Has the Supreme Court just made Trump the most powerful president in history?

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0:36Hello, it's Justin and you're about to hear AmeriCast. We are delighted to have you with us. And if you enjoy what you hear, please do consider subscribing to the podcast. That way you'll never miss an episode. Now, on with today. We've just had some very big news out of the United States Supreme Court, some very important decisions that they've made today, including saying that the president does have the power to fire the heads of so-called independent agencies. So that's going to have enormous implications. Some of the decisions have gone Donald Trump's way. Some of them haven't. And there's a furious response from him on social media about that.

1:13Taken in the round, has the Supreme Court now expanded the powers of the presidency, given more executive authority to the White House? And what does this tell us about whether the Supreme Court always does what Donald Trump wants or when they're prepared to defy him? Welcome to AmeriCast. AmeriCast. AmeriCast from BBC News. You hear that sound? Oh, I think when I hear that sound, it reminds me of money. We didn't start this war, but under President Trump, we are finishing it. This is a big cover-up, and this administration is engaged in it. This guy has Trump Arrangement Syndrome. I have four words for you.

1:53Turn the volume up!

1:59Hello, it's Sarah in the BBC's Washington Bureau. And it's Anthony here at my home, just across the river from you, Sarah, in Arlington, Virginia. It's been another one of those interesting mornings, hasn't it, Anthony, where we've been waiting for rulings from the Supreme Court that could be really very newsworthy. But because we've got no idea what cases they're going to rule on, on which days, we all have to sit glued to their website to see what's happening. And just to explain to any of our AmeriCasters who are wondering how we can all be experts in Supreme Court rulings, the answer is we're not.

2:31We have one expert and he's called Anthony Zirker and he sits on a Zoom call that the whole of our staff are then glued to. And every time the Supreme Court releases one of its decisions on its website, he explains to us what it means and why that case is so significant. And you had quite a busy morning today, Andy, didn't you? Several big cases. What's the takeaway? Good day for Donald Trump, bad day for Donald Trump? I think it was a mixed day for Donald Trump. It was interesting. There were four cases decided today, and in three of those cases, the three liberal justices were actually in the majority.

3:06So kind of a rare day for contentious Supreme Court cases where instead of the traditional kind of six to three conservative liberal divide that we've seen in the court recently on high profile cases, instead of that presenting itself, we saw some interesting coalitions forming on some of these other cases. I mean, the one that did break down six to three, the one that was not surprising all the conservatives stuck together and was the one that Donald Trump will be happiest about. And that is the case of an FTC, a Democratic FTC commissioner who had been fired for Trump purely because he disagreed with her politics.

3:44And the majority, the conservative majority in that opinion said, yeah, the president has broad power, sweeping powers to be able to appoint whoever he wants to these regulatory commissions like the Federal Trade Commission, the Federal Election Commission, a labor board, a nuclear energy regulating commission. and he doesn't have to provide any kind of grounds for why he's pulling these people out. So it reversed a precedent that goes back to Franklin Roosevelt in the 1930s and essentially is going to make U.S. presidents going forward much more powerful when it comes to who does the regulating in these commissions across the board.

4:23How significant is it if the president can fire members of these independent commissions? Because up until today, we thought they were rather protected from presidential influence, didn't we? that the whole point was that they were, as the name says, independent. Right. It's something that Congress had set up more than 100 years ago, where you have these independent commissions that are supposed to be a little bit immune from political currents. And in fact, like the FTC, there's a certain number of appointees on the board that are Democratic, a certain number that are conservative. And then whoever is the president, Republican or Democrat, they have the deciding appointees.

5:00appointees. So they'll tilt towards the party in power, but also are a little more built in to be divided, built in to be independent. And the Supreme Court just tore all that down today. So we could expect presidents to use this power quite sweepingly, I imagine. And as whoever comes in in 2029, as you say, could just fire every member of every independent commission who doesn't agree with them ideologically, put their own people in and basically have these commissions be an extra arm of policy, like they were some extra kind of cabinet department, rather than the regulatory, independent way in which they've been operating until now.

5:37And I'm thinking of the Federal Communications Commission, one of these, where the head of it, Brendan Carr, is very favourable to Donald Trump and has been putting quite a lot of pressure on TV networks over anti-Trump content, essentially, in the last few months, threatening them with their licences if they broadcast things the president doesn't like. And I guess that's the sort of thing we're talking about you might see in other areas of life if you have put basically presidential-friendly commissioners onto all of these bodies? Yeah, already we see between different presidencies of different parties, big swings back and forth.

