Trump’s Supreme Court Power Grab (with Leah Litman)

Part of what again was so frustrating about this oral argument is at one point Justice Barrett asked the lawyer, you know, who was asking for the court to embrace this theory, do we even really have to identify the part of the constitution that is the basis for this theory? Like they're so convinced that the theory is correct, but they don't know what in the constitution actually requires this theory. Like she just >> admitted it. Um so you know like conceptually what are they getting at? I mean if you read what they write, if you listen to what they say, they are really convinced that one the framers of the constitution made this decision that all of the executive power is vested in the president and therefore the president has to have control over everyone exercising significant executive power.

Like as if the framers like were completely unconcerned about king. Yeah, right. >> Oh, they wanted a king. They missed it. They missed having a king. [laughter] >> You know, like the lack of textual basis, the lack of historical basis. And then they add to this this notion that their theory, the unitary executive theory is really awesome because it's great for democracy because the president is democratic. And it's like, have you heard of Congress? [music] >> [music] >> Welcome to another edition of the oath and the office. The only constitutional law podcast with inappropriate humor you need. I'm John Fugal saying people of earth. Let me welcome the man with a PhD in politics from Princeton. A law degree from Stanford and he uses them to enrich the lives of students in the polyside department at Brown. the author of The Oath and the Office, Professor Corey Brett Schneider. But around here, we

call him the Mac. Corey, it's good to see you. Congratulations on on on the the the ratings for this thing, huh? This this thing is getting popular in spite of me. >> People are are coming, I think, largely because of you for our dynamic, and we hit number two on Apple Podcast Government uh last week, that amazing discussion with Sheldon White House. We have an amazing episode today with our return guest, Leah Litman from uh Strict Scrutiny, also the author of uh the amazing book Lawless. And what a moment, too, because we're going to be talking not just about the birthright citizenship case, but also about the argument, oral argument uh uh this week about the question of whether or not the president can fire at will for political reasons the head of the independent agency, the Federal Trade Commission.

That sounds dry. We're going to unpack it, but we're also going to talk about why it's nothing less than the future of our democracy that's at stake. >> Yeah, this is not the sexiest way to begin a show, but I promise we'll get to Pete Hexth murdering people very shortly. I mean, Corey, h how do we begin the sad story of Rebecca Slaughter? Once upon a time, this woman helped the FTC sue big corporations for abusing their power and for ripping off American consumers. And then Donald Trump, who enjoys ripping off American consumers and respects corporations that do it better than him, pretty much said, "Fire that woman. She's cutting into my business model." Because Donald Trump doesn't just tolerate companies that rip off Americans. He admires them like they're they're the hall of fame of fraud. He's like, "Oh, you overbuild seniors and you hit the fees. Teach me your ways," said. So now Rebecca Slaughter's lawsuit over her illegal firing shows up at the Supreme Court this week. And Corey, the the Supreme Court's conservative supermajority seems

to be thinking, "Oh, another chance to expand presidential power, our second favorite hobby after ignoring all of our ethics complaints." Uh, I mean, Corey, the question essentially is, can the president fire government officials despite laws meant to shield them from politics? Trump fired her in March, and he said because she did not align with his agenda. Now, the Federal Reserve is supposed to be an independent agency where the president is roped off so he can't pressure these people. They're not supposed to be removed from office until their term is over. You were following the arguments very closely. It it it looked like Rebecca's Slaughter's case.

That would be the law got absolutely steamrolled and Donald Trump's firing power is about to expand again. What was your take? Were the conservative justices even pretending to hide how they lean? No, I think this is pretty obviously going to go against uh Rebecca's Slaughter and is going to result really in a restructuring of the federal government. There's nothing less uh at stake. Uh the court of course reversed Row versus Wade. This is the governmental powers, presidential powers equivalent of the reversal of Row versus Wade because part of the feature of our federal government has included independent agencies. And John, I just want to emphasize what you said. I mean, starting with the president's corruption is such a great way to see this because what these independent agencies are meant to do is to curb a president who wants to use the Federal Trade Commission, say, or and we'll talk about the Federal Reserve to enrich himself.

And that's not so far off from what this president wants to do. This is an agency that, for instance, can block mergers or approve them. uh you know if the president's say got his uh son-in-law involved in a possible merger which is actually going on right now uh uh and uh he can just tilt the scales in his favor if he had complete control over hiring and firing. >> So what the law for 90 years has been has been that the president can't engage in political firing of the commissioners of the Federal Trade Commission that he can or she can only fire a commissioner if they don't do their job well. You can't engage in political firing.

>> Yeah. But now since the 1980s and now this gets into the theory of the unitary executive which we've talked about now this isn't just a theory it's happening. Uh the idea is a president we only have one president and we don't have a fourth branch of government. That's how the defenders of this theory would put it. And so insulating an independent agency from political firing is really undermining the president's power. The executive power is vested in a president. That's how they put it. And the executive power should include it the right to hire and fire. But what they're going to do, the court, they are going to do this is wipe away 90 years of protection from pol politicizing agencies that have to be independent.

