The Supreme Court, Presidential Power, And Constitutional Precedent

0:07A new Supreme Court term kicked off this week. Over the next few months, the high court will tackle many questions surrounding the interpretation of the Constitution, including a major one. Can the president do that? From enacting sweeping tariffs and firing the heads of independent agencies to urging Republican-controlled states to redraw congressional maps, the Supreme Court will weigh in on the limits of presidential power. Will the court check the president's ballooning authority or greenlight it? And how could the court's rulings change our interpretation of the Constitution? We get into it after the break.

0:41I'm Jen White. You're listening to the 1A Podcast, back with more in a moment.

0:50Joining us now is Kate Shaw. She's a law professor at the University of Pennsylvania and the co-host of the podcast Strict Scrutiny. She's also a contributing opinion writer for the New York Times. Kate, welcome back to the program. Thank you so much for having me. Also with us is Zach Shimthob. He's the executive editor of SCOTUSBlog. Zach, welcome to the program. Glad to be here. And Anne Maramo. She's the Supreme Court reporter for The New York Times. Anne, thanks for joining us. Thank you. Some of the cases the court will hear this term have not been announced quite yet, but many are expected to question the scope of presidential powers.

1:24One of those powers is who the president can fire. For weeks, the president has pushed to fire Lisa Cook. She's a governor on the Federal Reserve Board, and the Justice Department is investigating Cook for mortgage fraud. She denies that, and she has not been charged with the crime. On Wednesday, the Supreme Court issued a temporary ruling that allows Cook to keep her job for now. In January, it'll hear the case decide whether Trump can remove her. Kate, what implications will this ruling have on Trump's efforts to exert more control over the Federal Reserve? Well, the case is enormous, and I just want to take a step back and say that one of the things that has been most striking about the Trump term, the sort of eight months of the second Trump administration, is this spree of firings of officials who, by statute, cannot be fired by the president unless there is some reason provided.

2:08And so this effort to fire Fed Governor Lisa Cook is just the latest installment. But really from day one, we've seen independent commission and board heads, inspectors general, people who sit on bodies like the Federal Election Commission, the Consumer Product Safety Commission, the Merit Systems Protection Board. The list is very long. And these are individuals who for decades have been understood not to serve at the pleasure of the president, but to serve in an independent and nonpartisan capacity. So some are appointed by Democratic presidents, some are appointed by Republican presidents, but every president has always been saddled with some of their predecessor's selections on these bodies.

2:46And Trump has done what no president has done before, which is to seek en masse to fire these individuals. And the Supreme Court, starting in an opinion in May, although with sort of inklings even earlier than that, has at least temporarily allowed the president to make all of these firings while litigation about their legality unfolds. But the developments with Fed Governor Cook are slightly different. So in a big May decision that provided some explanation about why, even though laws prohibited, the president actually under the Constitution likely does have the power to fire these officials, the Supreme Court wrote a couple of sentences that said, most of the time the president's power lets him fire just about anybody, but the Federal Reserve might be different.

3:33Didn't really explain why, but suggested as much. And so Trump has kind of called the question by seeking to fire Governor Cook, although not by fiat. He has said there is a reason, as you mentioned. He said it's about mortgage fraud, not just because he wants someone else in the position. And there the Supreme Court has not done what it has done in all the earlier cases and said to Trump, go ahead. It has slow walked this petition. And then just announced that in January, so quite a few months from now, it's going to hear arguments, at least on the application. It hasn't actually granted a petition to decide ultimately whether the president has the power to fire Cook.

4:09But I think it's a case with enormous implications, both for the future of the Federal Reserve, this long independent body that is crucially important both to the U.S. and the global economy, but also for just how sweeping a vision of presidential power the Supreme Court is ultimately going to commit to. Well, and Anne, give us a little background on what's emerged around this allegation against Lisa Cook about mortgage fraud. What's emerged? Because again, she hasn't been charged with a crime. This attempted firing of her happened just based on an allegation. What more have we learned? Right.

