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Episode: ‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power

Author: New York Times Opinion
Duration: 00:45:27

Episode Shownotes

Donald Trump will enter office at a time when presidential power has significantly expanded, because of a string of Supreme Court decisions in recent years. These decisions can be understood to have two functions: They give presidents a “sword” to act more decisively and unilaterally, and a “shield” that protects

them from prosecution against actions taken in their official capacity. What will these capacities mean for Trump’s second term — especially as he has promised to radically transform the federal government?Gillian Metzger is a professor at Columbia Law School who has studied the presidency, the administrative state and the Supreme Court’s relationship to both. In this conversation, guest-hosted by Kate Shaw, a New York Times Opinion contributing writer and law professor, Metzger discusses two key Supreme Court cases — the Trump immunity case, which gave presidents broad protections from prosecution, and the Loper Bright Enterprises case, which overturned the Chevron doctrine, expanding judicial power. Shaw and Metzger also cover how much leeway Trump actually has to take some of the bolder executive actions he’s floated, including ending birthright citizenship; what still remains uncertain about the federal government’s regulatory powers in the post-Chevron regime; and more.“The Demise of Deference — And the Rise of Delegation to Interpret?” by Thomas W. Merrill“The DOGE Plan to Reform Government” by Elon Musk and Vivek RamaswamyBook recommendationsCreating the Administrative Constitution by Jerry L. MashawThe Forging of Bureaucratic Autonomy by Daniel Carpenter“Curation, Narration, Erasure” by Karen M. TaniThoughts? Guest suggestions? Email us at [email protected] can find transcripts (posted midday) and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.This episode of “The Ezra Klein Show” was produced by Elias Isquith. Fact-checking by Michelle Harris, with Mary Marge Locker. Mixing by Isaac Jones, with Efim Shapiro and Aman Sahota. Our supervising editor is Claire Gordon. The show’s production team also includes Rollin Hu, Kristin Lin and Jack McCordick. Original music by Pat McCusker. Audience strategy by Kristina Samulewski and Shannon Busta. The executive producer of New York Times Opinion Audio is Annie-Rose Strasser. Unlock full access to New York Times podcasts and explore everything from politics to pop culture. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify.

Full Transcript

00:00:00 Speaker_01
Hey, it's Ezra. So I'm taking a bit of time off this month and we're going to have a few friends of the pod on the show to guest host episodes. And today's host is the brilliant constitutional scholar Kate Shaw.

00:00:12 Speaker_01
She is a professor at the University of Pennsylvania Carey Law School. She's co-host of the podcast Strict Scrutiny and a contributing writer for New York Times Opinion. Enjoy.

00:00:27 Speaker_00
From New York Times Opinion, this is the Ezra Klein Show.

00:00:54 Speaker_02
In recent years, the Supreme Court has handed down a string of decisions that have fundamentally changed the federal government.

00:01:00 Speaker_02
Court decisions have hamstrung the capacity of administrative agencies, and they have shored up the power of both the president and the court itself.

00:01:08 Speaker_02
These decisions mean that Donald Trump will be entering office at a time when presidential power has arguably never been stronger or more unchecked. At the same time, Trump has promised to radically transform the federal government.

00:01:22 Speaker_02
Now, I don't want to make the mistake of ascribing too much coherence to Donald Trump's vision of the federal government or of governance more broadly.

00:01:29 Speaker_02
But it is worth taking a hard look at the way the court has reshaped the tools at his disposal and what that could mean for how the federal government might work and what it might be able to do going forward.

00:01:40 Speaker_02
To talk about all of that, I wanted to bring in Jillian Metzger, a professor of law at Columbia Law School, who's been thinking very deeply for a long time about the presidency, the administrative state, and the Supreme Court's relationship to both.

00:02:02 Speaker_02
Jillian, welcome to the show. Thanks for having me. OK, so to begin, I thought we could start with a proposition.

00:02:09 Speaker_02
President elect Donald Trump will enter office in January 2025 with more power and with fewer constraints than any other president in modern U.S. history. Agree or disagree?

00:02:21 Speaker_03
I agree. I agree. I think there are some factors that complicate the assessment a little bit in terms of some decisions that have pulled back on administrative power compared to presidential power.

00:02:31 Speaker_03
But when you're focusing on presidential power specifically, the president's control of the executive branch or the most recent immunity decision, the president's immunity from prosecution, those are decisions in areas where the president's powers have really been expanded.

00:02:45 Speaker_02
So I agree that there are certain complexities, and I do want to get into some of those.

00:02:49 Speaker_02
But it seems at the outset as though we do agree that the president's power has been expanded in recent years and recent decisions, and that the immunity decision is really a critical piece of that story. Absolutely.

00:03:00 Speaker_02
And so I think that actually one way to think about a number of recent Supreme Court opinions, maybe first and foremost the immunity opinion, is that they give the president both a sword, right, with new powers, and a shield, right, new protections from any sort of meaningful accountability.

00:03:16 Speaker_02
So one of the most important decisions that I think operates as both sword and shield is the court's immunity ruling from earlier this year, Trump versus United States, in which the Supreme Court handed Donald Trump sweeping new immunity from criminal prosecution for virtually any official acts taken as president.

00:03:35 Speaker_02
So what did you think was the most significant consequence or implication of that ruling?

00:03:41 Speaker_03
I think a couple are really significant. I mean, I think it's really an unprecedented expansion of immunity for the president. The court divided up the instances when the president would be immune into a couple of different camps.

