How the Supreme Court could redefine presidential power in 2026

0:00Support for Here and Now Any Time comes from MathWorks, creator of MATLAB and Simulink software for technical computing and model based design. MathWorks, accelerating the pace of discovery in engineering and science. Learn more at MathWorks.com. WBUR Podcasts, Boston. You're asking us to infer this based on the Constitution's structure, and I don't know why we'd make that inference when the power to create agencies and set everything up lies with Congress. The Supreme Court has a high-stakes year ahead of them as they rule on cases that could reshape presidential power.

0:50It's Monday, December 29th, and this is Here and Now Anytime from NPR and WBUR Boston. I'm Shiko Teowuri. Today on the show, the DOJ is suing nearly two dozen states to force them to turn over their voter registration files. And it's time to relax into the new year. Curl up on the couch with a great book recommended by NPR staffers. This is not a book you're going to get over easily. It's razor sharp and designed to cut you deeply. You'll be moved. You'll probably cry. And by the end, you'll say something like, thank you for delivering my suffering so beautifully. But first, this year, lower courts played a significant role in checking President Trump's power on issues such as immigration.

1:36In 2026, the stakes are a bit higher. That's because the Supreme Court will issue final verdicts on just how far the president's power stretches over the economy and independent agencies. Justices will also weigh in on hot button issues such as transgender rights. Barbara McQuaid is a former federal prosecutor who teaches at the University of Michigan Law School. Here's her conversation with Alyssa Nadwerny. So the High Court issued a number of emergency rulings so far this past year, and it sided with the White House on most of them. Now, justices are set to issue comprehensive final rulings on whether the president has sole power to issue tariffs, a key part of his economic policy.

2:18Small businesses sued claiming economic harm. Barbara, will the justices side with the president on this case, too? You know, based on the oral argument that was held in November, a majority of the justices actually expressed some skepticism about whether the president has power to impose these tariffs. There's a federal statute, the International Emergency Economic Powers Act, that allows the president to do certain things to use sanctions short of military action when there is a conflict with another country or other individuals. But those sanctions and that statute do not use the word tariffs.

2:56And as we've seen, this court has become quite textual. If Congress had wanted to give the president the power to use and impose tariffs, it would have said so. And so it seems that the justices, at least a majority of them, are lining up in favor of striking down those tariffs. But of course, it always remains to be seen. You can't fully predict what the court will decide based on its questions at oral argument. Yeah. Okay, let's turn to birthright citizenship. So this month, the court agreed to take up the question of whether the president overstepped his authority with an executive order banning citizenship for people born here to parents who were not, which is a right provided in the 14th Amendment.

3:36I mean, what's your sense of which way this is going to go? Well, it's hard to say. You know, this case did come up before the court before, preliminarily, but only on the procedural question relating to universal or nationwide injunctions, which the court struck down. But it did not look at the merits of this case. There's Supreme Court precedent that says the 14th Amendment, which grants birthright citizenship, applies to everybody, not just formerly enslaved people. But what the Justice Department and what Donald Trump did on his first day in office is to issue an executive order saying that the language of the 14th Amendment means that it does not apply to people whose parents are not lawfully in the country.

4:19It uses this phrase in the 14th Amendment, subject to the jurisdiction thereof, the United States, to say that these people are not included. But subject to the jurisdiction thereof has always been used and interpreted to apply to people who are not present in the United States lawfully. It's what gives the courts the ability to impose deportation orders, criminal convictions, and other kinds of things. There's also precedent that's more than 100 years old that applied to a Chinese national to say that he was a citizen of the United States. So it seems like an uphill battle, but of course we've seen this court overturn precedents before.

4:56Yeah. On transgender rights, justices seem open to claims made by a Christian therapist in Colorado that her rights had been violated by a state ban on therapy that claims to change the sexual orientation of gay and transgender teenagers. Next month, they'll hear arguments over whether West Virginia discriminates against transgender athletes by banning them in women's sports. Will there be any surprises there from this conservative court? Boy, I don't know. You know, it's interesting to see that this court has been willing to uphold gay and lesbian rights, but not transgender rights. And of course, context matters.

5:32But in that case of Childs versus Salazar, that's the Colorado case regarding conversion therapy. Instead of focusing on protecting people and states' rights to have the power to protect the people of its state, instead it says that it's worried about the rights of its therapist to engage in free speech. You know, but this is also the state and the court that gave us the Masterpiece Cake case and the 303 Creative case, both of which permitted individuals to reject state law in the name of protecting their own First Amendment rights. And so I don't know that we're going to fare any better here.

6:18But the idea at issue here is also the ability of a state to regulate the conduct of people who are licensed as its professionals. So that may make a difference in this case. With regard to athletes competing based on biological sex rather than gender identity, I think we're going to see some interesting arguments in these cases. There's a case out of West Virginia and a case out of Idaho where people are challenging bans in those states that prohibit students from participating in sports based on their gender identity as opposed to their biological sex at birth. We haven't heard argument in those cases yet.

