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Brian Lehrer: Brian Lehrer on WNYC. Now to some consequential opinions released by the Supreme Court this morning with rulings on homelessness. The so-called Chevron Deference which could affect how rulemaking is done at the federal government for public health as we were discussing with Dr. Fauci and all kinds of things. Also, the so-called Fisher Case on many of the January 6th prosecutions, including Donald Trump's.

We'll have to wait for the decision on Trump's presidential immunity and a couple of other cases until Monday, but we continue to be lucky enough to have a scholar of constitutional law on standby for these opinion days. We are joined once more for this week by Aziz Huq, professor of law at the University of Chicago Law School, and author of the forthcoming The Rule of Law: A Very Short Introduction. Hello again, Professor Huq, and welcome back.

Aziz Huq: Good morning, Brian. Thanks for having me.

Brian Lehrer: Let's take these in the order they were released. The first case to come down today was City of Grants Pass Oregon v. Gloria Johnson. This was about homeless encampments and whether local governments can have laws against camping. In other words, sleeping in public spaces if you have no home, or whether that represents cruel and unusual punishment since homelessness is not a choice that people make voluntarily, usually, and the court said?

Aziz Huq: The court said that states are free to impose criminal sanctions on the homeless who are camped or sleeping outside without regard to the Eighth Amendment. In effect, the court limited earlier decisions prohibiting states of the federal government from criminalizing actions or states that people cannot voluntarily control. For example, certain medical conditions, asset basis for criminality. As Justice Sotomayor said in dissent, the effect of the ruling is to say that cities and states can penalize people for having to sleep in public where they simply do not have anywhere else to go.

Brian Lehrer: This was a straight 6-3 Republican appointees versus Democratic appointees vote. Sotomayor's dissent also said sleep is a biological necessity, not a crime. For some people sleeping outside is their only option. How did the majority counter that?

Aziz Huq: The majority read the Eighth Amendment, which prohibits cruel and unusual punishment, relatively narrowly. It said that that amendment primarily applies to the kind of sanctions that the state imposes after a criminal conviction. There are earlier opinions. There's a early 1960s opinion called Robinson that had disallowed the state from penalizing people from things that are not within their voluntary control.

The court, however, said that homelessness is not akin to certain kinds of mental illness or the like because homelessness is a complex social problem where the people subject to the public camping law that was at stake in Grants Pass, which was the city in Oregon that was the litigant here, people subject to these public camping laws sometimes have a choice, sometimes don't have a choice, sometimes a constitutional constraint upon the city in terms of its powers to regulate will aid the homeless. Sometimes by tying the city's hands, the majority argued the constitutional ruling will actually make the problem worse.

Brian Lehrer: The Robinson decision from 1962 had to do with drug addiction, and they were using that as precedent to argue one way or the other?

Aziz Huq: That's correct. One way of thinking about this case is whether the court was going to extend the idea in Robinson that people could not be punished for involuntary states. There it was drug addiction, where I think the Robinson Court describes drug addiction as a kind of involuntary psychological condition that is not something that people voluntarily choose whether that principle could be extended to the context of homelessness.

It's worth saying that the majority opinion by Justice Gorsuch goes out of its way to recognize the seriousness, the complexity, and the cost of homelessness to the people who are bereft of shelter and is not entirely insensitive to the [unintelligible 00:05:28] that the policing of homelessness can involve. At least this opinion should and I think cannot reasonably be read by states and localities as a kind of blank check to do whatever they want to the homeless.

Indeed, there's some traces in the opinion. They're inconclusive, but they're there. There remain certain constitutional limits under a different clause of the constitution, the due process clause on the way that cities and states can treat people based upon facts or states that they did not choose.

Brian Lehrer: Next case, two cases really known under the general headline of Chevron Deference. That might sound wonky, but this has potentially vast implications for how all kinds of federal regulations over all kinds of things in American life are made or upheld. Correct?

Aziz Huq: Yes, I fear this is wonky but quite consequential. Since the American New Deal administrative agencies at the federal level have regulated an enormous swath of things from public health, the kind of things that Dr. Fauci was talking about through to the environment, through to natural resources exploitation, and much more. In doing so, they issue rules.

In the early 1980s, in a 1984 case called Chevron, the Supreme Court held that when there was an ambiguity or a gap in the law, a federal court should defer to the expert judgment of the agency in addressing or filling that ambiguity or gap. The actual Chevron case was about a Reagan-era rule that made it easier for power plants to pollute. When the case was handed down, it didn't have a particular partisan valence.

In the second Obama presidency, however, conservative activists and then conservative jurists started attacking the idea that courts should defer when the law was ambiguous to expert agencies. I think this happened because activists and then judges saw opportunities to limit deference as a way of rolling back the regulatory state. Indeed for the last eight or so years, the Supreme Court has conspicuously declined to show deference to expert agencies in the way that it did in the Chevron ruling in 1984. Today-- sorry.

