The Supreme Court Expands Presidential Power. Again.

Last year, I spent three months embedded with a capital defense team.

“Their client had been on death row for more than 30 years, and now, his execution date had been set.”

I followed along as the lawyers tried to prove something nobody had successfully done in three decades, that one of Texas's most notorious Cyril killers was actually innocent. The last 12 weeks, listen wherever you get your podcasts. From New York Times, I'm Michael Avaro. This is a daily. In a major ruling on Monday, the Supreme Court delivered one of the biggest changes in decades

to how the federal government works. And then, the court turned around and announced an exception to its own ruling. Today, my colleague and Marimoz explains what the court was up to. It's Tuesday, June 30th. And thank you for coming on on a busy Supreme Court day for you. Appreciate it. Thanks for having me. So, and Monday was a day of big, and I think if we're being honest,

somewhat contradictory rulings in theory by the Supreme Court about the scope of presidential power. So, let's start with what just happened and what it means.

So, there are two big decisions on Monday. The first was a major expansion of presidential power.

It makes it far easier for presidents to fire the heads of independent agencies like the Federal Trade Commission. It says the president can fire regulators for no reason or any reason at all. And these have been traditionally independent agencies. So, the court's decision really upends the structure of the federal government as it's been for over a hundred years. Right, not every day that you hear a colleague say that a hundred years of federal government

“president and practice has been amended, but that's what you just said. That's right.”

At the heart of this case was a nine-year-old president from 1935 that said Congress could protect these independent regulators from being fired on a whim by the president. But now the court said today that they can't. Right, basically they overruled a major president. That's the first case. That's right. And then the second case, as you mentioned, seems somewhat contradictory. In this case, the court carved out an exception for the Federal Reserve, the influential

central bank. The court said this is a unique institution that the independence is really critical

to overseeing monetary policy. And as you'll recall, this is the case where President Trump tried to fire Lisa Cook, one of the governors of the Federal Reserve Board. Mm-hmm. And here the court said, unlike all these other agencies that the president

“can't just remove her on a whim that there has to be cause. And in this case, the court's decision”

here was a little bit technical and procedural, but it upholds the principle that the Federal Reserve is unique, and that its independence is really critical in our system of government. God, so in summary, the court on Monday vastly expands the president's power by saying he can pretty much fire whoever he wants from these previously quote unquote independent federal agencies on a whim without any cause, which would seem to be a major major change to

how the federal government works. And yet, it said, all of that is true except for the central bank,

which is a tricky bit of legal logic that we're going to talk about. But let's start with the first

case, the biggest of the two that gives the president this power to fire so many leaders of federal agencies that previously he couldn't and overturns these decades and decades of precedent. So the first case is about Rebecca Slotter, a Democratic nominee of the Federal Trade Commission, which by design has to have both Democratic and Republican nominees. She was actually appointed by President Trump in his first term, and then he comes back to office again in his second term,

and gets rid of lots of Democratic nominees of independent agencies, including Rebecca Slotter, and then she goes to court and sues. Right, Slotter goes to the court and says the reason President Trump is firing me to spite appointing me as it isn't like my politics now, and that's not legally sufficient given all these legal protections that surround the kind of commission I'm on. And just really just why these particular agencies have these specific job

protections. Yeah, there's a long history of these types of agencies that Congress intentionally

these agencies that are setting consumer protections and workplace protections are supposed to be free from politics and filled with technocrats and experts in these fields. But despite these protections that Congress put in place, the Supreme Court's conservative majority has started chipping it away at those in several decisions that really embrace this idea of the unitary executive, and that is that the president is the head of the executive branch and has to be in charge of all

“the people who are filling these important executive branch agencies. Right, we talked about the”

unitary executive theory, executive theory. Several times on the show with our colleague

Charlie Savage, and basically the idea is that in a well-run executive branch, no one who works

for the president should be protected from accountability from that president and that these independent agencies like the federal trade commission, like the securities and exchange commission, and so on that the job protections held by the leaders of these agencies don't make any sense. They're basically unconstitutional if you believe that the executive has true authority across his or her branch of government. That's exactly right. And John Roberts, who wrote the

opinion today, has been embracing these theories since he was a young lawyer and the Reagan administration, basically says that the president should not have to work with people in these executive

