UNBIASED - July 1, 2024: Presidential Immunity Decision Explained, Plus SCOTUS Sends Social Media Content Restriction Cases Back Down and Rules on Statute of Limitations for Challenges to Agency Action.

Episode Date: July 1, 2024

1. Corner Post vs. Board Decision Explained (1:21)2. NetChoice vs. Paxton; Moody vs. NetChoice Decision Explained (5:18)3. DEEP DIVE: Trump vs. United States Decision Explained (7:14) Support ‘UNBIASED’ on Patreon.Watch this episode on YouTube.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Monday, July 1st, and this is your daily news rundown. A little heads up going into this week, this is going to be a short week for us, so I'll be posting episodes Monday, Tuesday, and Wednesday. There's no episode on Thursday. Obviously, Thursday is a holiday, and I don't post episodes on Friday, so just keep that in mind for this week. As a reminder, today's episode is very Supreme Court focused, given that today was the last

day of the court's term, but starting tomorrow, the episodes will go back, you know, to regularly scheduled programming, where it's just more of a general news recap. As a final note, obviously last Thursday was the presidential debate. Thank you to those of you who joined me live on instagram a lot of you had asked me to do a fact check because this episode is already very full i won't be doing a fact check today my plan is instead to post various fact check videos to my social media accounts so just know you can find them there instagram and tiktok at jordan is my lawyer of course if you love the unbiased approach this episode provides

and you feel more informed after listening, please go ahead and leave my show a review on whatever platform you listen, share the show with your friends, and if you're watching on YouTube, please hit that thumbs up button and subscribe to the channel if you're not already. All of those things really help me out, so thank you very much. And without further ado, we can get into today's stories, which it's all about the Supreme Court. What a day. Today was the last day of the court's term.

So naturally, we got the most controversial decision of the term, which was in the presidential immunity case. We will spend the majority of this episode talking about that decision. But first, I do want to briefly talk about the other two decisions we got today, which are also pretty important. The first being Corner Post versus Board. Corner it opened in 2011, the Board of Governors of the Federal Reserve adopted this rule that governs certain fees for debit card transactions. More specifically, the board began regulating what are called interchange fees for debit cards. So whenever you go to a store and you pay with a debit card, that store has to pay

a fee to transfer the money from your bank account to their bank account. This is a behind-the-scenes fee. It's called an interchange fee. Before 2011, these fees were set by companies like Visa and MasterCard, but this sort of led to high fees and competition issues. So Congress tried to fix the problem by directing the Federal Reserve Board to cap the fees at a, quote, reasonable and proportional amount. So to get back to the convenience store, three years after it opened in 2021, Corner Post sues the board challenging this rule that capped the interchange fee. And they argued that the board never explained how this cap was reasonable and proportional to the cost incurred

by the bank issuer with respect to the cost incurred by the bank issuer with respect to the transaction. And therefore, according to them, it was impermissible. Keep in mind, according to the data, the board sets these caps at a rate in which allows bigger banks to make an average profit between 16 and 17 cents per transaction. So it's roughly $12 billion in every any given year. So Corner Post says the board never explained how this fee cap, which results in anywhere from a 320% to a 483% profit per transaction, is reasonable and proportional. And the district court ends up dismissing Corner Post lawsuit because it says that the statute of limitations had run and the appellate court agreed. And the rationale there was that under federal law, the statute of

limitations, which is the time you can bring a lawsuit, begins to run at the time of publication of the agency's action and runs for six years thereafter. The issue there is that under that holding, the statute of limitations would have expired in 2017, but Corner Post didn't open until 2018. So Corner Post is arguing that instead, the statute of limitations should start to run when a party is first injured by an agency action, because under the court's interpretation, any business that opens six years after an agency rule would have no shot at challenging any action that affects them. So that's exactly the issue. The question for the justices is whether a plaintiff's claim against an agency action first accrues when the agency issues the rule or when the rule first causes a plaintiff to be

negatively affected. And today, the justices held in a six to three decision that that statute of limitations starts running when a plaintiff is injured by a final agency action. In writing for the majority, Justice Barrett wrote, quote, the default statute of limitations for suits against the United States requires the complaint to be filed within six years after the right of action first accrues. We must decide when a claim brought under the Administrative Procedure Act accrues for purposes of this provision. The answer is straightforward. A claim accrues when the plaintiff has the right to assert it in court. And in the case of the APA, that is when the plaintiff is injured by the final agency action. End quote. The next decision was one decision for two very similar cases, those two

cases being Moody v. Net Choice out of Florida and Net Choice v. Paxton out of Texas. In both of these cases, the states had enacted their own laws that combat censorship on social media platforms. So Florida's law specifically said that platforms have to disclose how and when they censor speech. They have to notify users when it censors or shadow bans a user's post. They have to apply their censorship standards in a consistent manner among its users. They cannot willfully deplatform users who are political candidates in Florida. They cannot deplatform a journalistic enterprise because of the content that it chooses to post or broadcast. and it cannot use their algorithms to shadow ban material posted by or about candidates during their campaign. Texas's law similarly sets censorship rules for platforms.