Brian Lehrer: No, no. Did you want to finish your thought?

Aziz Huq: Today the court formally overruled Chevron. The result of that is to transfer a great deal of authority to interpret gaps in ambiguities and statutes from agencies to courts. Given that the courts are -- particularly, the Supreme Court is generally right-leaning, this creates moving forward many opportunities for regulated industries to challenge the rules that they are subject to.

Brian Lehrer: It was along the usual 6-3 ideological lines. Tell me if you agree with this text that we got from a listener who writes, "If you are a climate change voter, Supreme Court is on the ballot. The Supreme Court's reversal of Chevron constitutes a major transfer of power from the executive branch to the judiciary stripping federal agencies of significant discretion to interpret and enforce ambiguous regulations hard to overstate the impact of this seismic shift on climate," says this listener. Do you agree?

Aziz Huq: I think that's partly right. I think that as we saw a couple of years ago, West Virginia, the EPA case, it has long been a fact that the court has in its toolkit many other instruments for undoing regulations short of refusing to apply deference. I think that what we're seeing today is probably not going to be a new impediment to climate-related rules, that already existed. What we will see is an extension of that impediment to all sorts of other rules. One of the cases in this instance, for example, involved Fisheries Regulation. We'll see lots more opportunities for regulated industries to block public-facing regulation.

Brian Lehrer: The third and final opinion of today is in the case Fischer v. the US, with Fischer being one of the January 6th rioters who was charged with obstructing or impeding an official proceeding. Meaning the vote to certify the presidential election results he sued saying that was too wide an interpretation of that law, and many of the defendants were similarly charged. Trump is too in one of the cases.

Under that same statute, the court sided with Fischer it looks like, but it goes back to a lower court now to determine if a narrower reading of the law means the charges have to be dropped. What do we learn from all those words about January 6th, and the law today?

Aziz Huq: The law in question here was part of the Sarbanes–Oxley Act. It was meant to address white-collar crime. The provision is one of a list of other offenses where the other offenses all mention documents, objects, or other papers. The gist of the court's ruling today is that, because the provision under which Fischer was charged is part of a list where every other part of the list refers to documents or objects, it's not enough for the government to say you obstructed a proceeding.

It's got to say you did so by tampering or hiding or destroying, or otherwise meddling with, or undermining a document or an object. As Justice Jackson pointed out in her concurrence, and notice that this was a case that didn't break the court along partisan lines. The government can go back and charge Mr. Fischer with obstructing or trying to interfere with the reporting of the electoral count votes, which are documents and objects.

There is another theory under which the government can charge Fischer. It is true that former President Trump is charged under the same provision on two counts. It is worth noticing that the counts in Jack Smith's indictment alleged that former President Trump did many things with respect to the falsification altering tampering with of documents or objects, in particular, the Electoral College votes, and the tally that Mike Pence read out on January 6th.

I think that the case, although it alters the way that Jack Smith, if he ever gets to would argue the obstruction charges in Trump's case, it does not take those obstruction charges off the table in Trump's case, because they involve a document or an object.

Brian Lehrer: We've got about 90 seconds left. The Chief Justice announced that Monday will be the final day of opinions for this term that leaves the big Trump immunity opinion, and the net choices cases over whether social media companies can censor posts. Is there any chance that they will not decide on presidential immunity on Monday?

Aziz Huq: Well, given that the court has said that Monday is the last day, the only way that the court would not decide on presidential immunity is if they held over that decision to the next Supreme Court term. Now, it is the case that certain opinions are held over it from one term to the next. Perhaps the most famous example of that is Brown v. Board of Education, which was argued initially, I believe it was in early 1953 and then held over to the following term in part because of the death of one of the justices.

I don't see any reason for that to occur, and under the circumstance, it would be-- well, the delay that we've already seen in the presidential immunity case I think is extraordinary, but the holding over of the case would be an order of magnitude yet more eyebrow-raising.

Brian Lehrer: Aziz Huq is a professor of law at the University of Chicago Law School. His new book, not yet out forthcoming book is The Rule of Law: A Very Short Introduction. It's going to come out later this summer, and it'll come on for that. Professor Huq, thanks again for all this analysis. We'll see what happens on Monday, and if the almost unthinkable that you were just laying out a potential scenario for actually happens, which is that they hold over presidential immunity the next term. Thanks for today.

Aziz Huq: Thank you, Brian.

Brian Lehrer: That's The Brian Lehrer Show for today. Produced by MaryEileen Croke, Lisa Allison, Amina Srna, Carl Boisrond, and Esperanza Rosenbaum, Zach Gottehrer-Cohen edits our National Politics Podcast. Our intern this summer is Sasha Linden Cohen. Megan Ryan is the head of Live Radio. Juliana Fonda and Milton Ruiz at the audio controls. Have a great weekend, everyone, and stay tuned for All Of It.

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