The Daily - The Supreme Court Expands Presidential Power. Again

0:01From the New York Times, I'm Micah Babaro. This is a Daily. In a major ruling on Monday, the Supreme Court delivered one of the biggest changes in decades to how the federal government works. And then, the court turned around and announced an exception to its own ruling. Today, my colleague Ann Marimo explains what the court was up to. It's June 30th.

0:55And thank you for coming on, on a busy Supreme Court day for you. Appreciate it. Thanks for having me. So, and Monday was a day of big, and I think if we're being honest, somewhat contradictory rulings in theory by the Supreme Court about the scope of presidential power. So let's start with what just happened and what it means. So there are two big decisions on Monday.

1:21The first was a major expansion of presidential power. It makes it far easier for presidents to fire the heads of independent agencies like the Federal Trade Commission. It says the president can fire regulators for no reason or any reason at all. And these have been traditionally independent agencies. So the court's decision really upends the structure of the federal government as it's been for over 100 years. Right. It's not every day that you hear a colleague say that 100 years of federal government precedent and practice has been offended, but that's what you just said. That's right. At the heart of this case was a 90-year-old precedent from 1935 that said Congress could protect these independent regulators from being fired on a whim by the president, but now the court said today that they can't. Right. Basically, they overruled a major precedent. That's the first case.

2:12That's right. And then the second case, as you mentioned, seems somewhat contradictory. In this case, the court carved out an exception for the Federal Reserve, the influential central bank. The court said this is a unique institution, that independence is really critical to overseeing monetary policy. And as you'll recall, this is the case where President Trump tried to fire Lisa Cook, one of the governors of the Federal Reserve Board. And here the court said, unlike all these other agencies, that the president can't just remove her on a whim, that there has to be cause. And in this case, the court's decision here was a little bit technical and procedural, but it upholds the principle that the Federal Reserve is unique and that its independence is really critical in our system of government. Got it. So in summary, the court on Monday vastly expands the president's power by saying he can pretty much fire whoever he wants from these previously

3:09quote unquote independent federal agencies on a whim without any cause, which would seem to be a major, major change to how the federal government works. And yet it said all of that is true except for the central bank, which is a tricky bit of legal logic that we're going to talk about. But let's start with the first case, the biggest of the two that gives the president this power to fire so many leaders of federal agencies that Previously, he couldn't and overturns these decades and decades of precedent. So the first case is about Rebecca Slaughter, a Democratic nominee of the Federal Trade Commission, which by design has to have both Democratic and Republican nominees. She was actually appointed by President Trump in his first term. And then he comes back to office again in his second term and gets rid of lots of Democratic nominees of independent agencies, including Rebecca Slaughter. And then she goes to court and sews.

4:06Right, Slaughter goes to the court and says, the reason President Trump is firing me, despite appointing me, is that he doesn't like my politics now and that's not legally sufficient given all these legal protections that surround the kind of commission I'm on. And just really does why these particular agencies have these specific job protections.

4:25Yeah, there's a long history of these types of agencies that Congress intentionally created to be insulated from the whims of whoever's in the White House. The idea is that these agencies that are setting consumer protections and workplace protections are supposed to be free from politics and filled with technocrats and experts in these fields.

4:46But despite these protections that Congress put in place, the Supreme Court's conservative majority has started chipping it away at those and several decisions that really embrace this idea of the unitary executive. And that is that the president is the head of the executive branch and has to be in charge of all the people who are filling these important executive branch agencies. Right. We talked about the unitary executive theory. I always have to say it several times. Unitary executive theory several times on the show with our colleague Charlie Savage.

5:16Basically, the idea is that in a well-run executive branch, no one who works for the president should be protected from accountability from that president, and that these independent agencies like the Federal Trade Commission, like the Securities and Exchange Commission, and so on, that the job protections held by the leaders of these agencies don't make any sense. They're basically unconstitutional if you believe that the executive has true authority across his or her branch of government. That's exactly right. And John Roberts, who wrote the opinion today, has been embracing these theories since he was a young lawyer in the Reagan administration, basically says that the president should not have to work with people in these executive branch agencies who don't share his views and that, therefore, President Trump was entitled to fire Rebecca Slaughter as he did here.