It says, quote, a social media platform may not censor a user, a user's expression, or a user's ability to receive the expression of another person based on the viewpoint of the user or the other person, end quote. In other words, and put more simply, platforms can't censor a user because of that user's viewpoint. So the social media platforms sue, challenging the constitutionality of these laws. And the question for the court was, can states tell social media platforms what content can and cannot be regulated on their platforms, or do these types of laws violate the First Amendment? And today, in a unanimous decision, the court sent both cases back to the appellate courts to be re-decided on the grounds that neither appellate court conducted a proper analysis

of the facial First Amendment challenges. In writing for the court, Justice Kagan set forth the proper analysis that the courts are to take from here. So they'll go ahead and do that. And it's very likely this case ends up back in the hands of the Supreme Court next term once the appellate courts re-decide each case. And finally, the case we've all been waiting for, Trump versus United States. Procedurally, this case stems from the federal charges Trump is facing related to election interference. Trump tried to get these charges thrown out in district court, arguing that he is immune from criminal prosecution because he was president when the alleged crimes took place

and that the actions taken by a president are absolutely immune from criminal prosecution. When the district court rejected this argument, Trump appealed it to the Court of Appeals for the District Court of Columbia. The appellate court upheld the district court's ruling, so Trump then took it to the Supreme Court, and here we are. The question for the justices came down to, does a former president have immunity from criminal prosecution for conduct alleged to involve official acts during his presidency? And if so, to what extent? And today, the justices said in a six to three decision that a president is absolutely immune from criminal prosecution

for core constitutional actions, presumptively immune for official actions, and has no immunity for unofficial actions. So let's break that down. First, what are core constitutional powers? Core constitutional powers are those presidential duties that are explicitly set forth in the Constitution. So these are things like appointing ambassadors, granting pardons, vetoing legislation, commanding the military, foreign policy, things like that. Per the court's ruling, a president is absolutely immune from any criminal prosecution stemming from those core constitutional powers. And the rationale behind that is this. Article 2 of the Constitution is what lays out these executive powers, and those powers are exclusively reserved for the president,

meaning Congress can't intervene, the courts can't review. So in ruling today, what the majority said is that it follows that an act of Congress, whether it's a specific one targeted at the president or a generally applicable law, cannot criminalize the president's actions that are within those exclusive constitutional powers. Neither can a court adjudicate a criminal prosecution that examines such presidential actions. So that's the basis that the court uses for determining that actions stemming from core constitutional powers are immune from criminal prosecution. Next, we have official acts. As the court noted, quote, the reasons that justify the president's absolute immunity from criminal prosecution for acts within the scope of its exclusive constitutional authority do not extend End quote.

Official acts, the court says, are those taken within a president's statutory and constitutional authority and are necessary to perform the function of the office, but aren't necessarily explicitly set forth as an exclusive power. The court reasons that because the president may hesitate to execute the duties of his office out of fear that he could be prosecuted down the road, the president should have at least a presumptive immunity for these types of acts. In other words, a presumption in his favor that he is immune. Now, to overcome that presumption, the government, which is prosecuting him, has to show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the executive branch. In other words, if the government can show that the functions or authority of the executive branch would not be intruded due to prosecution, those official acts can be prosecuted.

And then finally, unofficial acts are entitled to no immunity. The majority wrote, quote, although presidential immunity is required for official actions to ensure that the president's decision making is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct, end quote. So those are the varying levels of immunity, which correspond to various actions that are taken while holding office. What the majority did here is it sent the case back to the district court and said, okay, now that you have this information, you need to determine what level of immunity, if any, applies to the alleged actions in the indictment against Trump. But in saying that, the justices did give pretty clear guidance as to some of the alleged actions. So first, what they said is any alleged conduct involving Trump's discussions with the Justice

Department is absolutely immune from prosecution because the president under the Constitution has exclusive authority over the investigative and prosecutorial functions of the Justice Department. And therefore, you know, he can't be charged for those communications. However, when we're talking specifically about Trump's indictment, that was the only alleged action that the court specifically said was absolutely immune. The court said that for the all other alleged actions in the indictment, the court has to look at whether those actions are considered to be official or unofficial, and that it's up to the district court to conduct that analysis. But they did give one more example. So they said that the indictment alleges that Trump and his co-conspirators, quote, attempted to enlist the vice president to use his ceremonial role at the January 6th

certification proceeding to fraudulently alter the election results, end quote. The justices say that whenever the president and the vice president discuss their official responsibilities, including any alleged pressure from the president on the vice president, they are engaging in official conduct. And because that alleged act is an official one, the next question that the court has to ask is whether a prosecution involving Trump's alleged attempts to influence the vice president's oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the executive branch. And the court said that is something the district court has to do on remand.

