Implications for Executive Power

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Call eight hundred thirty three four Ke for Details hosoafree event and seven hundred six twenty six S deeala for warranty details We are so bound up in the present, but like twenty years ago You might have one or two of these decisions per year. And now, you we didn't even have time to talk about all of them in an hour. So I think the point is not about any one particular case, it's about a court that has been completely emboldened to do whatever it wants whenever it wants. And you separate from the actual bottom lines that will produce, I'm not sure in the long term, that's an especially stable or healthy place for us to be in Hei everyone and welcome to the Iillegal newews. I'm Sarah Longwell, publisher of the Bllwark, and it's Tuesday, june thirtieth and the Supremeourt handed down its last decision of the term. So joining me today is Supreme Court expert Steve Vadk, Steve You are prorofessor of Georgetown Law, the author of one first, a weekly or more substack all about the Supreme Court. We're so glad you're here because we got a lot of stuff to talk about Thanks for being here Thanks forbving me Okay, let's jump right in. So as I mentioned, we're recording this on the very last day of June, and the Supreme Court wrapped up its term this morning, just in time for their summer vacation They issued some bangers today. So it upheld the birthright citizenship for children born here to undocumented parents or parents in the country temporarily. Just to start, can you remind me of round likeike how did the question of birthright citizenship to the Supreme Cour Sure. So one of President Trump's first day executive orders was an effort simply by executive order to rewrite the rules for which kinds of individuals born in the United States would be automatically entitled to citizenship The presresident's executive order would have denied automatic citizenship. to children of parents where one of the parents was undocumented and the other was either undocumented or here temporarily. Basically would have taken a large number of folks born in the US and said, nope, you're not entitled to citizenship simply because you were born here Sarah as you know, that order never went into effect. It was blocked by a whole bunch of federal district courts last year before its effective date. Even when the Supreme Court stayed those rulings last June, it was promptly blocked again. And so it's never gotone into effect and it won't because of the ruling we got this morning Okay, so I think a lot of people are I mean, I guess I was relieved when I saw this because okay, they upheld it. That was important Eespecially because you, the constitutional language on this has always seemed pretty straightforward and clear So like, yes, it's good that they ruled to uphold the Constitution. On the other hand, There was like a weird outcome for this. Maybe you want to walk us through it because I'll mangle it if I do, but this was not as straightforward as one might think it would be Yeah, I mean I think a lot of folks, Sarah, assume that the court would slap back against the Trump administration fairly emphatically. And frankly, the oral argument back on april first really was pretty darn one sided. And so I think there was a fairly broad assumption among folks who follow the court carefully Maybe not that this would be nine, nothing with that it would be, you know seven to two with maybe, you know, a concurrence by or a partial dissent by Justice Thomas Nolito And in fact, it was really close. I mean, it was six to three on the executive order itself being unlawful But Justice Bret Kavanaugh, who is one of the six, broke from the majority on whether Congress could by statute. chang the rules along the lines that President Trump's executive order purorted to. And he said, yes. And so actually on the underlying constitutional question, it was only five to four which was I think a much closer run thing than folks expected both before and after the oral argument, you know, really sort of puts a lot of weight behind the notion that this court There's a lot of votes for a lot of pretty crazy stuff that we would have thought of as outlandish as recently as ten years ago Yeah, I wouldn't say I left this decision feeling a ton better And also maybe you could tell me, so there's a few things and I'm not. I'm a lay personerson, and I'm going to be very upfront about all my lay personerson Supreme Court views. as more of a political observer than a real observer of the court, which is why you are here. I found the fact that bothoth the chief justustice the opinion himself and that there were all these different dissents, like they all wrote a different one. And so you know, there's always a palace intrigue around the court, but I guess I wondered If the reason this one came so late was because Roberts was trying to get a much cleaner opinion that he got to kind of hold the court together. and instead he got these like All these weird opinions where you got every single one of the dissents writing their own and then Kavanaugh writing his own off in the world different kind of thing. So what do you make of that Yeah, I mean, it's a fair point, Sarah. I guess I'll say two things. The first is, you know, this case was only argued on april first And so I would have been surprised unless it was unanimous to get a ruling much before the last couple of weeks of the term. I mean, it went to the last day and maybe there are reasons for that. Also Justice Thomas's dissent is ninety one pages all by itself Um, you know, that that doesn't get written overnight.. And so I guess I'm less to me the the Kremlinology here that's interesting is less the timing And more just your other point that Roberts really wasn't able to build a real coalition here And you when we think about the most emphatic rejections by the Supreme Court of presidents across the court's history A lot of them have been unanimous and they've been unanimous on purpose. I mean, I think most pointedly about the Watergate Tapes case in nineteen seventy four, where the court really sacrificed any shred of analytical coherence in the name of just writing something that all eight of the participating justices could sign, because Sarah in that moment, it was more important that the court speak with one voice than anything of that voice actually said This is the opposite of that, right? This is a, you know, what I think a lot of folks should have thought should have been a pretty straightforward constitutional holding reallyally looks like Roberts had to push and shove just to get it over the finish linees. And I think that's a really powerful I would say indictment, but certainly at the very least, window. into just how little this court is