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Separation of powers

The U.S. Supreme Court announced this week that in the next term it will hear Loper Bright Enterprises et. al. v. Raimondo, a case challenging what is known as “Chevron deference.” Chevron deference is a concept that comes from the 1984 U.S. Supreme Court case Chevron USA v. Natural Resources Defense Council, Inc. The Chevron case held that courts should give deference to executive branch agencies in interpreting rules that the agencies draft. It’s basically the opposite of common statutory construction rules that construe ambiguity against the rulemaker.

Chevron deference has led to an explosion of federal agency rulemaking, and creates separation of powers issues. The agencies have usurped Congress’s lawmaking power (though to be fair, Congress has been complicit in allowing this to happen). The practice also usurps the role of courts in interpreting statutes.

The Supreme Court’s conservative justices have long expressed disfavor for Chevron deference. The fact that they are taking up this case may signal the demise of the practice, something we would celebrate here at Judex.

More separation of powers

The drama continues with the clash between the U.S. Senate Judiciary Committee and the U.S. Supreme Court. This week, the Senate Judiciary Committee held a hearing on the question of whether Congress can impose an ethics policy on the Supreme Court.

Democrat witnesses argued that the Constitution gives Congress the power to regulate the Court. For instance, the Constitution does not specify how many justices sit on the Court. The number nine is a statutory creation and has historical justification. Congress also sets the compensation and budget for the Court. Thus, they argue, Congress has the power to create ethics rules for the Court.

Republican witnesses pointed out that enforcing ethics rules creates separation of powers issues. The U.S. Supreme Court is the highest legal body in the land. Who would decide whether a Justice violated the ethics statute? Granting any entity authority over the Court has the potential to influence case outcomes, and may be violative of the separate powers structure of the Constitution.

Justices can, however, be impeached. The high crimes and misdemeanors language we are familiar with for Presidents applies to federal judges as well. In addition, Article III, section 1 of the Constitution states that judge “shall hold office during good behavior.”

The remedy for errant judges is not sactions from an ethics statute, but impeachment. Some on the Senate Judiciary Committee believe impeachment is too high a standard, which is the best evidence that it is not too high a standard.

Textualism

The Indiana Court of Appeals is out this week with another good example of textualism. In Falletti v. State, the defendant was cited for displaying illuminated blue lights from the back window of his vehicle. Indiana Code 36-8-12-11(a) provides that volunteer firefighters may “display blue lights on their privately owned vehicles.” Faletti is not a volunterr firefighter, but he had blue lights inside the cab of his vehicle facing outward. Faletti argued that his lights were not on his vehicle, they were in his vehicle. Falletti further argued that there are lots of blue lights in vehicles, such as radio displays and buttons. Surely, he argued, the statute did not intend to criminalize all vehicles with blue radio knobs? Clever.

The Indinaa Court of Appeals, however, found the operative word in the statute to be display. The Court points out that the statute governs who can display emergency lights on vehicles. Falletti’s lights were not incidental to his car, they were displayed in the back window facing out.

The Court’s opinion here goes directly to the text of the statute, and applies the plain meaning of the text to the facts. Though Falletti attempts a textualist argument as well, and makes a nice attempt, he just didn’t have the facts on his side.