We're not going to make that decision here today. That's something they have to figure out. Similarly, on remand, the district court will have to determine whether Trump's conversations with people outside the executive branch, i.e. state officials, private parties, the public, about his plan for an alternate slate of electors was official or unofficial. The justices did not answer this one either. Instead, what the justices said is, look, Trump sees this as an official act. The government sees this as unofficial. It's up to you, district court, to determine whose characterization is correct by conducting a fact-specific analysis of the indictment's allegations. And then finally, within the indictment are the tweets and comments that Trump made on January 6th to the public.

The justices say that the president possesses extraordinary power to speak to his fellow citizens and on their behalf. So most of a president's public communications are likely to fall, quote, comfortably within the outer perimeter of his official responsibilities. But the court also said that there may be contexts in which he speaks in his unofficial capacity. Maybe he's a candidate for office rather than acting as the president, or he's a party leader. But to determine whether these public communications are official or unofficial, the lower court has to complete an objective analysis of content, form, and context. That is specifically what the court has to look at. In each of those posts, each of those remarks, the court has to analyze the content, form,

and context to determine whether those posts or remarks were unofficial or official. I know that's kind of a lot of information, so let me do this. I'm just going to summarize a little bit. You have core constitutional powers which are immune from prosecution. Then you have official acts and unofficial acts. Official acts may be immune. Unofficial acts are not. To determine whether an official act is or is not immune, you have to ask the following questions. One, was the action manifestly or palpably beyond his authority? If yes, it is unofficial and has no immunity. If not, the next question is, would prosecution of this action intrude on the function or authority of the executive branch? If yes, it can't be prosecuted. If no, it can. So that's the general

gist of the format of the questioning to determine whether an official act can be prosecuted or not. As a final note, before we get into the direct quotes from the majority and the dissent, the justices did make clear that when the district court goes back to look at whether some of these alleged acts are official or not, the court cannot take into account the president's motive in carrying out these actions, nor can the court deem an action to be unofficial simply because it violates a law. So those are some of the boundaries put in nor can the court deem an action to be unofficial simply because it violates a law. So those are some of the boundaries put in place by the court. Chief Justice Roberts, in writing for the majority, concluded the opinion by writing, quote, this case poses a question of lasting significance. When may a former president be prosecuted for

official acts taken during his presidency? Our nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively or even primarily on present exigencies. In a case like this one, focusing on transient results may have profound consequences for the separation of powers and for the future of our republic. Our perspective must be more farsighted, for the separation of powers and for the future of our republic. Our perspective must be more farsighted, for the peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional. Our first president had such

a perspective. In his farewell address, George Washington reminded the nation that, quote, a government of as much vigor as is consistent with the perfect security of liberty is indispensable. A government too feeble to withstand the enterprises of faction, he warned, could lead to the frightful despotism of alternate domination of one faction over another, sharpened by the spirit of revenge, end quote. And the way to avoid that cycle, he explained, was to ensure that government powers remained properly distributed and adjusted. It is these enduring principles that guide our decision in this case. The president enjoys no immunity for his unofficial acts, and not everything the president does is official. The president is not above the law, but Congress may not criminalize

the president's conduct in carrying out the responsibilities of the executive branch under the Constitution, and the system of separated powers designed by the framers has always demanded an energetic, independent executive. The president therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party, end quote. So Roberts is basically saying, look, you guys out there, you're all focused on Trump and whether Trump should get immunity or not, but we're focused on every single president, and therefore, we are ruling in this way.

The three dissenting justices were Justices Sotomayor, Kagan, and Jackson. And in writing the dissent, Justice Sotomayor opened with this, quote, today's decision to grant former presidents criminal immunity reshapes the institution of the presidency. It makes a mockery of the principle foundational to our constitution and system of government that no man is above the law. Relying on little more than its own misguided wisdom about the need for bold and unhesitating action by the president, the court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former president from answering for criminal and treasonous acts, I dissent. End quote. So the dissent analysis really starts with the text of the Constitution, and it says, despite the majority calling for this quote-unquote careful consideration of the text of the Constitution, the Constitution actually doesn't mention presidential immunity at all.