able, right to muster any kind of institutional heft given the internal divisions it has I want to talk about this separate dissenting opinions because know Justice Jackson wrote a concurrence to the court's opinion. The Kavanaugh wrote an opinion concurring in part, dissing in part, then Thomas Gorsuch and Alito wrote their own dissenting opinions. Is it ideological? Is it political? You read these different sense. and I gott to say just personally I thought we were going to get a seven two I was so surprised to see Gorsage Gorsit That's right. I thought Gorsitich is the vote here that I found the most hard to explain, especially given, you know, what the kinds of questions he was asking the oral argument I assume you read them, I mean, there was a lot to go through. I don't know if you had a chance to. But like what is Gorsuch doing in there? That is a very good question. And it's actually, I think the one question that is the hardest to answer just by going through the opinions, in part because I think you know partart of how this is all set up is that, you know, Gorsage didn't actually say much separately in his dissent. I mean, I think Part of the problem here is that you have Thomas writing ninety one pages by the time you get to Gorsuch, it's really just, I think what,, three pages, Sarah, right at the very end. And I think the problem there is that it almost would have been better if he wrote nothing because all of the things he doesn't explain. How does he reconcile his vote here with his very to my mind, progressive jurisprudence on the rights of Native Americans which was a huge part of the conversation when it came to the adoption of the fourourteenth Amendment. I guess I'll just say, I think part of what happened here is that again, and this is maybe where the timing did play a role, the Alito and Thomas Dcecent sort of take on different arguments. So one of them really focuses on this allegiance idea which is that the citizenship clause of the fourteenth Amendment should be interpreted to apply only to parents of children where the parents owe allegiance to the United States, and that that would therefore carve out potentially, right undocumented immigrants The other version of the argument is the domicile argument that the language subject to the jurisdiction thereof means you actually have to be domiciled here, meaning you are here in some permanent capacity. R versus transiting through the country versus being out of immigration status And Sarah, what strikes me about both of these arguments is that no matter how many pages you write in support of them they really don't respond to the fundamental purpose of the citizenship cllause, which the majority opinion by Chief Justice Roberts makes abundantly clear. which was to obliterate these very distinctions, which was to avoid giving the government the opportunity to use you know different kinds of statuses as a way to subjugate entire classes of people. It was a response to Dred Scott and the Supreme Court's own holding that you know enslaved people and children of enslaved people weren't and couldn't ever be citizens. And so That's really why I think folks were so I think first, troubled by the policy, but second, convinced that this wouldn't have been a close case in the Supreme Court And yet it was. And so yeah, I mean I'm reminded, you know, my grandmother when I passed the bar, I called her. I said, Grandma passed the bar. Her reaction was, oh, thank God. Right, Not like congratulations, not like good job, just relief. And I feel very much the same way about the decision we got today. You feel relief Yes. becausecause you think this court was being just wild enough based on these dissents that you think man, they could have gotten there on this. They could have found their way to overturning birthright citizenship. I imagine a universe in which Justice Barrett signed ont to Justice Kavanaugh's separate opinion And so you still would have had six votes to striife down President Trump's executive order. But Sarah with five votes saying, but actually the Constitution doesn't require birthright citizenship for the children of undocumented immigrants That would have been a massive shift in how we think about the Constitution and one that I think would have been not just problematic, but really I think From a moral perspective, you know, not just a legal and historical perspective, something that wouldve been very hard to swallow. Well, let's talk about Kavanaugh's view of things here specifically because this is This is the reason that I don't feel better. So I'm glad that you do. and I realize that what you're saying is guys, actually we dodged kind of a bullet here. Again, lay personers, so nobody should listen to me on this, not a lawyer U But it did seem to me like actually it was kind of the way that Kavanaugh is arguing. underlying merits of citizenship can be like statutorily overted meaning Congress could decide to challenge this. they could change the law here, right? And you were going to have to tell me if I'm getting this slightly wrong, but it it's it seemed to me to be setting up a future where you get one more you know MGA Supreme Court justustice or you know, you get a super Republican majority that like they try to do this five years from now. That's how I interpreted it I mean I guess I would say two things can and in this case, I think are true. which is, I'm relieved that there weren't five votes. but I'm also a little bit horrified that it was a close run there in the first place. And ye, you know, to me, that is a real sign of how much President Trump himself has succeeded in nudging this very conservative court even further to the right by taking positions that frankly, Sarah folks like me would have said a decade ago were completely fringe and litigating them to a point where they got four votes in the Supreme Ct. You know, that may not necessarily mean it's not fringe, but it certainly puts it on the wall in a way that it wasn't before that. And so I think it is at once a relief that the court ruled this way, but an indictment that it wasn't nigh, nothing C it should have been U Yeah, I think it's, you know, when we put it alongside yesterday's decision in Trump versus slaughter, we put it alongside, you know, the campaign finance and transgender discrimination rules from today. I mean, This is a court that really is just completely unencumbered by anything and does what it wants, what it wants. And it just so happened that it wasn't quite ready to go all the way there today But as you say There's nothing to stop it from going there tomorrow. And I think that that's the court we have Yeah, it it feels like even though Trump didn't get what he wants in terms of the actual executive order overturning birthday citizenship being codified by the