00:03:53 Speaker_03
So one of them has to do with what we might call core or exclusive presidential powers, where the president has authority and it can't be intruded on, for example, by Congress.

00:04:03 Speaker_03
In that area, what was really striking was how broadly the court viewed what counted as core power, including things like

00:04:10 Speaker_03
prosecution and investigation, suggesting that maybe Congress can't impose restrictions on how those are undertaken, which would be really quite novel.

00:04:18 Speaker_03
The other aspect was one that you mentioned about how broadly it viewed official acts and the tests that it established as to when immunity would apply.

00:04:28 Speaker_03
And it said the immunity would be presumptive, but it's kind of hard to see how that presumption is going to be overturned because immunity is going to be there unless the government can show there's no intrusion on the president's power.

00:04:39 Speaker_03
That's a really high bar. And so for a vast area of actions, anything up to the outermost perimeter of the president's official authority, all of that are areas in which the president's going to be immune. And that's a pretty significant move.

00:04:53 Speaker_02
Just to underscore the first thing that you mentioned about the opinion, I continue to be kind of gobsmacked by the breadth of some of the rhetoric about things like the exclusive authority of the president over the investigative and prosecutorial functions of the justice department and its officials.

00:05:11 Speaker_02
Since essentially time immemorial, to my mind at least,

00:05:13 Speaker_02
There has been a complex and nuanced and subtle set of dynamics and relationships between the president and other entities in the executive branch, but maybe the Department of Justice first and foremost.

00:05:24 Speaker_02
This delicate dance of the White House trying to maintain arm's length relationships with investigations and prosecutions at the Justice Department and that I think is something presidents of both parties have engaged in in good faith.

00:05:36 Speaker_02
And this opinion just seems to wipe all of that away and say, all of the power resides in the president. He can direct investigation and prosecution full stop, or at least he can't be prosecuted for any of that.

00:05:47 Speaker_02
There might be some distance between the proposition that he can do whatever he wants, and he can do whatever he wants and not be prosecuted for it, right? I think that those two might not be exactly the same.

00:05:57 Speaker_03
That's true. They may not be exactly the same.

00:05:59 Speaker_03
And the focus on immunity for the president, I think, allowed the court to think that it could use some broader phrasing than had it really been thinking about the respective authority of Congress and the president in this area, that it might be more willing to acknowledge Congress has more of a role to play here.

00:06:14 Speaker_03
But I think you're really right.

00:06:15 Speaker_03
I mean, one of the interesting things, particularly post-Nixon, is how much attention has been paid to try and ensure the independence of prosecution and investigation to make sure that those tremendous powers of the government are not used to serve president's political goals.

00:06:32 Speaker_03
And this opinion seems oblivious or to intentionally get rid of that.

00:06:37 Speaker_02
Oblivious or hostile to the project of maintenance of that separation. Yeah, I honestly don't know which it is. But I do think, you know, you mentioned the focus on the president.

00:06:46 Speaker_02
And that I think is one important question about the sweep of this opinion, how focused it is on just the president personally, and how much it will have ripple effects involving underlings of the president, right?

00:07:00 Speaker_02
So on its face, this opinion just talks about the immunity of the president, right? It doesn't say anything about shielding the president's top deputies from potential criminal prosecution.

00:07:09 Speaker_02
So I guess, is that also how you read this opinion as limited to the president by its terms and on its logic? Or can you imagine the Supreme Court deciding to expand the immunity it announces in this opinion to encompass top advisors, say?

00:07:24 Speaker_03
I think if you focus on the language of the opinion, they were bullseye on the president and really concerned about future administrations calling former presidents into court and the kind of abuse that our polarized politics might lead to.

00:07:38 Speaker_03
I don't think they took a broader view and thought about all of the individuals and officials that the president would need to be interacting with in order to exercise his presidential power.

00:07:48 Speaker_03
And I think it really would be a significant move to say all of those people are now immune. That said, the way the president exercises power is through other officials. The president doesn't directly engage in prosecution or investigation.

00:08:03 Speaker_03
So it's somewhat naive to think that if you're talking about this as a core presidential power, that it's not going to have an overhang, at least for a lot of officials with whom the president has to engage in order for him to exercise that power.

00:08:15 Speaker_02
There's this line in the opinion, the president is a branch of government. It's like, no, he's not. There are two million people in a branch of government. He is enormously important. And I don't think either of us wants to discount presidential power.

00:08:27 Speaker_02
I actually really do think a powerful presidency is a part of our constitutional tradition, at least now, maybe not from its inception.

00:08:34 Speaker_02
But the idea that he is a branch of government, which is, it just seems like you said, is it oblivious or is it hostile to the reality of what the executive branch really looks like?

00:08:43 Speaker_03
I think it also connects to the theoretical underpinnings that the decision reveals. And that's the connection here to this idea of what's called often unitary executive theory.

00:08:54 Speaker_03
And the idea is actually that indeed all executive power reposes in the president.

00:08:59 Speaker_03
And if you take that view and then you have the language that says the president is a branch of government, again, it's unclear how you're going to pull out those other officials and say Congress can regulate and impose liability on them, but not on the president.

00:09:12 Speaker_02
So but even if down the road you can imagine this line of thinking resulting in such an expansion, as we sit here, I think it would be rash if I were advising the future presidents underlings to assume that they're necessarily going to enjoy the same scope of immunity that the court announces as to the president personally.

00:09:30 Speaker_03
I think that's right. And I would think that the underlings would also be careful about that. That said, there's one aspect of the immunity decision that I don't think has gotten that much play.