4:41The allegation is that she, in a loan application, listed two properties, I believe one in Michigan and one in Georgia as her primary residence, seeking a break on her mortgage. Her lawyers have said this is flimsy and unproven and she should have an opportunity to dispute this. Other documents have emerged that suggest actually one of the properties was a vacation home. So none of this has really been sorted out in court. It's all preliminarily been stated as allegations. There's no charge. But this is what the president is saying is the cause to fire her, as Kate was explaining. The court will also weigh in on Trump's move to fire Rebecca Slaughter, the former commissioner of the Federal Trade Commission.

5:31Now, in September, the court issued a temporary ruling that allowed that firing to go through. Her term was supposed to last until 2029. Here's what Rebecca Slaughter told MSNBC about her firing last week. Corruption is still corruption. And the ability of the president to remove any checks and balances of the kind that are provided by independent agencies is a way to increase his ability to effectuate that corruption. And that is part of why Congress established not only the Federal Trade Commission, but also the FCC and the Fed and the SEC and the CFTC and the NLRB and a whole couple dozen alphabet soup of agencies with these kinds of removal protections to make sure that the laws actually would be faithfully executed and that we would not fall, the country would not fall victim to a president who resists any checks and all balances.

6:26Now, there is Supreme Court precedent here. The head of the FTC is one of several federal positions that Congress granted some protections from presidential control. And they were upheld 90 years ago in the 1935 Supreme Court case Humphreys-Executor v. the United States. Zach, walk us through that legal precedent. So Humphreys' executor was a case with FDR at the time who fired a commissioner for essentially no reason. He didn't provide for cause. He basically issued a statement saying, you know, in essence that they disagreed. They were of different minds. And so he removed the commissioner. Humphreys died, so that was why he was the executor.

7:08But at the end of the day, he was removed. And then this came before the court and the court found that it was entirely proper for Congress to set up these independent agencies and put into effect a for cause standard that the president needed cause to fire them to insulate them from the president's powers and allow them to operate independently. Now, the Supreme Court has already allowed this firing to go through. So what is the remedy here and what was their explanation for why? Well, so it wasn't much of an explanation because on the emergency docket, they need not and often do not provide explanations or they issue orders.

7:53Sometimes they have opinions linked to that. But that's kind of a whole other discussion. But I think what's really going on here and underlies a lot of this is the idea of unitary executive theory. And this is that the president, that these agencies ultimately fall under the executive branch and the president is vested with the power or the control over the executive branch. And therefore, if he wants to eliminate personnel or folks from these independent agencies, he has the authority under the Constitution to do so. And I think that's animating a great sum of the court's theory or decisions here.

8:31I also think there's an argument that the FTC is quite different or perceived to be quite different than it was in the 1930s with the idea that it's much more powerful and has a lot greater, you know, say jurisdiction than it did back in the day. And therefore, since it's transformed, it wouldn't be the same FTC you'd have looked at in Humphrey's executor. And so I think there's two things here. One, the unitary executive theory gaining more provenance. And second, the idea, well, the FTC has changed, so we need to look at it anew. Kate, I want to circle back to something you mentioned, and that is the fact that many of these roles the Trump administration has targeted, they were designed to have terms that crossed over multiple presidencies.

9:14and they were protected in that way for a reason. Why? The whole idea of these independent agencies was you needed to create a body of real expertise that had a degree of remove from the world of politics and that there were certain areas where it was actually really important for Congress to create agencies that did not just do their work at the behest of and the whim of the president. So a lot of these agencies involve things like financial regulation, labor relations, So those kinds of bodies, election regulation, those kinds of bodies, Congress made the considered judgment, should be created and placed at a bit of a distance from the president, the most political of actors.

9:59And I should say that the independents shouldn't be overstated. These officials, they are appointed by the president, although, again, because of these staggered terms, no single president typically gets to appoint all of the members at the head of a body like the National Labor Relations Board, say, or the Equal Employment Opportunity Commission. But the president does make some of the appointments. The president often gets to designate the chair. And the president can fire people if the president has some cause, usually something like the individual has engaged in inefficiency or neglect or malfeasance.

