SCOTUS Kills Independent Agencies, Expands Presidential Power

26:46And quote, this reversal grew out of the serious political differences between President Johnson and congressional Republicans. And then he goes on to talk about the Tenure of Office Act. Let's again just explain this in plain English. Andrew Johnson was a Confederate sympathizer. The Reconstruction Congress, controlled by Republicans, didn't want him to end Reconstruction. And so they limited his power to fire the generals who were deployed in the South to try to make the South a multiracial democracy. That is the Tenure of Office Act. Like literally generals blockaded themselves in their offices so that Johnson couldn't fire them.

27:23And according to Roberts, everyone recognizes Johnson was right and that the law was obviously invalid. It's just insane. Yeah. And specifically, like the dispute that actually leads to Johnson's impeachment and near removal is his violation of the Tenure of Office Act by trying to fire without Senate consent, the Secretary of War at Stanton. But there's also this completely unacknowledged distinction between what the law and the Tenure of Office Act and in Myers did and what a law like the FTC Act does, which is those laws required the Senate to consent before the president could remove someone, which may be a different – which is clearly, I think, a different kind of separation of powers problem than any separation of powers problem that might exist, such as it is with just saying the president has to have reasons before firing someone.

28:12So there's just an enormous difference. You know, even if you think the Tenure of Office Act had constitutional problems, it's very different from the FTC Act and the other statutes that Congress has passed and that the Supreme Court in this letter decision has now said are constitutionally intolerable. But there's also just like, again, there's all this tonal stuff in this opinion that is so insane. Like, again, there are people I think who are not sympathetic to Andrew Johnson and his anti-reconstruction agenda who say, yes, Congress shouldn't be able to like give the Senate a veto over the president's firing of a cabinet secretary.

28:43Like that's not a crazy position. But the tone of sympathy that the opinion evinces toward Andrew Johnson is really wild. And that, I think, was what I found so insane as I started to read the opinion. So here, just like to connect this, that passage we have just been talking about to other decisions issued in the past, say, week. Remember how Alito and Barrett were like pearl clutching about the complete impropriety of relying on the kind of redemption era statutes, black codes? in Louisiana that were offered as historical analogs to justify the Hawaii gun control law that was at issue in the Wolford case.

29:22No such energy on display in pointing to Andrew Johnson's efforts to end reconstruction. And they're clearly also very offended by Congress's efforts to try to thwart President Johnson. And it's just a little hard. We're talking about the same period of time here and entirely different Supreme Court treatment of these historical episodes. Yeah. What it is, is absolute boss level Southern grievances, you know, by Jim Crow, John Roberts. And it's just wild. Yeah. So part of their reasoning is also continuing with their fetishization of executive power and how that's great for democracy. if you heard that sentence and you thought, what?

30:10I too had that reaction, wondering if the court has been hibernating for the last 18 months. It really, again, like this is what you think the problem is, John Roberts. I mean, so on the eve of the 4th of July, America's 250th birthday, it does feel like this is a let's go all in on making America a monarchy again. Make America a mama, I guess would be like the new acronym. And like so many things that they have the gall to do with a straight face, they are justifying it in terms of democracy. Like that is what they did in Dobbs. It's what they are doing here. So let's just like say the quiet part out loud.

30:53Insulating the executive branch from congressional oversight and congressional control isn't great for democracy or accountability, no matter how many times they somehow suggest that it is. And in any case, even if you're actually concerned about accountability, there is still plenty of accountability, even when agency heads are somewhat insulated from presidential control, a point that Justice Sotomayor underscored repeatedly in her dissent. Okay. We want to spend some time talking about the implications of this decision. So they have doubled down on their unitary executive theory because clearly it has gone so well in the last few months.

31:34that theory was an issue in the immunity opinion. I think we at the time, two years ago, we thought like this sort of is the culmination of the unitary executive. And then came the 18 months of the Trump administration, which I think were an illustration that you can go much, much further on the unitary executive than that decision did. So here the implication of the theory really is that POTUS was already beyond the reach of the criminal laws and the immunity decisions. He is now above or beyond laws that might constrain what the court deems to be his executive powers, you know, which is kind of concerning when you're talking about a president who hasn't been particularly shy about lawbreaking.

32:11And the justices have handed this president more power to control agencies when we have seen how agencies subject to his control have acted. You know, the Department of Defense has awarded contracts to companies that are linked with his family. Contracts are given to companies that are on the ins with the administration. There are merger approvals granted to companies that have bent the knee, favorable settlements are reached with companies that are favored by the administration. I think that's part of why I view this as a pro-corruption ruling and that this decision should be understood as part of the Supreme Court's commitment to a re-gilded age of robber barons.