00:09:40 Speaker_03
One of the things that knowing the president and others may be liable for criminal prosecution does is it affects what happens inside the government.

00:09:48 Speaker_03
And it affects the ability of executive branch lawyers to push back at actions that violate the law and to make clear the kind of consequences that violating the law could mean.

00:09:59 Speaker_03
If you've got immunity outside, then you can't make arguments based on those kinds of legal consequences that are going to carry as much weight inside the government.

00:10:06 Speaker_02
I think it's such an important point. And there were so many examples from the first Trump term of the possibility of criminal exposure actually operating as this kind of important tool that Trump advisers use to resist some of Trump's most extreme

00:10:22 Speaker_02
directives or instincts on the grounds of potential future criminal liability, right?

00:10:26 Speaker_02
Like, think about former White House counsel Don McGahn, who told investigators that he resisted Trump's entreaties to get him to direct special counsel Robert Mueller's firing on the grounds, according to McGahn himself, that if Trump removed Mueller or interfered with the investigation,

00:10:43 Speaker_02
that action would be used to accuse the president of obstruction of justice.

00:10:47 Speaker_02
It is very hard after the immunity decision to see how a future White House counsel makes those same arguments to a president determined to push or transgress the boundaries of the law.

00:10:58 Speaker_03
I think that's right. You know, then what you're relying on is going to be the officials pushing back. But the president may very well then fire them until we get somebody who's more complacent.

00:11:08 Speaker_02
So that's a really good segue to the next topic I wanted to turn to, and that is to kind of take this question of presidential control and control over personnel and firing specifically to talk about the FBI director.

00:11:21 Speaker_02
Okay, so last week, FBI director Christopher Wray said that he would resign at the end of the Biden administration.

00:11:26 Speaker_02
Trump had made it very clear during his campaign that he wanted Wray gone, but there was some question about whether he would and maybe whether he could fire Wray outright.

00:11:36 Speaker_02
The FBI director is one of a few presidential appointees whose position is designed to be held for a term of years, in his case, 10 years. So these are not people who just serve at the pleasure of the president.

00:11:47 Speaker_02
They're actually meant to be in their position for a set period. Now, there's nothing in the statute that says the president has to provide a good reason before firing the FBI director.

00:11:56 Speaker_02
But the 10-year term, the legislative history, and consistent practice make clear that one of the goals in creating this 10-year term was to insulate the FBI director from the president.

00:12:07 Speaker_02
So, okay, the question of Wray getting fired is now moot, but the question remains as to other officials, members of what we think of as independent agencies, like the Federal Trade Commission or the Federal Reserve, who both by tradition and by law have more independence from the President than, say, the Secretary of Defense or another member of the Cabinet.

00:12:27 Speaker_02
So, Gillian, can you start by talking about what the older Supreme Court cases have to say about that?

00:12:32 Speaker_03
Sure. So there's actually a lengthy history of removal restrictions and also debate over them.

00:12:38 Speaker_03
And as you note in your question, the nature of the position makes a difference in terms of whether or not you might think that a cause removal restriction is appropriate. The court in the 1920s invalidated a removal restriction for a postmaster.

00:12:52 Speaker_03
But pretty much since then, it has upheld a whole slew of for-cause removal protections. One of the most important decisions came in 1935, and it involved the Federal Trade Commission.

00:13:04 Speaker_03
And there, the court upheld a for-cause removal restriction for the members of the commission at the very top of the agency.

00:13:10 Speaker_03
And the court argued that they were exercising more quasi-legislative and quasi-adjudicative authority, but didn't seem to have any qualms about the fact that you could protect them from presidential removal.

00:13:20 Speaker_03
The court has also long upheld what we might call removal protections for inferior officers, which are basically officers who have somebody supervising them, even though they may also exercise some discretion.

00:13:34 Speaker_03
And one of the big decisions on inferior officers actually happened in 1988, and it involved the independent counsel, which was an official who was charged with investigating

00:13:45 Speaker_03
high-level members of the executive branch when there were some concern they might have acted unlawfully. And there again, the court upheld the removal restriction on the independent counsel.

00:13:56 Speaker_02
Okay, so we have through these cases and some others, a pretty well settled understanding that at least as to some positions, Congress can decide that there are reasons to give officials a degree of independence from the president.

00:14:09 Speaker_02
And one way of doing that is to place limits on the president's ability to fire those officials. And then around 15 years ago, the Roberts Court begins to really cut back on that reasoning. Tell me about those cases.

00:14:21 Speaker_03
Yeah, right. So starting in 2010, the court has issued a series of decisions in which it has invalidated removal restrictions of a variety of sorts.

00:14:31 Speaker_03
First, it invalidated an arrangement where an agency that was headed by officials with removal protections was nestled inside another agency headed by officials with removal protections.

00:14:41 Speaker_03
And then 10 years later, it invalidated the removal protection for the director of the Consumer Financial Protection Bureau. That was a single director who served a five-year term.

00:14:50 Speaker_03
And in both of these cases, the court's argument was that this arrangement represented just too much of an intrusion on the president's control over executive power and over the executive branch.

00:15:01 Speaker_03
The idea that they espoused was that the president gets to exercise the entire executive power,

00:15:06 Speaker_03
And it's the president who is politically accountable and therefore needs to be able to exercise close control over these executive branch officials to ensure that the law is faithfully executed.

00:15:17 Speaker_02
So as you're describing the reasoning in those cases, what do you make of the reasoning?

