Supreme Court Takes Two Steps Forward, One Step Back.
We can all probably agree that this has been one of the strangest Julys in memory. From the attempt on Trump’s Life to the Republican National Convention to the bizarre “coup” against Biden in the Democratic Party. With all this, it’s easy to forget some truly momentous events that happened this month.
For example, the Supreme Court recently handed down three decisions of particular interest to defenders of individual liberty and limited, constitutional government. In two of these cases, the court limited the ability of federal agencies to exercise legislative and judicial authority. Unfortunately, in the third one the court refused to protect free speech from government officials.
In the case of Loper Bright Enterprises v. Raimondo, which dealt with federal regulations requiring commercial fishers to pay the costs of having federal inspectors on board their vessels, the Court overturned the Chevron deference. Created in the 1984 case of Chevron vs. Natural Resources Defense Council, Chevron deference requires federal courts to accept a federal agency’s interpretation of their statutorily granted powers as long as the agency’s interpretation is “reasonable’ and does not directly contradict federal statutes governing the agency.
The Chevon deference gives federal agencies almost unchecked authority to determine the scope of their authority. The agencies then enforce their interpretations of their powers via regulations. This combination of legislative and executive power violates the principle of separation of powers. Federal agencies also exercise judicial powers via the use of Administrative Law Judges (ALJs), who are employees of the federal agencies, to adjudicate cases brought by the agencies against American citizens. Fortunately, the Supreme Court also limited the power of ALJs the case of Securities and Exchange Commission (SEC) v. Jarkesy. In this case, the Court held that Congress violated the 7th Amendment right to a jury when it granted the SEC the power to impose fines on individuals accused of securities fraud.
Unfortunately, the Court failed to defend the people’s First Amendment rights against the administrative state when it refused to hear the case of Missouri v. Murphy. This is the lawsuit brought against the federal government by Americans who were censored by social media companies acting at the behest of government officials. Many of the censored posts contained information about COVID that, unlike the COVID misinformation produced by government, was based on facts and not fear.
The court ruled the plaintiff did not have standing to sue because social media companies removed posts without being coerced by the government and the government stopped pressuring social media companies to engage in censorship after the COVID panic subsided. These are irrelevant to the fact that government officials pressured private social media companies to remove certain posts and will likely do so in the future.
If the courts will not protect online speech from the government, then Congress must so do by passing the Free Speech Protection Act. This bill forbids federal employees from taking any action that interferes with American citizens ability to engage in First Amendment protected activity. Those who violate the rule will face fines, suspension, or dismissal, and could even be banned from future federal employment. Another important piece of legislation is the REINS act, which requires agencies to obtain Congressional approval for major regulations. Congress must also begin reading the budget of all regulatory agencies with the goal of eliminating all unconstitutional federal bureaucracies.