That includes not just the Federal Trade Commission, but another fundamentally important independent agency that is going to be implicated by this decision is the Federal Reserve, the the bank that that keeps our economy on track, that's supposed to fight unemployment and inflation, and just might wind up serving the interests of a corrupt president. That's really where we are. >> I mean, yeah, we learned in these arguments that everything is going to be on the chopping block. The FTC, the the Labor Relations Bureau, the FERC, every agency designed to keep corporations from eating our faces is going to be on the chopping block. And these conservative justices were basically like, well, what's the point of having a president if he can't fire people who stop corporations from committing crimes? I mean I mean John Roberts called the the president protecting independent agencies a dried husk like like like he's critiquing a quissant Corey like oh it's too flaky. I mean the court seemed ready to either gut or fully kill Humphrey's executive. That's the 1935 case that has protected these

independent agencies for like 90 years. Cory for listeners who aren't up on this sexy stuff. I haven't thought about Humphre since AP government. [laughter] What is it? Why have been why have conservatives wanted to get rid of it for so long? >> This is a case that asked the question in the 1930s, as you said, can we can Congress protect its own laws? Can it create agencies that are so important that they have to be insulated from political firing? And the court said very clearly in Humphrey's executive, yes, that we are going to allow Congress to assert its legislative power and protect itself by ensuring that there are agencies like the Federal Trade Commission in particular that are insulated from the whims of a president from doing the president's bidding rather than pursuing economic uh well-being for instance of the country.

But the fact that this law that this precedent of the Supreme Court has existed for so long and this law that it upholds has existed for so long. It looked like from this oral argument that the court was willing to say we don't care that if it violates the constitution that's the end of it. It's very similar to what they did in Ro versus Wade in the sense that they said we don't care how long there's been a right to an abortion, how long the courts recognize this again and again. We the Supreme Court now have the votes to wipe it away and we're going to do so because on our view it's unconstitutional. I should say what what a bogus argument and I know we'll talk to Leah Litman about this. It is that there is a constitutional prohibition on Congress protecting the independence of these agencies. There's really just one sentence in the Constitution that they rely on the conservatives and that's the idea that the executive power is vested in a president. And that idea that that one sentence gives them the authority to just overturn this case, I I think is just wrongheaded because what executive power meant in the founding and common

sense says it means is the power to execute laws. It has nothing to do with undermining the power of Congress. >> Okay. Okay, then then let me bring it up to the Fed because we know that Trump has been wanting to fire the Fed chair because the Fed chair refuses to falsely juice interest rates to try to hide the damage that's being done to this economy. And so that's where I think everybody's mind was on yesterday cuz if Humphre's executive fails, then one of the big questions is whether Comover Caligula here can now fire the Fed chair for not juicing interest rates before the next election. Now, I I I'm I'm not an optimist, Cory, but I kind of think the Fed might survive because even even conservatives know that letting Donald Trump fire the Fed chair would be like giving a toddler a chainsaw and saying, "Only use this when you're upset, right?" I mean, how much danger is the Fed actually in? I The fact that Donald Trump is less popular among Republicans than ever in our government is is helping me think maybe this won't happen. But but how much danger is the

Fed really in after the arguments this week? >> Well, I think that, you know, as much as you would hope pragmatism would prevail, if it prevailed in it would prevail in this case and Justice Jackson was raising many of these worries about handing over power to a wannabe monarch. And they were really going nowhere, I think, when it came to the conservative majority. And I think the way the conservative majority sees it is that this isn't a question of pragmatism, it's a question of law. And they have a case on their side. They cite a case called Meyers which is about the ability of a president to fire at will a postmaster general an earlier case to Humphre and they say well that's the right way to see it. Humphre is not and they just argue this solely in terms of law. So when it comes to the question of the collapse of the economy of um okaying mergers because your family members are involved with them. That's not really what they were talking about yes in in this oral argument. And my worry is that they really don't care about it. It isn't a new concern. The unitary executive theory dates back to at least the me justice department and Edwin me talked about this case

Humphrey's executive and the need to overturn it. He thought that um Richard Nixon you know in the postNixon period that we overreacted we restrained the presidency too much and the key was really to restore the dignity of the president by increasing his or her power. Now when we were thinking about Ronald Reagan, he was no Donald Trump. He wasn't corrupt in the way that Trump is. certainly had problems, but not on the order of magnitude of destroying democracy. So, you could see how they were if they were thinking about Reagan, you know, or thinking about great presidents, uh, you know, no problem.

But when you think about the reality that we're facing now, it's a different universe. And so, the lack of attention of of pragmatic considerations and also the bogus argument that somehow this is based in the text of the Constitution. It doesn't say anywhere that they the president has the right to fire at will or that Congress can't protect independent agencies. So yeah, you know, and yet in Row versus Wade, they made such a big deal of the text the text the text. So I I think that that that unfortunately they don't care about pragmatism. They really just care about their own commitment to overturning this case. Humphrey's executive.

>> Oh my god. I mean, so let me ask one more question about this before the break because, you know, Congress decided that certain officials need protection from being fired for political reasons and we're witnessing it now. Uh the problem is the Supreme Court doesn't mind that they're being fired for political reasons because these aristocrats like this sort of thing. How do the founders think about these questions? Professor, is there anything in Madison or or Hamilton or the early debates about the dangers of an unchecked executive firing anyone who resists corruption?

