Split Supreme Court Decisions on Presidential Power

This podcast is brought to you by Altana AI. In a fracturing global order, how do we collaborate more, enforce more, and trade more all at the same time? You build an infrastructure of trust. Altana provides it. Compliance verified at the product level. AI powered visibility. Intelligence shared across borders without compromising sovereignty. The future of trade is trust. Altana, the network for trusted trade. Altana.a.a. From the opinion pages of the Wall Street Journal, this is Potomac Watch. Big week for us Supreme Court junkies. The court is finishing its term with a bang as it usually does. And this year, even more in the last week as it has saved eight big cases for the final week. And on Monday, the court issued four major rulings, two on executive power, one on voting law and on the Fourth Amendment. And they include some surprising mix of justices in the majorities. That's our topic for today on Potomac Watch. I am Paul Giego with the Wall Street Journal editorial page, and I'm here with my court-watching followers. Alicia Finley and Kyle Peterson. So Alicia, let's start with the two big executive power decisions. First, both of which deal with the president's authority under the Constitution to remove members of the... independent agencies. In this case, the Federal Trade Commission and the Federal Reserve. But we got two very different outcomes. Let's talk about the Federal Trade Commission ruling first. It's called the Slaughter case after Rebecca Slaughter, one of the Democratic commissioners at the FTC. Trump fired early in his term. She sued saying that firing was illegal, but the court ruled 6'3. that the president has the authority. Right. So I don't think this was a terrible surprise if you go back last year, last spring, when Trump was cleaning house at a lot of these agencies and firing these, quote, quote, independent members or leaders of these agencies. Another case came up to the court involving the National Labor Relations Board, Gwen Wilcox, and then she challenged her removal. During this 1935 president, Humphrey's executor, which held that the president may not remove board members. independent agencies at will. And the court, in that case, allowed him to go ahead with the firing and issued an opinion, essentially an opinion, what was actually in order, or what the liberals called dictum, saying that the Humphreys executor really was not apropos, that it had become essentially a hollowed out husk over the years. And these really weren't independent agencies because they exercised executive authority. And that's essentially what the court held. is that the FTC is not an independent agency that exercises a quasi-legislative judicial power, which was the rationale for the 1935 decision that actually exercises quite a bit of executive power, enforcement power, has power from some 80 different laws over a broad swath of the economy. Which is executive power. Exactly, right. Regulating all kinds of businesses, you know, very sweeping grants of authority to police, you know, unfair methods of competition and business practice.

practices. That is, again, it can penalize businesses, which require them to pay fines. It can sue them. These are all really executive powers. And if you go back to the constitutional, which the chief's majority opinion does, go back to the constitutional founding. They really wanted to ensure the efficiency and the energy in the executive. So this overturned that case, Humphrey's executor. But it had already been hanging by a thread, as you had said. So not a surprise. All six conservatives in favor signing on to the chief's opinion. Talk about the implications of this, Kyle, a little bit, because the dissent by Sonia Sotomayor. was 43 pages. It was predicted chaos if in the wake of this, suggesting that she thinks that all hell is going to break loose as the president now exercises his authority. to sack the heads of these agencies at will at any time, and therefore Congress's design, as she says, to have these be independent is now gutted. What do you think about that argument? Well, I think Congress's design is faulty as the position of these conservatives because we have one executive branch. We do not have a... headless fourth branch of government or regulatory state where there is no accountability because that is the fundamental problem is under Humphrey's executor. If you are a citizen, a voter, if you don't like something that the Federal Trade Commission or another one of these Alphabet Soup agencies has done, what are you supposed to do? Because the president says, I can't fire the people who made that decision. So you as a voter, you're insulated from democratic accountability of things that the government is doing on a regulatory basis that have real effect on people's lives on the effect of business, how business is conducted in this vast nation. There is an interesting question, I think. The fact that Congress set up all of these agencies relying on Humphrey's executor, it makes you wonder if that decision had gone the other direction originally. Maybe Congress would have been more hesitant to hand off vast swaths of power to these regulatory bodies that are quasi-independent, or that's how Congress considered them at the time. But to my mind, that's an argument now for Congress, then to go back and double, you know, think. twice about that. Maybe we ought not have these bodies that are given these huge powers to regulate the economy. FTC, for example, or take the FCC, the Federal Communications Commission, they're wielding essentially executive regulatory power. So the court here is recognizing in a way what has been the reality. I mean, one president comes in, he makes appointments to the FCC. They have a Democratic majority. Obama remembers famously.