32:47Yeah, it does feel like an important sort of step on the road to reinstituting the spoil system, a patronage system of government where government offices are awarded not based on merit or expertise or competence, but personal favors, political loyalty, you know, what campaign contributions you gave, what rallies you attended. And this is how you get a government run by incompetent blowhards and also incredibly conducive to corruption. So both incompetence and corruption were on display in the era of the spoil system. And that is what we are on a path back to. You know what else the opinion decides that might be a good idea to go ahead and sort of approve of?

33:30Loyalty tests. Like, those are maybe on the logic of this opinion good now, right? Roberts writes, quote, to discharge the duties of his trust, the president must have the assistance of officers he can trust. So maybe those are now fine. And that is all to say nothing about implications in future cases. So as we said, the court doesn't say anything about the civil service. Justice Sotomayor notes in her dissent that the court suggests that its newfangled rule might not apply to adjudicatory agencies, including non Article III courts like the tax court. But it's unclear why. And then, as again, you know, nothing in the opinion about not just civil servants but also inferior officers whose removal protections have been upheld by the court's prior precedents.

34:14But unclear what this opinion means for those. So as Justice Sotomayor wrote in The Dissent, quote, the majority replaces 90 years of proven workable practice with a half-baked theory of executive power that is simultaneously all-encompassing yet also subject to necessary but undefined exceptions. Okay, let's maybe say a quick word about the Gorsuch concurrence. And here I will confess, when I started reading the Gorsuch concurrence, I was like, oh, I actually, maybe he's got something sensible and reasonable to say because he starts off by observing. You know, Congress created all these agencies and gave them all these broad powers.

34:50And I don't think they thought that the president was going to have complete control over these agencies. So for a minute, I was like, whoa, am I going to agree with something that Gorsuch has written? And yet he takes it to the crazy place. And then, of course, into like the under Roman one, it was like, oh, my God, of course, this is like an ergo. We should just completely dismantle the administrative state. So let's kind of revive non-delegation in addition to empowering the president. Like literally this is his opportunity to fully make good on this promise he may be made to his mother at one point as a boy, which is we're going to abolish the administrative state and you will be avenged.

35:30So we have all that to look forward to.

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39:23Okay, so despite telling us how awesome presidential control is for democracy, for accountability, and for the execution of laws, and how the Constitution requires the president to have the power to remove executive officials, and this is a direct quote, no ifs, ands, or quasi's about it, the Supreme Court also said, unless we're talking about the Federal Reserve Board and our 401ks. Right. So that's Trump versus Cook, in which a bare majority of the court, in an opinion by the Chief Justice, held that Federal Reserve Governor Lisa Cook can keep her job while she challenges the president's attempt to fire her via a true social post, which is actually how he tried to fire her.

40:00We have joked about how the court's reasoning, that is like scare quotes reasoning, about why the president can control and fire the heads of every single independent agency except the Fed, basically came down to something like, but the stock market, but my investment portfolio, but my emotional support billionaires. And today, John Roberts may have made that subtext the text. In a kind of OMG he admitted moment, John Roberts wrote in Cook, quote, We see no reason to leave the public in limbo or to sow doubt as to the status of one of our nations and the world's most important financial institutions.

40:34He offered that as a reason for why he was, in this opinion, addressing several issues in the case that the lower courts had not reached, including the constitutionality of the provision that limits the president's power to fire governors of the Fed to occasions where the president has cause for firing them. Shorter John Roberts, like it might be okay to mess with consumers, which is the group that the Federal Trade Commission seeks to protect, but it's definitely not okay to mess with me and my stock portfolio. We call this maybe the independence we care about doctrine, like agencies get to be independent when we Supreme Court decide they should be independent.

41:10Independence for me, but not for thee, like Trump can wreck the separation of powers, maybe also the rule of law, but not capitalism. Totally. And the opinion in Cook focuses on rejecting the three arguments that the Trump administration had made. So first was an argument that might sound familiar if you've been listening to all of our dispatches in the last week. So there was an argument that the president's decision to fire someone for cause was not judicially reviewable. Roberts rejects that argument, says no, because if it wasn't judicially reviewable, then the legal protections and statutes would be meaningless.

41:44Note, and this is what I was just referring to, that this same argument did not seem to move him in the TPS cancellation case where Robert signed on to Sam Alito's opinion saying that courts could not review whether the president complied with laws governing the TPS termination process. So those can evidently be rendered meaningless, but not the ones regarding the Fed. Interesting. Insert economic reason here, TK. Exactly. So that's the first reason Roberts then addresses and also rejects the government's argument that even if the courts can review whether the president has cause to fire someone, that review is so deferential, it is basically essentially meaningless.

42:28So while Roberts rejects that standard, he won't go so far as to commit himself or the court to an actual legal test about how courts should decide whether the president has cause. He writes, Having rejected both parties' positions, we need not fully demarcate the contours of cause today. For present purposes, it is sufficient to observe that any definition of cause in this context must reflect the Federal Reserve's unique historical status and role, a.k.a. economic reasons TK. But he also adds, quote, It is true, of course, that cause cannot be reduced to a precise set of rules, and some close calls are inevitable.