>> I think they disagreed and there's not clear evidence on one side. The truth is when you say what did the founders think, it's always a debate and so I think there were differing opinions about this. But I do think that when you look at this question of what they thought executive power meant, it definitely did not mean what the conservatives are saying, this kind of massive power to hire and fire at will. So I think they would have imagined and there would have been consensus the way I see it, that Congress will determine this over time that the way the government is going to be set up and things like the firing power are going to be set up, um, you know, we're going to we're going to see what works. We're going to defer to some degree to the Democratic will. And that's what's going on here is they're not only denying the democratic will despite claiming to adhere to it in cases like abortion, uh, which I don't believe for a second, but they're really making up this idea of an 18th century kind of absolute right to executive power. As much as they talk about the founders, the conservatives are really the product, as I said, of the Edwin Me justice department. And,

you know, me wasn't a scholar. He was a political figure and he wanted to see this case overturned and a president's power increased. Full stop. That's really what it was about. And he had allies and people like Robert Bourke and most importantly Justice Scalia. They were seen as outliers at the time. And now uh you know the children of Scalia, so to speak, are taking over and they are going to restructure the federal government. >> Oh, somewhere in hell these awful men are smiling. Um uh or not cuz they're in hell. All right, we got to take a break. When we come back, and by the way, I'm looking forward to talking to Leah Litman about the Birthright Citizen case, cuz that's also deeply troubling.

But when we come back, let's let's talk about uh cabinet members in trouble. Corey, fascist flunkies behaving badly on the oath in the office. Uh you know, Corey Pete Hexath, it turns out that he only uh did that double tap to murder those unarmed people with no evidence on the boat because he was due to speak at the CPAC prayer breakfast and he wanted to get the murders out of the way. Um, we're now having senators, military experts, international law scholars, they're all describing Pete Hex, that's a double tap strike, as essentially murder, as legally a war crime. And I would argue that they've all been murder. Uh, all 80 plus souls that we have snuffed out with no evidence, with no due process. We don't allow cops to murder people they think might be bringing drugs somewhere. And when this is happening, while the president is pardoning the president of Honduras who smuggled 400 tons of coke in here, I mean, it's going to take the rest of our lives to figure out how deep this hole goes. But how, as they're calling it a

war crime, how does this intersect with the court's growing push to try to shield Donald Trump's executive actions from any kind of accountability? It seems like we're moving towards something there. And I don't think Pete Hexath realizes the immunity ruling doesn't apply to henchmen. >> That's right. And um you know, I had a viewer email about this too, asking, you know, how can members of this administration be prosecuted if uh the attorney general, you know, simply doesn't want to do so. But now we're starting to see the reality, which is that not only do they not have immunity, immunity that the president likely does have in cases like this, uh but Pete Hegsath is becoming unpopular. Are you starting to see Fox News turn on him? Uh former colleague of his uh Judge Npalitano is I think how you say his name was talking about the fact that yes, this was a war crime because if you know anything about the law and you see this really what we're talking about in this second attack is a disabled ship being um people being murdered. And it's

a textbook war crime on the military's own understanding to you know imagine capturing somebody having them lay face down and shooting them while disabling a ship and as the ship is essentially s sinking to then uh commit murder is that not just a war crime but literally a textbook war crime. So, we did cover this last week, but I think the update is that now even MAGA, now Fox News, everyone who sees this is embarrassed and turning on Hexath and not going to pretend that this is okay. And so, you might see him abandoned. I hope uh that that he will be and maybe even a prosecution. It is that bad. And and Hexath was worried enough that he started blaming this admiral for doing it. So, uh this is not a story that's going away. It's it's horrific. We'll keep covering it, keep talking about it.

And no, he does not have immunity in the way the president might. It doesn't carry over to him. And in fact, he might have committed a war crime that that can and should be prosecuted. >> But our Supreme Court has created a scenario where if they came out and said Donald Trump pushed the button on the drone machine to kill these people, then it wouldn't be illegal, right? If Donald Trump himself carried out the murder, >> would it be illegal >> under our the court? I I think there's there's no physical way that he pushed a button that resulted in >> Oh, I I I know. I'm just saying this is this is the morality of this court, right?

>> Yeah. But I think even there, you know, practicality is that yes, he I think likely would be immune from anything that he did. That's what the immunity case seems to imply. He >> can I go further? If if Donald Trump wore military regalia like Moar Gaddafi and his kids did too and he lined up drug dealers on a stage and Donald Trump personally shot them with a pistol on camera to save American lives. No due process, no trial, no evidence. That would be legal right in America now. Yeah. Well, we talked to um Senator White House about this and he and I, you know, really agreed on this point, which is that yes, the implication of that decision is this, but it's so absurd that this is the time to start pushing back that if they were to see a case like this, I believe even the Supreme Court would see the error of their ways and start to narrow it and find ways of making an exception to that immunity, saying, for instance, that the the um as they put it, the outer perimeter of official duty doesn't include the right to murder. But certainly, and this is a point I just want to make, is that the president, even if he gave the order

directly to HGsth, there isn't just a right to disobey illegal orders. There's an obligation, and it isn't an criminal defense that you were just following orders as the uh Nazi war crime trials made clear. So, let me shift to uh what's left of the guardrails uh and our old pal Judge Boseberg because um you know Christy Gnome didn't really want to give the court much information about her illegal actions in these deportations. So, Judge Boseberg, who we've talked about many times, he's now expanded this criminal contempt probe. A federal judge is expanding a criminal contempt probe into the Department of Homeland Security and the DOJ after all these migrants were illegally renditioned, kidnapped, and deported in defiance of his direct order.