said to the head of the FCC on regulating the internet, I'm really in favor of this. They come out with policy in favor. Trump comes in, makes new appointments to the FCC. That chairman goes ahead and repeals the policies of the previous FCC. So there's a real sensible logic here to having the executive, the president. wield executive power here. Now, to Kyle's point about Congress, that's what Neil Gorsuch says today in this very powerful concurrence in the slaughter case. He basically says, okay, we've done half the job here to restore the constitutional, original understanding of the Constitution that the executive runs executive power. But now it's Congress's job. to do its job here so that it doesn't delegate so much authority to these agencies. And it's up to the courts to actually enforce that constitutional principle. I think that's right. He expressed some skepticism that Congress could because, as he put, it's a little bit of a one-way rationed where Congress hands all this power to an agency. But then in order to try to reclaim some of it, it's going to have to get basically a super majority, a 60 votes in the Senate. And get past the presidential veto, which seems unlikely. So he's calling for the court to use its non-delegation doctrine, which it has also been reluctant to rely on to. limit these expansive delegations in presidential powers. And he cites some examples of rulemakings that these agencies have embarked on based on these very big delegations. For instance, the Biden SEC climate change rule, which the SEC claimed it had authority under the 1934 Securities Exchange Act. to regulate markets for efficiency and a claim that that gave it authority to require companies to disclose their carbon emissions. He also gives an example from the FTC, the Lena Kahn's ban on non-competes agreements as another example of a very broad delegation. So it really, the court needs to start taking its non-delegation doctrine more seriously. We'll see if Gorsuch can rally the more justices to this point, but it's a fascinating opinion going back. really analyzing how Woodrow Wilson tried to fundamentally change the Constitution with his understanding of how to be ruled by technocrats at these independent agencies. I commend it to our listeners. We are going to take a break, and when we come back, we will talk more from the Supreme Court when we come back. This podcast is brought to you by Altana AI. Altana's AI brings governments and businesses into one trusted network, so compliance gets proven, enforcement gets smarter, and goods move faster across borders. Learn more at altana.a.a. Altona. I'm Matthew Hennessy, the editor of Free Expression, the new daily newsletter from the opinion pages of the Wall Street Journal. Free expression is a little different than what you get in the print paper's opinion section. We've expanded things out a little bit.

From the 19th century. The problem with that is that neither of them, as Thomas points out in his dissent, really actually exercised any kind of enforcement powers or sovereign government authority over private entities. And I think the chief just kind of brushes past that. And he states that, well, it's a well-understood historical tradition that the Federal Reserve, that central banking. is independent in our constitutional order from the executive branch, that the monetary policy power, he doesn't really address the regulatory point. No, and I think that this is going to be problematic. On one hand, what will likely happen is you're going to have all kinds of now entities that are regulated by the Fed now challenging its rules and regulation under the slaughter opinion basically saying, hey, you know, this institution is... We've got a, quote, independent institution exercising enforcement powers, which is a problem. On the other hand, what you could see happening is, you know, Democrats in Congress all of a sudden taking away powers from other independent agencies like the FDIC or SEC and now vesting them in the Fed because they realize that the Fed is now insulated from political control in ways that the others aren't. Yikes. That'll be future cases. But I want to point, Kyle, to a concurring opinion in this cook case by Justice Brett Kavanaugh. Very short concurrence. He says, quote, I agree with the court that is on its fundamental decision. Moreover, that we should not leave open the question of whether the Federal Reserve can remain an independent agency in the wake of the slaughter decision on the FTC. So what he's saying... is we had to go that extra mile to declare whether or not the Federal Reserve was actually independent. Otherwise, if we had just ruled in Cook on procedural grounds that you didn't have due process or Trump hadn't followed proper for-cause procedure, it would have created some. real financial uncertainty, and that could have disrupted financial markets. You know what this is? I read it. This is an, I don't trust Donald Trump concurrence. He basically doesn't trust Trump, and the majority doesn't trust Trump, not to sack all the governors he doesn't like at the Fed. Right. And that's responding to some of the complaints by other conservatives, that the majority went farther than it need to, that this happened very fast on the court's emergency docket. But I think the majority is responding to to the exact dynamic you're pointing at where we have a president of the United States that is truth socialing all the time that interest rates need to get lower, that the former Fed chair, Jerome Powell, ought to be fired, ought to push rates down. Even the perception that the Fed might fall under this slaughter precedent and might be a direct creature of the executive branch and the president, the majority said it didn't want to leave that question for another day because even that perception might be damaging economically. It is a little bit of a cludge as Alicia is laying out because the Federal Reserve also has this regulatory supervisory authority, which is kind of separate from its monetary policy role. But it's something of a concession to reality, I think, here by the majority, it brings to my mind, at least, the famous quote from Justice Scalia, I'm an originalist, but I'm not a nut. You know, there were some places that he was not willing to go just because too much watered the bridge.