6:12The Chief Justice really seems to be saying is that from the moment these agencies were born, and my recollection is that they're kind of New Deal era independent agencies, there was a flaw in their conception. And that flaw was that the president couldn't fire their leaders, that their leaders would be insulated from presidential authority.

6:35That's right. And he's also saying that these agencies were very different than they are today. He talks about various statutes that have evolved since then that have given these agencies more executive power. And that's one of the reasons why the president needs to be able to control the rules that they're enforcing and the penalties that they're assessing. Of course, the other side of this argument is that even if these agencies have changed the very nature of their work, which is regulation, the protection of consumers or investors is unique within the executive branch and should be protected from political forces, that they require independent expertise, that whoever is deciding which publicly traded company should be penalized by the SEC should not just be someone the president likes or agrees with, but someone who knows public financial markets inside out.

7:31and also to shield them from influence from companies and various allies of the president. That's the idea that they're supposed to be independent. And so this is the point that the dissent makes in today's opinion, written by Justice Sonia Sotomayor and joined by the other two liberals on the bench, that the decision today, in addition to giving the president much more power, is really the court taking power for itself and deciding that these protections no longer apply. And they're saying it's going to have lasting and fundamental changes to the structure of the government. Right, and our colleague who was in the courtroom for the dissent described this scene as pretty visceral.

8:11Yeah, so it's really unusual for the Justices to read their dissents from the bench. And that's what Justice Sotomayor did today. It's a real sign of just their deep disagreement. She went on for about five minutes, according to our colleague Ashfari Akavi, and just looked very stoic and concerned about the implications of this decision. Her written dissent went on for almost 50 pages.

8:34read to you what she said. She says, in granting the president this unbridled authority, the court upends its precedent, misconstrues our history, and sheds any pretense of judicial modesty. And for the Supreme Court, those are really strong words. And what do you think that Justice Sotomayor and if we can imbue what she's saying to the other liberal justices who signed her dissent is up to in writing that?

9:01I think the liberals in Justice Sotomayor's dissent are expressing their deep frustration with a new example of the court overturning a long-standing precedent and the culmination of this long-standing goal of the conservative legal movement. We've seen this time and again in recent years with the court overturning Roe v. Wade getting rid of affirmative action and college admissions. So this is sort of a continuation of that frustration from the liberal wing of the court, which is very outnumbered with six to three.

9:31A final question on this first ruling. What's going to happen inside these agencies whose leaders had had these job protections and now lost them? Practically speaking, what do we think it's going to look like? Well, there are more than two dozen independent agencies with a similar structure. And so what it means on the ground is that the president can go in and continue to try to get rid of democratic commissioners. And as a result of this ruling, people won't be able to sue, incite these laws and job protections that have been on the books.

10:03Right after the ruling today President Trump went on truth social he called this a big win He said it's a historic and unprecedented ruling one of the most important ever with respect to presidential powers Suggesting that he may be eager to follow up to the ruling with firings Exactly, but the president wasn't celebrating the court's second decision about the Federal Reserve Because there They made very clear that the Federal Reserve is different and is independent, and the president won't have the same power over those leaders. And we are going to talk about that case right after the break. We'll break back. So, and let's turn now to the second Supreme Court ruling that came down on Monday revolving around the Federal Reserve and how it is that the same Supreme Court got to such a different ruling when it came to the Federal Reserve than it did with all these other

11:08agencies. Just describe that case and how the court got to the result it did. So this is the case of Lisa Cook, a member of the Federal Reserve Board of Governors who Trump tried to fire. You'll remember the president has been putting a lot of pressure on the Federal Reserve to lower interest rates. He did not like Lisa Cook's views and policies, and he fires her, and he says the reason is because of these unproven allegations of mortgage fraud. He says that she's misstated her finances on mortgage applications. And Lisa Cook and her lawyers...