Supreme Court He got pretty far in shifting, let's say the Overton window or reanchoring our values to a new place that I found U madeade me made me feel not good in my tummy. I'll tell you what And just to take one example of that. I mean, think about how folks think about birth tourism, for example, right? You, if that were actually a real problem Congress could address that in a second, right Congress could pass statutes that says, we're not going to grant you a visa in these circumstances, right? But so many folks now think about the birthright citizenship question basically the birth tourism question. and that's not how we used to think about it. And I think this is one of the things that I think we often lose when end of Supreme Court term conversations just focus on the bottom lines, which is what it means that this is where we ended up in this case And here, I think you're right. I mean, Trump was remarkably successful in taking an issue that should never have been a viable legal theory and getting not just this far, but you know, producing along the way, a pretty significant Supreme Court decision last year about narrowing so called nationwide injunctions. That's, you know, that's not for nothing. And maybe Sarah, that's why we haven't seen President Trump yet, right publicly, you, criticizing and lambasing the court the way he did after the terrorist decision Last question on this before we get to slaughter and cook because I want to talk about that next But I've seen I don't know if you're following sort of the taste makers on the Maga Tasteemakers, but they have their knives out for Amy Coney Barrett in a big way. they keep DEI highire and, you know, I think we got got old Matt Wash Walsh out there saying that Every woman on the Supreme Court's been a disaster. We shouldn't have women on the Supreme Court. O. What do you make of Amy I don't know if it's if this is a question exactly about Amy Coneyy Bret or about the way that the right feels about her, but like why don't you just take those and wrestle with that frame Yeah, I mean, so the first thing to say is that really drives home that to the folks who are making these arguments, all that matters, right is towing the party line. like to heck with your principles. And you know, you're only going to get rewarded. You're only going to get kudos for following the party line no matter what And what's striking about this is that it's not, you know, there are six Republican appointees. Barrett can't cross the right by herself. She needs a buddy. And in, you know, the most recent significant examples, it's been Chief Justice Roberts. And it's interesting that it's Barret who gets the Ier, not Roberts. Yeah. you know, more broadly, Sarah, I mean I have I continue to find Barrett the most difficult justice on the current court to understand and the hardest justice to predict, where you know, one day she's in the dissent in Lisa Cook's case Um where I, you know, frankly, I thought she'd be in the majority and where she's, you know, the fourth vote in what I thought wouldn't be a five to four rulle in on whether President Trump needed more than just his say so to fire Lisa C cook Right. And then the next day, you know, she's the key vote or at least one of the key votes in the birthright citizenship case I think this is just who she is. L I think she has principles that she may not have fully articulated yet that lead her to be, I wouldn't say a centrist, but a justice who's going to vote more like John Roberts than Neil Gorszuch. And you know, that doesn't mean she and Roberts are always on the same side. They weren't in cook. But I think it does mean that like she is more likely to end up in narrow majorities with the Democratic appointees than Justice Kavanaugh is. and except for his like pet issues than Justice Gorsuch is. And I think we're seeing that U Does that mean into some kind of, you know, liberal squish? No Um I mean, look at, look at all the six to three decisions we've had this term where she was in the majority, some of which she wrote Um But I do think it suggests that there really is at least a little bit of daylight between her and the chief on the one hand and the other four Republican appointees, at least in these kinds of cases. I do find her just a much more interesting justice than I do Kavanagh, who just seems like He wants everyone on the right to like him. Like Thomas and Alito make so much sense to me because they're just like old guys now who are basically they're like your grandpa mainlining Fox newews and they're just like reflecting back whatever they see there And like Gorsuch is sort of increasingly moving into this weird territory, whereereas she has like a very Yeah, interesting mind. I have disagreed with her on many things Also, she does seem to have like her own rubric for yeah, how she thinks about this stuff. and there's part of that that I can kind of respect in the sense that she seems to not it's not the outside world imposing on her. She has her own way of thinking about it and is saying, I'm going to apply that to these cases, which is not the way the partisans on the court operate Yeah, I mean, I think the contrast between her and Justice Kavanaugh is probably the most visible one, which is, you know, there are cases where Kavanaugh ends up in the majority with the Democratic appointees and she ends up in dissent. And again, the Lisa Cook case is the most recent example of that. But they're not the big ones, right? Like they're not they're not they're not the mail and ballots case, which is the example from yesterday, I think really touched off the firestorm on right wing social media. I think you're right. I think she is not nearly as worried about what people think of her and about how her jurisprudence is perceived than Kavanaugh is. And I think that comes through all the time. You know, there's a I'm not going to get this quote exactly right, but there's a quote in Ruth Marcus' book about the nomination and confirmation of Justice Kavanaugh where one of his former colleagues on the DC Circuit said something like the thing you have to understand about Bret Kavanaugh is that he's a wonderful colleague except when it matters. U And you know, leaving aside that I would yeat myself into the sun if anyone ever said that about me, I really do think that that's not how Barrett goes through her job think she, you know, she goes where she thinks she should go without regard to how it's going to play at the country club. And ye that's not always where I wish she would go. I think it's not even always Sarah where Her oral argument questions suggest she is going But yeah, your word is right, interestnteresting. She is, I think, by far the most interesting justice. And you know, I think it's as we look back on this term, there are a lot of cases where I think she and the chief Justice were the difference between some degree of moderation on the court's part and just a full on MAGa takeover of the Supreme Court All right, we're gonna move into the independent agency commissioners, but before we do, let's hear a word from our sponsor, hers. 