The Messenger: The Supreme Court’s New Term—Fishing, Free Speech on the Internet, Wealth Tax and More

September 28, 2023 | By JAMES BURLING

One of the biggest cases of the Supreme Court’s October term involves a fishing boat, in which the owner has thrown out a line to the court hoping to snag the Chevron Doctrine. To regulate the fishing industry, the federal government demands that fishing boats allow federal “observers” on board to watch how and which fish are caught. Boat owners are forced to pay the salaries of the observers, up to $700 per day, a significant bite out of a boat’s profits.

But while federal law gives the feds the ability to force the boats to take on the observers, nowhere does the law say who pays their salaries. In Loper Bright Enterprises v. Raimondo, a boat owner is objecting. The lower court said that under the Chevron Doctrine, it had to defer to the agency’s interpretation of the law — even if the law says nothing about who pays. The Supreme Court will decide whether to modify the doctrine or can it altogether.

Other important issues are before the court as well.

The 2008 Dodd-Frank Act gave sweeping powers to the Securities and Exchange Commission (SEC). Before Dodd-Frank, the SEC had to bring enforcement actions in federal court. But now it has the choice of using its own internal court, where the judges are employees of the SEC and the normal rules of procedure don’t apply. When the SEC went after hedge-fund owner George Jarkesy for fines and penalties, Jarkesy tried unsuccessfully to move his case to federal court. He is now arguing before the Supreme Court that the SEC violates the separation of powers doctrine and his right to trial by jury.

Dodd-Frank also shredded another part of the Constitution when it created the Consumer Financial Protection Bureau (CFPB). The Appropriations Clause, Article I, Section 7, states: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” There also must be “a regular Statement and Account.” But, the CFPB is perpetually self-funded with no need for an appropriation. Every year, it simply tells the Treasury Department to give it everything it wants — up to 12% of the earnings of the Federal Reserve System.

The CFPB has been hauling in more than $600 million a year. When it attempted to impose new rules on payday lenders, they objected, saying the agency is unconstitutionally funded and the payday regulations are without force. If the Supreme Court agrees in CFPB v. Community Financial Service Association of America, this might toss out not only the payday lending rules but everything else the CFPB has been up to for the past dozen years.

In Acheson Hotels v. Laufer, the court will consider whether a self-appointed “tester” can sue a business even when the tester has never visited the business — and never intended to visit. Floridian Deborah Laufer visited the website of the Acheson Hotel in Maine. Not liking the hotel’s information on its disabilities accommodations, she and her law firm sued — despite the fact that Laufer acknowledged she never intended to visit the hotel. Acheson fought back and now, the Supreme Court will decide whether the webpage visit gives Laufer a right to sue.

But there’s a catch: After filing the lawsuit, Laufer’s law firm was sanctioned for filing hundreds of frivolous suits. Now Laufer is trying to dismiss the suit.

The Supreme Court also will hash out several causes involving free speech on the internet:

  • Lindke v. Freed and O’Connor-Ratcliff v. Garnier will consider whether and when public officials can block members of the public from their personal websites when the officials’ social media posts involve government affairs.
  • Moody v. NetChoice, LLC involves whether the First Amendment prohibits a state from forcing social-media companies to host people and groups the company wants to kick off, and whether the social media company can be forced to explain to users why it has censored their speech. This follows NetChoice v. Paxton, in which the court, in 2022, blocked a similar Texas de-platforming ban.

Moore v. United States might put a stop to the fervent desire of some in Congress to impose wealth taxes that the 16th Amendment doesn’t allow. In 2017, Congress embarked upon taxing unrealized gains on foreign accounts — a kind of tax on wealth that hasn’t been converted yet into cash income. Charles G. Moore sued and, if Moore loses, Congress might attempt to impose other such wealth taxes.

Only one year after the court held that the Second Amendment guarantees the individual right to own and carry guns, we have United States v. Rahimi on the docket. Zackey Rahimi used a gun during a dispute with his girlfriend and a court imposed a domestic violence restraining order. Federal law prohibits anyone with such a restraining order from owning or using a gun.

Nevertheless, Rahimi was accused of involvement in at least five shootings related to drug deals, road rage, and a Whataburger meltdown. Rahimi pleaded guilty to violating the federal gun ban, but the Fifth Circuit tossed that conviction because it violated the Second Amendment. Rahimi may not have been “a model citizen,” the Fifth Circuit wrote, but he was not a convicted felon — and only convicted felons and the mentally ill can be prevented from owning guns.

This op-ed was originally published in The Messenger on September 28, 2023.