El Supremo ante Trump: límites al poder presidencial (Full Transcript)

[00:00:00] Speaker 1: In Donald Trump's second term, the Supreme Court is at the very heart of American politics. It is making decisions that affect his ability to do what he wants to do, and so far it is fair to say that it generally finds in favour of the White House.

[00:00:15] Speaker 2: But the Supreme Court handed the Trump administration two victories today in cases involving Doge, including giving him access to social security systems containing personal data on millions of Americans.

[00:00:27] Speaker 3: And the Supreme Court's allowing the Trump administration to slash hundreds of millions of dollars in research funding in its push to cut federal diversity, equity and inclusion efforts.

[00:00:35] Speaker 4: Late yesterday, we got another decision. They went ahead and agreed with President Trump having the authority to terminate two appointees on behalf of President Joe Biden. And the reaction I was picking up online when this decision came across is that they were surprised that they allowed this to happen.

[00:00:53] Speaker 1: So here's the question. Is the Supreme Court at any stage going to stand up to Donald Trump, or is it simply in the business of expanding his power?

[00:01:03] Speaker 5: Welcome to AmeriCast.

[00:01:12] Speaker 1: And we're going to focus today on the Supreme Court. It is hugely, hugely important, and never more so when there is a president who is keen on doing things and stretching the limits of his own power. So a lot of people interested in this and a lot of AmeriCasters have written to us and asked us to take an interest in it. Just an example, Anthony, if I could kick it off with Ed Stranger, who's written from London and asked this. I'm writing to request more discussion and analysis around the potential impact of the Supreme Court in impacting the Trump administration's agenda in coming years. This body surely has to start having a say in all manner of the administration's policies and some in-depth analysis of this currently silent branch of government would be interesting to hear. Reasonable points, Anthony.

[00:02:03] Speaker 6: Absolutely. We have heard the Supreme Court have some say. They have started to have a say in that montage you played there. The Supreme Court has weighed in on a lot of these big issues involving Trump and executive power, but only tentatively so. A lot of those headlines you heard were the Supreme Court deciding not to step in and stop Trump's policies from going into effect. They didn't definitively say whether those were legal or not, whether Trump could do them or not. And so there are these cases that are still out there now that we're waiting on in the coming months that are going to say exactly how much power Trump has on things like immigration, on things like presidential appointments, and perhaps most importantly, on Donald Trump's massive expansion of presidential power in the subject of trade and imposing tariffs on foreign nations. So those are still yet to be definitively decided. I'm always saying definitively decided. As you point out, Justin, the Supreme Court, when they issue a decision, there's no appeal. It's final. They are the ones who pass judgment on whether laws are constitutional, whether laws are being properly applied. And these nine justices, if five of them agree that that is the final word on the matter.

[00:03:20] Speaker 1: Yeah, nine justices, Anthony. But of course, a big conservative majority at the moment, which has not always been the case, but is the case at the moment, including Supreme Court justices that Donald Trump himself has appointed. And that leads people to wonder about the not just the fairness of the Supreme Court, but also in a sense its legitimacy. And particularly Democrats who are hacked off about various decisions that have been made, and I suppose the big one, the end of Roe versus Wade, have this sense that the Supreme Court is now the enemy. It's fair to say, isn't it, that the Supreme Court and discussions about the Supreme Court, never mind what they do about the Trump administration's various efforts to do various things. The Supreme Court is in a sense in play in American politics in a way that hasn't been for a bit.

[00:04:16] Speaker 6: I think maybe going back a few decades, most people didn't give a whole lot of thought to the Supreme Court. They probably couldn't pick a justice out walking down the street or standing in line next to them in the grocery store. If Supreme Court justices do go grocery shopping or they have someone do it for them. But they were relatively anonymous. Obviously, people who pay attention to the big cases do know that the Supreme Court has power, but it was always the least understood branch of the federal government. That has changed. As you rightly point out, this Supreme Court with its six to three conservative majority, three of those conservative justices appointed by Donald Trump himself in his first term. They have in the past five or six years really dramatically reshaped the lay of the land as far as the law goes in this country. They have overturned precedents that had been established sometimes for half a century or more precedents, as you mentioned, on abortion, on racial preferences in higher education and how you could take that into account, on the power of federal agencies to issue regulations without court oversight, on all of these different environmental regulations, on gun control and handgun ownership rights. All of these things have been pretty stark in the way they have changed course in the past few years. Really, I think it's the most conservative Supreme Court that America has had in at least 75 years, and they are flexing their muscle time and time again.