6:11We certainly saw it from the first Trump term to Biden and then back from Biden to the second Trump term. You see policies being implemented and then tore down very quickly. This is only going to accelerate that. And any kind of insulation in some of these regulatory areas that had been there before, that insulation has been stripped away. And so we are going to see even more power vested in the presidency and even more ability to set policy very quickly when a new president takes office from a different political party. Slightly different ruling, though, Anthony, wasn't it, about Lisa Cook, who was a governor of the Federal Reserve.

6:51And Donald Trump tried to fire her because basically he was trying to pressure the Federal Reserve to lower interest rates. And he knew he couldn't get rid of the governor. But he did try to fire Lisa Cook, who was a member of the board of governors, hoping that that would sway the decision making and try and get them to lower interest rates. So it was a kind of nakedly political thing that he didn't make many bones about. But the reason he gave for firing her was allegations of mortgage fraud, which had been dug up in the housing department. And he said that this showed she had done something wrong that meant she could be fired for cause.

7:27The Supreme Court did not agree with him. But does that, Anthony, mean that that's because they are protecting governors of the Federal Reserve in a different way than they are the members of these other independent commissions? In a sense, yes. You may be asking, all right, well, didn't we just talk about how presidents now have the ability to point anyone to anything? All of these independent commissions are really not that independent. So what makes the Fed different? And the Supreme Court essentially said the Fed is different because the Fed is different. That it's more important. The statute that creates it is different.

8:01And while you can fire a member of the FTC, the Federal Trade Commission, for no reason at all, aside from the fact that you have a policy disagreement, the court said, a different majority in this court said, when it comes to the Fed, you have to have grounds, you have to have cause to remove a governor from their position the way Donald Trump tried to remove Lisa Cook. And looking at the details of this case, they said that what Trump tried to do in removing Lisa Cook, these allegations, unfounded so far, allegations of mortgage fraud, were not grounds to do it, that there needs to be more process.

8:37Lisa Cook needs to have the ability to challenge that dismissal. She needs to be presented with evidence. There needs to be some sort of a legal recourse for her before Donald Trump can remove her. So essentially saying, yes, a president could, in theory, remove a governor of the Fed. But in this case, he didn't jump through nearly the amount of hoops required in order to do it. So this now goes back down to a lower court. If Trump wants to continue to try to move ahead with removing her, he is going to have to have a much more expansive legal process, a procedural process for Lisa Cook to challenge that.

9:14And of course, Donald Trump now does have a different governor of the Federal Reserve, Kevin Walsh, after Jerome Powell's term ran out. And so he'll be hoping that Kevin Walsh is going to be more favorable to his ideas. He may not feel the need still to be trying to get rid of Lisa Cook as a governor. But then again, you never know, an appointed principle he might want to carry through with this case. And talking about these two cases and how that Lisa Cook case probably isn't a win for Donald Trump. He is now just now posting on Truth Social celebrating that other case, the slaughter case, the FTC case.

9:48He posted big win in caps just moments ago at the Supreme Court in the slaughter case, confirming presidential power in our country to remove executive branch officers and agency appointees or representatives under Article 2. The decision was long sought by the United States presidents, dating all the way back to the 1930s. It is such an honor to be the sitting president who won this historic and unprecedented ruling, one of the most important ever given with respect to presidential powers. Thank you for your attention in this matter, President Donald J. Trump. A little overblown, overstated, as Trump is wont to do, but I think it does underline that this is giving presidents much more power.

10:28I'll be curious to see if he says anything about Lisa Cook or if he's just going to let that one slide. Yeah, well, Donald Trump is want to celebrate his victories, isn't he? And sometimes ignore the things that have gone against him. But who knows? Maybe we'll get a diatribe later about the decisions that didn't go his way in the Supreme Court, including one about mail-in voting. And this is a case in Mississippi that allows mail ballots to be counted if they arrive within five business days of Election Day, so long as they were postmarked by Election Day. And Donald Trump really particularly hates it when postal ballots come in days after the election.

11:04So it means the count can't be certified until they're all in and they've all been counted. And especially when if it means that, you know, a Republican looked like they were ahead in the early counting and then more and more ballots come in favoring a Democrat. The Democrat ekes ahead and gets a victory. That's when Donald Trump tends to complain that there has been cheating of some kind. And he would like to ban pretty much all postal voting if he could. So tell us what it was that was decided today, Anthony, and why Trump won't like it. Well, the court said that there's nothing in election law in the Constitution that says you cannot count ballots that are postmarked before Election Day, after Election Day.

11:40So as you mentioned, Mississippi had a law that said five days after Election Day, if ballots are received in the mail and they're postmarked by that day, they should still be counted. So this is really good news for states like California, which we talked about in the past, and Oregon and Washington and Colorado and Utah that lean heavily into mail-in balloting because the court could have. And I think actually a lot of people thought the court was going to just slam the door on that and say anything that's not in the hands of election officials on Election Day can't be counted. So this was a bit of a surprise, I'd say.

