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Did the Supreme Court Make Trump King? · Real Patriotism

0:00
Where is the Supreme Court? Donald Trump
0:02
is breaking the limits of the presidency
0:04
as Americans have understood them for
0:06
generations. He's dismantling cabinet
0:08
departments and federal agencies created
0:10
by law by Congress. He's putting troops
0:13
on the streets of American cities in
0:14
ways that no previous president ever
0:16
has. And he's unleashing this masked and
0:19
hooded immigration police force that
0:21
according to mounting court filings is
0:24
arresting people based on their skin
0:25
color, their accents, and storming into
0:28
homes without warrants signed by a
0:30
federal judge as the law requires.
0:33
Congress is silent, supine. So where is
0:36
the court? My guest today is Kate Shaw,
0:38
a law professor and host of the great
0:40
podcast on the Supreme Court, Strict
0:42
Scrutiny. Check it out if you haven't.
0:44
She's also a friend and former colleague
0:46
of mine at ABC News. Kate's one of the
0:48
best and most incisive legal minds I
0:50
know. She's also blunt about this
0:53
court's failure in this critical moment
0:55
in our history. But she sees something
0:57
else, too. She sees lower court judges
1:00
who are still enforcing the law. Lawyers
1:03
who refuse to stop fighting. Ordinary
1:05
Americans who are pushing back against a
1:08
presidency seemingly without limits.
1:10
This is a great conversation. truly is
1:12
about power and about whether the rule
1:15
of law can still win. Hope you like it
1:18
and if you do, hit that like button to
1:20
subscribe. Let us know what you think is
1:22
going on with our Supreme Court in the
1:24
comments below and I'll join in too. So
1:27
without further ado, here's Kate Shaw.
1:34
>> Thanks for having me.
1:35
>> It's like old home week, right? And uh
1:37
and I should say that for all the years
1:40
that we worked together at ABC News, my
1:43
own stomping ground, you as Supreme
1:44
Court analyst, me as kind of reporter, I
1:47
so trusted absolutely everything you
1:50
said. And I was always worried when we
1:52
were on the air together that I'd get it
1:55
wrong. Uh and uh
1:58
>> a lot of those breaking news No, we did
1:59
a lot of those breaking news reports. It
2:01
is always very stressful, isn't it, to
2:03
read and synthesize and try to explain
2:04
these decisions in a matter of minutes
2:07
or even seconds. Um, but I think we
2:10
mostly got it right.
2:11
>> Yeah. Now, I'm I have these questions
2:14
and you are the exact right person to
2:16
ask them because uh well, first you
2:18
worked there, right? Clerk for Supreme
2:21
Court Justice John Paul Stevens. You
2:23
worked in the Obama White House as well,
2:25
professor of law, co-host of Strict
2:27
Scrutiny. A great podcast. I love it. So
2:31
what is going on? I mean, here we are
2:34
with this maximal presidency. President
2:36
Trump asserting powers I don't think any
2:39
president has ever imagined he could
2:42
claim.
2:43
>> Taking over a sovereign country,
2:44
personally assuming control of the money
2:49
that comes from the resources of that
2:51
country. And that's just one of the
2:52
things. deploying troops on the streets
2:54
of America against the wishes of the
2:56
local leaders without any real unrest
2:59
happening. Congress is silent supine
3:03
and so one looks to the Supreme Court
3:05
and there are a lot of people who think
3:06
Supreme Court's completely abandoned its
3:08
responsibilities. Other people say it's
3:10
going slowly. It's doing what a court
3:12
should do, taking one step at a time
3:14
rather than swooping in and solving the
3:16
big political problem for the country.
3:19
What's going on with Supreme Court under
3:21
Trump too? I wish I had a satisfying
3:24
explanation, Terry. I think that the
3:26
court bears an enormous amount of
3:29
responsibility for the kind of
3:31
disequilibrium in the constitutional
3:33
separation of powers that we are
3:34
experiencing right now. I think that
3:36
started before the second Trump term in
3:39
the disastrous decision in Trump versus
3:41
United States, which I think you and I
3:43
were on air trying to digest in real
3:45
time when the court handed uh Trump and
3:49
all presidents, ex-presidents, this
3:50
enormous sweeping, almost limitless
3:53
immunity for criminal prosecution for
3:55
any actions they may take during their
3:57
presidencies. Um, and even beyond the
4:00
kind of narrow conclusion about immunity
4:02
from criminal prosecution, the opinion
4:05
just has again an almost boundless
4:07
conception of presidential power and a
4:10
really narrow conception of the ability
4:12
of other branches, whether that's the
4:14
legislative or the judicial branch to
4:16
impose any kinds of meaningful checks or
4:17
limits on the president. So that's
4:18
before Trump even comes into office for
4:20
the second time. And I think we've seen
4:22
in the almost exactly a year that Trump
4:24
has been back in office, the Supreme
4:26
Court again and again blessing these
4:29
enormous assertions of executive power
4:32
mostly in the domestic realm. So whether
4:33
we're talking about essentially
4:35
dismantling agencies, firing officials
4:37
with statutory protection against being
4:39
fired, blessing rendering individuals to
4:42
third countries with which they have no
4:44
relationships, summarily, you know,
4:46
discharging transgender members of the
4:48
military and the list is close, you
4:49
know, between 20 and 30 shadow docket
4:52
orders. Trump has prevailed in before
4:54
the court even after Trump has lost in
4:56
the lower court. So that's all been
4:57
mostly in the domestic realm with some
4:58
immigration cases as well. But as you
5:00
said, the last couple of months have
5:02
seen him turn some of his focus to the
5:05
kind of foreign affairs and
5:06
international realm. And that's of
5:07
course the strikes on boats, then the
5:09
actual apprehension of Maduro in
5:11
Venezuela, the public rumination about
5:13
what is going to happen with Greenland
5:16
potentially. And so I think that's been
5:18
an enormous escalation in terms of
5:19
assertions of presidential power. And as
5:22
kind of acquiescent as the court has
5:24
been already in the domestic realm, I
5:25
think the court is of anything likely to
5:26
be even more kind of permissive in the
5:28
international realm because that's a
5:30
domain courts are very hesitant to go
5:32
into when he's acting as the
5:33
commander-in-chief and doing foreign
5:34
affairs.