[00:05:57] Speaker 1: And the other thing, and we'll talk about this with our guest, former Supreme Court clerk in just a second, is that in doing that, they are following a tradition, which is that the Supreme Court does change America. You think back to Brown versus the Board of Education, that decision back in the 1950s that in a sense pushed open the doors for the whole civil rights movement. And that was the court making a decision, wasn't it? A decision that changed America in one specific instance, the business of education being mixed and not separate as it had been, particularly in the South until then. But a wider situation as well, a wider sense of American change coming from the court. And I suppose you could say, couldn't you, that that's just what we're seeing now? Right.

[00:06:55] Speaker 6: There have been moments where the Supreme Court has stepped in and issued landmark decisions that really do set the framework for how Americans live. They affect our everyday lives. Brown versus Board of Education is a good one. Separate is inherently unequal, essentially ending racial segregation in American schools. If you go back on the flip side, something like Plessy v. Ferguson, which the Supreme Court decided in the 1850s that slaves were property and they didn't have any kind of rights and redress in the courts. That was an incredibly impactful Supreme Court decision on the flip side. I mean, it led to essentially directly to the civil war. And there have been decisions on things like abortion, on freedom of the press. New York Times v. Sullivan protecting major newspapers from lawsuits when they're reporting. I mean, that was a landmark case. There are cases on access to birth control. There are cases involving individual liberties and right to protest. There are ones that protect individuals who have been arrested. You remember the Miranda case, which said that individuals had to be informed of their rights after they'd been arrested. You can go through and see moments where the Supreme Court really has issued decisions that directly impact people's lives. There are other ones that maybe you don't feel quite as much that still have significant impact. Ones about how government operates, how government regulates the rights of corporations and businesses and how they interact. But it is impossible to overstate how important the Supreme Court has been throughout America's history.

[00:08:43] Speaker 1: And talking about those decisions about how government operates, that brings us bang up to date. And this decision that the court has yet to make about tariffs. And it's interesting, isn't it? Because I think people thought, didn't they, that it was going to come quite quickly and it hasn't. And I wonder if we can or should read anything into that.

[00:09:04] Speaker 6: Yeah, I think it is really interesting that we haven't seen the court weigh in yet. They took that case on an expedited basis. They sped it up. They had early oral arguments. They stepped in before one appellate court had a chance to rule and before another appellate court had a chance to review its earlier decision. So it accelerated the whole process to get to this under pressure from a lot of these businesses that were telling the court that their businesses were being impacted adversely by these tariffs and they needed to get some sort of certainty that these were legal as quickly as possible. And the court appeared to agree. So they agreed to hear this case. They had the oral arguments. And now it's been kind of a waiting game where we've had a couple of instances where the court has announced that they're going to be releasing new opinions and we all kind of gather around to see if this is the trade case. And then it's not. So, you know, it's always a matter of reading tea leaves because this court and the Supreme Court in general does not tip its hand very, very often. But it is interesting that they seem to be taking their merry time in releasing this decision.

[00:10:09] Speaker 1: And someone who wants it to go his way is the president himself. And it's interesting. He's very open about that. Let's listen to him. This is actually back in November, talking to reporters about the importance of this tariff decision.

[00:10:24] Speaker 3: What is your plan if they end up making a decision that's not in your favor?

[00:10:29] Speaker 7: Well, I'd rather discuss that later. I hope we're going to win that case. I think it's one of the most important cases in the history of our country. So much evolves around tariffs.

[00:10:41] Speaker 6: So Trump, they're talking about how important this case is. And it centers around Donald Trump's trade authority and whether the law he's citing an emergency powers, economic powers act from the 1970s that doesn't even mention tariffs. It mentions regulating trade, whether that has given the president the power to put on tariffs on any country, on any amount, at any time, whenever he wants. And I was listening to those oral arguments that the court held last year on them. And a lot of the justices, even some of the conservative ones, seemed skeptical that the president had this kind of power. The Constitution says that Congress is the one that can levy tariffs. And they questioned whether Congress clearly delegated to the president all of its trade authority, essentially. So I think Donald Trump is rightfully a little nervous about this case. And and it could very well cut against him. But we just don't know yet because we haven't gotten the decision.