10:33That's the language in a lot of statutes. So the balance that Congress struck was give these bodies of independent experts some protection, but also give the president some control. And we have been able to live with that balance for many decades. And that is what Trump is threatening. We'll take a quick pause here. Coming up, how the court could decide on two cases concerning LGBTQ plus issues. That's just ahead.

11:01Let's get back to the conversation. And I want to stick with presidential authority for the moment. In November, the Supreme Court is scheduled to hear arguments about the legality of the president's global tariffs. Kate, who are the players in this case? So there are a few plaintiffs who argue, including a wine importer, who argue that these sweeping tariffs hurt them essentially in their pocketbook, right, hurt their bottom line. And I think importantly, the kind of the substantive argument is that there's a statute that was passed in the late 1970s that gives the president certain emergency authorities.

11:34And that is the basis on which the president has announced these sweeping tariffs that apply to many, many countries that have historically been key trading partners. And I just want to, because people will hear the acronym IEPA quite a bit in the coming weeks, and that's the 1977 International Emergency Economic Powers Act. Right, exactly. So that statute, which we will call AIPA, is the statutory authority, the basis on which the president has announced these sweeping tariffs. And, you know, in simple terms, the argument is that the president just doesn't have the statutory authority to do this.

12:08There is one argument, actually, that this statute, AIPA, which refers to emergency powers but doesn't actually contain the word tariffs, doesn't give the president the authority to issue tariffs at all. But there is a slightly more modest argument, which is that maybe the president has some tariff authority under that law, but that he does not have the authority to issue the tariffs that he has issued here, that the kind of factual predicate, this series of emergencies that essentially are largely about trade imbalances that the president has sort of denominated emergencies and used as the authority to announce these sweeping tariffs, that they essentially – the president's argument just doesn't satisfy the statutory standard.

12:48And then there's an argument that a doctrine that the Supreme Court kind of named in the Biden administration, although it has roots that are considerably earlier than that, the major questions doctrine, is a doctrine that says that if Congress is going to give big sweeping powers to the executive branch, it needs to do that in very clear and explicit terms. And this AIPA statute just doesn't confer sufficiently clear authority on the president that the president could take the actions that he took here. So that argument by the plaintiffs, some subset of the arguments that I just sketched out, were successful in the lower courts, which ruled these tariffs invalid in the main, although that ruling has not yet gone into effect because the lower court paused its ruling to give the Supreme Court the final word.

13:34And so that is the November argument that we are all, I think, watching very closely. It'll be both about this signature policy move of this administration, the issuance of these massive tariffs, but it will also be kind of fundamentally about how closely this Supreme Court is going to scrutinize actions taken and representations made by this president. So far, they have given him a lot of leeway in the cases that we were talking about before the break. We will see if that holds in this context. Anne, I know we need to let you go quickly, but I want to hear your thoughts about another case. And this is in response to a therapist's challenge to a Colorado law banning conversion therapy.

14:11Now, that's a treatment method intended to change a minor's sexual orientation or gender identity. The American Medical Association opposes the use of conversion therapy and says the practice can lead to an increase in suicidal behavior, significant psychological distress, anxiety, lowered self-esteem, and other effects. The arguments in that case are set to kick off in October. You traveled to Colorado to speak with the state attorney general and the therapist in this case for a forthcoming story. What did you learn during your reporting? Colorado is one of more than 20 states that have similar laws on the books.

14:43So what the court decides here will have broader implications. The therapist in Colorado gets referrals from her church and gets a lot of clients, she says, who may want to discuss their gender identity or sexual orientation. And she says that this law is censoring her conversations with her patients. States have long had the ability to regulate the medical profession, and Colorado says that's what it's doing here. This is sort of classic state regulation ensuring that the practice of medicine is not substandard and they are listening to the experts and the medical associations who say that this is ineffective and harmful to minors.

