Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
A federal grand jury indicted former President Donald J. Trump on four counts for conduct that occurred during his presidency, following the November 2020 election. The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collection, counting and certifying of the election results.
Trump moved to dismiss the indictment based on presidential immunity, arguing that a president has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities and that the indictment’s allegations fell within the core of his official duties.
The district court denied Trump’s motion to dismiss, holding that former presidents do not possess federal criminal immunity for any acts. The D.C. Circuit affirmed. Both the district court and the D.C. Circuit declined to decide whether the indicted conduct involved official acts.
The parties in this case don’t dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office. They also agree that some of the conduct described in this indictment includes actions taken by Trump in his unofficial capacity.
But the parties disagree about whether a former president can be prosecuted for his official actions. Trump contends that just as a president is absolutely immune from civil damages liability for acts within the outer perimeter of his official responsibilities, he must be absolutely immune from criminal prosecution for such acts.
Trump also argues that the bulk of the indictment’s allegations involve conduct in his official capacity as president.
The Supreme Court concluded that under the constitutional structure of separated powers, the nature of presidential power requires that a former president have some immunity from criminal prosecution for official acts during his tenure with office.
The high court also concluded that with respect to the president’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, the court concluded he is also entitled to immunity.
But at the current stage of proceedings in this case, the Supreme Court didn’t decide whether that immunity must be absolute or instead whether a presumptive immunity is sufficient.
The majority wrote that the separation of power principles necessitate at least a presumptive immunity from criminal prosecution for a president’s act within the outer perimeter of his official responsibility because such an immunity is required to safeguard the independence and effective functioning of the executive branch and to enable the president to carry out his constitutional duties without undue caution.
The majority wrote that at a minimum, the president must be immune from prosecution for an official act unless the government can show that applying a criminal prohibition to that act would pose “no dangers of intrusion on the authority and functions of the Executive Branch.”
The Supreme Court offered guidance on differentiating between official and unofficial actions, which it left the analysis of for the lower courts to perform in the first instance.
The opinion noted that certain allegations—such as those involving Trump’s discussions with the acting attorney general—are readily categorized in light of the nature of the president’s official relationship to the office held by that individual. Other allegations—such as those involving Trump’s interactions with the vice president, state officials, certain private parties and his comments to the general public–present more difficult questions, according to the opinion.
The high court held that it is ultimately the government’s burden to rebut the presumption of immunity. It remanded to the district court to assess in the first instance, with appropriate input from parties, whether a prosecution involving Trump’s alleged attempt to influence the vice president’s oversight of the certification proceeding in his capacity as president of the Senate would pose any dangers of intrusion on the authority and functions of the executive branch.
The court also remanded to the district court to determine in the first instance whether Trump’s and his co-conspirators’ communications with state legislators and election officials, regarding the certification of electors, are official or unofficial acts.
On the subject of Trump’s conduct in connection with the events of January 6 itself, the court remanded to the district court to determine whether Trump’s alleged conduct was in his official or unofficial capacity.
The majority opined that while the president isn’t above the law, Congress may not criminalize the president’s conduct in carrying out the responsibilities of the executive branch under the Constitution. 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 all his official acts.
The Supreme Court vacated the judgment and remanded the case.
Chief Justice John Roberts delivered the opinion of the court, in which Justices Clarence Thomas, Samuel Alito Jr., Neil Gorsuch and Brett Kavanaugh joined in full, and Justice Amy Coney Barrett joined except as to part III-C. Justice Clarence Thomas filed a concurring opinion. Barrett filed an opinion concurring in part. Justice Sonia Sotomayor filed a dissenting opinion, in which Justices Elena Kagan and Ketanji Brown Jackson joined. Jackson filed a dissenting opinion.
Sotomayor wrote in her dissent that “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.”
She argued that the Supreme Court gave Trump all the immunity he asked for and more by relying on its own misguided wisdom about the need for “bold and unhesitating action” by the president.