5:35
>> Right? So there's all these theories
5:36
that they have the the unitary executive
5:38
theory which is that all the executive
5:40
powers lodged in the president and we
5:42
can get to the Federal Reserve issue on
5:44
that and other but and he's the
5:46
commander-in-chief and chief actor in
5:48
foreign affairs and courts sitting in
5:50
their little chambers can't second
5:52
guessess the president's response to the
5:54
great events of the world but can I just
5:57
ask is it possible because they consider
6:01
themselves originalists right they are
6:03
sticking to the original meaning of the
6:05
Constitution as it was written and
6:07
ratified by the people of that time.
6:10
That the people of that time, those guys
6:12
had just gotten done finishing a war
6:14
against a king, right, who had abused
6:16
all kinds of powers. Then when they
6:18
first set up a government after they won
6:20
the revolution, they had no executive at
6:22
all, right? They they didn't want any
6:24
executive. That's how much sus how
6:26
suspicious they were of executive power.
6:28
Yeah. Yeah. And then when they got to
6:29
Philadelphia and they said, "Okay, I
6:30
guess we need a some kind of executive
6:32
here because the the government's not
6:34
working right." They said, "Well, let's
6:35
have three presidents." Right? They
6:37
originally thought a triumvirate would
6:39
split the power. That's how concerned
6:42
they were about what is happening now in
6:45
our country. That there would be a man,
6:48
a president who would rise and seize
6:52
every ounce of power and more. They
6:54
counted on the three branches of
6:56
government doing their jobs. But I'm
6:57
just I kind of wonder how do they square
7:01
this supercharged presidency that they
7:03
have blessed first on the shadow docket
7:05
as you say and and in Trump versus the
7:08
United States the immunity case
7:09
directly.
7:10
>> How do they square that
7:12
with our constitution as it we have as
7:15
it was written as we have understood it
7:16
for 200 plus years? I
7:18
>> I think that they pledge feelalty to
7:20
originalism as a method of
7:22
constitutional interpretation. So they
7:23
say you have to interpret the document
7:25
as it was understood when drafted and
7:27
ratified. But I do think they are pretty
7:29
anti-originalist when it comes to
7:30
presidential power because I don't think
7:32
there's a credible historical argument
7:34
for the kind of expansive presidential
7:37
power that they have blessed in the last
7:40
year. So and and actually when you read
7:43
their cases about the presidency both
7:45
during the last year such as they are
7:46
but going back you know 5 10 15 years
7:49
even they're not very originalist
7:51
decisions. They take snippets of
7:53
constitutional text. So, you know,
7:55
article 2 is the part of the
7:57
constitution that creates and empowers
7:58
the presidency. And as as you said,
8:00
Terry, you know, there's not actually a
8:01
ton in it. Part of what they were doing
8:03
was just deciding, well, what what would
8:04
we call this person who was going to be
8:05
the executive? We'll call him the
8:06
president. And should there be, you
8:08
know, a plural or a unitary presidency?
8:10
Should be there be three. Should there
8:11
be one? So, there's one is the decision,
8:13
and we'll call him the president, and
8:14
we'll give him a handful of authorities.
8:16
Um, but actually, most of article 2 is
8:18
about the kind of weird process of
8:19
picking the president, the electoral
8:20
college. there's just not that much
8:22
about presidential power. But there are
8:24
a couple of phrases. One, you know, the
8:25
executive power shall be vested in a
8:27
president. And so they are fond of
8:30
citing that sentence and then kind of
8:32
editing it to include the phrase all of
8:34
it. So they say the executive power, all
8:37
of it shall be vested in a president.