15:30So really the question for the court is whether this is proper medical regulation or invalid, improper censoring of the therapist's speech. So I think we'll see a lot of discussion about that. The court in recent decisions have said professional conduct regulations doesn't mean that states can censor or prohibit what's said in a professional conduct. So I think we'll see a lot of that being part of the conversation as well. I think one interesting thing I'll point out last term, the court said that states could ban certain gender transition treatments for minors. And these are laws passed predominantly in Republican-led states.

16:14So the Colorado Attorney General is saying, well, that principle then should apply to states led largely by Democrats who also want to ban what they say is potentially harmful treatment for minors. So I'll be interested to see sort of how the court responds to that argument. That's Anne Marimo. She's the Supreme Court reporter for The New York Times. Anne, we've got to let you go, but thanks for your time. Thanks for the conversation. Kate, I want to come back to you on this case just to hear what you think the broader implications of a decision means for mental health professionals more broadly.

16:48Sure. And, of course, there are also implications for transgender individuals and youth. And I think that Anne is right to mention this case in the context of Scrametti, the case that the court decided at the end of the last term, allowing Tennessee to enforce a ban on care that the state deems inconsistent with the minors' sex. So I think the Colorado attorney general is right to sort of press what might feel like hypocrisy for if the Supreme Court rules against Colorado, saying Tennessee can ban care but Colorado can't ban care on a broadly similar topic. But of course, the constitutional arguments and frameworks are different as between the two cases.

17:26So there was an equality argument against the Tennessee ban that what the parents and children who were not able to get care because of this law were arguing in the Tennessee case was that this was sex discrimination. It prohibited accessing certain care on the basis of the minor sex. Full stop, that's sex discrimination. And at least that should mean the court should have to take a close look before just upholding the law. The Supreme Court rejected that frame and upheld that law. And this, by contrast, is a First Amendment case. So here you have, as Anne was just describing, a therapist who says, I am prohibited from speaking, expressing, and providing the care that I think is appropriate by this state law.

18:05And it's a case that is very similar to a case from a couple of years ago called 303 Creative. It is brought by the same legal team on behalf of an individual who provides a commercial service that a state law regulates. But the individual is both saying my speech, but also in a way my religion or at least my speech that is grounded in religious views is being impaired. And so that 303 creative case involved a wedding website designer who did not want to be forced, she said, to design websites celebrating same-sex marriages in the context of a Colorado law that said if you're going to provide a wedding website, you have to provide it for anyone who comes.

18:43You can't discriminate on the basis of sex or sexual orientation. And she won. And I think that the team representing the therapist here thinks they have a very good shot of winning along the same lines. Is there any intersection here, Zach, with some of the laws we've seen pass post-Obs that limit the kinds of advice doctors can give to pregnant patients, directing them to certain types of services, directing them to abortion care? Is there any intersection here or any implications for that? I mean, I think there are implications. There certainly have been those laws passed about what can be said, what is being potentially directed to be said.

19:25These cases have not percolated yet, so it's hard to say in what direction they're necessarily heading. But in terms of the idea of a right to speak or to pass laws in order to do that or the First Amendment extent of that, yes, there's certainly going to be implications going forward. Well, another case centers around efforts in Idaho and West Virginia to enforce their state laws banning transgender athletes from women's sports teams at public schools. Here's what the plaintiff in the Idaho case said in 2020. Every single trans person will feel more threatened by the fact that their legislature has visibly shown discrimination towards them.

20:03The Idaho plaintiff is a senior now at Boise State University. She's since asked the Supreme Court to dismiss the case, citing concerns about her personal safety. Zach, what's the status of this case right now? So I think it's still up in the air in terms of that case where it's going, but there will be in play West Virginia versus BPJ. This is a court here. The court's going to hear a case filed by a 14-year-old transgender girl who began to receive puberty blockers and hormone therapy and seeks to be able to compete on the girls' sports teams at that student's middle school. So the U.S. Court of Appeals for the Fourth Circuit ruled last year that West Virginia's ban violates Title IX.