00:15:21 Speaker_03
I think the reasoning has a lot of flaws. So the reasoning in these cases emphasizes this clause that vests the executive power in the president. But it's unclear exactly what the Constitution means by executive power.

00:15:35 Speaker_03
And it's at odds with the other provisions of the text of the Constitution and the structure of the Constitution to think that the president just gets to embody all of the executive power without any checks, without Congress being able to regulate the structure of the executive branch.

00:15:49 Speaker_03
So I think it's hard as a constitutional basis to argue it. I think it's also really hard to argue as a matter of history.

00:15:54 Speaker_03
because there's actually a longstanding history of these removal restrictions and various kinds being put on executive branch officers.

00:16:01 Speaker_02
So let's make the question concrete in the context of the Federal Reserve. So the Federal Reserve's members have statutory protections against presidential removal, except for cause.

00:16:11 Speaker_02
During his first term, Trump apparently considered trying to demote or even to fire Fed Chair Jerome Powell, but he never did. And Biden re-nominated Powell to another four-year term as chair, and that term isn't up until 2026.

00:16:24 Speaker_02
So in a recent interview on NBC, Trump suggested he wouldn't try to remove Powell, but he's changed his mind before.

00:16:31 Speaker_02
So if he did and if Powell did not just engage in this kind of anticipatory compliance the way it seems that Wray is doing, would the law permit that? Well, there are really two questions here.

00:16:43 Speaker_03
There is one question about what the statute gives the Fed chair as a matter of protections. And then there's a question about the constitutionality of a removal restriction. As for the statute, it's actually a hard call.

00:16:55 Speaker_03
The statute going, this was the 1913 Federal Reserve Act, provides for a 14-year term for the Board of Governors, members of the Board of Governors. The Fed Chair is one of the governors.

00:17:04 Speaker_03
And then it also provides for a four-year term for the Fed Chair. The provision for the 14-year term of the Board of Governors expressly says that they have cause removal protection. The statute does not say that for the Fed Chair in the role as chair.

00:17:20 Speaker_03
There's a longstanding practice and convention that the Fed chair is not removed. And that's sort of been politically constructed over time. But it's not expressly in the statute.

00:17:30 Speaker_03
So as a matter of statutory interpretation, I think it's a pretty close call.

00:17:34 Speaker_02
And just to make it clear, so maybe as a matter of statutory interpretation, before we get to the Constitution, Trump could demote Powell back to being a regular governor.

00:17:43 Speaker_02
But the text of the statute isn't unclear or ambiguous as to the 14-year term, right? Firing somebody chair or not chair would clearly violate the statute.

00:17:52 Speaker_03
Yeah.

00:17:53 Speaker_02
OK, but so you said there's a statutory question. And what about the Constitution?

00:17:56 Speaker_03
So the constitutional question is different if you're talking about a member of the Board of Governors or the chair.

00:18:01 Speaker_03
If you're talking about a member of the Board of Governors, I think actually there's a very good likelihood the court would sustain it.

00:18:06 Speaker_03
I think part of the reason why the court has not overruled some of its earlier precedent, particularly that 1935 case about the FTC, is because it doesn't want to call the structure of the Federal Reserve into constitutional question.

00:18:19 Speaker_03
That goes for the 14-year term at the Board of Governors. When you're talking about the chair, I think it's a closer call.

00:18:25 Speaker_03
One of the points that the court has emphasized in, for example, that case involving the Consumer Financial Protection Bureau, is the importance of the president being able to pick a chair.

00:18:35 Speaker_03
And a chair is somebody who can really control how the agency operates and has additional powers. So I think that the court would look more askance. had a removal protection for a position as powerful as the Federal Reserve's chair.

00:18:49 Speaker_03
But that said, the Federal Reserve is a kind of unique thing.

00:18:53 Speaker_03
And the court might very well just think of it as not necessarily being traditional executive power or just being historically ratified in a way that puts it outside of the other kinds of agencies that it's willing to call removal protections for into question.

00:19:08 Speaker_02
So in some ways, I think what is most striking about this conversation is that we are having it at all, right?

00:19:14 Speaker_02
15 years ago, the idea that the Supreme Court might deign to invalidate the structure of the Fed based on this, at best, I think, historically and structurally and textually questionable theory about the necessity of presidential control over the whole executive branch is kind of mind-blowing, right?

00:19:31 Speaker_02
So maybe they would actually

00:19:33 Speaker_02
be sympathetic to a challenge of some sort to limits on the president's ability to designate a chair, even if they would say, well, the governors can't be fired just because the president decides by fiat he wants to do that.

00:19:43 Speaker_02
But in some ways, it just underscores the enormous power that this court has asserted for itself over what our government looks like.

00:19:50 Speaker_03
Yeah, I think that's really true. And, you know, the interesting thing is also going to be in the case of the Federal Reserve, you're not just talking about the legal questions. You're talking about how does the market respond?

00:20:01 Speaker_03
And that's a whole nother set of forms that the court hasn't had to deal with in its other removal cases.

00:20:37 Speaker_02
So let's shift gears for a moment. And we have been talking around the Supreme Court, but I want to talk now more directly about the Supreme Court.

00:20:44 Speaker_02
And I want to do that by asking about the court's recent decision in Loperbright, which is a case that overruled the 40-year-old Chevron decision.

00:20:53 Speaker_02
Chevron basically said that a lot of the time, courts should defer to expert agencies about what statutes mean.