8:39
Well, all of it actually isn't in the
8:40
constitution. That's a gloss that they
8:42
have put on it in their opinions. And so
8:44
they have written a number of opinions
8:46
mostly about the president's power to
8:47
fire subordinate officials that pluck a
8:50
little bit of you know text from the
8:52
constitution find snippets from you know
8:55
Alexander Hamilton primarily but from
8:57
the founding generation sort of talking
8:59
about the importance of a muscular
9:00
executive who can act with energy and
9:03
dispatch as compared to you know
9:05
congress which by definition has to
9:06
broker compromises and is going to have
9:09
a lot of kind of competing interests and
9:11
of course courts which are slow and
9:12
reactive. the president is a kind of can
9:14
be a self-starter and there are you know
9:17
writings that are founding era writings
9:19
to that effect but that's just you know
9:21
an accurate description of the power of
9:23
the presidency and no one and certainly
9:24
not me suggest that we shouldn't have a
9:25
president who is empowered to some
9:27
degree to act but the question is
9:29
subject to law and constraint and I
9:31
think those things are important to the
9:32
presidency as the framers conceived it
9:34
and those are sort of marketkedly absent
9:36
in the way this court describes the
9:38
presidency it's really about kind of
9:40
function we want a president who can
9:41
move quickly who can important decisions
9:44
in particular again in the sort of
9:46
domain of protecting the country and the
9:47
national security and and negotiating in
9:49
foreign affairs. Um but those are kind
9:51
of practical functional arguments not
9:54
historical or originalist arguments.
9:56
>> One more general question. I want to tap
9:58
into your experience working at the
10:01
court as a clerk the Supreme Court. You
10:03
get a feel for different justices
10:05
primarily but you get a feel for how it
10:07
works. Do you think they regret any of
10:10
that? Watching Trump rampage through the
10:14
laws and practices, traditions, and even
10:17
values both domestically and
10:19
internationally uh that presidents have
10:22
obeyed in the past.
10:23
>> I don't see a lot of evidence of that
10:25
sort of surprisingly. I mean, in the
10:27
first Trump term, they actually did the
10:30
Supreme Court did stand up to him on a
10:32
handful of important occasions. They
10:34
rejected his effort to add a question
10:36
about citizenship to the 2020 census.
10:38
They struck down his efforts to resend
10:41
the DACA program. You know, those are
10:44
just a couple of examples, but those
10:46
were important kind of policy
10:47
initiatives that, you know, Trump really
10:50
kind of touted and was unsuccessful.
10:52
Now, they allowed him to do a lot of
10:53
things. They upheld the Muslim ban after
10:55
they, you know, the administration took
10:57
its third run at it. And they allowed a
10:58
number of other things to happen, but
10:59
not everything. And fast forward to the
11:02
second term and they have been far less
11:05
willing, at least so far, to stand up to
11:07
him. Now, we should say we have yet to
11:08
see how they're going to rule in the
11:09
tariffs case, which could come down, you
11:11
know, tomorrow potentially. It could be
11:12
coming soon. They will hear arguments
11:15
for the second time about the birthright
11:16
citizenship executive order. They kind
11:18
of issued a procedural ruling that
11:21
didn't go to the question of the
11:22
constitutionality of that order last
11:24
year, but they can't avoid it in this
11:25
case. So, they're going to rule on it.
11:27
and they're likely to have other
11:28
questions involving, you know,
11:29
potentially the Alien Enemies Act, um,
11:32
other efforts to invoke emergency
11:34
authorities. So, it's possible that they
11:37
will stand up to him. But, I mean, I
11:38
think all evidence on the shadow docket
11:40
where they have sided with him again and
11:41
again suggests that if anything, they
11:44
are kind of more allin for allowing the
11:47
exercise of authority that he is
11:49
demonstrating this time than last time.
11:51
And I just cannot get my head around it
11:53
because it's so obviously dangerous from
11:55
the perspective of the constitutional
11:57
order.
11:57
>> Yeah, it seems that way and so obviously
12:00
contrary to the conservative principles
12:02
that those justices before they came on
12:05
the court were all about, right? Limited
12:07
government. So let's let's get down to
12:08
brass tax. Let's get down to the
12:10
>> the sad story, tragic story of Renee
12:14
Good in Minneapolis. All right. Killed
12:17
by I I don't want to get into the you
12:19
know what was going on. Everybody's got
12:21
their opinion on that. My own feeling on
12:22
that is, you know, I would usually say,
12:24
"Okay, we'll let the jury decide. We
12:26
shouldn't decide it on social media, but
12:27
it doesn't even look like there going to
12:28
be a trial." But the question I have is
12:30
this national masked, hooded,
12:34
militarized, armored up police force
12:38
descending on cities and towns and just
12:42
snatching people off the street,
12:44
smashing into homes without a warrant
12:47
signed by a judge as required by the
12:49
Constitution. We have I mean it's here
12:53
the the the Hollywood movie is actually
12:56
happening now. It's only happening
12:57
primarily to brown black people and and
12:59
immigrants but it as Minnesota shows
13:02
>> Yeah. Not exclusively.
13:03
>> Not exclusively.
13:04
>> Yeah. H
13:05
>> how did is there any chance that the
13:08
Supreme Court would check what's what
13:10
seems to any patriot I'm just going to
13:12
say it. real patriotism, what I is what
13:14
I call this this podcast, this website,
13:17
to any real patriot that we shouldn't be
13:20
having masked and armed and hooded goons
13:24
>> snatching people off the street and
13:26
disappearing them without access to
13:27
lawyers or their families for weeks.
13:29
That's even including US citizens. That
13:31
seems wrong to me.