Well, that is fascinating. I think that's right. That's the way I read the court, too. Now, Trump said in response, Alicia, he's going to continue to keep firing Cook. He claims that it was a decision only on procedural grounds. That's not true. This was a constitutional argument as well. But the bar for him is going to be high. He can under this ruling. He still has the ability, perhaps, to fire Cook. But the four-cause standard will be pretty high. Right. The chief essentially showed his cards where the majority is likely to come out on this by saying it's a very substantive standard that they'll have to meet that he must show that the allegations or the reasons why he's firing her have direct implications or direct impact on her ability to do her job on the Fed, which I think will be very difficult to meet. Which is monetary policy and not a mere accusation. You know, the irony here in these two cases? one for presidential authority, one restraining presidential power. Trump got his way an expanded presidential power on the FTC case, but because he tried to fire Cook and went too far, now he finds the court has limited presidential power, not just for him, but for all presumably future presidents as long as this five, four decision stands. It goes to show you that when a president takes the dice. rolls them on the table, sometimes he always don't come up. Well, sometimes they come up snake eyes. So this court is not, as the left keeps saying, a rubber stamp for Trump or for that matter presidential power. All right. We're going to take another break. And when we come back, we'll talk about a Fourth Amendment search and seizure case when we come back. This podcast is brought to you by Altana AI. Altana's AI brings governments and businesses into one trusted network, so compliance gets proven, enforcement gets smarter, and goods move faster across borders. Learn more at altana.a.a.a. Don't forget, you can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker, play the opinion Potomac Watch podcast. That is, play the opinion, Potomac Watch podcast. From the opinion pages of the Wall Street Journal, this is Potomac Watch. Welcome back. I'm Paul Gie Go here on Potomac Watch on a big day for the Supreme Court, and I'm here with Kyle Peterson and Alicia Finley. Now, let's turn Kyle to the mail-in vote case. It's another 5-4 case, but this time the three liberals joined the Chief and Justice Amy Coney Barrett in the majority with the four other conservatives in dissent. What's the majority ruling say, Kyle? So the dispute is whether many states that now let voters put their mail ballots in the mailbox on election day and then count those ballots as they strangle in days or sometimes even weeks later, whether that is legal because we have a series of federal laws dating back to about 1845 that set a specific day as the day of the election.

