December 11, 2025 • 9 mins
Senior Editor at The Dispatch, Sarah Isgur, explains how the Supreme Court could reset the balance of power between our three branches of government.
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Speaker 1 (00:00):
Go to the hotline to bring in. Senior editor at
The Dispatching host of the Advisory Opinions podcast, Sarah Isker
is with us. You can find all of our work
and a whole lot more at the dispatch dot com.
You can also follow her on x at Wig Newton's
and Sarah Today, we talk about your recent piece in
the New York Times and correct me if I get
(00:21):
this general summary wrong. But the case you seem to
be making here is that Congress needs to do its
freaking job.
Speaker 2 (00:33):
Yeah, it was a.
Speaker 3 (00:34):
Pretty short of that. Actually, Congress to your job.
Speaker 1 (00:38):
So tell us about this piece. It says, actually the
Supreme Court has a plan, and you break down something
that we've talked about numerous times, just how out of
whack our constitutional order is at the moment.
Speaker 2 (00:52):
Yeah. So, you know, we I think have had a
broken Congress for many years now. There's lots of points
in history that you can point two that accelerated this,
but certainly one of the more recent ones is Barack
Obama's pen in.
Speaker 3 (01:07):
Phone year where he said, you know, if Congress.
Speaker 2 (01:09):
Won't pass the legislation I want, I'll just do things
through executive order. And what Congress learned from that is like,
oh great, Actually we don't have to legislate and have
messy compromises that then people can bring up in primaries.
The president of our party will just do everything we
want for us, and the president of the opposing party
(01:30):
will make a good foil that we can run against
in the elections. And that's where we are now. Basically,
we have a Congress filled with Instagram influencers, cable news pundits,
and small dollar fundraisers. There are no legislators left because
if you are actually sort of a mister Smith goes
to Washington type, you either got frustrated and left, as
(01:50):
many members have in the last few years, or you
lost a primary because you know, if you're a voter
and one of the guys is like, I work night
and on this legislation to make healthcare more affordable, or
our immigration system work, or climate change, you know, anything
you care.
Speaker 3 (02:07):
About, that legislation never got to the floor.
Speaker 2 (02:10):
It's certainly never passed. And the other guy was on
cable news, on Instagram whatever, raising money saying the other
side was you know, evil and everything wrong with them.
If you're a voter, the difference you saw is a
guy you'd heard of versus someone you've never heard of
who didn't have any accomplishments. And so eventually Congress got
(02:30):
replaced with the Instagram influencers, and that's what we have now.
I think the Supreme Court has a unique moment in
this term. There's two different cases that I'm thinking of,
the tariff case that you and I have talked about
last month, and this slaughter case that just got argued
this week about independent agencies. To really make both branches
(02:53):
go back to their sides of the car on our
constitutional road trip, Congress needs to actually do legislation if
the president wants to exercise execute those laws, and the
president needs complete control over his branch to do that
because also right now we say it's the most important
election of our lifetime, but for large flaws of the economy,
(03:16):
the president actually has very little control over it, as
opposed to these so called independent agencies, the alphabet agencies,
the Federal Trade Commission, the.
Speaker 1 (03:24):
Securities and Exchange.
Speaker 3 (03:25):
Commission, YadA, YadA, YadA.
Speaker 2 (03:28):
And so if the Court can sort of put both
branches in their place, I think we've got an opportunity
to kind of retry this whole self governing republic thing.
Speaker 1 (03:39):
And what we've seen, and again we're joined by a
senior editor at The Dispatch and host of the Advisory
Opinions podcast, Sarah Isker. What we've seen because Congress has
neglected to do its job, You've got the executive branch
taking more of an active role in trying to do
what the legislative branch should be doing. That's led the
(04:00):
courts to step in and say wait, wait, wait, wait, wait,
not so fast. And that's impacted how Americans view the courts.
Speaker 2 (04:09):
Exactly. You know, when Congress isn't doing anything and the
president's trying to govern by executive order, the court gets
pulled into all of our most bitter political fights because
it's so easy to say, well, the president didn't actually
have the authority to do that.
Speaker 3 (04:24):
Because all of the president's.
Speaker 2 (04:25):
Authority has to come from some statute from Congress, even
if it's some really old one. I mean, we have
President Trump going back to seventeen ninety six claiming that
that's what gave him the statutory authority to do some
of this immigration stuff. And you know what, statutes from
seventeen ninety six are still.
Speaker 3 (04:42):
Good law, but.
