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The Five Upcoming SCOTUS Cases You Need To Know About · Conversations: Special Guests with Preston Scott

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All right, good morning, and welcome to the third hour of The Morning
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Show with Preston Scott Show, five thousand and seventeen. Good to be with
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you this morning. I reached out to our friends at the Heritage Foundation about
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a week ago after I read a piece written by Zach Smith and Caroline Heckman.
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Zach you may know his name. He's been on the program several times
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over the years. He follows what's going on with the United States Supreme Court,
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among many other things, for the Heritage Foundation, and he joins us
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this morning. Good morning, Zach, how are you. Good morning,
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Presson. I'm doing okay. Thank you for having me on. Well,
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I was intrigued by your peace. It is it even possible that the next
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session of the Supreme Court but could be as impactful as the last one,
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because, my goodness, gracious, the last one was remarkable. Yeah.
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I feel like I say that at the beginning of every term that this will
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be a historic term, would be being a potential to impact our country for
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years to come. But each year that continues to be true, and this
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year is no different. As the Court considers many many cases, particularly in
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the area of administrative law, separation of powers what executive branch agencies can do.
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And so as the Court kicks into high year again starting on Monday,
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there's certainly a lot to watch out for and pay attention to. Zach.
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I've made the statement that generally speaking, democrats do what they want until the
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Court stops them. It seems as though, as I look at these five
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cases that you've highlighted, I'm buttressed in that statement. Well, you know,
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one of the fundamental issues that's really been talked about some over the past
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few years does really come to the forefront the last year or two is the
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power that unelected, unaccountable bureaucrats should have over our day to day lives.
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And what's happened really over the past half sinterior, so as we seem the
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growth of the administrative state, and really, you know, the growth exponentially
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in the past decade or two, where a lot of decisions that previously would
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have been made by our elected representatives in Congress or elected representatives and state legislatures
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are now instead being made by these unelected, unaccountable bureaucrats in executive branch agencies.
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And so this term the Supreme Court is going to confront really three cases,
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at least at the outset that are going to deal with the power and
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the scope of the administrative state and deciding whether some of the functions that those
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administrators perform, whether some of the you know, basically the setup that they
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have to decide different issues and controversies, whether those violate our constitutional separation of
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powers provisions. And so that is one of the key fundamental issues that's at
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stake in these cases is who gets to decide how we should be governed,
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what we should do regarding controversial issues. We have about a minute and a
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half two minutes left in this first segment. Give us a snapshot of the
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first case. Yeah, so one of the biggest cases this year is going
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to deal with the Consumer Financial Protection Bureau and how it's funded. You know,
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the Constitution says that Congress should appropriate money to be expended in certain areas,
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but the CFPB, it's funding mechanism isn't appropriated annually by Congress. Essentially,
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the idea was to insulate it from congressional control, and that's now being
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challenged as violating our constitution because why would we want again, these unelected,
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unaccountable individuals deciding very very important issues for us as a society, how can
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they even get there? How can they get to a point where they can
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insulate themselves quote unquote, Well, it's a great question. It was in
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the design that Congress passed because the idea was the Congress in control of the
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time, I since we didn't want to future Congress to undo or what they
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had put in place. Because it's very controversial. This new agency has vast
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power, and so if the CFPB's funding mechanism is struck down, one of
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the things the Supreme Court will have to decide as well is whether all of
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the decisions that agency has made in the last twelve years or so since it's
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been the existence, whether those decisions will continue to stand or whether essentially everything
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it's done has been illegitimate and must be struck down as well. Dizzy from
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the Spin don't know what to believe? Clear the Fog The Morning Show with
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Preston Scott on News Radio one hundred point seven FLA. Eleven minutes after the
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hour, Sack Smith from the Heritage Foundation with us, we're talking about five
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cases to watch in the Supreme Courts twenty three, twenty four. Term you're
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looking for the story itself. You can find it on the daily Signal kind
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of the news outlet for the Heritage Foundation, Zach Loper Bright Enterprises versus Raimondo
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that you know, the federal government has been at different times of the last
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two decades attack the fisheries of the country in different ways, shapes and forms.