They're going to be teaching this in law school for decades, Cory. But from a constitutional standpoint, how severe is it when an executive branch agency blatantly ignores and violates a federal court injunction in real time? >> Wow. I mean, Judge Boseberg and we we talked with Senator White House about the fact that MAGA and many Republicans are so worried about Judge Booseberg that they're talking about impeachment and attacking him as in and judges like him who are enforcing the law as engaged in some kind of coup. And it doesn't matter. He's not being deterred. He believes that there was a clear defiance or or likely a defiance of his order. He said, "Turn the planes back." We covered this with Mike Zamore from the ACLU who talked about that right after it happened. And uh you know, you can't do that. It is illegal for an an attorney in court, a prosecutor to be given an order and to outwardly defy it. Now, the question is how high up does it go? And the possible implication response is going to be criminal

contempt charges. Uh it could be Christy Gnome. could be uh her immediate uh inferiors in in Homeland Security. Whoever it was is potentially liable for prosecution and far from backing off. Uh this judge is now pursuing it. There's a lot of talk that no might be fired for for instance for her relationship with Corey Loendowski and for her bad behavior. >> I'm sorry. Can I can I can I interrupt just to say ew? >> Okay, go on. Thank you. Please, Prof. Thank you, professor. Carry on, please. >> A very important point to make.

Definitely ill. I mean, I'm sorry, but like, you know, I I'm not here to king shame and adultery. It's between couples, between your you and your spouse. But Corey, if if I had slept with with with with this guy, with Cory Leewendowski, I would want to murder a dog to have something more disgusting than that on my resume. Go on, please. >> The other reason to cut her off might well be that as these contempt hearings proceed that she's implicated. And you know, in the same way that HEGs illegal action might result in him being thrown under the bus, so might the Homeland Security um uh the head of Homeland Security, Christine No, might also be thrown under the bus. And you know, all of this goes to the point that if you act illegally, um it's not guaranteed that you'll face justice, but there's a good chance, especially when the political winds start to turn against you. And so that's the hopeful part of what we're seeing right now that the law has this chance of prevailing u um in the case of the disobeying Boseberg's uh orders. Even in the case of Hegath and his illegal action, the more that we uh

in our show and other shows put the light onto these illegal actions, the greater the chance that they will eventually, I'm not saying it will happen immediately, be prosecuted. Well, Judge Boseberg, professor says he intends to, let me quote him, to find out what happened that day. Um, is this essentially the judiciary investigating whether the executive branch committed a crime? How unusual? How unusual is that? >> Look, in a functioning democracy, that's exactly what's supposed to happen in a functioning democracy, the Department of Justice has a lot of trust. And there's >> that's why it's so foreign to me, then, I guess. But but yet yet now and we heard this from Dalia Lithwick in in the episode with her that kind of presumption of trust is gone. Not only that, but the presumption that they haven't committed crimes is gone. And this judge well thinks that a crime was committed. He knows his order was disobeyed. Somebody gave made the decision to do that. It wasn't an accident. And that's a crime. And he wants to see it prosecuted. This, by the way, is a Republican appoint Republican nominee uh not not a Democrat. So it's

not purely partisan. And it really is somebody who's trying to stand up for the rule of law. And I really have to just applaud Judge Boseberg and the rest of us should see it as what it is, a a defense of the rule of law. >> And I want to point out the hero here is Arez Ruveni, the whistleblower who alleged the DOJ leadership said the administration intended to ignore court orders. Cory, we got to hit a break, but really quick, if that testimony holds up, what does that mean legally? Is this conspiracy to violate a federal court order? if a cabinet secretary knowingly allowed the deportation flights to proceed after being told to stop, which seems to be the case. I mean, is it just a crime? Is it a constitutional crisis?

Is it both? Well, contempt of court, criminal contempt is a real thing. If you defy a judge outwardly and conspiracy might involve, you know, multiple people, uh, yes, that that could be prosecuted for for contempt. And let's see. There's a good chance that's going to happen. >> Oh, boy. [laughter] Let's take a quick break and when we return, let's uh talk about this and other matters with Leah Litman. This is the oath in the office. Welcome back to the oath in the office. I'm John Fugalang. Professor, uh the Dirty Six of the Court, they're they're gearing up to hear a monumental challenge to birthright citizenship. I think we're going to need some help to to process what's going on.

>> We're going to talk about that. We'll also talk about the oral argument uh this week and the uh question of whether or not the president has the authority to fire uh the FTC commissioner regardless of um laws that that limit political firing. And who better to go in depth on these uh questions, which we've talked about before, but really I needed to bring in a ringer uh than uh Professor Leah Litman. Uh I was saying we've only had a few return guests, but we're so happy that uh Leah will join us again. Uh Leah Litman, of course, is the author of Lawless, uh How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. She's a professor of law at University of Michigan Law School and co-host of the great podcast, which it's been my pleasure to be on, uh Strict Scrutiny.