00:20:59 Speaker_02
And there's been a lot of public attention paid to the way that eliminating the rule announced in Chevron will reduce the power of agencies like the FDA or the EPA. But Loper Bright is a little bit more complicated than that.

00:21:13 Speaker_02
Maybe let me start by asking you, when it comes to power, government power, who are the big winners and who are the losers under Loper Bright?

00:21:21 Speaker_03
Well, I think one thing to bear in mind is we don't fully know yet, right? This is a decision that is changing a watershed precedent in terms of deference to agency views.

00:21:32 Speaker_03
How it plays out, what the courts will do are questions that it's going to take years to work out.

00:21:37 Speaker_03
And that, I think, is actually one of the biggest condemnations of the decision, that it will lead to tremendous uncertainty and transition costs as we move from the prior regime we've been under to this new approach to agency interpretation.

00:21:51 Speaker_03
That said, I think one clear winner is the courts. Under the prior Chevron regime, if an agency offered a reasonable interpretation of an ambiguous statute, a court was supposed to defer.

00:22:04 Speaker_03
Now, what Loper Bright says, basically, is that a court is required to exercise independent judgment in determining the meaning of a statute.

00:22:13 Speaker_03
The court can give weight to a longstanding and contemporaneous interpretation by an agency or an interpretation by an agency that it thinks has persuasive power.

00:22:25 Speaker_03
It may also read the statute as actually delegating interpretive authority to the agency, but it's the court. that exercises independent judgment. And so the power moves from the agency to the court.

00:22:38 Speaker_02
So you mentioned the uncertainty about the full kind of, you know, scope and meaning of Loper Bright. Is that, do you think, a result of just sloppy drafting on the part of Chief Justice Roberts, who wrote the opinion.

00:22:50 Speaker_02
Is it something maybe more nefarious? The court wants to sow chaos in the agencies and in the lower courts.

00:22:57 Speaker_02
Is it just that the whole thing is a product of a less than fully developed vision of the Constitution, you know, the role of agencies in our constitutional order? Like, what explains the uncertainty you think that remains in the wake of Loeber Breit?

00:23:11 Speaker_03
I think it's a really complicated question.

00:23:13 Speaker_03
Lying in the backdrop to this decision was a view that when agencies offer interpretation of statutes that courts have to defer to, that that allows agency to usurp the constitutional function of the courts to say what the meaning of the law is.

00:23:29 Speaker_03
That was partially why the court had pulled back so much on deferring under Chevron in recent years. That idea of the sort of constitutional role of the court suggests that courts should always be exercising independent judgment.

00:23:44 Speaker_03
But it's perfectly possible for Congress to decide that it wants agencies to exercise more power and to determine what the meaning of terms would be.

00:23:55 Speaker_03
If the court weren't to recognize that, that would be the court usurping Congress's power to structure the executive branch and to structure legal regimes.

00:24:02 Speaker_03
So when the court in Loper Bright determined that it was necessary for courts to undertake independent judgment, It didn't actually rely on this constitutional idea.

00:24:12 Speaker_03
Instead, it said that a statute that sort of governs how agencies operate called the Administrative Procedure Act that goes back to 1946, that that statute required courts to take independent judgment in reviewing agency interpretations.

00:24:27 Speaker_03
But it also wanted to leave Congress, as it should, room to give agencies power to interpret statutes when that's what Congress wanted. And in order to do that, it had to say, sometimes the best reading of a statute means you delegate to an agency.

00:24:44 Speaker_03
And once you start recognizing the complexity of how a statute might actually give agencies the kind of authority that they were wielding, then you can't just go with a, we will never defer, right?

00:24:56 Speaker_03
Then you need to be sensitive to context and to statutory interpretation and to the different roles agencies play in different aspects of statutory regimes.

00:25:06 Speaker_03
My colleague, Tom Merrill, has a recent article assessing Loper Bright, where he really emphasizes how much time it's going to take to move from the Chevron regime to this new regime and to figure out, for example, what kind of statutory language means the agency is being delegated a degree of discretion, and what kind of language doesn't mean that, and when it is agencies can give weight to longstanding agency interpretations and when they can't.

00:25:34 Speaker_03
as well as questions like what will happen with other doctrines the court has constructed precisely to rein in Chevron deference.

00:25:41 Speaker_02
So it seems to me that there are a couple of different ways to read the practical consequences of the court asserting this enormous new power for itself. And I take the point that the contours of that new power are actually very unclear as yet.

00:25:55 Speaker_02
But, you know, I guess If it's possible to make some kind of predictive judgments at this point, is the result, you know, a weaker administrative state?

00:26:04 Speaker_02
Is it an administrative state that is just run by, you know, a smaller and less well-equipped number of bureaucrats that is the members of the federal judiciary? And I guess, you know, do you have thoughts about how this decision interacts with

00:26:18 Speaker_02
presidential power.

00:26:19 Speaker_02
You talked a little bit about Congress, and I think it's clear that if courts are a big winner here, Congress, depending on how the opinion gets understood, might be a big loser, because Congress has made many decisions about what kind of agencies to create, what kinds of powers to give them, what kinds of

00:26:35 Speaker_02
procedures to tell them to follow, and also pass substantive statutes that tell them to do things, identify endangered species, ensure workplace safety, right? Obviously the list is infinitely long. So court big winner, Congress big loser.

00:26:49 Speaker_02
Do we know yet, I guess, about agencies and what about the president?

00:26:52 Speaker_03
So I think you're right on both of those court, big winner, Congress, big loser.