12:18And if you look at the dynamics of the court opinion, Amy Coney Barrett, a conservative justice, wrote the opinion in this case. She was joined by John Roberts, the chief justice and the three liberal justices on the court. Those are all names that are very familiar to Supreme Court watchers. But it's interesting to dive in just a little bit into who some of these justices are, like John Roberts, Brett Kavanaugh and so on. Amy Comey Barrett, whom you mentioned there, Anthony, was appointed by Donald Trump and has come in for heavy criticism from him when she hasn't taken decisions that he likes.

12:51And he quite often blasts her on social media. Tell us about the other two that you mentioned who've sided against, well, basically what we can assume is against what Donald Trump would have wanted them to do. Brett Kavanaugh, another Donald Trump appointee, Donald Trump's second Supreme Court appointee in his first term, Amy Coney Barrett being the third who replaced that liberal stalwart Ruth Bader Ginsburg. And then John Roberts, he is the chief justice of the court, the first among equals, essentially. It's more of an administrative position. He gets the same. His vote counts the same as everyone else's, but he kind of organizes the court.

13:25He was actually appointed by George W. Bush. He has been on the court for multiple decades now. And he has also been criticized by conservatives for sometimes breaking ranks and siding with the liberals, most famously on the Affordable Care Act, the challenge to the Democratic backed health care legislation in the mid-2000 teens. So of those three justices, Barrett, Roberts and Kavanaugh, those are the three conservative justices that are the most close to the middle, I guess, if you could say the ones who are maybe most likely to side with the liberal justices. And we saw in different cases them doing exactly that.

14:03Well, this is a great point to bring in our guest and friend of the podcast, Kate Shaw, law professor at the University of Pennsylvania, co-host of the Strict Scrutiny podcast, and a Supreme Court watcher who can help us with some of these details. Thank you so much for coming to join us, Kate. Thanks so much for having me. Big day in these rulings. What's your sort of initial takeout of how it's gone and how it will be being received in the White House? Well, in terms of the two big rulings over the president's power over personnel, that was a split outcome. So I think it's a mixed bag for the Trump White House.

14:38In terms of presidential power, though, it's a very, very big win. The Fed exception seems to be a pretty narrow bespoke exception to the otherwise broad rule of presidential power and control over every person who works in the executive branch potentially. And I think that the court's decision to rule differently on the Fed had maybe more to do with concerns about spooking the markets than some principal distinction between the Fed and the other agencies that the president now has complete control over. Looking at it, is there any real distinction between what the court said about these independent commissions, Federal Election Commission, the Federal Trade Commission and the Federal Reserve?

15:21I mean, is it just that these justices don't want to touch the Federal Reserve because it has all this power over setting interest rates and monetary policy? I think it's mostly about the latter, the kind of concern on the part of the court that the work of the Fed is so important that the Supreme Court doesn't want to mess with it. I mean, the statute's creating and empowering all these agencies, ones that regulate the environment and consumer protection and labor relations. There's independent agencies that have significant authority over wide swaths of the kind of American life and law, and they're all a little bit different.

15:59But the court basically paints with a broad brush and saying the president, because Article 2 of the Constitution makes him sort of the sole repository of executive power, it gives him complete control over everyone who serves atop these agencies. Again, even ones that by congressional design are meant to be insulated to a degree from politics and from the presidency. But regardless of those statutes and those congressional preferences, the president has to have complete control. And so it's not that there's a salient distinction, I don't think, in the Fed statute that distinguishes it from these other agencies.

16:33But I think these practical concerns that we've already alluded to. And then the court does gesture toward history. It says the Federal Reserve has this unique history and it sort of resembles in many ways the first and second national banks of the United States from the first decades of this country's history. And that makes the Fed different from these other agencies. But to my mind, that's not really what's driving the court. That's just an effort to dress up, you know, really consequences and practical kind of decision in sort of legal garb. Yeah, Kate, Anthony mentioned to us earlier that this is a ruling that goes way back to Franklin Roosevelt and his attempt to change the head of these independent agencies.

17:13What's the history to all of that? You know, Trump is not the only president to have wanted complete control over independent agencies, right? FDR, a very different president in virtually every way, except with a similarly, not identically, but similarly expansive conception of presidential power. He, too, was unhappy with being kind of saddled with agency officials who were not necessarily of his choosing and didn't perfectly align with his policy views. And so he tried to fire a commissioner on the Federal Trade Commission, the same agency at issue in the slaughter case. And when he was challenged, he lost 9-0 in the Supreme Court.