She wrote that she dissented because the Constitution doesn’t shield a former president from answering for criminal and treasonous acts.
In 2021, Florida and Texas enacted statutes regulating large social media companies and other internet platforms. The states’ laws differ in the entities they cover and the activities they limit. But both curtail the platforms’ capacity to engage in content moderation. Both laws also include individualized-explanation provisions, requiring a platform to give reasons to a user if it removes or alters her posts.
NetChoice LLC and the Computer & Communications Industry Association brought facial First Amendment challenges against the two laws. District courts in both states entered preliminary injunctions.
The Eleventh Circuit Court of Appeals upheld the injunction of Florida’s law. The Eleventh Circuit held that the state’s restrictions on content moderation trigger First Amendment scrutiny under the Supreme Court’s cases protecting “editorial discretion.” The Eleventh Circuit concluded that the content-moderation provisions are unlikely to survive heightened scrutiny and that the statute’s individualized-explanation requirements were likely to fall.
The Fifth Circuit Court of Appeals disagreed across the board, and reversed the preliminary injunction of the Texas law. In the Fifth Circuit’s view, the platforms’ content-moderation activities are “not speech” at all, and so do not implicate the First Amendment. But even if those activities were expressive, the Fifth Circuit determined the state could regulate them to advance its interest in “protecting a diversity of ideas.”
The Fifth Circuit also held that the statute’s individualized-explanation provisions would likely survive, even assuming the platforms were engaged in speech.
But the Supreme Court found that neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to the Florida and Texas laws regulating large internet platforms.
The Supreme Court vacated the judgments and remanded the cases.
Justice Elena Kagan delivered the opinion, in which Chief Justice John Roberts, Justices Sonia Sotomayor, Brett Kavanuagh and Amy Coney Barrett joined in full, and in which Justice Ketanji Brown Jackson joined as to parts I, II and III-A. Barrett filed a concurring opinion. Jackson filed an opinion concurring in part and concurring in the judgment. Justice Clarence Thomas filed an opinion concurring in the judgment. Justice Samuel Alito Jr. filed an opinion concurring in the judgment, in which Thomas and Justice Neil Gorsuch joined.
Corner Post, Inc. v. Board of Governors of the Federal Reserve System
Since it opened for business in 2019, Corner Post, like most merchants, has accepted debit cards as a form of payment. Debit card transactions require merchants to pay an “interchange fee” to the bank that issued the card.
In 2010, Congress tasked the Federal Reserve Board with making sure that interchange fees were “reasonable and proportional to the cost incurred by the issuer with respect to the transaction.” In 2011, the Board published Regulation II, which sets a maximum interchange fee of $0.21 per transaction plus .05% of the transaction’s value.
In 2021, Corner Post joined a suit brought against the Board under the Administrative Procedure Act. The complaint challenged Regulation II on the ground that it allows higher interchange fees than the statute permits. The district court dismissed the suit as time barred under 28 U. S. C. §2401(a), the default six-year statute of limitations applicable to suits against the United States. The Eighth Circuit Court of Appeals affirmed.
The Supreme Court held that an APA claim doesn’t accrue for the purpose of §2401(a)’s six-year statute of limitations until the plaintiff is injured by final agency action.
The Supreme Court reversed and remanded the case.
Justice Amy Coney Barrett delivered the opinion of the court, in which Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito Jr., Neil Gorsuch and Brett Kavanaugh joined. Kavanaugh filed a concurring opinion. Justice Ketanji Brown Jackson filed a dissenting opinion, in which Justices Sonia Sotomayor and Elena Kagan joined.
In her dissenting opinion, Jackson wrote that “The majority refuses to accept the straightforward, commonsense, and singularly plausible reading of the limitations statute that Congress wrote. In doing so, the Court wrecks havoc on Government agencies, businesses, and society at large. I respectfully dissent.”