[00:11:40] Speaker 1: OK, this is a good moment to bring in our guest, Professor Kate Shaw, who is a former Supreme Court clerk, but is also a professor of law at the University of Pennsylvania Law School and co-host of the podcast Strict Scrutiny. Kate, hello. Hello. Thank you for having me. Well, thank you for coming on. Anthony, you were reminding us recently that there are occasions in the Supreme Court's quite recent history where justices have gone rogue, as it were. So they'd be put in by a president who was confident that they do they would do X, Y or Z, his bidding, as it were. And actually, they haven't. I can't remember what the examples were you gave to remind us of who the people are you you came up with who've who've actually not done the bidding that it was thought they were going to do.

[00:12:28] Speaker 6: Right. If you go back to the 80s and 90s, Anthony Kennedy and Justice Souter both were appointed by conservatives and then ended up being more liberal. But even if you look at John Roberts, who was appointed by George W. Bush, he ended up ruling in favor of upholding Obamacare, which was a bit of a surprise. And I think John Roberts, everyone would say, was conservative. But there have been instances where some of these justices have have broken against the the views of the the president who appointed them. So it's not totally without without any kind of precedent, although it seems like and I don't know if you agree, Kate, it seems like more recently the conservatives on the court have been more reliably conservative. We don't see that kind of apostasy, I suppose you'd call it from these justices that you had in the past.

[00:13:20] Speaker 5: I basically do agree with that. I think that there are lots of historical examples of justices, you know, disappointing sometimes in very significant ways the expectations of the presidents who appointed them. But I think Anthony's right that the more recent appointees to the court have been so thoroughly vetted and their views so entirely known by the presidents who appoint them that there are fewer and fewer of these kind of defections or kind of upending of expectations. Although, you know, I think that it's a little early to say for sure whether someone like Justice Amy Coney Barrett might come to disappoint in certain respects.

[00:13:58] Speaker 6: Right. And she was somewhat skeptical in another big case of presidential power, which was the Lisa Cook case, the firing of Trump's attempts to fire Lisa Cook, the federal reserve governor, for what he said was financial malfeasance. That was another interesting case and one that that is floating out there that we haven't heard a decision on yet, but but could define the scope of Trump's power. How do you think that one's going to break?

[00:14:24] Speaker 5: So this is another, in addition to the tariffs case, enormously important case about presidential power here, the power to fire a high ranking government official, a Fed governor in the case of Lisa Cook. So we have Supreme Court precedent stretching back nearly a century that says that Congress can create agencies in the federal government and give the heads of those agencies some protection against the president's just firing at will those officials. And yet the president basically immediately upon assuming power for the second time, fired dozens of officials who had these statutory protections against being summarily fired by the president. The justices seemed nervous about giving Trump the power to summarily fire the, you know, upend global kind of economy in certain ways, but certainly monetary policy in the United States. But obviously that has worldwide potential ripple effects. And so the justices, I think, are nervous about owning that kind of chaos and are going to try to find a way to rule against Trump, owning the chaos, but also massively extending presidential power.

[00:15:24] Speaker 1: And of course, not just for this president. And that's why we ought to listen to him, actually. So the chairman of the Fed, Jerome Powell, was criticized, wasn't he, for actually going along to hear the oral arguments in the case. But his response was really interesting and absolutely underlines why this is so important. Let's just listen to him for a second.

[00:15:44] Speaker 8: I will tell you why I attended. I would say that that case is perhaps the most important legal case in the Fed's 113 year history. And I, as I thought about it, I thought it might be hard to explain why I didn't attend. In addition, Paul Volcker went to a Supreme Court case famously, and I guess in 1985 or so. So it's precedented. And I thought it was an appropriate thing. And I did it.

[00:16:11] Speaker 1: I mean, the fundamental point here sort of stripped of all the legal arguments and the need of the individual case as well is, is this court, Kate, intending to give this president and then future presidents a lot more power than they've had in the last, I don't know, 30, 40, 50 years, in fact, since the Second World War. Is that where we are?

[00:16:35] Speaker 5: It sure feels like it. And, you know, since the Second World War, I'm not even sure that I think I might suggest that one relevant kind of point in time to look at is post Watergate. So after the resignation of President Nixon in 1974, I mean, Nixon abused his power in all kinds of ways. I don't think that's a controversial statement. And in response, after he resigned facing, you know, essentially certain impeachment and removal, we passed a lot of laws that tried to reform certain aspects of the presidency and to create independence and checks on presidential power. And I don't think since Nixon we've had sort of a president who has sought to assert this kind of muscular vision of executive authority that we are seeing President Trump assert. And I think in lots of respects, his vision of executive authority goes way beyond anything we saw under President Nixon.

