Cato Legal Experts on Today’s Supreme Court Decisions

“Do courts have the power to tell the government to stop enforcing an unconstitutional measure, period, or may they only tell it to stop enforcing it against whoever sued? In the 1925 Pierce v. Society of Sisters case whose centennial we celebrate this year, was the district court right to say that Oregon could not enforce its ban on private schools at all, or should it just have told the state to stop enforcing the ban against the particular private schools that sued? In West Virginia State Board of Education v. Barnette (1943), was the district court right to order the state not to expel any students who declined to salute the flag or say the Pledge of Allegiance, or should it have confined itself to the rights of the two Jehovah’s Witness children who sued?

Today a majority of the Supreme Court rushed to declare a sweeping new ban on so-called universal injunctions. As a policy matter there are serious arguments both for and against the use of these injunctions, suggesting that adopting a single sweeping rule might not make sense. And as Justice Sotomayor’s dissent makes clear, the historical materials on the extent to which court orders across American history have benefited parties not in court are a mixed bag, again not well suited to peremptory dismissal.

The most prudent — perhaps also the most equitable — course might have been for the Court simply to turn away the Trump administration’s request for stays and let the course of ordinary litigation proceed. As Sotomayor notes, that would be consistent with the idea that the federal government had not itself come to court seeking to do equity, as equity requires — it was attempting instead to subvert a precious and well established constitutional right, that of birthright citizenship — and that it would suffer no “irreparable injury” by having to delay these designs.

Even in less dangerous times, the Court would have done better to avoid today’s ruling. But the present moment — in which the Trump administration has launched a full-court press of deliberate lawbreaking and seeking to escape the judicial scrutiny that inevitably follows — is the worst time for it.”

“Today in Free Speech Coalition v. Paxton, the Supreme Court upheld as constitutional a Texas law mandating that websites impose age-verification if those websites feature one-third or more content that is obscene for minors. In rejecting a First Amendment challenge to the law, the Supreme Court held that the law should neither be subjected to the most searching and skeptical form of judicial review (strict scrutiny) nor the most lenient and deferential (rational basis scrutiny). Rather, the Court applied the middle-ground “intermediate scrutiny.” The Court held that the law survives intermediate scrutiny because it advances the state’s interest in shielding children from sexual content. The Court held that requiring adults to verify their ages online before accessing such content did not impermissibly burden the speech rights of adults.

Unfortunately, this decision upends two decades of settled understanding about adults’ freedom to access legal content online without government-mandated ID checkpoints. In the 2004 case Ashcroft v. ACLU, the Supreme Court held that strict scrutiny applied to a very similar federal law, affirming a lower-court decision blocking that law. Implausibly, the Court today attempted to distinguish Ashcroft as not binding precedent in this case. The Court distinguished Ashcroft on the grounds that the law in Ashcroft required websites to show they had verified IDs as a defense to a prosecution, while the Texas law requires the state to show a lack of ID verification at an earlier stage of an enforcement proceeding. Although it is true that the procedures in the two laws differed, the upshot of both was the same: mandatory ID checks for adult content. In effect, the Court has now overruled Ashcroft’s application of strict scrutiny to laws mandating such ID checkpoints for adult content.

While proof of age is required to access some products in daily life, the Court today gave too little weight to the two key concerns that had been raised by the plaintiffs. First, speech is explicitly protected by the First Amendment, so a limitation on access to speech raises greater constitutional concerns than a limitation on access to alcohol, tobacco, or similar products. And second, the risk of leaks and blackmail is significantly higher for online ID checks than for in-person ID checks, because scans and photos can be accessed by third party hackers for nefarious purposes. Thus, online ID checkpoints dissuade adults from accessing lawful speech to a significant degree.

Fortunately, the Court’s reasoning applies only to ID checks for content that is obscene for minors and not constitutionally protected for minors. This is the only category of speech where the Court has held that age makes a difference. The Court’s reasoning today does not justify ID checks for online speech that is legal and constitutionally protected for people of all ages, such as social media.”

“The Supreme Court’s decision today in FCC v. Consumers’ Research missed a major opportunity to require Congress to pass clear laws when taxing or regulating Americans. This case arose because, instead of setting telecommunications tax rates itself, Congress gave the Federal Communications Commission vague “universal service” principles and allowed the agency to decide how much money to collect from the public. Worse, the FCC delegated significant taxing and spending authority to a private nonprofit it created—the Universal Service Administrative Company—whose board is dominated by telecom industry insiders and subsidy recipients.

This structure—which funds subsidies for telecom providers nationwide—lets Congress avoid accountability while billions are collected each year through fees buried in consumers’ monthly phone bills. Though a lower court found this arrangement unconstitutional, the Supreme Court today upheld this subsidy system.

The Constitution vests the power to tax and raise revenue solely in Congress—not in executive agencies or their handpicked private partners. Today’s decision unfortunately gives Congress a blueprint for avoiding accountability to the American people: outsource the power to tax and spend to unelected regulators and even private industry groups.”