“branch agencies who don't share his views, and that therefore President Trump was entitled to fire”

Rebecca Slotter, as he did here. I mean, what the Chief Justice really seems to be saying is that

from the moment these agencies were born, and my recollection is that they're kind of new deal era independent agencies. There was a flaw in their conception, and that flaw was that the president couldn't fire their leaders. That their leaders would be insulated from presidential authority. That's right. And he's also saying that these agencies were very different than they are today. You talked about various statutes that have evolved since then that have given

these agencies more executive power. And that's one of the reasons why other President needs to be able to control the rules that they're enforcing in the penalties that they're assessing. Mm-hmm. Of course, the other side of this argument is that even if these agencies have changed the very nature of their work, which is regulation, the protection of consumers or investors, is unique within the executive branch, and should be protected from political forces that they

require independent expertise. That whoever is deciding which publicly traded company should be penalized by the SEC should not just be someone the president likes or agrees with, but someone who knows public financial markets inside out. And also to shield them from influence from companies and various allies of the president's idea that they're supposed to be independent. And so this is the point that the dissent makes in today's opinion written by Justice Sonya Sotomayor and joined

by the other two liberals on the bench. That the decision today in addition to giving the president much more power is really the court taking power for itself and deciding that these protections no longer apply. And they're saying it's going to have lasting and fundamental changes to the structure of the government. Right. And our colleague who is in the courtroom for the dissent described this scene as pretty visceral. Yeah. So it's really unusual for the justices to read

“their dissents from the bench. And that's what Justice Sotomayor did today. It's a real sign”

of just their deep disagreement. She went on for about five minutes, according to our colleague Ashvariah Kavi and just looked very stoic and concerned about the implications of this decision. Her written dissent went on for almost 50 pages. Wow. Read to you what she said. She says, "In granting the president this unbridled authority, the court upends its president, misconstrues our history and sheds any pretence of judicial modesty." And for the Supreme

Court, those are really strong words. And what do you think that Justice Sotomayor and if we can in view what she's saying to the other liberal justices who signed her dissent is up to in writing that? I think the liberals in Justice Sotomayor's dissent are expressing their deep frustration with a new example of the court overturning a long-standing precedent and the culmination of this long-standing goal of the conservative legal movement. We've seen this time and again in

recent years with the court overturning Roe V Wade getting rid of affirmative action and college admissions. So this is sort of a continuation of that frustration from the liberal wing of the court,

which is very outnumbered with six to three. A final question on this first ruling. What's

practically speaking, what do we think it's going to look like? Well, there are more than two dozen independent agencies with a similar structure. And so what it means on the ground is that the president can go in and continue to try to get rid of democratic commissioners and as a result of this ruling, people won't be able to sue and cite these laws and job protections that have been on the books. Right after the ruling today, President Trump went on truth social. He called this

a big win. He said it's a historic and unprecedented ruling. One of the most important ever with

respect to presidential powers. Right, suggesting that he may be eager to follow up to the ruling with firings. Exactly, but the president wasn't celebrating the court's second decision about the federal reserve. Because there, they made very clear that the federal reserve is different and is independent and the president won't have the same power over those leaders. And we are going to talk about that case. Right after the break, we'll break back.

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So, and let's turn now to the second Supreme Court ruling that came down on Monday,

revolving around the federal reserve. And how it is that the same Supreme Court got to such a different ruling when it came to the federal reserve than it did with all these other agencies. Just describe that case and how the court got to the result it did. So, this is the case of Lisa Cook, a member of the Federal Reserve Board of Governors who Trump tried to fire. You'll remember the president has been putting a lot of pressure on the Federal Reserve to lower interest rates.

