Guns, A Wealth Tax And War On Regulators: What We’re Watching On SCOTUS’s Docket Next Term 

The Supreme Court term this year ended with an explosion, as the right-wing bench handed down landmark cases rolling back affirmative action, slashing the Biden administration’s student debt forgiveness program and giving a big thumbs up to a potential wedding website designer’s desire not to serve hypothetical same-sex couples. 

Already, the docket for next term is littered with cases that present existential threats to survivors of domestic violence, consumer protections and the administrative state. 

United States v. Rahimi

The Supreme Court will hear a case concerning whether a federal gun ban for those under domestic violence orders is constitutional in perhaps the most well publicized case of the upcoming term. 

At the center of the case is Zackey Rahimi, a drug dealer from Texas, who, according to court documents, was put under a protective order in February 2020 after he attacked his ex-girlfriend with whom he shares a child, and, later, threatened to shoot her if she told anyone. The order suspended Rahimi’s handgun license, and expressly forbade him to have a firearm. 

Between December 2020 and January 2021, Rahimi was involved in five shootings, per court documents citing the pre-sentence report. 

They included shooting at a person’s house after Rahimi sold that person drugs, shooting at a driver after a car accident (and then coming back in another car to do so again), shooting at a constable’s car and firing into the air after a friend’s credit card was declined at Whataburger. 

The incidents prompted a police search of his home, which turned up a pistol and a rifle, along with a copy of the protective order. 

He was sentenced to a 73-month prison term, from where he continued to fight the decision. A Fifth Circuit Court of Appeals panel — two Trump appointees and one Reagan one — had initially rejected his appeal, but reversed course after the Supreme Court handed down New York State Rifle & Pistol Association, Inc. v. Bruen last year, a landmark case that dramatically loosened gun restrictions through reasoning that suggested any gun control law lacking a historical analogue is unconstitutional.  

The panel found that there is no historical support for a law prohibiting people who are under domestic violence orders from possessing guns. 

Perhaps in part because Rahimi is such a spectacularly flawed plaintiff, his lawyers tried to bat back the Justice Department’s appeal of the decision to the Supreme Court. 

“This Court only ‘rarely’ grants certiorari to refine or clarify an important constitutional issue within the first year,” Rahimi’s lawyers wrote. “Lower courts are just beginning to grapple with Bruen, and the decision’s recency is reason enough to deny certiorari.” 

But the Court granted cert anyway. Some are hoping that Rahimi’s case will result in a narrowing of the vast implications of Bruen, if the Court can’t stomach legally putting guns into the hands of violent people. 

Consumer Financial Protection Bureau v. Community Financial Services Association of America 

At the urging of the Biden administration (though a term later than it asked for), the Court will hear a case that represents a fundamental threat to the Consumer Financial Protection Bureau (CFPB), the brainchild of now-Sen. Elizabeth Warren (D-MA) that was created in the aftermath of the 2008 financial collapse. 

It’s long been an object of disdain for conservatives, both because of the lawmaker to whom it’s most closely linked, and because it punishes companies that defy its rules on mortgages, loans, credit cards and banks. The case has attracted the attention of a range of interest groups; John Eastman, one of the key figures in efforts to overturn the 2020 election for Donald Trump, filed an amicus brief arguing against the agency on behalf of the Claremont Institute’s Center For Constitutional Jurisprudence, which he founded.  

This particular case grew out of payday lender trade groups challenging a restriction that limits the number of times they can try to withdraw money from borrowers’ accounts. 

A panel on the 5th Circuit, composed of three Trump appointees, tossed out the payday regulation on the grounds that the entire funding scheme for the agency is unconstitutional.

The CFPB is funded outside the congressional appropriations process, instead being financed directly by the Federal Reserve, which is funded by member bank fees. The Trump judges found the funding mechanism to violate the Constitution’s appropriations clause, which says that “no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

The government was apoplectic. All the appropriations clause required, it said, was that money be paid out of the Treasury only if it was appropriated by an act of Congress. 

“Congress enacted a statute explicitly authorizing the CFPB to use a specified amount of funds from a specified source for specified purposes,” the government lawyers wrote. “The Appropriations Clause requires nothing more.”

“This marks the first time in our nation’s history that any court has held that Congress violated the Appropriations Clause by enacting a law authorizing spending,” added Solicitor General Elizabeth Prelogar in a separate brief. 

The D.C. Circuit, for one, had previously found that the agency’s funding mechanism was fine. 

In a separate case concerning a different part of the CFPB structure, Chief Justice John Roberts seemed fixated on the agency’s funding scheme. “They don’t even have to go to Congress to get their money,” he said then.

Should the Supreme Court uphold the Fifth Circuit’s opinion, it would endanger the CFPB’s entire existence, and all of the consumer protections it’s enforced. As it is, companies are already citing the Fifth Circuit’s opinion to have agency actions against them tossed. In a February 2023 filing, the government wrote that the decision “has already affected more than half of the Bureau’s 22 active enforcement actions.”

But the danger wouldn’t end there. Many other government entities and programs — the Federal Reserve, the U.S. Postal Service, Social Security, Medicare — are not funded by annual congressional appropriations either. 