13:32
>> It seems clearly wrong. And I I do think
13:35
that there is a potential there are ways
13:37
that the Supreme Court and the federal
13:38
courts in general could actually be
13:41
asked to weigh in on this. Now,
13:44
>> so as a well, as a threshold matter,
13:45
I'll say the president, you know, does
13:47
have a lot of discretion to decide how
13:49
to enforce immigration laws. The courts
13:51
have said that. But of course, the
13:52
constitution is supreme law. And as you
13:54
just were detailing, there are flagrant
13:57
visible constitutional violations
13:59
happening left and right. So they are
14:02
clearly detaining people without
14:04
reasonable suspicion. They are entering
14:06
homes without warrants. They are using
14:08
excessive force which violates the
14:10
constitution. And I think the court kind
14:12
of realizes honestly that it bears some
14:14
responsibility for this. So one of the
14:16
many shadow docket orders the court
14:18
issued came out of Los Angeles and
14:20
involved these basically suspicionless
14:23
stops that the DHS components I think it
14:25
was both ICE and CBP in that case.
14:27
Vasquez Perdomo was the name of the
14:29
case. But there were individuals being
14:31
targeted and detained by immigration
14:34
authorities based on things like they
14:37
were speaking Spanish or accented
14:39
English. They appeared to be Latino.
14:42
They were working low-wage jobs like
14:44
landscaping or at a Home Depot. I mean,
14:46
these are things that by its own account
14:48
the administration was using to focus
14:50
its immigration enforcement efforts. And
14:53
lower courts basically said, "No, you
14:55
cannot do that under the fourth
14:56
amendment. those are racial and national
14:59
origin profiling and the fourth
15:00
amendment doesn't allow you to target
15:01
people on those bases and the Supreme
15:03
Court disagreed and Justice Kavanaaugh
15:06
in a concurring opinion the court didn't
15:07
really say anything about why the lower
15:08
courts had been incorrect to conclude
15:10
there were constitutional violations but
15:12
Justice Kavanaaugh wrote a separate
15:13
concurrence basically explaining that
15:15
the things the factors that I just
15:17
listed are enough to constitute
15:19
reasonable suspicion for constitutional
15:20
purposes and can justify stops and he
15:22
said some in hindsight pretty ridiculous
15:25
and naive things maybe willfully blind
15:28
about how immigration stops are
15:29
temporary and when the officials realize
15:31
somebody is either lawfully present or a
15:33
citizen, they're released swiftly. And
15:34
of course, as you said, we now know, and
15:37
honestly, we kind of did then, that that
15:39
is not the case. But in any event, the
15:40
court, I think, realizes that it has, or
15:42
at least some of them do, it has clearly
15:45
emboldened the immigration authorities
15:47
to enforce with the aggressiveness that
15:49
they are enforcing through decisions
15:51
like that one. And then I'll say so so I
15:53
think it's possible that another kind of
15:55
fourth amendment challenge could come
15:58
back up to the court and maybe they take
15:59
a different kind of look in light of
16:00
these intervening developments. And one
16:02
of those is the city of Chicago.
16:04
Actually, there was uh an abbreviated
16:07
hearing. I I guess it wasn't a full
16:09
trial, but there were a bunch of
16:10
proceedings in the district court before
16:11
Judge Sarah Ellis, who ended up issuing
16:14
lengthy findings, including about this
16:16
CBP's senior official, Greg Bevino, who
16:19
is now on the ground in Minneapolis,
16:21
engaging in clearly unconstitutional
16:23
conduct in similar kinds of enforcement
16:25
as we're seeing in Minneapolis, but but
16:27
in Chicago. that case. The plaintiffs
16:30
voluntarily moved to withdraw that case
16:32
because the CBP had left Chicago. But
16:35
that's a case that could come back to
16:37
life or another case like that could
16:39
come back to life and it could make its
16:40
way to the Supreme Court. The court has
16:41
also, I should say, just in one of the
16:43
few shadow docket orders the
16:44
administration has lost ruled against
16:47
the administration on its deployment of
16:48
the National Guard to Illinois on a
16:51
fairly kind of technical grounds that I
16:52
can describe if you want. In any event,
16:54
I think it is possible that the court is
16:57
not going to look away from some of what
16:59
we were seeing on the ground in
17:00
Minneapolis. It doesn't obviously bear
17:02
directly on Renee Good, her family, her
17:04
widow. Um, but it's, I think, a possible
17:08
legal recourse that might exist to some
17:10
of the lawlessness that we are
17:11
witnessing.
17:12
>> Well, that there's a glimmer of of light
17:14
and and hope there. And maybe then that
17:17
would actually test whether or not these
17:20
Supreme Court justices up in that ivory
17:22
tower seeing what we are all seeing say,
17:25
"Wait a minute. This this isn't exactly
17:28
what we thought he was doing the and the
17:31
law should work." And Justice Kavanaaugh
17:32
himself seems a little bit embarrassed
17:34
about these things being called
17:35
Kavanaaugh stops. Yes. if you say if
17:38
you're speaking Spanish, if you're
17:39
brownskinned, if you're if you're out on
17:41
the work site, uh or at Home Depot,
17:44
that's reason enough to get tackled by
17:46
ICE. But I do want to pick up on on that
17:50
and that sense of that cloistered ivory
17:53
tower there and something that has
17:55
struck me powerfully since the beginning
17:58
of this administration and Trump's
18:00
fullon
18:02
uh determination to seize as centralize
18:04
as much power for in his own presidency
18:07
in his own personal hands as possible.
18:09
And that is that they weren't ready for
18:11
it. They aren't built for this. And I
18:14
thought and I we may have talked about
18:15
this before that when you look at the
18:17
case that decided Brown versus Board of
18:18
Education, right? The Chief Justice was
18:21
a former governor. There were former
18:23
senators on that, former members of
18:25
Congress, the former head of the SEC,
18:28
two former attorneys general, right?