Right. You did not like Lisa Cook's views and policies and he fires her and he says the reason is because of these unproven allegations of mortgage fraud. He says that she's mistreated her finances on mortgage applications. And Lisa Cook and her lawyers soon go to court and say, "You can't fire

“me without good cause." That's what the law says. And it really tees up this test for the Supreme”

Court. Is the Federal Reserve like these other agencies? And where they're questioning the job protections of regulators or is the Federal Reserve different? Because the lawsuit involving the Federal Trade Commission and Trump's decision to fire one of the leaders there. And this case involving Lisa Cook and his decision to fire her from the Federal Reserve, they're happening more or less simultaneously in the court system and they're very much speaking to each other.

That's right. And here we see, in Lisa Cook's case, the court says very clearly the Federal Reserve is different and has a unique history that Lisa Cook can only be fired for cause and they lay out all sorts of reasons why she needs to have a different process here if Trump wants to fire her. Right. The Supreme Court is not saying that someday Trump can't fire Lisa Cook. The court is saying that the way he fired who was wrong based on the unique

job protections afforded to the Federal Reserve, but how many understand why the court distinguishes the Federal Reserve and the need to have cause to fire someone like Lisa Cook from all these

other agencies we talked about in the first half of our conversation where apparently you don't need

cause. So both of the opinions on Monday were written by Chief Justice John Roberts, but the Federal Reserve case had a very different lineup. You had all three liberal justices and Trump nominee Brett Kavanaugh joining the Chief Justice to carve out this exception for the Federal Reserve. And they spend a lot of time explaining why there's this exception. They talk about the history of the Federal Reserve. They keep talking about its unique

“role in our economy and in the world economy and talking about how crucial it's in dependencies”

and that's why they say it's different. I just want to dwell on this for a minute because

strange distinction to say that the president can have free reign in every agency in the executive branch even when it was supposed to be independent as envisioned by Congress except for this one because is the safety of a child protected by you know the consumer products safety commission or the companies that are regulated by the securities and exchange commission. Are they that

“much less important than the work done by the Federal Reserve? Yeah I think it was significant”

that the court heard in Amicus briefs from former top treasury officials and former fed chairman. They warned the court that if they allowed the president to remove Lisa Cook while this litigation was underway there would be widespread consequences for the global economy for interest rates

and that it was really critical to protect the autonomy of the nation's central bank and

them in outsized way from these other agencies. I wonder if these former treasury secretaries are making illegal distinction? What makes the fed different from these other agencies or are they making a kind of a practical policy distinction and if the majority adopted their views which they have, are they embracing a legal distinction here or just a practical policy distinction? That's a good question. Indicent just as Clarence Thomas says that these are policy arguments

for an independent bank but that actually it's not constitutional if the president doesn't have free reign to fire independent regulators. Hmm basically Thomas is saying that you cannot grant the president the freedom to fire everybody and all these other agencies and carve out the exception of the fed. What's good for the goose should be good for the gander and you guys have screwed this up? That's right. And what happens now to Lisa Cook? She seems like she's still in

a pretty severe state of legal limbo. Yeah this was a narrow victory for her today. The court

is not saying that Trump can never fire her. It's just saying that the way he did it was improper

and that she deserved some sort of process and for a court that gets criticized for not checking the president here they're calling these allegations half-hearted and they're saying that trying to fire someone in a social media post was not the right process and they're basically saying

“if you want to do this you need to try again and to do it the proper way. Right it's striking to”

me that you bring up the subject of this court and Trump's power because that's where I'd like to end our conversation and so let's talk about how these two cases fit into our larger understanding of this entire term when it comes to presidential power. I know the term isn't over. There's at least one major ruling still in the offing which is birthright citizenship the president has tried to end it by executive order. We think based on reporting that you and our colleagues have done

and based on the questions that the justices have asked in oral arguments that they are likely to find against the president when it comes to birthright citizenship. So if we speculate for just a moment that that is how that case ends and we look at the entire term how should

we think about where this court in the beginning of Trump's second term has landed on the question