17:49The Supreme Court said it's OK for Congress to create these protections in independent agencies and their leadership. Again, that, you know, maybe stymies the president a bit in his ability to sort of fully see his policy views immediately put into law, but have sort of good reason for them, which is we don't want every decision in government to be necessarily traceable to the president and to politics. And so that was the big obstacle to Trump's removal of Rebecca Slaughter, the head of the commissioner on the Federal Trade Commission, who brought this case. And the Supreme Court overruled that venerable 90-year-old decision and sort of retroactively vindicated, I guess, President Franklin Delano Roosevelt's position that he alone had the authority to decide who served on the Federal Trade Commission.

18:34The Lisa Cook case, the mail balloting case, there was another one that dealt with geofence warrants, the one you need to get a warrant in order to find out all the people who had cell phones near a scene of a crime. All of those, the liberal justices were in the majority. Did that surprise you at all? Does that tell us anything about the court that maybe there are some conservative justices who are occasionally willing to break and side with the big three liberal justices? I think you're right. In the mail balloting case, it was somewhat surprising to see Trump appointee and very conservative jurist, Justice Amy Coney Barrett, write that opinion, joined by the three Democratic appointees and the chief justice.

19:11And to my mind, it was a very sane and sensible opinion that basically said it would be wildly destabilizing for the Supreme Court to hold that this federal statute that, you know, by its terms doesn't clearly do this, that this statute overrides state laws that basically give a grace period for the counting of absentee ballots. So long as they're cast by election day, they can be received and counted. In Mississippi, it's up to five days after election day and a couple of dozen other states have comparable schemes. And I think it was a careful reading of a federal statute that said federal law doesn't override these state laws.

19:45So I think it's right that there will definitely be instances in which the justices sort of defy expectations and sometimes vote against type. That is one important takeaway. Obviously, we have four big decisions remaining that we're going to get those tomorrow and the birthright citizenship cases, clearly the most important of them. And so I think it very much remains to be seen whether they vote, you know, consistent with type and sort of the preferences of the president, or as many people expect, they again break and Trump loses that case, including, you know, losing the votes of some of the individuals he appointed to the Supreme Court.

20:20Kate, obviously, the Supreme Court justices are ruling on the law, but we know it gets very, very political. And I wonder if you get a sense from these rulings, whether they are agreeing with a notion that's been going around, much talked about recently, the unitary executive theory, where people assert that pretty much as much power as can be invested in the White House should be that the president should have broad executive authority, that he should largely be able to do what he wants in all sorts of areas of the government. There's, you know, Republicans ideologically wedded to that. Do we get a sense from these rulings if the Supreme Court justices or the conservative ones also seem to be leaning in that direction of more power for the president?

21:03Oh, no, I think the Trump versus Slaughter case, the case involving the Federal Trade Commission, is in some ways the sort of the fullest embrace of the unitary executive theory that we've ever seen from this Supreme Court. The court marches through founding era history, the Federalist Papers, the Constitutional Convention and debates around the drafting of the Constitution, and in particular, the creation of the presidency, this individual, right, this unitary figure in whom, according to the majority, all executive power is vested. And that is essentially the justification for finding that laws limiting the president's ability to fire an independent agency are unconstitutional because the president, right, you know, is the repository, again, both of executive power and is the sole representative of all of the people.

21:47And so somehow unity in the executive for a single person to exercise the powers of the office is essentially the best protection against both inefficiency, but also against tyranny, which feels a little bit scrambled to me, right? We have seen obviously a president exercise very outsized authorities. And yet the Supreme Court seems to think that a president with enormous power is going to be a better safeguard of the constitution and the separation of powers than a president who is limited in his ability to control subordinates. And it feels quite backwards to me is that dissenters very much feel.

22:23But that is the kind of unitary executive theory that the majority has now fully embraced. Kate, thanks so much for coming on and giving us your contribution to all of that. We will look forward to the big decisions tomorrow. But for now, thanks a lot. Good to be with you. OK, so earlier when we were talking about Lisa Cook, the Fed governor who Donald Trump tried to dismiss on grounds of mismanagement and malfeasance and what Donald Trump would do next. We have our answer. Donald Trump has taken to Truth Social, as he's been doing throughout the time we've been recording this podcast, and had his first response to that decision that cut against him.

23:01He said, the Cook lawsuit, having to do with his suitability in sitting on the board of the Federal Reserve, was sent back by the Supreme Court on a strictly procedural basis. We will take appropriate action immediately to make sure that someone who has committed wrongdoing will not be making vital decisions concerning the welfare of the United States of America. Thank you for your attention to this matter, President Donald J. Trump. So it sounds like he is pushing ahead, or at least he says he's going to be pushing ahead with attempts to dismiss Lisa Cook based on these allegations unfoundedly so far of mortgage fraud that this is not going to be something he just drops.