18:29
These were these were men of state,
18:31
right? They had exercised power. They
18:33
had they had seen how power works. They
18:35
had felt the temptations of power, lived
18:38
the actual reality of state power. And
18:41
they saw under Warren's leadership that
18:44
the problem of racial segregation was
18:47
unsustainable in in the country at that
18:49
point and that the Supreme Court had the
18:51
power to do something about it and they
18:53
did.
18:55
>> This Supreme Court is really cons
18:57
consists entirely of federal appellet
18:59
lawyers, right, and judges with almost
19:02
zero experience in the practical
19:05
business of governing. None of them. The
19:08
last the last last one to run for office
19:09
was Senator Day Okconor. Couple of them
19:12
worked in the White House, worked in the
19:13
Justice Department, but really nothing
19:15
like what we've had in the past, at
19:18
least someone. Is that one of the
19:20
failures that we're seeing here?
19:21
Systemic failure of people who simply
19:22
don't have the experience to meet this
19:24
moment.
19:25
>> I think that's part of it, but I also do
19:26
think that the experience that they have
19:28
is an additional problem. So, you're
19:30
right. They were appallet lawyers and
19:31
and appellet judges primarily but also
19:34
most of them were executive branch
19:36
lawyers in the federal government. So
19:38
Roberts and Kavanaaugh were senior white
19:39
house lawyers. Alto a senior justice
19:41
department lawyer uh Gorsuch as well
19:43
senior justice department lawyer Kagan
19:45
as well. So it's all of them I think
19:47
except for Soayor and Barrett and
19:49
Sotomayor was a prosecutor so a local
19:50
executive official. Um Barrett's sort of
19:53
the exception. But I do think that when
19:54
we're talking about presidential power,
19:56
there is this kind of institutional bias
19:59
that most of them have in favor of the
20:02
president because they a lot of them cut
20:03
their teeth making arguments for
20:05
presidential power, including in the
20:06
early Reagan justice department and
20:08
white house where that was a huge part
20:10
of the agenda of kind of the birth of
20:12
the conservative legal movement and of
20:14
the unitary executive as a part of it.
20:16
So I think that that has been a theory
20:18
kind of in the wilderness for a very
20:19
long time. Now, for the first time, they
20:22
have the votes to actually implement it
20:24
into law. And I think we are seeing the
20:26
disastrous consequences of that
20:28
happening. But I think you're right to
20:30
make the related point that they are
20:31
not, you know, they haven't run for
20:33
office. They're not statesmen of the
20:35
sort that courts passed. I mean, they
20:37
had plenty of, you know, shortcomings as
20:39
well, but courts past did have this
20:41
diversity of background that this court,
20:43
I think, is wolffully lacking.
20:45
>> Yeah. And Trump is certainly taking
20:48
advantage of it and benefiting from it.
20:50
And I and I do want to go to something
20:52
you you mentioned earlier, the
20:53
dismantling. This is another thing that
20:55
strikes me as how can this be
20:57
constitutional? How can the courts sit
20:59
by? So the Department of Education,
21:01
USAD, the International Institute of
21:03
Peace or what, now the Trump Institute
21:04
of Peace, whatever. These are
21:06
institutions, departments, and agencies
21:08
of the government established by law, by
21:11
debate, discussion, and vote from the
21:14
people's representatives in Congress.
21:15
signed into law by previous presidents,
21:17
voted into office by by the people, and
21:20
Trump can just zero out their budgets
21:22
and destroy them. I I I just don't
21:25
understand
21:26
>> how uh a constitution designed to have
21:29
Congress, the people's representatives,
21:30
the branch closest to the people, being
21:32
the driver of national policy and sol
21:34
and solver, main solver of national
21:37
problems because you can have that
21:38
debate, lots of competing interests, and
21:41
you get the answer. And Trump says, "No,
21:42
I don't like the Department of
21:43
Education. and it's dead. Now, how is
21:45
that constitutional? How how come we
21:47
haven't heard from the court saying,
21:48
"No, this is not the way our
21:50
constitution works."
21:51
>> I'm again at a loss. I agree with your
21:53
assessment. I think it is plainly,
21:55
flagrantly unconstitutional for the
21:57
president to try to unilaterally
21:58
dismantle a federal agency. And again,
22:00
the lower courts that have considered
22:03
the cases brought to challenge many of
22:05
these moves to do things like completely
22:07
obliterate the Department of Education
22:09
have rendered careful decisions often
22:12
after, you know, argument
22:15
witness testimony. I mean, lots of
22:17
experts and also actual, you know,
22:20
personnel from these agencies have
22:21
testified. So that was true of the
22:23
Department of Education, but of many,
22:25
many other cases where the president has
22:27
taken some, I think, plainly lawless
22:28
action. And lawyers have swiftly kind of
22:32
jumped into action and brought lawsuits
22:34
and again and again, including the
22:35
Department of Education case, the court
22:37
has either without any explanation or
22:39
with just a couple of paragraphs of
22:41
explanation, basically said, "No, we
22:43
disagree." And we don't fundamentally
22:46
even know why. In a lot of these cases,
22:47
the court believes that it is
22:49
constitutionally permissible for the
22:50
president to proceed the way he is. And
22:52
so I, you know, all we can do is sort of
22:55
venture guesses based on the arguments
22:56
that the administration is making. So
22:58
Department of Ed, it's making sort of
23:00
bad faith arguments. Well, we're not
23:01
dismantling. We're just, you know, kind
23:03
of changing, downsizing, and again, like
23:06
immigration, the president does have
23:08
some authority to move people around
23:10
inside executive branch agencies and
23:12
things like that. But that is not a
23:13
credible explanation or or description
23:16
of what happened or is sort of still
23:18
happening in the department of education
23:19
or other agencies. And yet the court
23:21
seems to be just accepting the
23:23
representations offered by the
23:24
president's lawyers.