00:26:57 Speaker_03
When you focus on these cases, the underlying theme of the court's recent decisions in the space about deference in all aspects of the ministry of state is a real skepticism of administrative power and of the actions by administrative agencies.

00:27:13 Speaker_03
It's a very anti-regulatory court. And it's hard to think that a decision like Loeb or Bright isn't going to end up pulling back on agency power precisely because the motivation of it is so anti-administrative.

00:27:28 Speaker_03
In terms of the president, what we're kind of left with is this oddity where the president is given some powers that are expanded, the removal power we were talking about, the immunity.

00:27:40 Speaker_03
But when the president wants to do something, what the president is going to need often is administrative capacity and administrative authority. And that's exactly what the court is pulling back.

00:27:50 Speaker_03
And particularly if you think that their motivation in emphasizing the president's power to remove executive officials is some desire to preserve political accountability.

00:28:00 Speaker_03
Well, political accountability means the president being able to actualize the things the president promises the president will do. And to do that, the president needs administrative capacity.

00:28:11 Speaker_03
So there's a real tension there about what the impact will ultimately be of the full arc of the court's decisions on presidential power.

00:28:20 Speaker_02
So we have been talking through a number of trends involving pretty radical transformation of legal rules.

00:28:25 Speaker_02
So we have an ascendant president with few checks, a disempowered or reconfigured administrative state, a hugely powerful Supreme Court sitting atop all of that.

00:28:35 Speaker_02
And I want to drill down a bit more on this Supreme Court, but first I would like to dip a bit into history.

00:28:40 Speaker_02
So you have written about the parallels between this anti-administrative, anti-regulatory Supreme Court and the anti-administrative, anti-regulatory court of the 1930s. Can you tell us a little bit about the court of the 1930s?

00:28:54 Speaker_03
So the court of the 1930s, this is the court over the period of the New Deal.

00:29:00 Speaker_03
So it begins the 1930s with tremendous antipathy towards the new regulatory regimes that restricted business power, that gave labor new rights, and argue that those regimes are unconstitutional.

00:29:12 Speaker_03
They exceed Congress's power under the Commerce Clause, for example. Or they represent untoward, in one case, untoward delegation of power to agencies.

00:29:23 Speaker_03
But by the end of the 1930s, starting in 1937, the court accepts these regulatory regimes and starts rejecting those constitutional attacks.

00:29:34 Speaker_02
So by 1937, the court has largely reconciled itself to the constitutionality writ large of things called administrative agencies and some version of an administrative state.

00:29:44 Speaker_02
But before that, in, you know, maybe 1935, the high watermark for Supreme Court hostility to the New Deal, I guess, how does that court and its radicalism compare to today's Supreme Court and its radicalism?

00:29:59 Speaker_03
I think it actually is quite similar.

00:30:01 Speaker_03
I think that the court of the 1930s saw the idea of government regulating and intruding on business owners as a real invasion of individual liberty, particularly from the national government, from the federal government, right?

00:30:16 Speaker_03
And the idea that some of the powers potentially could be exercised by the states, but not by the national government.

00:30:22 Speaker_03
We don't have as much of a focus on national versus state power with the Roberts Court, but we have very much this idea that you have bureaucrats out of control, regulating in ways where they're intruding on individual liberty, looking in nooks and crannies for violations of laws, and are essentially uncontrolled exercises of bureaucratic authority.

00:30:44 Speaker_02
So I think that that prose is woven throughout a lot of recent Roberts Court decisions, that the administrative state is in some sense an existential threat to liberty.

00:30:57 Speaker_02
And you have argued that this Supreme Court often fails to appreciate the ways that agencies, that the administrative state actually protects liberty. So can you say a little bit about that?

00:31:12 Speaker_03
Sure. I mean, so there are a couple of different ways. One is just having internal to government officials and individuals who take seriously the legality of government action and will push back on excesses of authority by officials above them.

00:31:28 Speaker_03
That's critical towards ensuring a rule of law.

00:31:31 Speaker_03
The other aspect that's essential to individual liberty is to recognize that what agencies are often doing is implementing programs enacted by Congress that are intended to build out in a more positive way what we understand liberty to mean and what we understand individual rights to mean and to entail for people to

00:31:51 Speaker_03
exercise those rights fully. Having competent, expert individuals in roles where they can implement those programs to make them more effective and to make them more powerful also contributes to individual liberty.

00:32:06 Speaker_03
The idea that administrative governance only infringes on individual liberty requires believing in a very negative conception of liberty where the government is just a threat and it's not also in power.

00:32:17 Speaker_02
Yeah, but I do think that this court holds a very, very narrow conception of liberty.

00:32:22 Speaker_02
So you're referring to the kinds of positive liberty government might pursue, environmental protection, consumer welfare, racial justice, gender justice, and if this court does not imagine those as encompassed within its conception of liberty,

00:32:35 Speaker_02
And I think it doesn't. I guess it's not surprising that is deeply hostile to agencies pursuit of those kinds of projects, because I don't think it's a random list of agencies that the court has demonstrated its hostility towards. Right.

00:32:48 Speaker_02
It seems to be the agencies in particular in the kind of consumer protection and consumer welfare space where it seems very, very skeptical of agency authority. And the court somewhat gets the cases served up to it.

00:32:59 Speaker_02
But the hostility is not consistent across all of the different kinds of tasks that government performs.

00:33:05 Speaker_03
It's not. And it's very much on, as you say, those kinds of agencies where you see the hostility coming out the most.