6:58We do know we've got a very conservative court. And I think the only tea leaf we can read here is the fact that the Supreme Court recently refused to intervene in a government policy requiring people, American citizens, on their passports to indicate their sex at birth. Barbara, just in our last minute, the court is going to rule on some big election issues, and I'm wondering how consequential will all that be? I think it could be tremendously consequential. You know, there's a big case coming out of Louisiana involving gerrymandering, And the line that the court has drawn recently is that racial gerrymandering is prohibited.

7:39Political gerrymandering, even blatantly trying to help one party over another, is permissible and non-judiciable by the courts. It'll be interesting to see how they characterize this case out of Louisiana. And a concern is that it could gut the Voting Rights Act if it decides to uphold the maps that have packed all African-American voters into just one district in Louisiana. Yeah. Barbara McQuaid is a former federal prosecutor who teaches law at the University of Michigan Law School. Thanks, Barbara. Thanks, Alyssa.

8:19Coming up next, nearly two dozen states are being pressured to hand over voter registration information to the DOJ. We'll explain why after the break.

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9:19The Department of Justice is suing 21 states and Washington, D.C. to force them to turn over their full voter registration files. The latest include Wisconsin, Illinois, and Georgia. The Trump administration says it wants voter data to ensure election security, but many state officials have concerns about how the data will be used and whether turning it over would violate privacy laws. For clarity, let's turn to Justin Levitt. He's a professor at Loyola Law School and served as a policy advisor for democracy and voting rights in the Biden administration. Here's his conversation with Alyssa. What kind of voter information is the Department of Justice requesting from states?

10:00So it's requesting essentially all of the everything that states keep, and that alone is a reason for states to pause, the breadth of the request. It has demanded, quote-unquote, the full voter files, and those include not just things like name and address. They include things like partial Social Security number or dates of birth or driver's license number. They even include voter history, when you voted, and whether you're registered with a party. And those things aren't things that the Department of Justice is allowed to have access to, at least not yet. Yeah. A few of the 21 states the DOJ is suing include California, Michigan, Minnesota, New York.

10:40Why is it targeting these specific states? Well, the list of states it's suing are a whole lot of blue states and some purple states. There are very few red states there, or at least there are very few states where Republicans are in charge of election administration. I think these are also, not coincidentally, states that have been more vocal about declining to satisfy the DOJ's demand. These states, I should add, have done what they're required to do by the law. That is, they've described how they maintain voter registration rolls. They've answered the Department of Justice's specific questions.

11:14What they haven't done and what they've said they're not going to do is turn over the full voter files with personal private information without the DOJ making some showing that there's reason to do that. So the Department of Justice is saying it wants this voter information so it can protect against vote delusion or to ensure election integrity. I guess what is the legal arguments that states like California are making against turning over this voter information? There are a few. One, that's not the DOJ's job. List maintenance is done by the states. There are federal laws that describe how that list maintenance should happen in very broad brush, but they give states an awful lot of authority to do the list maintenance themselves.

11:55And they're very clear about that, including the Help America Vote Act of 2002, which the DOJ has cited, but which very explicitly says the way that these laws are to be complied with is up to the states, not the federal government. On the flip side, there's also a law that prevents the federal government from accumulating the private information of American citizens, including information about how citizens use their First Amendment rights, including voting or registration. And the DOJ hasn't met the requirements under that statute yet. So the states are saying, we don't have to turn this over because, A, this is our job, not your job, and B, there are statutes that prevent you from getting this information in the first place.

12:39Why are those statues in place? What's at stake for the federal government having this data? Yeah, I think what's at stake is a public conversation about exactly why the federal government wants it, how it's going to secure it, and what it's going to do with it. The federal statute that precludes the federal government from getting this data is the Privacy Act of 1974. It's a post-Watergate reform. And it reflects some skepticism that we have about the federal government just amassing data on Americans in a fishing expedition. So we said, you can get data that you need for a legitimate purpose.

13:14But before you do that, you have to tell the public what you want, how you're going to store it, how you're going to secure it, and why you want it. Just a transparency provision. And the Department of Justice hasn't done that yet. It's quite striking that it hasn't done that yet. I think because the Department of Justice doesn't really want to say why it wants the data, because that would contradict what it's been telling states it wants to do. So election officials have asked the DOJ to clarify this. So it sounds like the DOJ just hasn't answered those specific questions. It hasn't answered them in the way that federal statutes require.

13:48And as a former member of the DOJ, I had the privilege to serve. It pains me to say that the body that should be following federal law, much less enforcing federal laws, the Department of Justice. So the states are pointing to what the DOJ has done in these requests and saying, you're supposed to be upholding federal law, and in fact, it seems like you're breaking it. The DOJ is also suing Fulton County, Georgia, asking for records from the 2020 election that Trump lost. What is it looking for in that case? Yeah, this one's even weirder because it, there too, is looking for all of the information it can get, including the full voter file, the ostensible statutes that give DOJ this permission say that election officials have to keep information for 22 months after an election.