43:04I think this part was like just a kind of insert legal test. Right, exactly. Yeah, that's fair. That's fair. You would search in vain for anything resembling one in this draft of the opinion. So instead, he basically rests his conclusion on the idea that the government won't be able to show that it can prevail on the merits of this particular case or challenge because the president here failed to comply with the procedural protections to which Governor Cook was entitled by statute, namely basic notice and an opportunity to respond, which were not supplied by the firing via or the purported firing via Truth Social.

43:38And then finally, and this also is important, the chief rejects the government's argument that federal courts cannot issue preliminary injunctions ordering reinstatement and says that Cook is entitled to remain in office while litigation is ongoing. That is to say the court rejects the really expansive argument that the administration had made that federal courts had no authority to ever order reinstatement. Here, court says federal courts can issue preliminary injunctions ordering reinstatement. This opinion had a kind of Schrodinger's quality to it because in some ways it was big and in some ways it was small.

44:11So despite having reached several issues that the lower courts did not, the decision was also quite narrow. It does not weigh in on whether the president can fire Cook based on these specific allegations of mortgage fraud. It just says that what is contained in the president's truth social post doesn't fly and can't suffice to remove Cook. And even the president picked up on this on a social media post writing, quote, the Cook lawsuit 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, end quote.

44:45In other words, I'm going to keep trying to remove her. Yeah. Yeah. I had sort of hoped that this was something that was not – they were not going to remain focused on if they lost in this case. And I think it's very clear from the Truth Social feed that they're not letting this go. So Kavanaugh also emphasized the kind of narrowness Aliyah was just alluding to. Yeah, it's such a weird opinion in that, yeah, like it's unusual for the court to reach out and say a lot of things about big important questions with constitutional dimensions that lower courts hadn't addressed. And they did that, but then also that's very narrow, and Kavanaugh does emphasize that in his concurrence, saying the case doesn't even resolve whether POTUS can lawfully remove Lisa Cook.

45:26All of that, he says, will depend on resolving factual disputes in the case. Okay, so yeah, this was, as we said, Roberts and Kavanaugh and then the three Democratic appointees in the majority. And then there were three dissents in the case. One was from Justice Thomas, one Justice Alito. Alito was joined by Gorsuch and then a separate one, I think just for herself, by Justice Barrett. Barrett and Alito faulted the court for doing the thing we were just referencing, going beyond, you know, answering a bunch of big questions, going beyond what they said was necessary to say in the case. To which the court responded with this interesting passage, quote,

46:11In other words, balls and strikes. Right? Or I do what I want. Yeah, yeah, definitely. So speaking of jokes that are 5-4 or 5-4 jokes, we also wanted to briefly talk about the opinion we got today in Watson versus RNC, which is the absentee ballot case. Yes. So I don't know about you, Leah, but definitely as we loaded this up, this was the first case we got this morning and huge. Yes. Like full body kind of deflate. There was so much like anxiety and tension like kind of filling me. And then there was a sigh of relief when the court released that opinion because it is 5-4, which is a crazy vote.

46:46We can get to that. But it says that federal law and specifically the federal law that merely like sets election day does not prohibit states from counting absentee ballots that are cast by election. day, but received afterwards. So states can count absentee ballots cast by election day, but received after election day if they choose to do that. Mississippi, the state whose law was at issue here, has this five-day grace period. Other states have shorter and longer ones. The total number the majority mentions is like 30 states have some version of this. The challenge, if it prevailed, might have invalidated all of those.

47:20And here, Justice Barrett rejects that challenge, says, quote, the election day statutes, the federal ones, say nothing about ballot receipt, and we cannot add to the words Congress chose. As Kate said, opinion was 5-4. I gasped when I saw this, just a bare majority. This court came within one vote of overturning laws in something like 30 states that allowed counting of ballots mailed by election day on the basis of federal election statutes that just are not remotely ambiguous about whether they displace those state laws. And four justices were okay saying just a few months before the midterms, the RNC, the Republican National Committee, gets to dictate, you know, how states administer elections and whether and when they can count lawfully cast absentee ballots and just refashioned all of election law based on their own views about what proper voting looks like and arguing without any evidence that voting by mail leads to voter fraud.

48:13But as that summary of the reasoning in The Descent might suggest, The Descent was written by Sam Alito, whose brain worms I think really seem to have gotten worse. It was so many pages of opinions today. I was mostly focused on Slaughter and Cook. So I have to actually spend a good long session with a stiff drink in The Alito Descent. But as I started reading it, I was like, the syntax, it doesn't even sound like a normal one. The paragraphs are just so choppy and weird. And also, clearly, conspiracy theories have taken full residence in his brain and heart and soul. And he's big mad about vote-by-mail in general.