So, welcome back to the Oath in the Office, uh Leah Litman. >> Welcome. >> Thanks so much for having me. >> My pleasure. I should say too, we met, I think, when you were uh editing uh that great um blog uh take care in the first Trump administration, which seems, >> you know, those crises were serious, but somehow they pale in consideration [laughter] pale compared to what we're seeing. I wanted to I want to get to birthright citizenship, but let's start by talking about this oral argument. We've introduced the case. um you know the question of the unitary executive and hiring and firing in some ways seems abstract to people I think but it's as you you of course will help us to explain so important to the structure of the federal government. So tell us I mean both what's at stake in your view uh and and how it went in this oral argument.

>> Yeah I mean there's so much we could talk about with respect to this oral argument. Um, I guess what's at stake is whether there are going to remain pockets of independence and expertise within the administrative state, which of course is like the most powerful and effective part of the federal government today. Like that's how most federal regulation gets done through agencies like the Federal Trade Commission or the CFPB, the Consumer Financial Protection Bureau, or the EPA, the Environmental Protection Agency, you name it. And so the question here is whether the president has to have the power to fire everybody who heads these agencies because the president has to have the power to fire anyone who exercises significant executive power. And if you want to understand like the implications of that theory, I mean like look no further than who is leading HHS or who is leading right the Department of Defense,

right? Like when you can install these political nut jobs, like that just absolutely visiates the ability of the federal government to serve the people's interests. And he wants to do this with again the entire administrative state like including agencies that you know >> the National Transportation Surface Board, right? And like other agencies that just like do super basic stuff like they want to absolutely blow that up as well.

So essentially >> about [clears throat] Oh, sorry, John. >> Sorry. No, I'm just essentially every agency head would would be a political appointee serving at the mood swing of a given president. >> Every appointee, every agency head would be doing pull-ups at the airport in order to prove their loyalty to dear leader. >> And what's your feeling about I mean just now turning to the court and what they're likely to do. I mean, listening to it, of course, the the million-dollar question is whether or not there'll be some kind of carveout for the independence of the Federal Reserve, and he's long tried to get the kind of control that you're talking about over the Federal Reserve. I mean, reading the tea leaves and thinking about them, is the court really going to go that far that they're going to try to say that the executive power is so vast that you can't have an independent Fed or do you have a view on that? I think they're going to overrule Humphre's executive or basically say these agencies have changed so much that Humphrey's executive no longer it's applicable, but they absolutely are going to continue to make a carveout for the Federal Reserve

Board. I mean, part of what was so crazymaking about the oral argument that the court heard is the justices basically spent the entire time asking the lawyer for the federal government, John Sauer, to tell them how smart and correct they were. Like at one point Brett Kavanagh is like of course like the Federal Reserve Board that's different. And John Sauer is like well of course it's different. You said so. And it's just like that sort of unthinking reflexive reciting the talking points of the right-wing legal movement that just made my eyes and ears and brain want to explode.

But what is the I mean one one kind of followup on this is you know I I have no doubt that they're going to do what they want to do and that as you've argued often in the book and on this podcast that there is no theory really underneath a lot of it. But if we try to give them some of the benefit of the doubt, what what is the argument once they've said that the executive power includes this vast hiring and firing ability? Once we've gotten rid of Humphrey's executive and the idea that legislation can be created by Congress, it's within its power. uh that's protected from political firing. I mean, what what is to to at least conceptually keep them from using this unitary executive theory and going so far? And I I'll add to that, not just in the Federal Reserve, but getting rid of the Pendleton Act, which, you know, protects uh civil servants from political firing.

I mean, why not give it all to this wannabe dictator? >> I mean, why not, right? That was basically the subtext of this oral argument. You know, I'll talk about giving them the benefit of the doubt, but you know, part of what again was so frustrating about this oral argument is at one point, Justice Barrett asked the lawyer, you know, who was asking for the court to embrace this theory, do we even really have to identify the part of the Constitution that is the basis for this theory? like they're so convinced that the theory is correct, but they don't know what in the constitution actually requires this theory. Like she just admitted it. Um so you know like conceptually what are they getting at? I mean if you read what they write, if you listen to what they say, they are really convinced that one, the framers of the constitution made this decision that all of the executive power is vested in the president and therefore the president has to have control over everyone

exercising significant executive power. Like as if the framers like were completely unconcerned about the king. >> Yeah. >> Right. >> Oh, they wanted a king. They missed it. They missed having a king. [laughter] you know, like the lack of textual basis, the lack of historical basis. And then they add to this this notion that their theory, the unitary executive theory, is really awesome because it's great for democracy because the president is democratic. And it's like, have you heard of Congress? Right?

Because Congress writes these laws that creates these agencies and limits the president's power to remove them. they're democratically elected and democratically accountable as well. So I don't know why you think the president has to win in these cases. So like those are the foundations they have given for this theory and it's just very frustrating that they seem utterly immovable based on any contrary evidence because it's not like I'm saying things they haven't heard before. I mean, Justice Jackson is saying, "Well, what about Congress? They're democratic."