23:25
>> Yeah. And so uh we still have a
23:28
department of education but it's empty.
23:30
It's empty and its funding is gone. And
23:32
that leads to the Federal Reserve.
23:34
Right. So we now we have this
23:35
>> very significant crisis.
23:37
>> Right. The Federal Reserve and its
23:39
independence has been one of the
23:41
foundations of American power and
23:44
prosperity and stability in the world
23:45
and having covered I was in Russia
23:48
before Putin was elected and have been
23:50
there a dozen times since and Erdogan's
23:53
Turkey and Orban's Hungary
23:57
dismantling control uh independent
23:59
control of the money is one of the first
24:02
steps they do. They they like easy
24:04
money. They juice the economy. It's a
24:06
sugar high. And here Trump kind of
24:08
clearly wants to do that.
24:10
>> Yeah.
24:10
>> And now he's threatening the Fed chair
24:12
Jerome Powell with a prosecution
24:14
>> for, you know, the renovations at the
24:16
Fed. And the Supreme Court has
24:18
greenlighted his ability to fire pretty
24:20
much everybody else in the executive
24:23
branch, no matter what the law passed by
24:26
the people's representatives in Congress
24:27
says. And so is the Fed different?
24:31
They've kind of hinted that it might be,
24:33
but because maybe they don't want to
24:35
wreck the world economy.
24:36
>> Yeah. I mean, I think you're right that
24:38
it's long been understood that this idea
24:40
of central bank independence is this
24:42
kind of bedrock constitutional value.
24:44
That's been true here. That's been true
24:45
elsewhere. And also so anti-democratic
24:47
actors have targeted that and sought to
24:49
exercise total political control over
24:51
monetary policy. Um, and I I I think
24:56
this is a hard one to call in terms of
24:58
what the Supreme Court is likely to do.
25:00
So, you know, the court heard arguments
25:02
about the president's power to fire the
25:03
head of the Federal Trade Commission.
25:05
That was the slaughter case. I think
25:06
that virtually everyone thinks the court
25:08
will announce prospectively that
25:10
presidents can fire heads of independent
25:12
agencies. So the only question is the
25:14
one you posed kind of is the Fed
25:17
different? And in another shadow docket
25:19
order last spring in a case called
25:20
Wilcox, the court in about two sort of
25:22
cryptic sentences said the thing we're
25:25
allowing the president to do to fire
25:26
heads of independent agencies doesn't
25:29
necessarily apply to the Fed because the
25:31
Fed is a distinct uniquely structured
25:34
entity that is sort of partly quasi
25:37
private, quasi public, grows out of in
25:39
certain respects the first and second
25:41
bank of the United States from sort of
25:43
the decades immediately following the
25:45
founding. Um, and so the Fed is just
25:48
kind of different. So there's a lot of
25:50
kind of contested factual material in
25:52
those two sentences. Real experts on the
25:53
Fed basically say that's just that's
25:55
wrong. It's a it's an independent agency
25:56
like others. There are other independent
25:58
agencies that do things in the kind of
26:00
financial and monetary space. The Fed is
26:03
totally different from the Bank of the
26:05
United States. And you know, it's got
26:07
this complex relationship to the, you
26:09
know, regional banks. That's true.
