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Michael Cianchette is a Navy reservist who served in Afghanistan. He is in-house counsel to a number of businesses in southern Maine and was a chief counsel to former Gov. Paul LePage.
After a month of waiting, the D.C. Circuit Court of Appeals issued their decision this week concerning former President Donald Trump’s claim of immunity from prosecution.
They said former presidents are not immune from criminal liability. They got it right.
Throw out all your partisan affiliations for a moment. Go back to grade school civics. Dust off Schoolhouse Rock.
We have three branches of government. The legislative makes the law, the executive enforces the law, and the judiciary adjudicates disputes. There are checks and balances among them.
It is a healthy tension. Beyond politics, each branch should zealously guard their institutional prerogatives. The idea that a president, once a private citizen again, would be fully immune from criminal laws is far too close to kingship, a governing model actively rejected post-Revolutionary War.
That is why the D.C. Circuit got it right. And for those celebrating the decision, I hope they will feel the same when the Supreme Court decides another case dealing with broad assertions of executive branch powers.
Two cases argued before the highest court last month received breathless coverage. Prophecies of doom splashed across headlines.
Start with the facts.
Many years ago, Congress enacted a law regulating fisheries. The law said that the National Marine Fisheries Service could require federal monitors to be posted on fishing boats in order to collect data on catch rates to inform future regulations.
So far, so good.
However, when the government published updated regulations, they said that the fishing boats needed to pay a big chunk of the salary for the on-vessel monitors. A couple small fishermen sued the federal government, arguing Congress didn’t authorize the agency to force them to foot the bill for the monitors.
Lower courts ruled for the government based on something called “Chevron deference.” It is named after a Supreme Court decision issued in 1984.
The details are long and probably boring. But, in essence, Chevron deference says that courts should defer to the executive branch’s interpretation of ambiguous statutes as long as it is reasonable.
The pending fishery cases ask whether the court should reconsider Chevron deference. Those who fear such deference’s demise argue that the federal bureaucracy will be left nearly impotent and a variety of Bond-esque villains will run amok.
Reality is much more mundane.
As another columnist noted this week, Congress is a mess. The GOP owns a big part of that. They are called “lawmakers” for a reason, but they don’t seem terribly interested in doing their job.
Chevron deference gives them an out. As Paul Clement, the lawyer for the small fishing boats, noted in his argument, Congress is able to duck hard decisions by letting the myriad acronym agencies assert authority by interpreting decades-old statutes in new ways.
Take cryptocurrency. The market value for Bitcoin, Etherium, and others has grown to nearly $2 trillion.
What is crypto? Is it a security? A currency? A commodity? Something else?
Depending on the answer, it would likely fall under a specific agency. Congress hasn’t acted, so each enforcement organization is staking out their own legal interpretation giving themselves statutory authority to regulate crypto.
Under Chevron deference, it is entirely possible that courts would defer to each agency concerning their self-determined authority and Congress would be able to abdicate their lawmaking responsibility. That is anathema to our constitutional order.
We have three branches of government. It is common for the executive branch to try to claim more power for itself. The D.C. Circuit rejected that idea when it determined former presidents did not have criminal immunity. The Supreme Court will likely do the same when it resolves the fishery cases and dials back Chevron deference.
Both are good things. Because Congress makes the law, the president enforces the law, and the courts adjudicate disputes about what the law means. And none are above it.