Justice Kagan says, "Okay, you used to think, you know, the people who came up with this theory used to think that the framers maintain that the president has to have all this power, but in the last 40 years, there's been all of this historical scholarship debunking it." You know, Justice Jackson says, "Okay, there's the vesting clause, which puts the executive power in the president." Congress has the necessary and proper clause that allows them to make all laws necessary and proper to give, you know, the powers of other departments, right? And to allow other departments to carry into those functions. And so, notwithstanding like all of the contrary evidence, they just continue marching down this road. And I don't know why.

I may I ask professor how you connect this to last year's presidential immunity ruling because that's the why for me. I mean I I we all praise George Washington for leaving after a second term and noly refusing the crown of staying a third term. I I kind of think I'm going to vote for anybody for president who's going to promise to abuse all of this power and all of this immunity and all of this lawlessness they've imbued in the chief executive. Whichever guy or woman promises to become president and use that power to undo that power, I think is going to had the chance to be the greatest presidential hero of our century. I was hoping Joe Biden would try to use some of his presidential immunity magic powers to undo some of this and return the power back to the Constitution. But h how do you relate it to I mean these sweeping criminal protections they have given this man who had cops beaten for a lie on the capital steps? Are we just watching this judicial project to rebuild an imperial presidency and they

they don't care who the founding cast member is? >> So, I think you have to link the imperial presidency and the right-wing legal movement's fixation on presidential power and presidentialism to their anti-regulatory um amen. >> And so, like, you know, I agree the immunity opinion is very much linked to what they are about to do in the Trump versus Slaughter FTC case. They both reflect the unitary executive theory, the idea that all of this power has to be concentrated in the hands of the president and that will inure to the benefit of Republican administrations because right in areas like immigration, you know, foreign affairs, you know, um they believe right that presidents and administrations should be doing more and so their theory is like gerrymandered to allow presidents to do the things that they want Republicans, you know, presidents to be doing and that Republicans want to do. and they gerrymander it in the other direction.

Because you might say, well, okay, if a Democratic president can just fire, you know, these crazy weirdos, right, who head these agencies, that's going to benefit Democratic administrations as well. Not so fast because in their back pocket, they still have the major questions doctrine. And so they will use that to say agencies can't do things, right, that are big, economically, politically significant. Um and so they will again allow Republican presidents to fire agency heads, gut these agencies, but they won't allow Democratic presidents to actually use the agencies to adopt public interested regulation. So it's not just presidentialism and anointing like a god king. It is also right in service of you know dismantling regulation and enhancing corporate power. I mean, what's so disturbing about the theory of democracy that they seem to have is that as Justice Kagan and as you said and Justice Jackson, it doesn't include Congress. It doesn't include the law makingaking body that they really seem to think in their opposition to to their

worries about what they think of as a fourth branch of government. That's what they're accusing the independent agencies of being. That they then focus their democratic theory on on the fact that there's one person that's elected and that's the president. And so the theories of democracy seems to be a kind of elected dictatorship. That's a real worry. I mean, one thing that you uh mentioned, but and I know you've written about this and I was eager to ask you about it and I'm glad you brought it up is, you know, really are and Justice Kagan asked this, are there any checks left? Is there any power of Congress?

And one place that optimistically you might think and we saw this in the tariffs case for instance and I think as you know I I have uh co-wrote this uh brief arguing that the major questions doctrine isn't just a limit on uh executive agencies but it is a limit on the president. And so when you have um laws like the um the international uh economic emergencies act that say no you can't do something well that should still be a constraint not just on agencies but on the president but I you know I know your skepticism so I wanted to ask you about it. I mean do you think that this court will just sort of refuse to see that uh major questions doctrine as a limit on presidential power and instead see it only as a limit on agency power? Uh yes. Um but I don't think they are going to like rule for the administration in the tariff case because like they have other ways of like advancing this anti-regulatory agenda and they hate taxes, right? And for them, tariffs are taxes. And so they look at the constitution and they say,

okay, it has this libertarian bent, right, that is skeptical of taxes. And therefore, right, the president doesn't have the sole authority, right, to do things that amount to taxes. Even though the president has the authority to do a bunch of other completely horrible, terrible, no good, very bad things. And so I think, you know, they are going to rule against the administration on some things. I think they will do so when it serves like the ideological project of the right-wing people movement and on issues where the Republican party is split and frankly ruling against the administration on terrorists will be good for the Republican party right he's terrorists and so like you know >> you know I I am >> right but like I just don't think the reason is like some principled account of the major questions doctrine >> yeah that really the I mean and I know this is a theme of the book but that you're seeing this thesis is developed even more clearly as we look at at at the cases before us that the idea that there's some doctrine or some idea or some consistency that we can get and so oh you know I think that that is an old

school way of thinking about the law oh well they have this doctrine the major questions doctrine we can use it to stop a president your worry and we're seeing this from the quality of the arguments is no basically this is about politics in the rawest form is that is that >> like yes I Again, just to go back to the FTC oral argument. I mean, at one point, you know, the Democratic justices are trotting out like, okay, all of these cases, all of these agencies, the civil service, right, inferior officers, the tax court, and you know what Brett Kavanagh's rejoinder to this was? Like, at one point he he says to John Sauer, the solicitor general, he's like, "Well, they have all of these cases, but you have Justice Scalia." And John Tower's [laughter] like, "Yes, Justin is the greatest jurist ever." And like they are so convinced like it just doesn't matter.