20:51Title IX is a federal law prohibiting sex discrimination in educational programs and activities that receive federal funding because it discriminates against the student based on sex. And so this is going to be a very interesting case before the court. And the reason, if I may, I just brought up Title IX, is because Title IX is, of course, a statute. And in a case called Bostock, Justice Gorsuch joined, he wrote, and he was joined actually by the chief justice and justices Sotomayor and Kagan and Jackson. They ultimately decided that that it was a violation based on sex, based on a statute in sex there for transgender and gay individuals.

21:38And so it's going to be interesting to see if Justice Gorsuch and Chief Justice Roberts now dealing with a statute again, potentially discriminating based on sex, are going to be able to square that circle with Bostock. Well, we got this question from Chris in West Virginia, who says, I think one day if the republic survives, a future Supreme Court will find some recent decisions were wrongly decided. The immunity and nationwide injunctions rulings come to mind. I am dreading pending decisions on a number of issues like voting rights. I would like to hear what your guests think about the risks to same-sex marriage.

22:12Kate? I mean, I think that Chris is right to worry that precedents can be unsettled and they can be overturned. I tend to think that, so Obergefell is the Supreme Court decision holding that the right to marry encompasses the right to marry a person of the same sex. And that is one of the decisions that Justice Thomas, in his concurring opinion in the Dobbs case, which overruled Roe v. Wade, said should also be reexamined because according to Thomas, and there is something to this, the logic of Obergefell was similar in certain respects to the kind of logic that the court disavowed in Dobbs. So if this court is going to approach constitutional questions in an entirely new way, old cases may be vulnerable.

22:52I do not think that given the broad popular support for same-sex marriage and just how destabilizing yanking back a right on which people have relied and families have formed and our culture has sort of come to expect and sort of view as an uncontroversial issue, I think that all of those factors will give a majority of the court pause when it comes to Obergefell. So I genuinely do not see the court overruling that case. But I also don't think it's impossible that a case could come to the court asking it to do that and that that could at least get a couple of votes. And that rightly is making people very nervous, although I do want to hasten to add anything the court would say about Obergefell no longer being good law, I do not think could ever have retroactive effect.

23:39So we would just be talking about future marriages being thrown into question, not existing same-sex marriages. And I was just going to say, and there are two justices on the court who have talked about and certainly would be sympathetic to Obergefell being overturned. I think Justice Thomas, because he questions the whole basis, which is called substantive due process, although there was an equal protection element as well for Obergefell. And I think Justice Alito would also be sympathetic. So you have at least two justices. It's unclear whether you would have, for instance, Justice Gorsuch. And I share Kate's view that they are unlikely to overturn it at this point or grant it to potentially overturn it.

24:18I also just want to correct the record. I said in Bostock it was Justice Jackson. She was not on the court at the time. It was Justices Ginsburg and Breyer. No fake news here. Appreciate that, Zach. We're discussing what's at stake in the Supreme Court's upcoming term. Still to come, what cases on campaign finance and voting rights laws have in store for the court. That's just ahead.

24:44Let's get back to our discussion and go to this message from Bob in St. Louis, who writes, the Supreme Court has made a number of emergency rulings which will hold until they can actually hear the case. Their rulings often overturn lower court decisions and to a non-lawyer seem illogical. Can someone explain why the default isn't to uphold the lower court rulings? Even if the Supreme Court changes their decision once the case is heard, the damage has been done and the clock can't be turned back. People have already been fired and programs have been eliminated. So I want to get to Bob's question, but I think this is a good time to talk about what's been happening on the court before this new term starts.

25:21Ballotpedia reports the court has granted 23 of the Trump administration's 26 total emergency requests, and they happen on what's commonly called the emergency docket or the shadow docket. So, So, Zach, first just explain how this Supreme Court is leaning into the shadow docket and the implications of that for us to understand their rulings and the decisions they're coming to. Well, just by background, the emergency docket was something that was always around, although it was usually predominated by death penalty or capital cases. What has happened over the last few years as we've seen a number of injunctions or basically stops or pauses done by lower courts, district courts in particular.