpret complicated statutes. The downside of deference? “Agencies have a lot of power,” Vince said, “and the meaning of the same statute can change drastically depending on who is in the White House.”
In Loper, Justice Roberts, writing for the majority, held that Chevron was inconsistent with the Administrative Procedure Act of 1946, which instructs a court reviewing an agency action to “decide all relevant questions of law” and “interpret . . . statutory provisions.” Vince contended this may not be as “earth-shattering as some think it will be. For one thing, it only impacts rulemaking based on a statutory ambiguity or silence without an express delegation. Second, agency factfinding is still entitled to deference. And, Roberts emphasized that a case’s reliance on Chevron isn’t a sufficient basis for overturning it, in light of stare decisis.”
I disagreed: it has tremendous implications for almost every aspect of our lives, from climate change to workplace safety to food and drug regulation. One problem with giving judges unrestrained interpretive authority, I think, is that the roughly 850 federal district court judges are an ideologically diverse bunch, to say the least. Thus, an agency’s guidance might be found to bind an entity in one jurisdiction but not bind the same entity in a different jurisdiction.
Ballot Eligibility
In Trump v. Anderson, the Court held for the first time that states could not determine eligibility for federal office, including the presidency, under Section 3 of the Fourteenth Amendment, which prohibits insurrectionists from holding office. In 2010, in Shelby County v. Holder, the Court declared the preclearance requirements of the Voting Rights Act conflicted with the constitutional principles of federalism and state sovereignty. The ruling has made it easier for state officials to engage in voter suppression. So, Congress can’t enforce the 15th Amendment by imposing checks on states with a history of egregious crimes against democracy. Why? States have exclusive power to control elections. But, per Trump v Anderson, states can’t enforce the 14th Amendment by kicking insurrectionists off the ballot. Why? Congress must do that. While the logic of the cases is inconsistent, the effect is the same: empowering Republican candidates.
Criminalizing Homelessness
In City of Grants Pass v. Johnson, the Court (6-3) upheld a municipal ordinance imposing civil fines, bans from city parks, and even jailtime on people for sleeping outside in public, or in cars parked on public property. The town had no public areas designated for sleeping and no shelters available, meaning there was nowhere for the unhoused to go. In 2018, the Ninth Circuit declared such ordinances a violation of the Eighth Amendment cruel and unusual punishment clause. Unsurprisingly, the Supreme Court disagreed. To quote Justice Sotomayor’s dissenting opinion, this decision leaves the unhoused “with an impossible choice: Either stay awake or be arrested.”
In practical effect, this means local governments can use their criminal laws against the unhoused. In Fresno, the City Council passed an ordinance in August that “no person may sit, lie, sleep or camp on a public place at any time.” Violations carry a fine of up to $1,000 or one year in jail. Another ordinance passed in September gave the City greater authority to remove homeless people from inside stores and from the sidewalks of shopping centers.
We concluded the lecture by highlighting the enormous implications that the upcoming election will have on the future of our constitutional rights.