>> Like they're trading baseball cards and I got a Hank Aaron. I mean that's how it is for I mean for me you you were both constitutional scholars. For me as the mut in this conversation, I look at them >> expanding firing power, granting criminal immunity, flirting with ending birthright citizenship. I mean, to the the clueless lay person like myself, this is seemingly part of a sustained project to dismantle the basic architecture of a constitutional democracy. I mean, I mean, that that seems like it's all tied in together, especially the birthright citizenship.

>> Yeah. >> Yeah. I mean, let's turn to that. I mean, Leah, and and ask you about it. I'm wondering if there's some optimism here because at least you know there there are two theories that the conservatives claim to believe in that in my view and I think this is consistent with what you you're saying don't hang together. One is the unitary executive which is based in this you know few words that the executive power is vested in a president and somehow magically gives you this dictatorial theory of democracy. But the other thing they say they care about of course is the text. And so in the birthright citizenship case, seems to me, I mean, I can't even believe we're talking about this. They have an argument that the phrase subject to the jurisdiction, you know, means a much more limited thing than common sense would tell us. But we also have a text that seems to say if you're born in the United States, you're a citizen. Full stop.

>> Yeah. >> So, I mean, what do you think in this one? Is it just so embarrassing to to um to to go against the text here? embarrassing to go against. Justice Scalia believed in both those ideas, but he claimed to care about the text. They claimed to care about the text in the DOS decision. Uh I mean, are you more optimistic on this one or how are you how are you feeling? >> Yeah. No, I'm more optimistic on the merits of the birthright citizenship argument, right? I think it's a combination of like the utter embarrassment of the textual argument, the utter embarrassment of the historical argument, right? Like the people that drafted the 14th amendment were like, "Okay, this will make the children of immigrants citizens." and everyone was like, "Yeah, and we can debate whether that's good or bad, but yes, it will." So, there's no text, there's no history. And also, frankly, like this isn't one of the core projects of the right-wing liberal movement, right? This isn't something that the entire Republican party is on board with. And so, they are not going to face the same sort of ideological pressure, you know, that they do in a case like Trump versus Slaughter on the FTC. Now,

I think there is a chance this won't be unanimous against the administration. And I think that is a mark of just how wild and completely bananas this court is, right? And reactionary. The fact that we can't confidently say it will be nine to nothing against the administration. But you know when they rule against the administration like they are going to use that to launder right everything they have done to enable Trump and for the Trump administration 100%.

>> Yes they are. John Roberts cares about his place in the history books in ways that Donald Trump and Mitch McConnell do not. So, so you're not afraid, professor, that like Humphrey's executive, this could be yet another case where 150 years of precedent might suddenly become a dried husk as the chief justice put it. >> Yeah. So I'm not here right again because um combination of like the lack of basis that this argument has in anything like remotely approximating constitutional law and the fact that this isn't right a core project and hasn't been a core project of the right-wing legal movement. Right? It's not like this is the unitary executive theory which the Federal Society, Heritage Foundation, and all these other groups have been running non-stop programming on for 40 plus years that the Republican party has been actively selecting judicial nominees based on.

And so I think for all of those reasons, like this case is ultimately going to go against the administration. >> I mean, what do you I don't know how to um I'm thinking about this question. Great question John asked about how the um unitary theory fits with both the uh hiring and firing arguments that we're hearing but also the immunity arguments. I mean one difference between the immunity case and this just goes to the point that you've been making that this really is a long-standing project about hiring and firing is that you know at least since the me justice department this has been the goal of the conservative legal movement to give the president the power to hire and fire.

That's not true of immunity. immunity especially for former not just sitting presidents seems to come out of thin air. So I mean what's going on here? Is it just that they are so stuck in this um kind of pattern of of believing in this strong presidency for 40 years and then they're expanding it? Does it have something to do with Trump particular particularly? I mean one thing that at least the liberal justices tried to get going is to jar the conservatives into seeing that this is not Ronald Reagan. You know, it's one thing when you're talking about Ronald Reagan and you can trust that this isn't a, you know, deeply corrupt president who's just trying to enrich himself and his his his friends and family. Uh, but now that we're talking about Trump, that is what we're dealing with. So, I mean, how how does all this fit together, the kind of history of conservative activism and what's going on now?