00:33:11 Speaker_03
I think this is partially why it's important to not be fooled by some of the constitutional cover that the Roberts court invokes, because this is really a supercharged conservative court. And this is a conservative legal agenda that is being advanced.

00:33:23 Speaker_03
Even if it's invoking constitutional bases, it's fundamentally driven by the conservative agenda.

00:33:30 Speaker_02
So you do view all of these moves, we've been talking about them in somewhat disparate ways, as part of an ideologically unified project.

00:33:37 Speaker_03
I do. I think it really is a war on the administrative state that the Roberts court has been undertaking. And I think we're not at the end of it yet.

00:33:46 Speaker_02
We hear the phrase the administrative state a lot, and I think a lot of the time it's used almost as a pejorative, right, like by people who don't like the administrative state.

00:33:56 Speaker_02
It sounds maybe kind of ominous, maybe like it's not part of the government, it's like some other thing. So I want to give you a chance to offer a corrective. How do you understand what the administrative state is?

00:34:08 Speaker_03
I understand the administrative state as being all of government. Other than Congress, maybe you want to pull out the president, it's everything else. And it's huge, but it's very familiar, right?

00:34:19 Speaker_03
So it's firefighters brought in to deal with a wildfire. It's people who are expert in water control who are brought in to make sure that water is drinkable, particularly after a leak.

00:34:30 Speaker_03
It's people who inspect food to make sure that food safety requirements are being adhered to. It's people who approve medicines. It's also teachers. It's your DMV.

00:34:41 Speaker_03
It's maybe some people you don't necessarily like, like your DMV, but it's every aspect of the ways that government touches our lives and a lot of aspects of government that are going on all the time that we may not be aware of, but that are essential for modern society to function.

00:34:59 Speaker_02
Who is the kind of standard bearer for this war on the administrative state on the current court in your view?

00:35:05 Speaker_03
Well, I think Justice Gorsuch would be a clear front runner. His recent book, I think, really embodies a lot of these kind of anti-administrative ideas.

00:35:13 Speaker_03
And he has been one of the more eloquent spokespersons for articulating this broader anti-administrative account. Justice Thomas has also certainly shown his anti-administrative stripes over the years. And a third would be Justice Alito.

00:35:29 Speaker_02
Who is just hostile, right? I mean, he's not an originalist, and he doesn't have as developed a theory of the liberty that is fundamentally threatened by the administrative state as, say, Justice Gorsuch does.

00:35:41 Speaker_02
He just seems really hostile, to my mind at least, to some of the more kind of redistributive projects that government engages in that we were just talking about. Is that fair? I think that's fair.

00:36:19 Speaker_02
As much as this court seems to endorse the project of reducing, refashioning, reconstituting the administrative state, are there nevertheless areas where you can envision this court acting as a check on some of the second Trump administration's more ambitious designs?

00:36:38 Speaker_03
Potentially. I think one area that it's going to be interesting to pay attention to is how administrative agency actions are reviewed under ordinary standards of review. We've talked about how agencies have an obligation of reasoned explanation.

00:36:53 Speaker_03
And at times, the Roberts court has required a fair bit of explanation.

00:36:59 Speaker_03
If it continues to require a fair degree of explanation, that would be one way in which it would constrain the Trump administration and really any administration, because the need to provide a reasoned explanation is something that requires an agency to put a lot of time and effort and resources into developing an expert account of why it's taking the action that it's doing, responding to different comments that it gets and so forth.

00:37:21 Speaker_03
So that could be a potential check. The other area where you might see the court pushing back is on some suggestions, for example, that the president just has the power to decide not to spend money when the president wants to.

00:37:33 Speaker_03
That's at odds with a statute called the Empowerment Control Act, and it's also at odds with the longstanding understanding that Congress is the entity that controls the power of the purse.

00:37:43 Speaker_02
Right, that Empowerment Control Act theory is one of the many things floated in a recent op-ed in the Wall Street Journal by Elon Musk and Vivek Ramaswamy under the guise of what they are calling this Department of Government Efficiency or DOGE.

00:37:57 Speaker_02
Does it drive you as crazy as it drives me to hear people refer to this as an actual department? Yes.

00:38:02 Speaker_03
And why? Because a department is part of government and this is not part of government.

00:38:06 Speaker_02
And even if the president can't do it unilaterally anyway, Congress has to create departments. Congress creates departments.

00:38:12 Speaker_02
And maybe, sure, if they wanted to, if the next Congress wants to create a Department of Government Efficiency, I guess we will have to call it that. But unless and until that happens, I refuse to.

00:38:20 Speaker_03
Yes, we shouldn't call it a department.

00:38:22 Speaker_03
And also, if Congress were to create a department, then the individuals appointed to lead it would have to go through the methods for appointment that are laid out in the Appointments Clause, which is not just the president issuing a tweet.

00:38:34 Speaker_02
Right. Yes. Okay. So the so-called doge or the entity, you know, calling itself doge, we can decide what to refer to it as.

00:38:41 Speaker_02
But what about other suggestions that Musk and Ramaswamy have floated regarding, you know, large-scale reshaping of employment in the executive branch?

00:38:52 Speaker_02
There have been references to things like mass layoffs and departmental reorganizations, though I will note that actually the Wall Street Journal op-ed that I mentioned seems to sort of back away from some of that, focusing instead on things like, you know, early retirement incentives, which clearly, you know, the executive branch can decide to offer.

00:39:09 Speaker_02
But do you want to just talk in general terms about whether some of the rhetoric that is the most expansive about fundamentally overhauling government employment is even plausible under existing law?