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The court also issued a slew of opinions yesterday, including the US v sllaughter and US v Cook cases, which concern the president's ability to fire indndependent commissioners Steve, maybe you can just give us just a quick background again on like why did the president try Like why did he fire or try to fire these people that led to these Supreme Court cases? Sure. So you know, Sarah, for about a century, we've had this slew of agencies within the executive branch. that have gotten the moniker of independent agencies. So don't think cabinet departments think like the Federal Communications Commission or the Securities and Exchange Commission And what made those agencies independent was the reality that the president couldn't just direct what they did on a day to day basis, Rather that their heads, whether it was a single person or a multi member commissioner or commission We're protected from being fired except for cause And so, you know, President Trump couldn't say do this or I'll fire you. President Biden couldn't say do that or I'll fire you. You actually had to commit malfeasance. As the Supreme Court of the last really twenty five years has increasingly gravitated toward what's known as the unitary executive theory of presidential power, that independence has been in direct conflict with the theory because the theory is that Article I makes the president the head of the executive branch and so therefore vests all of the executive power in the president and having agencies that do any executive power stuff out direct presidential control is actually taking power from the president and giving it to the agency So the big ruling yesterday in Trump versus Laughter was basically like the apotheosis of this theory because you had the court say, in general, statutes that limit the president's ability to remove all of these agency heads are unconstitutional And in the process, the court overruled this ninety one year old precedent called Humphrey's executor U What is so bizarre and to my mind maddening about this development is not the sort of problems in the unitary executive theory itself. It's that in the same moment, like literally in the press room, they handed these two decisions out at the same time The court says oh, but the federal Reserve is tot different U which, you know, as a practical matter and as someone with a retirement account I kind of like if the point of the Unitary executive theory is that every agency exercising executive power must be directly answerable to the president It doesn't really make a lot of sense to have exceptions just because the Fed is too important Can you just give us a quick what did the court decide in each case? I mean, is it as simple as saying They said, no, you can't fire the head of the Fed, but yes, you can fire the head of every other independent agency. Just about, I mean,'s, you know, that's actually not that superficial description of what the court did. So in slaughter itself was about Becky Slaughter, who was a commissioner on the Federal Trade Commission And she was one of really dozens of folks that President Trump tried to fire last year. Lower courts had blocked those filings. and the Supreme Court in a series of orders last summer had stayed those lower court rulings, basically allowing Trump to fire them while the cases worked through the Supreme Ct. Lisa Cook was different because even in those orders last summer, the court went out of its way to say the Fed is different And so in her case, President Trump didn't try to fire her without cause. Rather, President Trump claimed he had cause for firing her to wit these allegations of mortgage fraud So the two actual hold ins, the in slaughter, you had a six three majority, the usual suspects in an opinion by Chief Justice Roberts saying, not only could President Trump fire Becky S sllaughter, But actually every statute that imposes for cause removal restrictions on people like Becky sllaughters. So commissioners of all of these agencies the Fed is unconstitutional In Lisa Cook's case, the court said two things. One, the Fed is different for, you know, reasons. And then two at least at this juncture, President Trump has not provided enough process to Lisa Cook to justify firing her basically that she's entitled to some opportunity to be told why she was being fired and to contest that before she's fired because she's in this weird remaining category of like, you know class of one agency. where a four cause removal requirement is still valid Okay, but why can I just You said four reasons. What is did they give reasons for why the Fed is different? It's just too. into what do they have a rationale for why it's different? I mean, the business community likes it is the rationale or like what You know God bless Bret Kavaugh because he said the quiet part out loud. So let's start with what the majority said. So the majority opinion by Chief Justice Roberts, and again, this was, I think I mentioned this before, but just to come back to it, this was a five four majority in Cook. So it was Roberts Kavanaugh and the three Democratic appointees. And Roberts basically has this short discussion of how You know, the Federal Reserve is the modern descendant of the first and second national banks and the first and second national banks were totally different And the kinds of power that the first and seconde national banks exercised wasn't understood at the time as executive power narrator insertion, that's true But like eighty years and a whole lot of stuff happened, right between the demise of the secondecond National Bank and the creation of the Federal Reserve, they are not the same So there's this like effort, Sarah, in the majority opinion to make this weird historical, like it was always understood to be different kind of argument Which is especially funny because Roberts made a version of this argument last summer and then a whole bunch of law professors explained why it was nuts. And Roberts is like, Nope, I'll make it again. Fortunately for all of us, right? we have Brett Kavanaugh who has no trouble telling us what's really going on. And so if you'll if you don't mind me quoting a bit from Kavanaugh's please So he says Leaving this question open would create significant uncertainty about whether the court might soon eliminate the Federal Reserve's independence and thereby expose the Federal Reserve to political influences and jeopardize the efficacy of U S. monetary policy. Here's the