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What's this about. Yeah, so this is a case involving fisheries off
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the New England coast. And at first glance you may say that sounds incredibly
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boring. It involves arcane regulations evolving fishermen what they can do. But again,
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this goes back to what we were talking about in the previous segment.
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Preston who decides key issues and what's at stake in this Loper Bright case is
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something called Chevron defference. This is a doctorate the Supreme Court adopted about two
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decades ago that basically said, where a statute or for rule or regulation is
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ambiguous or unclear, that basically the bureaucrats in charge of administering it get to
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decide what it means. The courts will defer to that interpretation. Now,
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for obvious reasons, that decision has been very controversial because under our system of
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government. It's the courts that should decide what statutes mean, what regulations mean,
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not the people charge with administering it. And so essentially, even though
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the facts of this case involved fistuies, what the court is being asked to
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do is overturned the Chevron case, not to give Chevron deference to these executive
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branch administrators anymore, and to essentially do their constitutional duty and interpret the laws
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and decide what statutes mean. And so this will be a very interesting case
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to watch. It will be a case that has potentially far reaching consequences well
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beyond the specific factual context of this case. What about More versus United States.
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This is fascinating to me. Yeah, So this is an issue that
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rarely has come up before. It's a challenge under the sixteenth Amendment to taxation.
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Basically, what Congress did, They pass a one time law that said
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if you essentially had certain unearned capital gains and foreign corporations, that you're going
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to be taxed on those. Now, the problem with that is the Constitution
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says that taxation among the set shall be apportioned among the states. Now,
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the exception to that is the sixteenth Amendment, which allowed for an individual income
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tax. That's why we can have income taxation today. But because there was
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no income in this case, there were unrealized capital gains. Essentially, the
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challengers saying that this provision Congress pass violates the apportionate requirement of the US Constitution,
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and the reason this case is important. If this Act of Congress is
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upheld, is not violating the Constitution. Many commentators, many scholars who have
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looked at the issue, think that this could give constitutional justification to a potential
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wealth tax in the future, which, of course, from a policy perspective,
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would be a very bad thing. Case number four, the outline involves
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the SEC. What's this about? Yeah, the SEC. They have been
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in front of Supreme Court a lot over the past several years. But essentially
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this goes back to the separation of powers. You know, these administrative agencies
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like the SEC, like the FTC, pick your agency. They've essentially brought
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the legislative function, the judicial function, and the executive function all under one
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root. They make regulations that Congress gives them of the authority to do.
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They enforce their regulations with fines and penalties, and then they have in house
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judges administrative law judges who essentially adjudicate preventing the judicial function. Now, anyone
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who cares about the separation of powers, who cares about our constitution recognizes that's
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problematic. That's not what the framers intended. And so the Jarxy case is
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essentially challenging some of this administrative structure as violating, particularly the Seventh Amendment right
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to a jury trial, saying that whenever executive branch agencies are engaging in enforcement
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actions that look like jury trials, that are essentially trials in everything but name,
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that they should get to plead their case in front of a jury,
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as the Seventh Amendment requires. There's some other issues involved in the case as
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well, but really that Seventh Amendment issue is the one to watch and again
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will have impacts on how administrative agencies are beyond the sec reformed their everyday functions
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Thank you so much for joining us. Zach Smith with us from the
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Heritage Foundation, and Zach is breaking down in five cases for us to pay
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attention to in the upcoming Supreme Court session, and we come to case number
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five. Zach, is this kind of a Pandora's Box related case. It
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seems like social media might be the Pandora's Box of legalities in the coming decade.