00:39:21 Speaker_03
Right, so I mean, we have statutes that grant the civil service cause protection against being just fired, and that also gives them procedural rights to appeal adverse actions taken against them.

00:39:35 Speaker_03
President doesn't have the authority to just do away with a statute. In fact, the president's supposed to take care that the law be faithfully executed. So that statute is a constraint on what the president can do.

00:39:45 Speaker_03
The part that gets a little complicated is that the statutes do give the president some authority over the civil service.

00:39:52 Speaker_03
And in the first Trump administration, they issued what was called famously Schedule F, which was an effort to pull employees who perform a policymaking or policy advocating or confidential function out from the protections of the civil service.

00:40:11 Speaker_03
And the president tried to do that by executive order, using authority that the president has under the statute. Because it happened so late in the term, agencies just didn't implement it.

00:40:23 Speaker_03
And President Biden revoked it immediately on coming into office. I think we're going to see another executive order imposing Schedule F or something pretty similar to it very quickly in the second Trump term.

00:40:34 Speaker_03
And I think whether or not that ends up being something that's within the president's authority will be a question that the courts will have to grapple with.

00:40:43 Speaker_02
What about this idea that Trump floated during the first administration and has suggested that he will pursue again in the second Trump administration, which is seeking to end birthright citizenship?

00:40:56 Speaker_03
Birthright citizenship is in the Constitution. It's in the 14th Amendment. So it's not something the president can end.

00:41:03 Speaker_03
What I would really hope is that if the president tries to get an agency to take action based on the idea that there is no birthright citizenship, that executive branch lawyers would say no, because it's patently wrong as a legal matter.

00:41:19 Speaker_02
I think that's such an important kind of callback to the first part of our conversation. So I think we have this tendency to say Trump says he's going to end birthright citizenship. Will the Supreme Court let him?

00:41:29 Speaker_02
And I don't think that's an unimportant question. And I hope and actually do kind of trust that even this Supreme Court would say no.

00:41:37 Speaker_02
Of course the president can't unilaterally end birthright citizenship if he wants to pursue a constitutional amendment. Article 5 does allow the amending the Constitution. He could push for that. That is the only way to end birthright citizenship.

00:41:49 Speaker_02
But a lot can happen before you get there, right? And a lot does happen inside the executive branch. The president has lawyers in the White House.

00:41:57 Speaker_02
The Department of Justice has lawyers in the Office of Legal Counsel and the entire Department of Justice. And those lawyers swear an oath to uphold the Constitution, just like every federal official does.

00:42:06 Speaker_02
And there are certain constitutional questions that are hard or close, and I don't think birthright citizenship is one of them.

00:42:13 Speaker_02
whatever new powers, whatever new sword and shield the Supreme Court has given the president, none of those erase the obligations of executive branch lawyers to the Constitution. I think that's a really important point. I agree.

00:42:25 Speaker_02
I think that's actually a good place to end it. As always, what are three books or articles you would recommend for our audience?

00:42:31 Speaker_03
So one of the silver linings, maybe the only silver lining of the court's attack on administrative governance, is that it has sparked a whole range of great administrative law historical scholarship, really investigating the origins of the United States Administrative State.

00:42:49 Speaker_03
The first book that I'd recommend is one by Jerry Mishaw called Creating the Administrative Constitution.

00:42:56 Speaker_03
It was one of the first in this line of cases looking historically and traces out all of the ways in which we had a robust and developing administrative state in the first 100 years after the Constitution was adopted. And it's a great read.

00:43:08 Speaker_03
It's a classic. Yep. The second is another book in the historical vein. It's by Dan Carpenter, and it's called The Forging of Bureaucratic Autonomy.

00:43:17 Speaker_03
And it looks in the progressive era when a lot of the agencies that we now take for granted were developed and developed their independence and expertise.

00:43:26 Speaker_03
And particularly in this period where we have a war on the deep state and a war on administrative expertise, it's really worth reading that account

00:43:32 Speaker_03
of the efforts that were undertaken to forge a sense of autonomy for administrative government and what the reasons were and why people thought that was so important and valuable. The third is actually not a book.

00:43:46 Speaker_03
It's 99 pages, so I think it kind of counts, but it's an article by Karen Tani, and it's the foreword to

00:43:55 Speaker_03
the Harvard Law Review's Supreme Court issue, which comes out in November, and it's called Creation, Narration, and Erasure, Power and Possibility at the United States Supreme Court.

00:44:04 Speaker_03
And it is just a wonderful account of the narratives that the Supreme Court is telling us, what counter-narratives we could find, and what the narratives the court is telling us tell us about the court and about ourselves.

00:44:16 Speaker_02
Karen is my colleague at Penn, and it is a beautiful article. Even if you don't think you enjoy reading law review articles, or you would enjoy reading law review articles, maybe try this one. It might be an exception.

00:44:26 Speaker_02
Jillian Mesker, thank you so much. Thank you for having me. This episode of The Ezra Klein Show is produced by Elias Isquith. Fact-checking by Michelle Harris with Mary Marge Locker. Mixing by Isaac Jones with Afim Shapiro and Amin Sahota.

00:44:57 Speaker_02
Our supervising editor is Claire Gordon. The show's production team also includes Roland Hu, Kristen Lynn, and Jack McCordick. Original music by Pat McCusker. Audience strategy by Christina Samuelski and Shannon Busta.

00:45:09 Speaker_02
The executive producer of New York Times Opinion Audio is Annie Rose Strasser.