line even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the president could immediately remove multiple governors at will, as well as turmoil in the US and world economies Right. So Kavau is saying like, why is the Fed different? Because we don't want to mess with the central bank Um And again, like I get that, but then what the hell is the unitary executive theory U yeah, I love this. This is this is good. You're I can I can see this even more clearly now that you're U setetting this up because I was basically like, okay, they're just they they this is also them trying to save Trump from himself a little bit, right? This is them being like Bro, if we give you this You have no idea how much this is going to set off panic about the Fed and about international commerce and all of this stuff. because now Trump, like on one hand, yeah, maybe Trump's just going to put people in who are going to lower interest rates, but also that means no stability in the Fed for forever, right? Because then presidents could just go ahead and start putting people in willilly nilly. Got it. Here's my Separate question, though on the slaughter piece If you if they say, okay, you can do this The president can just go ahead and remove anybody at any agency Does that mean They're like, let's say DOJ does like independent council, like with Jack Smith or or Robert Mueller. Bea remember, I remember I launched back back in the day, Republicans for the rule of law was one of the first organizations I built after Trump came in. and it was specifically to protect Robert Mueller from political interference, right? We have these independent councils But Trump was saber rattling, like he might fire him and that was going to be like a constitutional crisis situation Now, can Trump just tell the DOJ like get rid of the independent counsel that's investigating me and my friends and also SEC or FTC get through every single deal that I want done, whether it's Netflix or Paramount or whatever. I can all my friends. I just, if you don't do what I say, I just replace you. Is that what just happened Yes. And so it's kind of like, I mean trying I've been trying to think of a metaphor all day for this. It's basically like letting your insurance lapse when there's a hurricane coming. right Because the court is basically like, you know, there are academic defenses of the unitary executive theory, and I'm happy to talk about them because they're not incoherent, although they don't really explain the Fed. right. But like Sarah, that the Supreme Court picked This moment and this president, you know, fifteen, twenty years ago, when the first rumblings of all of this started to come up People like me would say, well, listen, let's talk about the parade of horribles that would happen if you ever adopted the unitary executive theory. and you hypothesize what a president could do And no one came close to what Trump is actually doing And so I think, you know, what's really striking about slaughter is not just what the court said and is not just how the court immediately contradicted itself. Of all the moments in the, you know two hundred and gosh, what? thirty seven years we've had a constitutional government in this country They picked this one. to say, who needs checks on the executive branch anyway? And I think that's You know, that's the sort of the practical piece of this that I think goes alongside the maddening tension between you know, saying in one breath. I mean, Robert says at one point in his majority opinion in slaughter, you know, executive power means the power to execute the law is no ifs ands or quass about it And then he writes an opinion at the same time that says, oh, except the Fed is different. So it's maddening, I guess on multiple levels. But also the last piece of this and the one we haven't really talked about yet, the underlying premise for all of this is that there's clear and unequivocal found and error evidence This was what the framers intended, right? That giving the president complete what we call removal control was actually a dominant late motif the early Republic. And that's just not true right And I think part of the issue here is that even if you put aside this moment and even if you put aside the Fed, we get back to the underlying problem, which is the court is basing a massive shift in its understanding of the separation of powers on a deeply contested and contest a bowl historical claim This This part makes me crazy and I'll tell you why. So I may not be a lawyer, but I did come up in conservative like intellectual world, like Conservatism Inc, where they were beating certain things into our heads, most of which turned out to be complete lies like, you know, character is destiny and it counts and politicians, right? Yeah, thats they didn't really mean that one. But another one. so you described earlier you described the court as far right. And that was interesting. Or maybe you were describing one of the I can't remember, but I heard it when you said it because I was thinking, you know, conservatism as it was taught to me and as I think is properly understood, is at odds with the unitary executive theory. Like a lot of people think that it was like a Dick Cheney Bush era, you know thing that came up. But like it in no way comported with what I felt like I was taught about either constitutional law from conservatives where the checks and balances and the need for these things to be offset and have tension was deeply important, both to the founders and to the first principles of the Cervative movement. And this is what I cannot get my head around is this new idea that the executive power was the kind of thing, executive tyranny was the kind of thing conservatives, as I was coming up that they feared Right? I've always been against a lot of executive power because it's you know so any I understand. It's easer to abuse It's deeply easy to abuse and the founders were worried about that. They wanted ambition to counteract ambition. They wrote a whole federalist paper about it. Thank you, Madison. What is going on here? You don't have to explain the whole thing with Unitary executive. Can you just square the circle here for me about what is going on in terms of what they think? I can try. I mean, so just one illustration, which I think proves your point super powerfully. Morrison versus Olson, the nineteen eighty eight Supreme Court decision that upheld the independent counsel provisions of the Exon Government Act. U was an eight to what seven to one decision. in which Justice Antony Scalia was the only dissenter. and that's the first time you really see the unitary executive theory ever show up in the pages of U. S. reports But Sarah, do you know who wrote that decision Sheief does Fanquuist U rightight and Renquist wrote this deeply functionalist