And not only does the Constitution not mention presidential immunity, but the framers clearly knew how to provide for immunity given that there's this narrow immunity for legislators in the speech and debate clause, yet the framers did not extend immunity to the president. Second, the dissent says some state constitutions at the time of the framers specifically gave criminal immunities to sitting governors, but the framers chose not to incorporate similar language in the Constitution for the president. And the dissent says if they wanted to, they could have, but they didn't. And then third, the dissent says the framers clearly contemplated criminal prosecution of a president because they created the impeachment judgment clause, which says that

a president may be the subject of an indictment and a trial if impeached and convicted. Yet still, the framers didn't opt for presidential immunity. The dissent goes on to explain that aside from what the Constitution says, our history also tells us that the United States was never meant to offer presidential immunity, given that the founders wanted the president to be different than the King of England in that way. The king was sort of, as Alexander Hamilton described it, this sacred and untouchable person. But Hamilton noted in the Federalist Papers that the president of the United States would be amenable to personal punishment. Now, as a sort of final note, a few of you had mentioned concerns about one part of the dissent, which reads, quote, looking beyond the fate of this particular prosecution, the long-term consequences of

today's decision are stark. The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding. The president of the United States is the most powerful person in the country and possibly the world. When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution. Orders the Navy SEAL Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. End quote. These are actually arguments that Justice Sotomayor and

Chief Justice Roberts brought up within the first five to 10 minutes of oral arguments back in April, if you want to go ahead and listen to their concerns surrounding that. Specifically, though, Chief Justice Roberts said, what if the official act is appointing ambassadors and the president appoints a particular individual, but it's in exchange for a bribe. Accepting the bribe is an unofficial act, but appointing the ambassador is within the official responsibilities of the president. So what do we do with that? How do we sort of differentiate those two? And what the majority opinion tells us today is that the government can prosecute a president for unofficial acts such as accepting a bribe, ordering the killing of another person, whatever it may be. Those are not official acts. Those are unofficial acts such as accepting a bribe, ordering the killing of another person, whatever

it may be. Those are not official acts. Those are unofficial acts. We also know that these are things the president can be impeached for, right? High crimes, bribes, and misdemeanors. So that alone tells us that the president is not immune from such crimes. I can't imagine the majority intending to mean that a president can go kill someone, organize a coup, take a bribe, and they're free from all prosecution. Those are unofficial acts, as I've said. Where the problem comes in, though, is the prosecution of these acts, because the majority said in their opinion today that at trial, a court cannot admit evidence of the immune acts. But how do you prosecute someone for taking a bribe if you can't admit evidence of why they took the bribe, right? So this is actually something Justice Barrett wrote in her concurrence.

She agreed with the majority's decision overall, but she disagreed as to this evidence portion. And she wrote, quote, consider a bribery prosecution, a charge not at issue here, but one that provides a useful example. The federal bribery statute forbids any public official to seek or accept a thing of value for or because of any official act. The Constitution, of course, does not authorize a president to seek or accept bribes, so the government may prosecute him if he does so. Yet, excluding from trial, any mention of the official act connected to the bribe would hamstring the prosecution.

To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the president's criminal liability, end quote. So that is certainly an issue that at least one of the, at least four of the justices, I should say, foresee, and perhaps that gets sorted out in the future if the issue arises. And the majority also kind of addressed the dissent's examples by saying, quote, coming up short on reasoning, the dissent's repeatedly level variations of the accusation that the court has rendered the president above the law. As before, that rhetorically chilling contention is wholly unjustified. Like everyone else, the president is subject to prosecution in

his official capacity. But unlike everyone else, the president is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality and ensuring that the president may exercise those powers forcefully, as the framers anticipated he would, does not place him above the law. It preserves the basic structure of the Constitution from which that law derives. The dissent's position in the end boiled down to ignoring the Constitution's separation of law derives. The dissent's position in the end boiled down to ignoring the Constitution's separation of powers and the court's precedent, and instead fear-mongering on the basis of extreme hypotheticals about a future where the president, quote, feels empowered to violate federal criminal law, end quote. So it does seem as if the majority is trying to say that

those examples given by the dissent, you know, an assassination, a bribe, a coup, etc., would never stand as far as immunity goes because unofficial acts do not have immunity. But if we know anything, it's that these issues that are being expressed by the dissent are never really fully sorted out until they have to be. So, you know, and until then, people just argue about what would happen in that hypothetical. I hope that answered all of your questions. And that officially marks the end of the Supreme Court's term. So tomorrow, these daily news recaps will return to normal, not so focused on the Supreme

Court. With that said, though, if you have any questions about these cases, the three cases I talked about today that I maybe didn't address or I didn't get to, please let me know. I may do a Q&A later in the week, maybe Wednesday, just so I have time to answer those questions and, you know, put them in an episode. As I said, no episode Thursday because it's a holiday and Friday, I don't post episodes. So stay tuned for tomorrow's episode. Have a great night and I will talk to you then.