Observing Constitution Day

This year, Wheaton College marks the signing of the U.S. Constitution on Sept. 17, 1787, with an article that highlights the ongoing interpretation and reinterpretation of this document’s meaning and impact on the lives of everyone living in the country.

In the essay below, Professor of Political Science Miranda Yaver, who teaches courses on constitutional law and judicial politics, highlights upcoming cases before the U.S. Supreme Court in the coming year.

Professor Yaver shares her thoughts on the importance of the issues before the justices and offers links to detailed information on each case, which will allow interested readers to learn more about the questions that the court will decide.

Looking ahead to the 2023 Supreme Court Term

By Prof. Miranda Yaver

Following a blockbuster 2022 term culminating in the erosion of affirmative action and rejection of independent state legislature theory and the Biden Administration’s student loan forgiveness program, on the first Monday of October, the Supreme Court will begin its 2023 term.

To say that the Supreme Court has upended constitutional law in recent years would be an understatement, with the Court not only reversing the 49-year-old precedent of Roe v. Wade but reshaping the legal landscapes in such areas as education policy and LGBTQ rights in public accommodations. Below, I preview the key constitutional cases to watch in the upcoming term.

Professor Miranda Yaver

Though covering a broad range of subjects extending from constitutional law to administrative law (see Loper Bright Enterprises v. Raimondo, which asks whether to overrule the landmark administrative law case of Chevron v. Natural Resources Defense Council), a key constitutional case of which to be aware is Consumer Financial Protection Bureau v. Community Financial Services Association of America, Limited, which will be argued on October 3, 2023. The central question here is whether the Fifth Circuit Court of Appeals was incorrect in holding that the congressional statute that funds the Consumer Financial Protection Bureau (CFPB) in fact violates the appropriations clause found in Article I Section 9 of the Constitution. The Congressional Research Service noted that the Fifth Circuit’s decision was “perhaps the first decision ever to conclude that congressional action, as opposed to executive or judicial action, can violate the appropriations clause.” The CFPB petitioned the Supreme Court for review in November 2022 due to the lower court’s “unprecedented and erroneous understanding of the Appropriations Clause.”

The implications of this case are far and wide, affecting not only the funding structure of the CFPB, but executive agencies more broadly, with those very agencies being at the center of the American regulatory state.

Extending from the appropriations clause to the due process clause, in Culley v. Marshall, the Supreme Court will hear on October 30 a case concerning whether the due process clause demands that state or local governments provide post-seizure probable cause hearings prior to forfeiture proceedings and whether such hearings are subject to the “speedy trial” requirement.

What’s more, in McElrath v. Georgia, the Court will evaluate whether the Fifth Amendment’s double jeopardy clause will prohibit second prosecutions for crimes of which a defendant was previously acquitted. In its amicus brief to the Supreme Court, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the American Civil Liberties Union of Georgia, it was asserted that “[t]he ‘most fundamental rule in the history of double jeopardy jurisprudence’ is that acquittals are inviolate, no matter the reason behind them,” thus challenging the constitutionality of respondents’ arguments. Should the respondents prevail, this would be a marked shift in criminal justice jurisprudence and the rights of the accused.

In a rare appearance of the 16th Amendment, the Court will additionally evaluate in Moore v. U.S. whether the 16th Amendment authorizes Congress to tax unrealized sums without apportionment to the states. This challenge to the constitutionality of the “mandatory repatriation tax” provision of the 2017 Tax Cuts and Jobs Act (TCJA) addresses a requirement that US taxpayers owning shares in foreign corporations pay a one-time tax on the corporation’s earnings. The Washington couple challenging the TCJA’s mandatory repatriation tax, which increased their tax liability by approximately $15,000, argued that the tax violates the 16th Amendment. The alternative argument presented is that the income should be distributed before taxation, while the mandatory repatriation tax was a direct tax not appropriate for apportionment.

What are the First Amendment implications of public officials blocking individuals on official social media accounts? The Supreme Court is about to weigh in on this as well. On October 31, the Court will hear the oral arguments for O’Connor-Ratcliff v. Garnier, which originated when southern California school board members using Facebook and Twitter to communicate with the public proceeded to block two parents who criticized them. While the Court has considered a similar issue recently, it did not concern the use of a social media platform as part of the individual’s official duties.

Last but certainly not least, the Supreme Court is taking on another Second Amendment case, following its recent case of New York State Rifle & Pistol Association v. Bruen, which struck down New York’s gun law. In US v. Rahimi, the Supreme Court will evaluate whether it is constitutional to prohibit firearm possession among those persons subject to domestic violence restraining orders. This case is particularly important because domestic violence has been found to be closely related to the epidemic of mass shootings facing the United States. Indeed, peer-reviewed research found that 59.1% of mass shootings between 2014 and 2019 were domestic violence related. This Court decision has the potential to upend existing gun control law, given that 33 states and the District of Columbia bar people convicted of domestic violence from possessing guns. This is likely to be the biggest blockbuster case to watch this term.

All in all, from administrative law to constitutional law, the Court will have yet another bold term ahead, affecting high salience aspects of law and promising a consequential June 2024 end to the court’s term.