So what the majority by Justice Amy Coney Barrett says, there's some analysis of that language saying that election day does not specify when the ballots are supposed to be received. It just means that everybody has made their choices and marked their ballots by that day. A bit of dispute about the history. So Amy Coney Barrett says that there were states during World War I and during the 1940s that permitted late ballots to be counted, even if they arrived after Election Day. And they also say, you know, there's policy reasons that this might be a bad idea, but don't look at us. Our only job is to interpret the law and say whether a ban on late arriving ballots is part of the U.S. code, and we don't think it is. And so if you have a different view, take your complaints to Congress. Well, but so this is a statutory case. It's an interpretation of congressional law, right? Correct. Okay. And Amy Coney Barrett gives it an expansive... interpretation of Election Day. It says it's just not Election Day, right? And Samuel Alito in dissent makes the case that, well, if Election Day is going to mean anything, it can't mean... any day, weeks at a time, and it can't mean count the ballots for any stretch of time after the election. That's a pretty persuasive argument. Yeah, he says that it opens Pandora's box, and he talks about what are the real limitations here? So the stated issue here, Mississippi, it requires these ballots to be sent by the post office or a common carrier. But what if there were a state that said, we'll take any sort of late arriving balance, if some third party ballot, ballot harvesting partisan group goes around neighborhoods collecting ballots and brings those ballots. And four days after Election Day, we'll count those two. What about ballots without postmark? Sounds like California, Alicia. Doesn't that sound like California? No parts market. That's okay. Well, and what about balance without postmark? So if there are states that don't run their deadline based on the postmark, they have a little line by the voter signature where the voter is supposed to hand date it. Is that good enough? It really opens up. hard questions, I think, about any limitations and opportunities for, at the worst fraud, and at the very least, a lot of distrust in elections. Yeah, this is, for me, Alicia, pretty, I think. How shall I say, wrote in textualism. It reads that a little too strictly for my taste, particularly given the practical implications here. So does this mean that election rules in the states are going to be a lot more elastic? And many more of them are going to resemble Californias? Well, I think you're likely to see that in many of the blue states, though not necessarily. If you look at New York, it hasn't adopted the no-excuse mail-in ballots or absentee voting. You still have to vote on Election Day or they have some early voting. So not all states have gone in that direction. I think one of the concerns that probably animated the majority here, and particularly Amy Coney Barrett in the Chief, was concerned that they would.

would be setting the card in and basically ruling if they had ruled in favor of the plaintiffs, ruling many state laws, not unconstitutional, but illegal. Right. Right before an election and how that would play out. So I think this was actually ruling based on pragmatism. The president said now it's all the more reason to pass the Save America Act, which is a... A law that he wants to pass has no chance of passing, frankly. But it's a Republican bill to stipulate all kinds of election rules for the states. But Congress could step up and limit the counting of ballots. to Election Day, say we'll have early voting, but we're going to count everything on Election Day. And I think that would go ways to helping restore some of the trust in elections because one of the things that damages trust in elections is you get a count on election night with one of the candidates leading. And then the votes straggle in, in California, especially for another week. And oh, what do you know? The other guy won. And that doesn't help people think that creates an election. opening for somebody like the president to say, see, they cheat. Any chance of Congress passing a law like that? I think this would be a much more fruitful place for President Trump to push. The Save America Act is overbroad. It says that a driver's license, even a real ID is not enough to register to vote anymore. Whereas this, you could imagine a one-sentence bill that says, when we said election day is the Tuesday in November, we mean that all ballots must be in at that time. And there are even some Democrats, people on the left, who are not really thrilled. they're comfortable with the slowness, the sluggishness of the counting in California elections. So advancing that kind of legislation could put some pressure on those Democrats. On the other hand, there are some states on the right, Republican states that do count these late mail ballots. Again, this is a case involving Mississippi. So it would cause a little bit of discomfort among some Republicans, I think, but that's a place where President Trump is at the peak of his rhetorical powers. And if you could get Republicans behind that kind of a bill, then they can say, here's something we actually want to pass that would make a difference, would make elections more secure, more trusted. Let's get it done. All right. Let's turn to the fourth case, which hasn't gotten the same kind of attention, but nonetheless is really significant. It's a search and seizure case, a fourth amendment case. And this is a majority of a different kind, even. Elena Kagan wrote the opinion with two other liberals joining and also has the chief.

