The Supreme Court starts a new term Monday that includes cases on guns, e-cigarettes and environmental standards that will give the conservative majority a chance to further tame the power of administrative agencies.
The justices in recent terms have expanded the court’s power to review federal government actions and policies, and several administrative law experts expect more of the same in the coming months.
“The Supreme Court has been, I think it’s not too strong to say, waging war on the administrative state,” Lisa Heinzerling, a law professor at the Georgetown Law Center, said at a Center for American Progress event.
Jonathan Adler, a law professor at Case Western University, said that last term a trio of major cases on agency powers “created a very significant administrative law term overall. I think we should expect something similar this year.”
The justices also teed up cases for this term on hot-button social issues, such as whether Republican states went too far with laws that ban gender-affirming care for minors or require age verification for access to porn websites.
Deepak Gupta, a founding partner at Gupta Wessler who spoke at a Georgetown Law Center event, called the gender-affirming ban “the blockbuster case” in a term that “seems otherwise to have been designed to be sleepy.”
The justices so far have agreed to decide 28 cases, less than half of the number it decided last term. The court is expected to announce as soon as Monday some other cases it will decide by the conclusion of the term in June.
Fewer of them at this point seem to hold potential to be the kind of major decisions that the court handed down at the end of last term on abortion or criminal charges against former President Donald Trump.
At the same time, experts say a close election in November could thrust the court back into controversy if it is called on to intervene in any election-related challenges, as it was in 2020.
Gupta said that it’s notable there are several potentially impactful cases the court could decide to hear later in the term, but it has a relatively clear docket for now heading into the election.
“I mean, that’s just a theory, but it did seem like they’re being deliberately boring,” at the start of the term, Gupta said.
Election law disputes are possible but unlikely, according to Derek Muller, a law professor at the University of Notre Dame. He said the Supreme Court generally avoids stepping into the high-stakes litigation surrounding elections, but that may not always be possible.
“I think there’ll be intense pressure for whatever decision or whatever cases they face for them to try to reach unanimous results, or to try to avoid hearing altogether,” Muller said. “But you know, those are the best laid plans until you actually see the cases in front of you.”
The first oral arguments of the term are the first two weeks in October, and they include disputes over procedural filings in state and federal courts, a challenge to a death penalty conviction and a fight over the future of the Biden administration’s effort to regulate so-called “ghost guns” assembled from kits.
Guns and environment
In one case, the Biden administration seeks to implement a 2022 Bureau of Alcohol, Tobacco, Firearms and Explosives rule requiring that gun kits have serial numbers and only be sold with background checks.
The U.S. Court of Appeals for the 5th Circuit decision halted the regulation, ruling that the agency went too far with a provision in the Gun Control Act of 1968 that allows it to consider a finished “frame or receiver” to be a firearm.
In the Garland v. VanDerStok case at the court, the Biden administration argues that the gun kits can be turned into a working firearm with a few minutes of work and basic power tools, and so should be treated as firearms under federal law.
The case follows an opinion last term where the justices found an ATF rule restricting so-called “bump stocks” went beyond the terms of the law regulating machine guns.
Andrew Willinger, the executive director for the Duke Center for Firearms Law, said the justices adopted an approach that gave little leeway to the agency — and the justices “certainly seem to be using this area of law to kind of test drive their approach to the administrative state generally.”
In another case, the justices are considering the scope of what federal agencies can require for environmental reviews — a major step in many construction and other infrastructure projects.
Heinzerling said the case — Seven County Infrastructure Coalition v. Eagle County, Colorado — will allow the court “to speak broadly on exactly what kind of impacts are being considered when this comes to climate change, it’s really important.”
Heinzerling said a decision could determine whether federal agencies may look at the bigger picture environmental impact when approving a project, such as whether broader availability of products carried by a new rail line could worsen climate change or be limited to the scope of the project itself.
Adler said the case and others may highlight the justices’ close focus on what Congress actually passed in statutes, and “how do we understand how much power Congress has delegated to an agency in any given case.”
Porn access
In two cases this term, the Supreme Court will decide to what lengths the government may infringe on constitutional rights under the premise of protecting children.
In U.S. v. Skrmetti, the justices accepted the Biden administration’s challenge to a Tennessee state law that restricts access to gender-affirming care for minors in the state.
The Tennessee case comes as more than two dozen states have passed laws banning or otherwise restricting gender transition care for minors, and several Republicans have pushed to do so at the federal level as well.
The Biden administration argues that the law discriminates against children on the basis of their sex — allowing minors to receive puberty blockers and other drugs for other conditions, but not to transition.
State officials have defended the measure in Supreme Court filings, claiming they are not discriminating against children on the basis of sex, merely protecting them from “unproven and risky” medical procedures.
Medical associations, in briefs in the case, have disputed that characterization and say the procedures are backed by decades of research and recommended by an international standards body.
Chase Strangio, co-director for transgender justice at the ACLU, said a key question is whether the justices will take the same approach as a 2020 decision restricting gender identity discrimination that just applied to employment law. Applying it to a constitutional right could impact LGBT rights in health care, education and other areas.
“I think we can expect the resolution on this case as always to have an impact beyond the health care context,” Strangio said, pointing to laws in states such as Alabama limiting the ability of transgender individuals to change a driver’s license.
In another case, a group of petitioners have challenged a Texas law requiring porn websites verify a user’s age before allowing them to access content “harmful to minors,” arguing the requirements infringe on the rights of adults to access protected speech.
David Cole, legal director for the ACLU, said the court’s cases this term on individual rights could impact broader federal arguments about free speech and equal protection because they involve constitutional rights, not legislation. The organization represents petitioners in both cases.
“I think whatever the court holds will apply across the board,” Cole told reporters at an ACLU event.
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