[00:17:23] Speaker 1: Okay, let's turn to birthright citizenship. Another massive decision the court has got to make. So at the moment, if you're born in the United States, you're an American citizen, a full American citizen. I know that very well, because my daughter, who I quite often mention on this podcast, is an American citizen. There is a weird thing going on here, isn't there? Which is that right at the start, Kate, everyone was saying, he's not going to manage to do that. It's in the Constitution. It's an amendment. It's the 14th Amendment. He's not going to be able to do that. The justices won't go there. And now, actually, as the decision time gets closer, is it fair to say people are less sure that they are going to rule against him necessarily?

[00:18:05] Speaker 5: I still feel reasonably confident. I would say quite confident that they're going to rule against him. This claim that he has the unilateral authority to essentially rewrite the Constitution is such an outlandish claim that it's hard to imagine it getting more than zero votes on this Supreme Court. And yet, I think you're right that, yeah, I suppose you can find tiny little pieces of evidence. And if you stitch them all together, you can make an argument. I think it's a very, very weak argument. But you have seen a number of scholarly efforts to do that, to try to suggest that this is subject to some active debate in scholarship and among historians, which I think is just not true. I don't see how they get to finding that the president could unilaterally do this. Because there are, in addition to the Constitution's clear language that all persons born or naturalized are citizens of the United States, there are statutes passed by Congress that also confer citizenship on people born here, regardless of the status of their parents. And a president cannot unilaterally override statutes. And so even if Congress could make this change, it is crystal clear to me that the president couldn't. And so I come back to feeling reasonably confident that at most two justices would vote in favor of Trump here. But I don't think that anything is out of the question with this court.

[00:19:22] Speaker 6: And there's a Supreme Court case dating back over 100 years that's pretty direct precedent on this as well. So they'd have to reverse that in order to rule in favor of getting rid of birthright citizenship, right?

[00:19:37] Speaker 5: Absolutely. So you have several other Supreme Court cases that just kind of seem to take as a given this notion of birthright citizenship. But you also have not just a Supreme Court case, but many statutes passed by Congress. I cannot emphasize enough that it has never been very seriously or even seriously at all questioned, not just because of one Supreme Court opinion, but because of all of the constitutional actors in our system, that this is kind of clear as day that whether you, as a policy matter, think it's a good idea or not, the Constitution provides that all persons born here, regardless of the status of their parents, are citizens.

[00:20:14] Speaker 1: Just to summarize what you've just been saying, Kate, it's in the Constitution, birthright citizenship. And I mean, obviously, the Constitution can be changed and there have been amendments to it. But you're suggesting the court itself, that it simply doesn't have the power to do this just on the whim of the president. Is that what you're suggesting?

[00:20:42] Speaker 5: Right. So I think that birthright citizenship is in the Constitution, full stop. The Supreme Court, in theory, could find that provision in the first sentence of the 14th Amendment that says all persons born or naturalized in the United States and subject to the jurisdiction thereof. This is this phrase that the supporters of the president say, well, you're not subject to the jurisdiction of the United States if your parents entered unlawfully.

[00:21:07] Speaker 1: That's a really interesting one. Just to hold on on that, because it's fascinating, isn't it? So I had a weird conversation with a Trump lawyer, a very, very hard line Trump supporter. I was chatting to him about my daughter and he made exactly the point that you have just made. He said, were you, pointing at me, were you subject to the jurisdiction of the United States when you were an American? I was on a visa, as was my wife. But he said, no, that doesn't mean you were subject to our jurisdiction. You were here as a guest, but you were actually still a subject of Her Majesty the Queen, as it was when I was in the United States. So actually, that argument that you've just brought up now, I mean, they do make it quite seriously, don't they?

[00:21:52] Speaker 5: They do. But I don't, they're not even suggesting that if you were here, I mean, I guess it would depend on what kind of visa, but they're mostly arguing about individuals who come without any kind of lawful status. But whether you're on a work visa or a student visa or have no legal authorization, you know, if you're arrested by the police for committing a crime, you're not going to be, you're not going to get very far making the argument that you're not subject to the jurisdiction of the United States. The laws apply to you. And that, to my mind, is what subject to the jurisdiction thereof means. But they've got complicated arguments about allegiance that I just don't think get us very far. But you're right, that they put a lot of weight on that phrase. But again, the Supreme Court, even if it said, well, that doesn't, you know, the Constitution doesn't necessarily confer this birthright citizenship. Congress has by statute done it. So Congress would have to repeal those statutes, pass new laws, removing the entitlement to citizenship. The president can't do it unilaterally regardless. So I think there are two distinct, at least two distinct reasons that the president, you know, in his day one executive order purporting to end birthright citizenship is without legal authority to do that.