and Brett Kavanaugh and Neil Gorsuch with Samuel Alito, Thomas, and Amy Coney Barrett in dissent. So this is a case of search and seizure in the internet world. Tell us about it. So it involves a guy who was convicted of robbing a bank of about $200,000. And the way that police found him is they did a geo fence warrant. asking Google for information on users that were within a certain area of the bank in a certain time period. The data that was at issue here was location history that at that time users had to turn on and that it was stored in the cloud as, you know, where have I been? That was the basis of the feature, location history. Right. And what the court is saying here is the police action of doing that geofence warrant triggers. the Fourth Amendment as a search. It is an extension of recent decisions saying that even if this is data that Google had that was voluntarily shared with Google, the user still has a Fourth Amendment privacy interest in it. And so it's going to complicate potentially the ability of police in the future to get these kinds of warrants. And I think open up a lot more litigation on did police in this specific case, do the warrant? right? Did it meet reasonable expectations of privacy? I think the court is going to get much more litigation on this question now as police try to figure out how to catch robbers in this digital age. Well, in the specific case, the defendant in the case, the man who brought the case to the Supreme Court named Akello Shatri. The reason that the police zeroed in on him was because he was hanging around the bank in the area at the time the robbery was... committed. That's how they got them. They got a warrant from a court. It's not as if it was a rogue operation. They got the warrant. They used it. And Shatri is saying, well, wait a minute. You can't go in there because I have a right to my internet records because I have a right to privacy in that case. Well, how in the world you're going to catch somebody like this in the future? In this case, you know, my view is this is a tool where you can find. people where they have been. And it's a legitimate tool of law enforcement. Yes, there is a right to privacy, but this ruling could make those kinds of searches much more difficult and therefore much harder to catch defendants, Alicia. Well, I think that's right. I think in some respect, the Chief Justice was trying to reconcile his earlier carpenter opinion that applied to cell towers with these new kind of more modern tech. And so I think that that's really what interestingly guided this opinion, rather the pragmatism, which would be, well, if you can't get this data, how are, do you do kind of sleuthing? How do you investigate crimes? I think that that will be up to law enforcement and to try to find innovative, creative ways to actually try to run this decision. You can limit these geo-fence searches, Kyle. I mean, you don't have to, it's not just an open season on anything that is in the internet record. for an individual. You can narrow the scope of the search in a warrant.

Right. So the initial request here was for any users anonymized who were within a certain range of this bank within 30 minutes before or after the crime. Then they got a list of users and they narrowed that a bit and they said, okay, now we want a little bit longer time period. And then a shorter list of users came back and then they de-anonymized the accounts, including the person who was actually convicted of the crime. And so part of the argument then is do you need a second? separate warrant for each of those steps. I think we are in for a lot of litigation. And part of the argument on the fact that this is third party information is this is stuff that the robber voluntarily shared with Google. And to my mind, I think the court took a wrong turn on that some years ago when they said that in this internet age, even if you're voluntarily sharing that information with someone business, you're or whoever, you still have some reasonable expectation of privacy because that doesn't give lower courts a whole lot of guidance about what that actually means and how they're supposed to apply it in different cases with different tech platforms, different sets of data. All right. Fascinating stuff. So just a couple of larger takeaways from these four cases, Alicia. One, so much for the mega court. They don't rule for Trump or the administration in lockstep. And so much for conservatives being in lockstep. You had different coalitions here. That six three majority of right versus left certainly didn't hold up here. So the Democratic critique, the media critique, the New York Times critique, the Bloomberg critique of this court as somehow a partisan operation once again takes a Well, I think that's right. You've seen that with some other decisions, notably the tariff case, right? Where you had the chief in Gorsuch joining with the liberals and Amy Coney Barrett. And then you had Brett Kavanaugh, interestingly, there with the Samuel Alito and Clarence Thomas in the dissent. You've also had some strange opinions with this term with the Monsanto case last week involving the pesticide, in which the Neil Gorset's side. with Ketanji Brown Jackson in the dissent. So I don't think the conservatives are monolithic by any stretch. All right. Well, we will leave it there today. We have tested the patience of our audience. We thank you with these technical legal points, some of them. But it's their fascinating stuff for us junkies and significant for the rule of law and the Constitution. We'll get more tomorrow, the final day of the court's term, expected to get a decision on the... birthright citizenship, executive order that the president issued, a couple of transgender cases as well, and one on campaign finance, so more big cases to come. We'll be here on Potomac Watch to talk about them for you. Thank you for listening. We're here every day on Potomac Watch. This podcast is brought to you by Altana AI. In a fracturing global order, how do we collaborate more, enforce more, and trade more all at the same time. You build an infrastructure of trust. Altana provides it. Compliance verified at the product level. AI powered visibility. Intelligence shared across borders without compromising sovereignty. The future of trade is trust. Altana, the network for trusted trade. Altana.a.a.