opinion. about the importance of having overlapping interfacing checks. Renquist, who had run the Office ofegal couounsel during the Nixon administration R rightites in the majority opinion endorsing a very dynamic separation of powers In Morrison And so it's remarkable that what was, you the sort of the Ranquuistian view as recently as nineteen eighty eight is now in the dust bin I think you know, there's a cynical version of this story, which is that Republicans and conservatives became increasingly convinced that it was easier to win the presidency than it was to maintain control of Congress And so you, empowering the executive branch at the expense of Congress was a shorter and more direct path to the desired policy outcomes From a sort of principled perspective, I think it is also part of the courttss rigid turn toward originalism But originalis Im in a context again, Sara where the history is deeply contested and contontestable, right? And so, you know, this court holds itself out to be. he of a lot more originalist than the Renquist courourt ever did U and you know, the unitary executive theory has been sort of like hitched originalism for almost its entire history, even as there has been Lw review article after law reiew article explaining why that claim doesn't hold up And so part of what I think has so many folks So exercise about slaughter is that there's really almost a shamelessness to the court saying, yeah, we know you have counter evidence and we know that like there are inconsistencies here and we just don't care U that, you know, that kind of, I think hubris is not something we saw even from the conservative majorities that dominated so many of the big decisions of the Renquist court Just quick shout out to Willie May Trank. H. Rinquist went to Kenyon College like so many of the greats. U ide You did a great breakdown there. All right, let's hear from our sponsor, Noble Travel. and then I want you to run me through a rapid fire of a bunch of the court's other opinions over the last few days. This show is sponsored by Noble Travel I was just flying back from Aspen and if you've ever hiked through the Denver airport, you know how much of a drag it can be when you're rushing to make a connection only to find out your phone is almost dead. 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So I want to run through a bunch of them and have you quickly summarize the case and the court's decision and give me your like top line takeaway or reaction to the case. So I hope you're built for this, man going to be hard. This is like I'm back in law school. Yeah. Okay, let's first talk about number one, absentee ballots in Mississippi. Hit me So the Republican National Committee had tried to sort of bring this novel argument that because Congress by statute has said election dayay is the first Tuesday after the first Monday in November, federal law preemps every single state that allows late arriving mail and ballots. that basically mail and ballots have to be received by election day in order to count For a five four majority, which again, I think was a bit of a surprise both that it was that close and that it went this way Justice Barret said, noope, federal law does not preempt state laws that allow for late arriving mail and ballots, Sarah at least where the ballots are postmarked by election day U And so you know, this diffuses, I think one of the efforts that was afoot to try to mess with mail and voting. in the upcoming elections. It might also at least indirectly put put the kabos on some of those other efforts. But you know, I think it's probably one of the rulings, maybe one of the only rulings this term that I think really surprised folks in the result, if not the vote count. because I think the oral argument made it seem like maybe it was actually going to go the other way Yeah. And this is the Amy Cononey Barret was one of the ones where she was in. I want to talk about the trans athlete cases because I did wonder to me One of the things that was interesting is that both The absentee ballot in Mississippi and the Trans athletes case seemed to me kind of being like statess rights. They ended up being kind of states rights cases, or maybe that's the wrong take, but that was my take So I mean, I think there's certainly something to that. I mean, so in the trans athletes cases, yes, I mean, the upshot is that states basically got to set their own rules. And so West Virginia and Idaho, the two states in those two cases can ban transgender women and girls from playing on women and girls sports teams, you know, other states that don't want to ban that, they're free at least for now to not ban it I guess the other thing Sarah about the transgender sports cases is interesteresting that the majority opinion by Justice Kavanaugh does, I think, correctly treat transgender discrimination as a form of sex discrimination, and so it holds governments to a slightly higher standard than usual. right? What the what the lawyers call intermediate scrutiny. Um That might matter in the next generation of transgender discrimination cases away from athletics fields. And I think that's going to be something to watch in the terms to come Okay, interestnteresting. What about the campaign expenditures and coordination? I'm pretty interested in this one personally. just you know, I've always kind of been in the business of politics and I watch how people campaigns spend money and I think about campaigns. And I couldn't quite I didn't get to go deep on this one, but I was trying to figure out basasically this is a kind of money as speech type decision. but is it also saying and the campaigns, which take this weird, they do this like little K fabe thing right now to show that they don't coordinate, right? And if you've ever done one of these campaigns, you cannot talk to the politicians if you're doing if you're spending in some way to support them. And so Anybody who runs campaigns knows is this removing that burden? Like can we all just talk to the campaigns now and be like, hey, here's what we're doing. Let's all coordinate how we spend one hundred percent And I think the key point there is what this means is now the party with more money, which is to say, the PAC or the national committee, as opposed to the random House candidate in Nebraska, right is now not only Sar a decision to coordinate, but is now going to have a lot more power over the candidates because the candidates now will actually come to depend upon PAC and upon the national committees now that they can coordinate, right? Like you're going to be on the outs if you don't coordinate. What is striking about this ruling is not just that that's the result. Sarah, it's that the Supreme Court reached exactly the opposite conclusion about these exact same limits twenty five years