[00:23:05] Speaker 1: Kate, final thought, and it's a really important one, this, because it goes to the future. I was listening to James Carville, who's not a left wing Democrat by any manner of means, saying the other day he wants the Supreme Court packed. And that's the word, isn't it, that is used. In other words, there are nine justices, but they don't have to be nine justices. What do you think the chances are that a Democrat president takes over in 2029, or indeed decades after that, if it takes a bit of time to sort themselves out and says, you know what, I'm going to appoint as many justices as it takes to overturn all the stuff we've just had done?

[00:23:44] Speaker 5: Well, once again, the president can't do it alone. So you're right, the Supreme Court, the size of the court is not set in the Constitution. That's a product of statute. So it's been nine for over a century, but there's nothing required about nine. But Congress would have to pass a law changing the size of the Supreme Court. So you first have to not just win the presidency, if you're a Democrat, you also have to get both houses of Congress. But if that happens, I think it gets likelier by the kind of the day, the week, the month, the year. I think that for a long time, there was Democrats, who I think are many of them dispositionally sort of institutionalists, were nervous about the notion of trying to change the size of the Supreme Court. Another Democratic president, FDR, very famously threatened to increase the size of the Supreme Court because it kept ruling against him. And he proposed to pack the court. And he lost in that he never successfully expanded the size of the Supreme Court. But in a way, he won because the court sort of backed down in part because of those threats of court expansion. And it stopped striking down all of these New Deal initiatives that Roosevelt was obviously very committed to implementing. And so I think that there's a very good chance that a future Democratic president with the Democratic Congress tries, and maybe they succeed. But even if they don't, I think that it could be a successful effort to essentially assert kind of a meaningful threat against the court threat and institutional threat that might cause a court to sort of trim its sails a bit. Because this is a court that has been very hostile in lots of ways to things Democratic presidents have tried to do and very protective of the prerogatives of Republican presidents and Donald Trump in particular. So you can imagine that kind of institutional hardball having the intended effect of sort of bringing the court to heel, even if it doesn't actually successfully result in a court with 13 or 15 justices.

[00:25:38] Speaker 6: So Justin opened this episode talking about whether this was going to be the time when the Supreme Court stands up to Donald Trump, to issues decisions that curtails his power somewhat. When the dust settles, and we'll get decisions over the next few months and all of them by the end of June, when the dust settles on this term, do you think that that is going to be what we're talking about? That we're talking about how the court finally said, okay, you've gone this far, but you can't go any farther? Or do you think we're going to be looking at this like we did a couple of years ago, where the justices ended up coming down on the side of Donald Trump and saying you have much greater power, you have presidential immunity for your actions than we even comprehended at the time?

[00:26:23] Speaker 5: I am not convinced this is the term that the court is going to stand up to Trump or that they really will ever stand up to Trump. I will not rule it out. And I think from the perspective of a healthy system of separated powers where the branches check one another, they very much should stand up to Trump. And I think there have been some small but significant moments in which they have. They ruled against his efforts to deploy the National Guard to support immigration enforcement in Illinois in a ruling that applies everywhere the president has tried to send the National Guard. They ruled partially against him in a couple of early immigration cases. And I think as we've been discussing, they'll likely or at least potentially rule against him in the tariffs and likely rule against him in the birthright citizenship case and the Fed case. So I think that those are important. But that's still sort of a small number. And the denominator in terms of the number of cases involving presidential power, primarily on the shadow docket, is very, very large. So he is still going to have a win rate of 80 or 90 percent, even if he loses this handful of cases late in the term. And I think that contrasting that with what we've seen in the lower courts, which is many significant rulings against the overreaches that we've seen from the executive branch, I think that that's an accurate reflection of the way the president's assertions have, you know, sort of violated constitutional and statutory requirements. And the court's kind of track record looks very, very different. So maybe there is a shift afoot, but I am not at all convinced that the evidence that we have seen so far makes that sort of the most likely trajectory that we are on.

[00:28:02] Speaker 1: Kate, this has been fascinating. Thank you so much for talking to us.

[00:28:06] Speaker 6: Thanks for coming on. Really appreciate it. I really enjoyed it.

[00:28:08] Speaker 5: Thank you so much for having me.

[00:28:10] Speaker 1: That's it for now. You can get all of our episodes, all our past episodes, wherever you get your podcasts. For now, though, bye-bye.