>> Yeah. So, I think two things. One is I agree that immunity wasn't a long-standing project of the right-wing legal movement, but right the issue in the immunity case is whether Congress can restrict and regulate certain presidential powers, right? And that of course is very much right the unitary executive theory, right? Like can Congress limit the extent to which the president controls, you know, members of DOJ? Can Congress limit the extent to which the president controls the exercise of executive power and specifically federal law enforcement investigations and prosecutions? And you know, the kind of formulation of the unitary executive theory came in a descent by Justice Scalia from Morrison versus Olsen in which he singled out law enforcement functions in particular as core to the executive and something that presidents had to have control over. So while immunity, right, wasn't a kind of core project, presidential power over law enforcement functions, you know, has been. Um, so, you know, as to how much

of this is Trump, you know, versus other stuff, I do think that the Republican appointees suffer from what I would call Trump derangement syndrome. derangement syndrome where like they [laughter] think right like everyone else is out to get Donald Trump and [laughter] being too mean to Republicans and so like in the earlier birthright citizenship case the problem wasn't right a president trying to repeal right part of the 14th amendment the problem was lower courts right actually remedying you know that problem you know the problem in the immunity case isn't a president trying to interfere with the peaceful transition of power the problem is right like really mean prosecutors right trying to enforce criminal laws against him. And so I do think that this like you know the subtitle in my book called the conservative grievance like this fixation on Republicans being the victims is also probably driving some part of their decisions including the immunity opinion.

>> Oh yeah, absolutely. I've become a lot more terrified of Scalia law than Sharia law myself. But I mean where where where should Americans what should we be watching for next? You you're you're the professors. I mean, what can Congress what can a public realistically do if the court is going to keep on handing this man these massive new superpowers? >> Yeah. I mean, I I was going to ask a similar question. How how do I mean, we've been kind of one thing we've been trying to do with all of our guests. We did this with Senator White House last week, and I'll ask you too, just following up on John's important question, like how do we fight back? I mean, because one thing we can't do is just say, "Okay, the court decided they've destroyed democracy. We now live in a dictatorship. That is what they're trying to do. I agree.

>> But there's got to be ways for us to fight back. So, I mean, what what is it that you think, you know, is the right way to be thinking about where the hope can come from about how to recover from this moment? >> Yeah. Um, so I think there's short-term and long-term things, right? Obviously short-term, right, we are staring down the midterms. Um, you know, the Supreme Court just insisted that we are on the eve of an election. That election is 11 months from now. Um, the 2026 midterms. Um, so I think thinking about how to elect people to Congress, right, to state and local legislatores, to state and local offices who actually believe in exercising their political power and using it to make our institutions more democratic and responsive, you know, to um public opinion, right, to national majorities, right, and to actually shore up our institutions, you know, and ensure, right, that we live in a constitutional democracy. Like that's a short-term thing that we can all be working for. But long term, like realistically, like we have to convince people that when a pro-democracy coalition will, you know, regain power

at the federal level, that part of an agenda for democratic reform includes the Supreme Court, right? You can't let these guys just like hang out and lay back and potentially strike down a law that bans partisan gerrymandering or strike down a law that attempts to like keep dark money out of our elections. you know, that's just like not a sustainable arrangement and given again like they've shown their true colors. Um, the court needs to be a part of conversations, you know, that include eliminating the filibuster, banning partisan gerrymandering, you know, rethinking Senate malortionment, right?

Making DC and Puerto Rico states, you know, like everything and all of the above. But does it have to include a more radical way of thinking about reforming the court, packing the court, some sort of court reform that involves uh expanding the size impeachment as an option? Because the more I mean this is the question that we've been asking with everyone, the more we propose pieces of legislation, the more chance there is that the court will simply strike it down. Yeah. And in so many of these cases that we're talking about, they've simply blocked off the possibility of congressional power and for instance creation of independent agencies when it comes to protecting us against the next Donald Trump.

>> So I mean does that have to be part of the story? Is is is some that that's why I said right like the long-term goal has to be convincing like the pro-democracy coalition that part of the agenda includes the Supreme Court. Um and like changing the size of the Supreme Court, whether that is through impeaching justices, right, or adding new justices has to be part of that. I think reducing the powers that the Supreme Court has, you know, should also be part of the equation. But you can't do that unless you change who is on the Supreme Court because they are not going to let Congress limit their power, >> right? Something to keep them from being completely corrupt and taking bribes in the open would be nice, too. [snorts] >> Yeah, exactly. But they won't let that happen either.

>> Oh, I know it. Yep. They like they like their they like the tips. >> I've got to say this has been a great conversation. Leah Litman, professor at University of Michigan, author of Lawless, how the Supreme Court runs on conservative grievance, fringe theories and bad vibes. I recommend it to you. So glad that you've come back as a for a second time. Now I'm going to try to work on getting you for a third time. Uh what a pleasure to have you on the in the office. Thanks for joining us. >> Thank you, professor. >> Thanks again for having me. >> Thank you so much, Leah Litman. It's great to have you back. and professor of Brett Schneider. I want to thank you.

This has been another crazy episode for a a number two ranked podcast on Amazon Government Podcast. >> Absolutely. Uh we rose to our record, number two. The listeners uh keep coming and uh tuning in telling their friends. Please keep doing that. Subscribe if you haven't uh done so. You could also find us on Substack, The Oath in the Office, and Corey Brett Schneider as well as John Fugalang. We're all on uh Substack and also our YouTube channel uh The Oath in the Office. Uh thanks for joining us and what a pleasure it is to do this with you every week, John.

>> My book is called uh separation of church and hate and as always it's a pleasure. Cory, thank you. And we'll see you guys next week on The Oath in the