14:35The biggest problem for DOJ is that the 2020 election was more than 22 months ago. And so Fulton County doesn't have any obligation to turn over any information, even the not private stuff, to the DOJ under the particular statute the DOJ is using. That one's really weird. Interesting. So just perhaps a little too late on that. A little too late and a little too obsessed with a conspiracy theory. I mean, I think the public reason they've given for Fulton County is they still think there was some sort of big fraud in the 2020 election that's been proven over and over and over and over again not to be true.

15:10And I think it's driven a lawsuit here that, frankly, I welcome, in part because I think courts are going to tell the DOJ they're going to lose. Justin Levitt is a professor at Loyola Law School, who served as policy advisor for democracy and voting rights in the Biden administration. Justin, thank you. Thanks so much.

15:32Coming up, let's give the TV a rest this week, shall we? We've got some good book recommendations after the break.

15:50Are you looking for something new to read? Consider Books We Love. It's NPR's list of best reads, and it has a ton of suggestions, including these novels recommended by some of our NPR colleagues. Hi, my name is Kalyani Saxena, and I'm an associate producer with Here and Now. The book that I am going to be talking about today is The Everlasting by Alex E. Harrow. This is not a book you're going to get over easily. It's razor sharp and designed to cut you deeply. you'll be moved, you'll probably cry, and by the end you'll say something like, thank you for delivering my suffering so beautifully.

16:28This story follows a scholar and a mythical lady knight who have both lived the same story countless times. They're caught in a big bad historical time loop. It's a book about storytelling and how nationalism cannot exist without the support of a well-told myth. It's a thrashing examination of how we choose our heroes. And most importantly, to me at least, it's a love story about two people who learn over and over again that they're doomed in every possible way. But still, they choose each other anyway. What exquisite agony, wonderfully delivered.

17:16Hi, I'm Denise Couture, a senior editor at NPR. The book I'd like to recommend is Coded Justice by Stacey Abrams. The novel is about a well-intentioned entrepreneur who harnesses artificial intelligence to help American veterans get the best health care possible. What could go wrong? For a start, murder. Are the robots behind it? It's the third novel in the Avery Keene Legal Thriller series. Now, Keene is an investigator at a law firm, and she's been assigned to look into the AI company. Author Stacey Abrams says that every Avery Keene novel starts with a question she herself has. This one began with two questions.

18:01How does AI work? And why are we so bad at health care? I like this novel partly because it's ethically and morally nuanced. Even if you have little interest in either question, the novel is still a compelling read.

18:19This is Emiko Tamagawa, senior producer for Here and Now. One of my favorite books this year was Emily Itami's Kakigori Summer. Reading it, I was transported to a hot summer in coastal Japan, where three half-Japanese sisters gather at the family home after one of them has become a national scandal. What rings so true for me is that it not only explores the shifting dynamics of sisterhood, but also probes what it's like to be a perpetual outsider in a place that you think of as home. The book is a summer read that doesn't melt away, but continues to resonate after you put it down.

18:58Hey, I'm Ivy Buck, the current Petra Mayer Fellow on the Arts and Culture Desk. I'm here to recommend Silvia Moreno-Garcia's The Bewitching. But first, I must give a shout-out to the late, great, one and only Petra Mayer, who founded Books We Love. Thank you, Petra, for championing book nerds everywhere, and for creating this wonderful celebration of the reading which defines each year. The Bewitching is a perfect mystery novel filled with plenty of good old New England spook. The story follows Minerva, a graduate student of the fictional Stone Ridge College who studies the life of Beatrice Tremblay, a Stone Ridge alum from the 1930s.

19:39Beatrice was a writer of macabre literature, think along the lines of Mary Shelley or H.P. Lovecraft, who may have experienced a haunting herself. As Minerva dives deep into Beatrice's history, she finds herself in a trifecta of bewitching's dating back generations. You'll have to read the book to find out how, or if, Minerva makes it out unscathed. But what I can tell you is that The Bewitching has something for everybody. It's a gorgeous and chilling tale, perhaps best read with the lights kept on. I'm Justine Kennan. I'm an editor on All Things Considered. The book I love this year is The Life Cycle of the Common Octopus.

20:21It's a novel by Emma Knight. It is a coming-of-age book of sorts, mostly set in Scotland and the main character, Penn, is sort of coming into herself in college and she has this great group of girlfriends and she's learning about herself but also uncovering the mystery of her parents and their divorce and because she's named for this actual mystery writer in Scotland. She ends up with that family, goes to their castle in Scotland so it has the sort of layers of mystery and coziness and coming of age. I just can't recommend it enough. In case you missed it, the books mentioned were The Life Cycle of Common Octopus, The Bewitching, Kakegore Summer, Coded Justice, and The Everlasting.

21:12For more books we love, head to npr.org slash best books.

21:26Here and Now Anytime comes from NPR and WBUR Boston. Today's stories were produced by Julia Corcoran and Lynn Mennegan. Today's editors were Michael Scotto and Mark Navin. Technical direction from Caleb Green and Matt Reed. Our theme music is by Mike Moschetto, Max Liebman, and Chris Bentley. Our digital producers are Alison Hagen and Grace Griffin. And the executive producer of Here and Now is Alan Price. Thanks for listening. We'll see you tomorrow. Thank you.