ago in a case that's known in the biz as Colorado two And so, you know, here you have the Supreme Court for the second time in two days overruling a decades old precedent, you know, basically because the court just doesn't agree with it anymore. And this was a big part of Justice Kagan's dissent for why the court should have, you know had better arguments before it ditched this precedent That makes total sense. I w to keep going here and I want to talk about the temporary protected status For Haitians, a lot of you know, I've engaged through this mainly through people like Megan Kelly saying to Haitians, we don't want you here go home. That is some of the grossest behavior I've seen from people. But tell us what happened in this case. Sure. so this is a pair of cases. One about Haiti, one about Syria And there were two different questions. One was do the federal courts even have the ability to review The Secretary of Homeland Security's decisions, Sarah when it comes to granting, revoking suspending, this kind of temporary status, which is meant for humanitarian reasons, right? to allow individuals to remain in this country even if they might otherwise be subject to removal because the conditions in their home country are just so terrible And then the second question was, had the president or the Secretary of Homeland Security canceled TPS for Haiti for impermissible racially discriminatory reasons. So for a six three majority, again, the usual suspects The court held last Thursday that basically federal courts can't review non constitutional challenges to TPS. So know claims that the secretary didn't dot the I's and cross the T's, claims that she didn't provide or he didn't provide enough process, those can't be reviewed by courts. But the court reached the merits of the Haitian plaintiff's constitutional claims And they held there was no equal protection violation. Sarah, in a way that really, I think whitewashed a lot of what President Trump And then Secretary Noome had said about the Haitian population. I mean, Justice Alito's majority opinion doesn't even quote President Trump's statements while saying that obviously there could have been race neutral explanations for what the government did. You, Justice Kagan's dissent makes a lot out of this by saying the majority can't bring itself to say what the president actually said, but I will U And so I think, you know, you have this case where the sort of the jurisdictional argument, as the lawyers would call it, isn't crazy. But it's also not obvious in the other direction and yet you have the court basically leing over to let the president cancel this status, Sarah, not just for three hundred fifty thousand Haitians, but for really across, I think, it sixteen or seventeen countries, up to one point five million people. who overnight, right will go from being protected from arrest, detention and removal to not. And I think that's a really big deal and probably one of the sleeper decisions of the term Yeah. Stephen Miller getting his way on that one.. All right. similarly, asylum seekers on the Mexican border, this was the last one I had that I thought was interesting. But if you want to do this one, and then if there's anything else you think is really important that I didn't, go ahead. Sure. I mean, so this is Mullin versus Allrado and you know, this is another one of those cases, Sarah, where I think the statute could be read in both directions you know, there are a lot of cases like that where the smart lawyers can come up with reasonable interpretations that go one way versus the other And the question is why this one at this point? So Here the court said, If you are stopped at a port of entry. So let's say you're trying to enter the country from Mexico at the Tijuana, San Diego cross pointoint or at the Juarez El Paso, know that basically you are not legally entitled to apply for asylum. And so you have to be in the country to apply for asylum. Listen, there is some logic to that, but man does it create some perverse incentives? Because what it basically says is people who follow the law, people who go by the book are completely screwed when it comes to applying for asylum because they'll never get here. But if you enter the country surreptitiously, if you cross the border without inspection Then if you're arrested, oh, then you can apply for asylum. That really does seem to happen backwards. And I think and I fear That Justice Sotomayor's dissent is right when it predicts that as a result of this rule, more people will die and more people will try to cross the border unlawfully What were they trying to do with this one? Like what because it does seem that you're right. the second you hear it You're like, okay, well then more people are going to try to cross the border and not get caught so that they can claim asylum. Yeah, I mean, I think part of it was, you know this is actually not a Trump policy Sa. this is a policy that dates back, I think to the late Obama administration, where you, that was a point where there was such a flood of migrants trying to enter the United States And so the government adopted what was known at the time as the metering policy, basically that we're going to only process a certain number of asylum applications per year which of course is not the same thing as turning the switch off entirely. And so I think it's the policy started as a response to a just sort of flood, right and a policy crisis that really did not have obvious ideological or partisan over or undertones. The majority opinion, I think, is leading into this more as you letting the president not close the borders, Sarah, but come pretty close to it, right? And sort of the deference that's due to the executive I mean, Justice Thomas wrote a separate opinion this case saying You know, even if Congress hadn't, even if this the statute didn't say what we say it said that the president might be allowed to do this anyway So I think it's a lot of sort of deference to the present on immigration, hostility to the rights of anyone who hasn't entered the United States yet And you know, Although I don't like it here, there's a not insane argument that if the statute says A, It doesn't matter if that produces bizarre results, right? that that's a problem for Congress to fix. I just don't think the statute actually says A here. Interesting. So then was there anything else that you saw that you are thinking about that you're like, man, that was a wild decision or interesting or significant? Just just one pattern, which is just how many times the court inserted itself into redistricting cases over the course of this term You know, I know you've talked before about the Voting Rights Act and the Kal decision. but it's not just about KalA. I mean, it's about, you, what the court did last fall in Texas