26:10
There's lots of unique things about the
26:12
structure of the Fed, but the Fed in
26:14
terms of the kind of open market
26:15
committee, the sort of like you know
26:16
interest rate setting body that is the
26:18
thing that is the focus for purposes of
26:20
this litigation and the president's
26:22
focus. It's just like an independent
26:24
agency like any other. So the court is
26:25
manufacturing distinctions because it
26:27
would like to retain the possibility
26:29
maybe because it wants to kind of you
26:31
know keep global financial stability and
26:34
not be responsible for kind of upending
26:35
the global economy. Um it may say that
26:38
the Fed is different. So that that I
26:40
think is the question the court will
26:41
hear or will you know debate next week
26:43
in the case Cook or Trump versus Cook is
26:45
the name of that case about his you know
26:47
purported firing of Fed Governor Lisa
26:49
Cook. But as you said things have heated
26:51
up you know significantly in that just
26:55
this week the Fed is being investigated
26:57
by the Justice Department potentially
26:59
for matters related to Powell's
27:01
testimony in Congress over this kind of
27:03
issue of the renovation of the Fed
27:05
building and then maybe the kind of
27:06
renovation itself. Um I am sort of
27:10
hardpressed to understand why the
27:12
president wanted to pick this fight. Now
27:13
honestly with the court next week poised
27:15
to consider this question of whether the
27:17
president has power to fire anybody on
27:19
the Fed that he wants to. Uh I mean with
27:21
Cook he man he said that it's not
27:23
because he disagrees with the Fed's
27:25
decisions about interest rates. It's
27:26
because you know he's got some Bill Py
27:30
generated allegation of mortgage fraud
27:32
that he suggests that is the kind of
27:33
reason for the firing. But so there's
27:35
sort of two distinct questions. I'll
27:36
stop talking. But does is the Fed
27:38
different? And even if not, the
27:40
president may be able to fire for cause,
27:43
you know, or even if the Fed is
27:45
different and the president can't just
27:46
summarily fire people on the Fed the way
27:48
he can summarily fire people at the head
27:49
of other independent agencies, might it
27:51
still be permissible for him to have
27:53
fired Lisa Cook on the maybe unreable
27:56
claim that he is making that she is
27:58
engaged in mortgage fraud? So distinct
27:59
but related questions, but all about the
28:01
future of the Fed and the Fed
28:02
independence,
28:03
>> right? And the the unreable means that
28:05
if the president decides that an
28:08
employee of the federal government can
28:09
be fired for cause, the courts won't
28:11
second guessess him, which is and the
28:13
the answer to the question of why is he
28:15
doing this given the fact that Jerome
28:16
Pal is going to be out as Fed chair in
28:18
uh in May, it's because he wants it all,
28:21
>> Kate. I think he wants it all. Anybody
28:24
who doubts that the maximal presidency
28:28
has arrived under Donald Trump and that
28:31
he doesn't joke about taking power, he
28:34
doesn't he he's not kidding around about
28:37
it. I thought the most significant event
28:39
for me, for my own consciousness of
28:41
this, which got me fired, which don't
28:43
get me fired from ABC, but was was the
28:46
first day and he signs that executive
28:48
order purporting to change the meaning
28:50
of birthright citizenship. and I
28:52
realized this is a radical man. This is
28:55
a this is it. And on that score, my
28:58
favorite Supreme Court brief maybe of
29:00
all time, actually, I'm not sure it's a
29:01
brief yet. It's a law review article. I
29:03
assume it's going to be a brief. It's
29:04
from the George Washington University
29:06
law professor on the the fact that the
29:10
people who passed the 14th amendment, if
29:13
you look at their credentials to have
29:14
you seen this this brief, if you if you
29:16
look at their credentials to be senators
29:19
and members of Congress, they have to
29:21
have lived in the country a certain
29:22
amount of time and and be a certain age
29:25
that they wouldn't have passed uh muster
29:28
as as being under the Trump definition
29:31
of birthright citizenship. they wouldn't
29:33
be citizens of the United States. In
29:35
fact, the people who wrote the 14th
29:37
Amendment wouldn't qualify. And that was
29:39
at a time when people were contesting
29:40
the credentials of all kinds of senators
29:43
and members of Congress because the
29:44
partisan debate was so fierce.
29:46
>> And they didn't question the fact that
29:49
the senator from Massachusetts, his dad
29:51
hadn't even declared his intention to
29:53
stay in the United States until well
29:55
after the 14th amendment was passed.
29:56
That kind of thing. I just loved it
29:58
because nobody thought to look.
30:00
>> Yeah. And so they cooked up this idea
30:02
that well okay uh birthright citizenship
30:06
only means you're born here to parents
30:08
who have declared their intention to
30:10
stay and are here both of them lawfully
30:12
and even the guys who wrote and passed
30:14
the amendment wouldn't qualify. I mean I
30:17
just I just love that
30:18
>> I haven't seen that brief. That sounds
30:19
great.
30:20
>> It was I think it's a it's a law review
30:22
article that I assume is going to be a
30:24
brief. It should be fun. Look, we got a
30:26
couple more minutes and we've touched on
30:28
foreign policy. We have a president who
30:31
is rewriting the international system,
30:33
the international trade system and the
30:35
international security system. And as
30:37
you point out by tradition and by the
30:40
openended language of article 2,
30:42
presidents have tremendous power uh on
30:45
the world stage and have exercised it.
30:46
Right. We've gone to war plenty of times
30:48
without congressional approval. Not sure
30:51
that's true, but certainly without any
30:53
declaration.
30:53
>> Hostilities for sure. Yeah. Without
30:54
without declaration. Absolutely. Yeah.
30:56
>> Yes. And so here we are with Trump
31:00
saying, "We're running Venezuela. The
31:02
United States is running a sovereign
31:05
country and he wants to grab a piece of
31:07
of of the Kingdom of Denmark. He wants
31:10
to grab Greenland away." Um, is the
31:14
Supreme Court likely to stop him here?
31:15
You've touched on this, but how do you
31:17
look at that question?
31:18
>> So I think there are two separate
31:19
questions, which is is it lawful and is
31:21
the Supreme Court likely to stop him?
31:23
And I think the answers are are you know
31:25
both no um no it's not lawful and no the
31:29
Supreme Court is not likely to stop him.
31:31
It is just this is a domain in which the
31:34
court is very hesitant to get involved.