Loper Bright Enterprises v. Raimondo 

As ever, the Supreme Court has tucked a nuclear bomb to explode the administrative state into its slate of cases. 

Loper Bright Enterprises v. Raimondo squarely invites the justices to overturn the Chevron doctrine, stemming from a 1984 case and holding that courts should defer to federal agencies’ interpretation of ambiguous statutes as long as that interpretation is reasonable.

This Court has been consistently chipping away at the doctrine, and at least two justices — Neil Gorsuch and Clarence Thomas — are in open revolt. 

“At this late hour, the whole project deserves a tombstone no one can miss,” Gorsuch wrote last year. “We should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.”

This time, the Court only granted cert on the second of two questions, disregarding the specific issues at play in the case — which deals with Commerce Department regulations requiring monitors on fishing vessels — and taking up solely the question of “Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”

That means that at least four justices want to address the question; it would take five to overturn the 40-year-old precedent. If the justices do away with Chevron, it will further weaken federal agencies, both appropriating their power to the Court itself, and making it even more difficult for the Biden administration to put in place regulations, particularly on environmental matters where Congress has for decades largely failed to pass major laws (even with Chevron in place, though, this Court has often reached for right-wing inventions like the major questions and nondelegation doctrines to reject agency actions anyway).

Justice Ketanji Brown Jackson recused herself from the case, as she sat on the D.C. Circuit when the case was argued there.  

Moore v. United States

In a weedy-sounding tax case, the petitioners offer the Court a chance to preemptively behead burgeoning Democratic ideas about how to more effectively tax the very wealthy. 

Ironically, the case is grounded in a dispute over a Republican-championed law, not a Democratic one. A couple fell under the purview of a one-time tax from then-President Trump’s 2017 tax cuts, which required payment from people who owned at least 10 percent of foreign companies — no matter whether they had reaped any earnings from their shares. 

The couple, the Moores, argued that such a tax is unconstitutional and that the 16th Amendment does not apply to unrealized (not distributed) income. They lost both at a U.S. district court and at the 9th Circuit, prompting the government to howl that there is no circuit split on the issue — alongside the reality that this question only affects a very small pool of taxpayers — and thus no need for Supreme Court review.

The Court took the case up anyway.

To add a carrot, the Moores are presenting their case as an opportunity for the Court to head off the various wealth and billionaire tax ideas increasingly circulating in the Democratic caucus, particularly since Warren’s 2020 run.

“This is no idle threat,” their lawyers wrote, pointing to President Joe Biden’s proposed “Billionaire Minimum Income Tax,” Sen. Ron Wyden’s (D-OR) proposed “Billionaires Income Tax” and Rep. Pramilia Jayapal’s (D-WA) bill for a wealth tax. All of these plans aim to get at the money of the very wealthy, most of whose income does not come in the form of a standard-issue salary.  

“There is every reason for the Court to resolve the pivotal constitutional question of realization now, when its judgment can inform lawmakers and stands to head off a major constitutional clash down the line,” the Moores’ lawyers urged. 

In response, the government gently reminded the Court that it does not have the power to issue opinions about hypothetical congressional legislation. 

“They raise the specter, for instance, of Congress’s enactment of ‘a wealth tax’ — an action that Congress has not taken,” the government lawyers responded. 

But the Court, they added, does not “‘exercise general legal oversight of the Legislative and Executive Branches’ or ‘issue advisory opinions’ on matters not before it.” 

Securities and Exchange Commission v. Jarkesy

In another administrative law case, the Court is picking up where the Fifth Circuit left off as it used the nondelegation theory to clobber the Securities and Exchange Commission (SEC). 

At its heart, the case is about where and how the SEC adjudicates securities fraud enforcement actions. Ever since 2010, the commission has had the choice to either adjudicate certain enforcement proceedings internally before Administrative Law Judges, or externally in federal district courts. 

The Fifth Circuit cried nondelegation, a theory from the 1930s used to attack FDR’s New Deal that had lain dormant for decades until opportunistic conservatives dug it back up. It holds that Congress can’t outsource its legislative duties to other entities, including agencies — and can be read to mean that any agency rulemaking is invalid without a specific law behind it. In practice, this would grind agency action to a halt, as Congress, particularly one riven by two-party control and paralyzed by the Senate filibuster, would fall short of such a massive legislative mandate. 

Despite the fact that Congress gave the SEC the choice of where to adjudicate the cases, the Fifth Circuit ruled that because Congress didn’t include specific guidelines advising how the SEC should select the venue, it’s “impermissible under the Constitution.”

Such a choice, experts told TPM, seems to fit within an unremarkable expression of enforcement delegation that agencies avail themselves of all the time. 

“In choosing which of the available alternatives to pursue in a given case, the Commission is simply executing the law that Congress previously enacted — not adopting new legal rules in violation of Article I and the nondelegation doctrine,” Prelogar wrote.  

But as the Court becomes increasingly hostile towards executive branch agencies and increasingly comfortable deploying tools like the nondelegation doctrine, the SEC may be the next agency to see its authority whittled down — along with the agencies that could be touched by the case’s ripple effects.