where you had a three judge district court, including a Trump appointed judge, you know, make all kinds of findings about Texas actually, you know, adopting its maps at least in part based on race and the Supreme Court saying, haaha, you know We don't care. You know what happened in New York in March, right where the court basically revived Congresswoman Nicole Mallia Takas's district in a context in which we had never seen the Supreme Court reach down into a state court right to block a lower court injunction And then you had everything that's happened since Kle. You had the court putting that decision into immediate effect You had what the court did in Alabama first wiping away a district court decision and then staying the subsequent district court decision I guess, you know seeparate from the merits of these cases, and I think that's something folks are going to just continue to disagree about There's an aggressiveness to the judicial interventions where it's not just about the underlying legal question, it's about putting the justices's views of what the right answer is into immediate effect that I think has left the court with a bit of a black eye that it could have avoided. I mean, you could have had the exact same result in Kal But the court said you know, we're not going to interfere with the ongoing election process. This will all go into effect next year. I think that would have been from the court's perspective, you know, a lot healthier. And yet here we are, the court really has inserted itself into the middle of the election process in the middle of the elections in a way that may have ominous implications for, you know this November or for November of twenty twenty eight Yeah, speaking of the future, let's just as a wrap up question, was there Anything about What we just saw and what we just learned about the court that makes you think about next fall and sort of where everything is headed, that just makes you think about the future of the Supreme Court You know, I will confess that I probably spend more time thinking about the future of the Supreme Court than a healthy person would know I don't know that it's obvious yet what the blockbuster cases of nextxt Term will be in much the same way. that I don't think it was obvious this time last year that you and I would be here talking about these particular cases today. But I do think that you have a court that is showing over and over again a willingness to get in the middle of anything and everything at any point And it's basically it is a court that is not afraid of its shadow and that is not looking over its shoulder And so whatever the big legal fights of next fall are or of next spring I think the one thing that's abundantly clear is this court is not going to be the least bit shy about inserting itself into the middle of those fights. And frankly, you know Sarah, if the last couple weeks are on a guide And those fights are probably going to have a huge ideological and or political valence to them. That's going to divide the court, you know, if not six three, at least along those lines That wasn't always how the Supreme Court operated. I mean, this, you know, we are so bound up in the present, but like twenty years ago You might have one or two of these decisions per year. And now, you know, we didn't even have time to talk about all of them in an hour. So you I think the point is not about any one particular case, it's about a court that has been completely emboldened to do whatever it wants whenever it wants. And you separate from the actual bottom lines that will produce, I'm not sure in the long term, that's an especially stable or healthy place for us to be in Yeah. and I'm sorry because one more question. What do you think What do think Alito is going to do? What do you think his timeline is? Oh man. I mean, you know, I was in the CNN bureau this Tuesday morning when NPR, I think, as it turned out, at least either jumped the gun or just completely inaccurately reported that he was retiring The short answer is I don't know. and that should be where I think almost everyone's answer except maybe Samuel Alito starts. The longer answer is, I mean, he loves his job. You know, I mean, he was he got to write a bunch of the big majority opinions this term. We talked about the asylum case. We talked about the temporary protected status case. know, he wrote a big secondecond Amendment opinion last week And it's hard to believe that he would leave on his own terms unless he was really, really sure that a Republican president wouldn't be able to replace him And you know, I think this is more your Balwic than mine, but I don't read the Senate map. u for twenty twenty six as a really sure thing for the Democrats. right. And so you know, to me, that the only thing that would have really forced the issue is if it was clear beyond per adventure that the Democrats were going to retake the Senate And I don't think it is, and I think that's probably having as much to do with why we haven't heard from him yet as anything else Yeah, I could see him wanting Trump to be the one to name his replacement and that He could wait until it becomes clear what's going to happen with the Senate map. I also do just wonder, because I have I now view Alito as like a very political animal in all this. I do wonder whether They don't sit around and think about Hey, what if we put a Supreme Court I don't know, like the Supreme Court fight into into the election race. In order to give Republicans something to get excited about or to remind them like what they want out of conservatives, because I do think it has a little bit of the opposite effect for some of the Democrats where you look at a guy like Rrand Platinner and you're like, you know what? A actually no, I just remembered. I don't actually care about any of his baggage because I just want somebody to vote against Donald Trump getting more of these Supreme Court appointees. I always just think about just maybe because I listened to voters, And I know that whether it's true or not I know that intellectually there are a ton of conservatives that like to use the Supreme Court as a reason to have to vote for Trump, who they find How twenty sixteen happened? Not great. That's right. That's right. So I guess I wonder about that about him manipulating in that way. Maybe Texas is a proxy for that. I mean, right? I mean so maybe there's a question there about whether there are Republicans in Texas who can't vote for Ken Paxton unless it's to ensure that, you know, theyve get to leaditosick. The problem, Sarah is that that is a dangerous risk to run U, right, if you're not sure it's going to work And so because I think you theoretically, Alito could say I'm retiring only upon the confirmation of my successor, and then Trump might never name his successor