31:36
And when we're talking about foreign
31:38
affairs and war powers, the court is
31:41
very very reluctant to get involved. It
31:43
thinks and I think it's right. It lacks
31:45
the kind of institutional expertise and
31:47
competence that the executive branch
31:49
possesses when it comes to making
31:50
judgments about military matters. But of
31:53
course that's, you know, no, the court
31:54
is not going to be secondguessing
31:56
general's battlefield calls. But also,
31:58
there are ways that the court can weigh
32:00
in on the lawfulness of things that
32:02
touch on matters of national security or
32:04
foreign affairs or war that would keep
32:06
the court in its domain. But I just
32:09
think that when it comes to any
32:11
potential future action in Greenland and
32:13
the action that we've already seen in
32:15
the ongoing assertion of essentially
32:17
some degree of control over Venezuela, I
32:20
think that it's pretty clear that those
32:21
actions violate the UN charter and any
32:24
kind of aggressive action visa v
32:25
Greenland would violate, you know,
32:27
article 5 of NATO in addition to also
32:29
the UN charter. So there's all kinds of
32:30
international law, clear violations that
32:32
these would reflect. But I also do think
32:34
they exceed the president's power just
32:36
as a matter of US constitutional law.
32:38
And yet it's a distinct question whether
32:39
the courts can stop him. And I think the
32:41
answer is probably no. That's for the
32:43
political process. That's for the
32:44
American public and that's for Congress.
32:47
>> Yeah. Well, so we have to count on on
32:49
one of the branches of government
32:50
standing up to him and so far so bad.
32:53
And I want to end on something more of a
32:55
personal question. Look, you're you're
32:57
you're so brilliant and and you so
33:00
incisive in describing the the issues
33:04
before the court and how they've
33:05
approached them and I appreciate that a
33:07
lot. But I know you also love the
33:10
Constitution.
33:11
>> I do.
33:12
>> And our country and I want to ask you
33:16
through the lens of of the law and of
33:19
the Supreme Court, you an optimist or
33:22
pessimist right now?
33:24
>> I think that we have to be hopeful. I
33:25
don't think we really have a choice
33:27
because I think that the sort of kind of
33:29
doom and inaction are just not viable
33:33
prospects. And so I choose because again
33:36
I don't think we really have any other
33:37
choice to remain optimistic and hopeful.
33:39
I I think I'm cleareyed that this is
33:40
that we are on a very dangerous path and
33:42
I do not think the Supreme Court is
33:45
going to save us. So, I think it's
33:46
important to be cleareyed about that.
33:48
And even if there are a couple of
33:49
rulings that come down against Trump,
33:51
that the court is a right now a
33:53
fundamentally profoundly flawed entity
33:56
that requires potentially major
33:58
structural reform.
34:00
But I think that I've found a lot of
34:03
hope in sort of the legal process
34:06
actually litigation and lower courts um
34:09
have I think been the kind of key bull
34:10
work in many respects far more than the
34:12
Supreme Court and and far more than
34:13
Congress in checking many of the
34:15
excesses of this president. So, I mean,
34:18
there are lawyers across the country
34:19
working 20our days and have been since
34:21
January 20th. In particular, we're
34:23
talking about kind of immigration, but
34:25
also representing fired federal
34:26
employees and seeking to stop these
34:28
senseless cuts and traveling to try to
34:32
track down clients or family members in
34:34
immigration custody. I mean, it's just I
34:36
know a lot of people who have barely
34:38
slept for the last year because they
34:40
believe so deeply in the rule of law and
34:42
the Constitution. And so, I actually do
34:44
take a lot of hope from those people.
34:46
also figuring out ways to support those
34:48
efforts. Litigation is not the answer,
34:50
but it is a way to kind of stem, I
34:53
think, some of the worst bleeding from
34:55
some of the the kind of overreach of
34:57
this administration. And so, I've taken
34:59
hope from that. And I think that in the
35:01
last, you know, we're talking about
35:02
Minneapolis in the last few days, I
35:04
think that previously sort of kind of
35:06
politically disengaged individuals, I
35:08
think I am seeing um seeming to spring
35:11
into action. This has, I think, gone too
35:12
far for many, many people, even those
35:15
who, you know, were open-minded or even
35:17
supportive of President Trump for part
35:19
of this last year. And so, I do take
35:20
hope from that.
35:22
>> I I love that. And I think you're so
35:24
right. Here in Frederick, Maryland, you
35:26
know, small city here, they had a a very
35:29
large protest, tens of thousands is what
35:31
was reported. I was downtown in
35:33
Frederick and saw it. And I I've covered
35:35
protests around the world my whole life
35:37
and I always knew it was something real,
35:39
something you was really genuinely
35:41
erupting. When you walk through a crowd,
35:43
as I did the other day, and people say,
35:46
you know, and I'd ask him, you know,
35:47
what's going on and how do you feel? And
35:49
uh more than one person will say to you,
35:51
I've never done anything like this
35:52
before.
35:53
>> Yeah.
35:54
>> And then you know that that great quiet
35:57
decent mass of of Americans. And then
36:01
the my favorite thing is is what you
36:02
just said. It may be that the rule of
36:04
law in this country is laid so thickly
36:06
through our history and culture and
36:08
through our institutions that even while
36:10
the Supreme Court may be messing up,
36:13
there's just there's it's too much to
36:15
for even Trump to tear out at least in
36:17
the near term. So
36:19
>> I hope so.
36:20
>> Well, Kate Shaw, it's been great. Thank
36:22
you so much.
36:23
>> Really nice to see you, Terry. Thank you
36:24
so much for having me.