11:40sue and go to court and say, you can't fire me without good cause. That's what the law says. And it really teased up this test for the Supreme Court. Is the Federal Reserve like these other agencies where they're questioning the job protections of regulators or is the Federal Reserve different? Because the lawsuit involving the Federal Trade Commission and Trump's decision to fire one of the leaders there and this case involving Lisa Cook and his decision to fire her from the Federal Reserve, they're happening more or less simultaneously in the court system, and they're very much speaking to each other. That's right. And here we see in Lisa Cook's case, the court says very clearly the Federal Reserve is different and has a unique history that Lisa Cook can only be fired for cause. And they lay out all sorts of reasons why she needs to have a different process here if Trump wants to fire her. Right. The Supreme Court is not saying that someday Trump can't fire Lisa Cook,

12:39The court is saying that the way he fired who was wrong based on the unique job protections afforded to the Federal Reserve. But help me understand why the court distinguishes the Federal Reserve and the need to have cause to fire someone like Lisa Cook from all these other agencies we talked about in the first half of our conversation where apparently you don't need cause.

13:01So both of the opinions on Monday were written by Chief Justice John Roberts, but the Federal Reserve case had a very different lineup. You had all three liberal justices and Trump nominee Brett Kavanaugh joining the Chief Justice to carve out this exception for the Federal Reserve. And they spent a lot of time explaining why there's this exception. They talk about the history of the Federal Reserve. They keep talking about its unique role in our economy and in the world economy and talking about how crucial it's independent.

13:31and that's why they say it's different. I just want to dwell on this for a minute because I'm sure to some people it will make total sense, but I'm sure to others it seems like a very strange distinction to say that the president can have free reign in every agency in the executive branch even when it was supposed to be independent as envisioned by Congress except for this one because is the safety of a child protected by the Consumer Product Safety Commission or the companies that are regulated by the Securities and Exchange Commission, are they that much less important than the work done by the Federal Reserve?

14:12Yeah, I think it was significant that the court heard in amicus briefs from former top Treasury officials and former Fed Chairman. They warned the court that if they allowed the president to remove Lisa Cook while this litigation was underway, there would be widespread consequences for the global economy, for interest rates, and that it was really critical to protect the autonomy of the nation's central bank in an outsized way from these other agencies.

14:39I wonder if these former Treasury secretaries are making a legal distinction? What makes the Fed different from these other agencies? Or are they making a kind of a practical policy distinction? And if the majority adopted their views, which they have, are they embracing a legal distinction here or just a practical policy distinction?

15:00That's a good question. In dissent, Justice Clarence Thomas says that these are policy arguments for an independent bank, but that actually it's not constitutional if the president doesn't have free rein to fire independent regulators. Basically, Thomas is saying that you cannot grant the president the freedom to fire everybody and all these other agencies and carve out the exception of the Fed. What's good for the goose should be good for the gander and you guys have screwed this up. That's right.

15:30So, and what happens now to Lisa Cook? She seems like she's still in a pretty severe state of legal limbo. Yeah, this was a narrow victory for her today. The court is not saying that Trump can never fire her. It's just saying that the way he did it was improper and that she deserves some sort of process. And for a court that gets criticized for not checking the president, here they're calling these allegations half-hearted. They're saying that trying to fire someone in a social media post was not the right process. And they're basically saying, if you want to do this, you need to try again and to do it the proper way.

16:05Right. It's striking to me that you bring up the subject of this court and Trump's power because that's where I'd like to end our conversation. And so let's talk about how these two cases fit into our larger understanding of this entire term when it comes to presidential power. I know the term isn't over.

16:27There's at least one major ruling still in the offing, which is birthright citizenship. The president has tried to end it by executive order. We think based on reporting that you and our colleagues have done and based on the questions that the justices have asked in oral arguments that they are likely to find against the president when it comes to birthright citizenship. So if we speculate for just a moment that that is how that case ends.

16:54And we look at the entire term. How should we think about where this court, in the beginning of Trump's second term, has landed on the question of presidential power?

17:10I think depending on what happens on the final day, what we've seen is the court's conservative majority picking some key issues to stand up to President Trump on, especially issues that were personally important to him. As you'll remember, some of the conservative justices joined with the liberals to strike down his sweeping tariffs. And if we do see them push back on birthright citizenship, that's something that's very important to him. As you'll recall, the president showed up in the courtroom, the first sitting president to do so to watch.