48:52So all those things I could tell. But again, I need to spend a little bit more time with the opinion. But speaking of brain worms and kind of the worsening of brain worms, Brett Kavanaugh also, despite joining sort of Team Sanity, although Team Sanity with Reasoning TK in the Cook case, also seems... Like he's getting more and more radicalized, right? Like this lineup was Barrett, as we said, for herself, plus the three Democratic appointees and the chief justice. So Kavanaugh was in dissent here. And the dissent, as we were just saying, the Alito dissent is like absolutely nuts. Briefly, maybe on the majority opinion, let's just say a couple of words about it.

49:31The reasoning was just that the federal statute set the day for the election. That's the day that the electorate makes its choice, you know, does it by voting. and that's like straightforward and obviously correct. And the tabulating of that vote or those votes is something distinct from the choice. And so there's nothing problematic under the federal scheme with those votes being counted afterwards so long as the choice was made by election day. By contrast, Sam Alito says if ballots received after election day are counted, then the electorate's choice does not occur on election day. But he says it in a way weirder way.

50:05But anyway, that just can't be right, right? The counting ballots does not mean the choice doesn't occur on election day. The choice is the voting, not the counting. So Alito's dissent also ends with the final section that is basically just a screed against voting by mail, warning that the majority's opinion, quote, risks further undermining Americans' confidence in election integrity and, quote, leaves open opportunities for voter fraud that may further undermine Americans' faith in the integrity of this country's elections. And he also went out of his way to excuse Trump from having any responsibility for generating said concerns about voter fraud and election integrity, writing that, quote, even in the absence of partisan rhetoric, drawn out ballot counting induces a large, significant decrease in Americans' trust in elections.

50:50It just happens. It just happens organically. It just happens. It has nothing to do with that rhetoric. Yeah. Yeah. And Trump was really following the court today in a way he is not usually. Since he also posted on Watson, right, not just Cook and Slaughter, writing that, quote, in light of the tremendous loss, it is more important than ever to pass the Save America Act, a law that he has been agitating for four months and that would disenfranchise, as we have repeatedly mentioned on the show, literally millions of voters. it's I have a just a quick you know kind of maybe conspiracy theory sounding kind of question for you just something I've sort of I think I've I saw someone I can't recall who so I can't credit them but like thinking through is it is it possible that this seemingly sane decision which like actually does as a matter of kind of statutory interpretation and also kind of structural constitutional reasoning there's like a there's I thought a good passage that suggests like the constitution itself makes a distinction sometimes between a choice and the actual consequences of that choice.

51:54Like the whole electoral college kind of works that way. The people vote at a certain point. Congress, you know, counts, opens and counts votes later. Like that's presidential selection. As weird as it is, it's that suggests that there's no like fundamental constitutional problem with dividing the voting and counting. Anyway, so it seems like a very sane opinion to me. But it may, could it just be that Barrett and Roberts, if not the other conservatives on the court, actually realize that the kind of the Trump position that we want to like do everything we can in the RNC, obviously the plaintiffs in this case, to like discourage vote by mail and other things.

52:26Like that's something that Trump really thought and maybe still thinks redounds to his partisan advantage. But it's not that clear at this point that that's the case. And so it's actually a more kind of nuanced appreciation of the kind of, you know, sort of voting landscape and a desire to safeguard the electoral interests of the Republican Party, Even if, again, Trump might himself be mad about that. Like, might that be something of a factor here? I think that is definitely a possibility. We don't exactly know what the partisan valence of absentee voting is. And you will note that even though we don't know that, I still think absentee votes should be counted.

53:01Of course. But just like there was ideological cross-pressure in Cook, where the interests of the Republican Party probably counseled in favor of insulating the governors of the Federal Reserve from presidential removal. So too, perhaps here. So just to wrap this up, take homes. You do not, under any circumstances, have to hand it to the Supreme Court on Watson or Cook. Do not congratulate, no ifs, ands, or quasis about it. Like, the court isn't moderate or moderating. I think it's fair to say, like, they are advancing their own agenda. And the fact that they occasionally do the bare minimum and not the most insane thing just cannot be a justification or apology.

53:41for their other behaviors. So we will likely be in your ear holes again tomorrow, Tuesday, June 30th, which will be the final day of the term, talking birthright citizenship or lack thereof. I still think birthright citizenship. Yeah, yeah, same. But we have less than 24 hours to wait and we will bring you our quick reactions to that. And then we will have our regular term review in your ears on Monday. So see you soon.

54:11Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Jordan Thomas is our intern. Our team includes Matt DeGroat, Ben Hethcote, Johanna Case, Kenny Moffat, Eric Schutt, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East.