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Yeah, there's a lot of confusion, a lot of questions surrounding social
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media cases right now. But I kind of cheated. These are actually two
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different cases, but I grouped them together because the issues are essentially the same
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in both case. What happened is public officials ran private Twitter accounts that want
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their government Twitter accounts, and they didn't like what people were saying about them
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in the comment sections, so they blocked these individuals. And so the question
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is whether when those government officials blocked someone on their private Twitter or Facebook or
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social media account, whether that qualifies as a First Amendment violation. And the
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reason this question comes up is in order for there to be a constitutional violation,
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there has to be state action. Private actors. They can block you.
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They can ban you from their platforms. That may violate other statutes or
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laws, but it doesn't violate a constitution. Now the government says you can't
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speak, you can't attend this meeting because of your views, that would be
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a First Amendment violation. And so what the Supreme Court is being asked to
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decide is whether and when, if a government officially uses their private Twitter account
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for some official business, some private business, when that would count as state
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actions so that there could potentially be a First Amendment violation. Oh wow,
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Oh, I can't even imagine where this is going to go. Hey,
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let's talk for a second about the justices themselves. You know, I personally
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I made the argument that you vote for Donald Trump in twenty sixteen for one
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chief reason, whether you like him or don't like him, and that reason
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was the United States Supreme Court. I would say that it's absolutely been validated
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in that there have been better rulings, more originalist centered rulings than activist centered
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rulings since then. But I'm still puzzled. What is your appraisal of the
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new justices? What have we gotten with Amy Coney, Barrett and Brett Kavanaugh.
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I don't have any worries about Neil Gorsig. I think he's the new
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antonin Scalia. But what are your thoughts on the justice makeup right now?
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Well, look, I think you're absolutely right Preston that it's much better.
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It's a much more originalist court than it would be if Joe Biden or someone
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else had been able to appoint the new justices that Donald Trump will point get
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in by originalists, I mean judges should interpret the words of the Constitution,
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the words of the statutes as they're written. They shouldn't impose their own policy
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preferences, which is, unfortunately, is what many justices on the left do.
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And so you've seen a series of very good, textualist, very originalist
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decisions coming down. Now, I will push back a little bit again what
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you said about Justice Course, which he's been a phenomenal justice on many many
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fronts, but he has made a couple of misteps. He authored the terrible
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boss Stock decision, in my opinion, which basically said that someone's homosexual preferences
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or someone's transgender preferences, that that would be protected conduct under Title seven of
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the Civil Rights Act, which I think was a very bad decision. It
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was wrong, but he has made many other good decisions in other areas too.
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And again, at the end of the day, I think we have
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a majority of justices on the Court who are committed to staying within their properly
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and they recognize it. They are not a super legislature that can impose their
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own policy preferences, and that their job is to interpret the Constitution, the
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laws that Congress passes as they are written, and really stay faithful to the
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Constitution itself. Fair appraisal of Justice Corsage. What about though the Chief Justice?
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It seems that John Roberts first loves the spotlight, he loves writing the
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really big opinions. But if you go back to Obamacare, he clearly operated
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as an activist judges justice, yet on other rulings he's an originalist. Where
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is he? Yeah, it's a great question. Look for my money,
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Justice Samuel Alito, Justice Clarence Thomas, or the gold standard right what we
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want our justices to emulate too? Now I agree. You know, I've
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been fairly critical of the Chief Justice in the past, particularly for the Obamacare
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decisions. There are a couple of other decisions that he's authored as well.
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But I will give the Chief Justice credit in that own religious liberty issues,
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First Amendment, Free Exercise, Establishment Clause cases. The Chief Justice has been
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really excellent in that particular area, and so I think he does deserve kudos
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for staying faithful to the Constitution and recognizing that religious liberty is a very important,
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very protected area that our framers established in the Constitution. Zach methinks we're
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gonna come back and visit on these cases as they unfold and we get some
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rulings along the way. As always, I appreciate you making yourself available to
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us. Thank you, of course, thank you for having me on my
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pleasure. Zach Smith with us from the Heritage Foundation, where he studies all
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things Supreme Court, all things Constitution. He is, he's a legal fellow.
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Twenty seven minutes after the hour, come back with the big stories in
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the press Box, some animals stories, and more on the Morning Show with Ruston's kN