17:39But the overall takeaway is that it's a term where the court has really expanded presidential power, in particular on immigration and on our president's ability to fire government officials. We saw this last week with the removal of protections for Haitians and Syrians who've been living and working in this country legally. And then we're seeing today the power to fire traditionally independent regulators. Right. And on the other side of presidential power, of course, is frequently Congress. And in the bigger of the two rulings on Monday, as you said, Ann, power was taken from Congress because these four cause job protections, this idea that you can't just fire somebody on a whim, that was created by Congress and the court just overturned it. Similarly, this court has weakened the Voting Rights Act, a major achievement.

18:36of Congress, states can now break up black majority districts under a ruling by this court from not so long ago. And if you step back even further, in the many years I have been thinking about this court, it has been undoing the work of Congress, I think, about Citizens United and how that gutted campaign finance reform. I mean, when we think about this court and presidential power, should we be thinking not just about president and power, but about this conservative majority on this court pretty systematically weakening Congress? Or should we think of it as putting Congress in its place?

19:15Yeah, it's all about the balance of power. And as you say, they are expanding the president's power. They are straining Congress's power. And at the same time, the conservative majority is taking power for the court that they get to say whether or not the Voting Rights Act is still needed in this way. And similarly, whether they're saying Congress can't constrain the president when it comes to firing independent agency officials despite laws they passed many years ago.

19:42So by weakening Congress, the court is to some degree not just strengthening the executive, it's strengthening the judiciary, it's strengthening itself. Absolutely. I never thought of it that way. I just want to end by meditating for just a moment on the work that a conservative legal movement has accomplished, because this ruling does for like a capstone to that movement. And it's built on this idea that the presidency should be more powerful. Yes.

20:11power gets distributed around, maybe the court's getting a little more powerful. But at the end of the day, it's the presidency that's gotten the most powerful because of these court rulings over the past many years. And because it's a conservative legal movement, it feels like one that has been accomplished in the pursuit of conservative goals. But the power that's been given to the president will outlive this president by a long time and perhaps end up in the hands of a Democratic president who will use it for entirely different ends. That's right. We tend to think about these decisions in terms of President Trump and what can he do in the moment. But these rulings will outlast him and this power will apply to whoever is in the White House and will be very long lasting. Right. And could in theory lead to, instead of deregulation,

21:02some of the most far-reaching regulations we've had in decades. We don't know because we've only really experienced it in recent history through the prism of a maximalist Republican president.

21:16Well, I've talked to lots of legal analysts on the left who say this decision, yes, it will upend the structure of the government, but it means that if a Democrat comes into the White House next, that person will have a lot more freedom to get rid of those commissioners and fire those commissioners that Trump has appointed and to change the direction of these agencies. So as much as President Trump has remade this government in his image, these rulings, which because he created this conservative majority in a way he is partly responsible for will help see the next Democratic president undoing this. Exactly. Because of this ruling, whenever the pendulum swings in the other direction, it's going to swing hard. And ironically, that's what the dissent said in Monday's first ruling.

22:11that these agencies were intentionally structured to be bipartisan, to be filled with experts, and to not change depending on who was in the White House. But because of the court's ruling on Monday, that's exactly what's going to happen. And thank you very much. We appreciate it. Thank you. We'll be right back. Here's what else you need to know today. The Supreme Court issued two other notable rulings on Monday in one of them.

22:57the court upheld state laws, allowing ballots to be counted even if they arrive by mail after election day. Democrats vote by mail in larger numbers than Republicans, and the ruling was a blow to President Trump's attempt to restrict voting in ways that he hopes will advantage Republicans in the midterm elections. Meanwhile, the Supreme Court declined Trump's request to review a $5 million civil judgment against him. The judgment stemmed from a 2023 trial in which a jury in Manhattan found Trump liable for allegedly sexually assaulting and defaming the journalist E. Gene Carroll. Trump has repeatedly denied the accusations. Today's episode was produced by Claire Tennis-Getter and Lexi Diao, with help from Nina Feldman.

23:58It was edited by Devin Taylor and Patricia Willins and contains music by Marion Lozano. Our theme music is by Wonderly. This episode was engineered by Chris Wood. That's it for the Daily. I'm Michael Voboro. See you tomorrow.