The Supreme Court of the United States
Case №19–09 101 M.S.Ct. 113
RestrepoMU, J., delivered the opinion of the Court, in which, JJEagleHawk, and CuriositySMBC, JJ., joined.*
Less than a year has passed since this Court encountered the practice of Conversion Therapy. However the case before us today concerns executive power to interpret laws written by Congress. Two questions were presented to the Court. First, whether or not the President could alter the definition of discrimination to include sexual orientation. As this Court has repeatedly held, the Courts must show deference to the Executive when they engage in a reasonable interpretation of US statutes, and the President’s interpretation was just that, reasonable and consistent with Congressional intent. The second question concerns the order to Cabinet Secretaries to apply the new definition and use federal funding to “coerce” the intended goals. As no challenge or complaint was raised by any cabinet secretaries or any other affected institution, the Court finds that the issue is not yet ripe for review. Therefore, the Executive Order is upheld.
In his Executive order, the President** stated “it is the duty of the Federal government to ensure that no Federal health aid is employed for a purpose inconsistent with the principle of equal protection under the law and the protection of American youth from cruel and depraved abuses.” The President then directed various Executive agencies to issue guidance on updated definitions of discrimination under the Patient Protection and Affordable Care Act (42 U.S.C. §§ 18001 et seq.), the Patsy T. Mink Equal Opportunity in Education Act (20 U.S.C. §§ 1681 et seq.) as amended by the Civil Equality Act of 2018, and the Civil Rights Commission Amendments Act of 1994 (Public Law 103–419). The petitioner contends that the President is “unilaterally altering the statutory definition of discrimination.” But a close reading of the statutes indicates that the President is merely altering the Executive’s interpretation of the various protected classes to include sexual orientation.
This Court has previously noted that reasonable Executive interpretation should be given deference by the Courts. As Justice Jackson held in Skidmore v. Swift & Co,
“We consider that the rulings, interpretations, and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” (Skidmore 323 US 134 (1944))
This notion was clarified by the majority opinion in Christensen v. Harris County:
“[We] confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law do not warrant Chevron-style deference. […] Instead, interpretations contained in formats such as opinion letters are “entitled to respect” under our decision in Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), but only to the extent that those interpretations have the ‘power to persuade’ […]” (Christensen v. Harris County, 529 US 576 (2000))
The Executive branch is therefore entitled to make reasonable interpretations of the law where a persuasive argument is present. While the underlying statues the President’s order addresses reference discrimination on the basis of ‘sex’, the Respondent correctly notes that Congress has already acted to update the meaning of sex based discrimination to include “because of or on the basis of sexual orientation, gender identity, pregnancy, childbirth, or related medical conditions[.]”
Therefore the Court can consider the order on new guidance in the light of both Congressional action to expand the statutory definition, and the Executive’s argument that the order does not alter the definition, but rather reflects a more broadly held definition. While Congress acted specifically to update the definitions in the 1964 Civil Rights act, this Court has previously held that statutory consequences “often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed” (Oncale v. Sundowner Offshore Services, Inc. 523 US 75 (1998)). In writing so, Justice Scalia affirmed that statutory provisions can exceed specific Congressional intent. Former President GuiltyAir’s actions are within reasonable statutory limitations, and constitutionally valid.
It is important to note that this Court is merely showing appropriate deference to the Executive, and is not necessarily taking a position on whether or not sexual orientation is covered by sex-based discrimination statutes. While the argument is persuasive that sexual orientation, and other gender identity related statuses, may be covered by sex-based discrimination, the Court will not address that issue today.
The former President’s Executive Order likely had little effect on daily operations within the Executive. But the President’s policy implications, which might seem momentous, are on closer inspection narrowly tailored, consistent with recent Congressional action, and reasonably within statutory interpretation. Therefore, the Executive Order is upheld, in full.
It is so ordered.
*Chief Justice IAmATinman and Justice Notevenalongname took no part in the decision.
** It should be noted that President GuiltyAir has since left office at the conclusion of his term