“of presidential power. I think depending on what happens on the final day what we've seen is the”

courts conservative majority picking some key issues to stand up to president Trump on especially issues that were personally important to him. As you'll remember some of the conservative justices joined with the liberals to strike down his sweeping tariffs and if we do see them push back on birthright citizenship that's something that's very important to him is you'll recall the president showed up in the courtroom the first sitting president to do so to watch that. Right

but the overall takeaway is that it's a term where the court has really expanded presidential power in particular on immigration and on a president's ability to fire government officials. We saw this last week with the removal of protections for Haitians and Syrians who have been living and working in this country legally and ever seen today the power to fire traditionally independent regulators. Right and on the other side of presidential power of course is frequently

Congress and in the bigger of the two rulings on Monday as you said in power was taken from Congress because these four cause job protections. This idea that you can't just fire somebody on a whim that was created by Congress and the court just overturned it similarly this court has weakened the voting rights act a major achievement of Congress see it's can now break up Black majority districts

years I have been thinking about this court it has been undoing the work of Congress I think about

“citizens united and how that gutted campaign finance reform. I mean when we think about this court”

and presidential power should we be thinking not just about president and power but about this conservative majority on this court pretty systematically weakening Congress or should we think of it as putting Congress in its place. Yeah it's all about the balance of power and as you say they are expanding the president's power they are straining Congress's power and at the same time the conservative majority is taking power for the court that they can say you know whether or not the voting

rights act is still needed in this way and similarly whether they're saying Congress can't constrain the president when it comes to firing independent agency officials despite laws they passed many years ago. So by weakening Congress the court is to some degree not just strengthening

“the executive it's strengthening the judiciary it's strengthening itself. Absolutely. I never thought”

about that way. I just want to end by meditating for just a moment on the work that a conservative legal movement has accomplished because this ruling does feel like a capstone to that movement

and it's built on this idea that the presidency should be more powerful yes

power gets distributed around maybe the courts getting a little more powerful but at the end of the day it's the presidency that's gotten the most powerful because of these court rulings over the past many years and because it's a conservative legal movement it feels like one that has been accomplished in the pursuit of conservative goals but the power that's been given to the president will outlive this president by a long time and perhaps right end up in the hands of a democratic

president who will use it for entirely different ends. That's right we tend to think about these decisions in terms of president Trump and what can he do in the moment but these rulings will outlast him and this power will apply to whoever is in the White House and will be very long lasting. Right and could in theory lead to instead of deregulation some of the most far-reaching regulations we've had in decades we don't know because we've only really experienced it in

recent history through the prism of a maximalist Republican president. Well I've tried to lots of legal analysts on the left who say this decision yes it will upend the structure of the government but it means that if a Democrat comes into the White House next that person will have a lot more freedom to get rid of those commissioners and fire those commissioners that Trump has appointed and to change the direction of these agencies. So as much as President Trump has

remade this government in his image these rulings which because he created this conservative majority in a way he's partly responsible for will help seed the next democratic president undoing this exactly because of this ruling whenever the pendulum swings in the other

“direction it's going to swing hard and ironically that's what the descent said in Monday's first”

ruling that these agencies were intentionally structured to be bipartisan to be filled with experts and to not change depending on who is in the White House but because of the courts ruling on Monday that's exactly what's going to happen and thank you very much we appreciate it thank you

we'll be right back here's what else you need to know today the Supreme Court issued

two other notable rulings on Monday in one of them the court upheld state laws allowing ballots to be counted even if they arrive by mail after election day Democrats vote by mail in larger numbers than Republicans and the ruling was a blow to President Trump's attempt to restrict voting in ways that he hopes will advantage Republicans in the midterm elections meanwhile the Supreme Court declined Trump's request to review of $5 million civil

judgment against him the judgment stemmed from a 2023 trial in which a jury and Manhattan found Trump liable for allegedly sexually assaulting and defaming the journalist E. Jean Carroll

today's episode was produced by Claire Tenisketter and Lexi D.L. with help from Nina Feldman

“it was edited by Devon Taylor and Patricia Willens and contains music by Mary and Luzano”

our theme music is by Wanderley this episode was engineered by Chris Wood

that's it for the Daily I'm Mike of a Ball see you tomorrow

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