Speaker 2 (04:45):
It would be surprising if Congress hasn't had anything else
to say about immigration since then, and for presidents to
claim broad sweeping powers here two hundred years later, and
so yeah, the courts get pulled into these fights, and
then they get seen more and more as a political
actor in these fights instead of what they're actually supposed
to be, which is a countermajoritarian institution that you know,
(05:09):
stands against the majority to say, I know this is
what you think you want right now, but if you
really want that, you need to amend the Constitution or
you need to go through the legislative process in Congress.
But you know, we're going to stand here and say,
there are these individual rights that you can't mess with.
There's the structure of the Constitution that you can't mess with.
And that can be very unpopular when the branch that's
(05:31):
supposed to stand against the majority well tells the majority no.
Speaker 1 (05:36):
You also note in your piece in The New York Times,
and again we're joined by a senior editor at The
Dispatch and host of the Advisory Opinions podcast, Sarah Isker,
that one of the problems even when Congress does legislate,
they tend to do it so vaguely. That that allows
(05:57):
the executive to say, all right, well, this is how
we interpret what you guys did, and then the courts
step in and say wait wait, wait, wait, wait wait wait,
and that creates a whole other mess.
Speaker 2 (06:10):
Yeah, I mean some of this is they're vague on purpose.
I've certainly heard from people who've gone up to the
Hill to talk about pieces of legislation and they're like, hey,
shouldn't we change that word so it's like more narrow.
And the person's like, yeah, we couldn't decide what.
Speaker 3 (06:24):
The legislation's actually be.
Speaker 2 (06:26):
Will leave it vague and let the courts work it out.
That was a literal quote from a staffer.
Speaker 3 (06:30):
Yeah, that great, which is horrifying.
Speaker 2 (06:33):
At the same time. Sometimes Congress may think they're being
pretty clear, but you know, thirty years, one hundred years later,
it seems, you know, it's open to multiple interpretations. You know,
even take AEPA. The tariff statute, Congress I think was
intending to be pretty specific. This was a post Nixon
trying to reign in the presidency statute, but it says,
(06:56):
you know, the president when there's an emergency can regulate
imports and there's a whole lot of other you know
verbs in there by the way, But does regulate he
can ban imports? Certainly we know that from some of
the other words sanction, uh ban, But regulate does.
Speaker 3 (07:13):
That mean that he can impose paris or just.
Speaker 2 (07:16):
Regulate sort of fall within the type of things that
look like banning and sanctioning. You know, I don't know
that that's Congress being intentionally vague. I think that's us now,
you know, a president trying to like fit his tariff
elephant into a congressional mousehole. And and now the court
is going to be left to decide. You know, what
(07:37):
regulate imports mean is really the question. But of course
we're all going to read the headline the next day
as sums up or sums down on President Trump's terarif.
Speaker 1 (07:45):
Yeah, last question for you, what is your confidence level
that the Supreme Court will do what you're basically advocating
for in this piece and and straighten everybody out. Gee
A hard question.
Speaker 2 (08:00):
Yeah, you know, my confidence level on the independent agencies
that they will say that the president has to have
firing power over people who work for him. Otherwise, you know,
these people can tell the president to go jump off
a Bridge and there's nothing he can do and voters
can't hold him accountable. I think that's pretty.
Speaker 3 (08:17):
High at this point.
Speaker 2 (08:19):
The problem is that, you know, having a lot of
partisan agencies that do all of this big, big stuff
now controlled by the president might be worse than what
we had before, because now suddenly we don't have a
legislative branch and we've got a president with all of
this power. I mean, this is judicial, legislative and executive
(08:40):
power all in one branch, the very definition of tyranny,
according to James Madison in the Federalist Papers in seventeen
eighty nine. So I'm concerned that that one. I'm very
confident about the tariff case. I'm less confident about, but
I think they have to go hand in hand. You
can't hand the president all this power without saying and
(09:01):
your whole branch has less power. You know, you have
power over your people, but those people have less authority
from Congress. I hope that I'm right, but confidence level,
I don't know. I guess we'll find out.
Speaker 1 (09:15):
Senior Editor the Dispatching host of the Advisory Opinions podcast,
Sarah Isker, with the new piece That's a must read
in the New York Times. You can find more of
her work at the Dispatch dot com, and you can
follow her on x at Wig Newton's Sarah really appreciate
time and insight. Thanks so much.
Speaker 2 (09:31):
Thank you.
Speaker 1 (09:32):
We The Ryan Gorman Show five to nine, every weekday
morning on news radiow WUFLA
Go to the hotline to bring in. Senior editor at
The Dispatching host of the Advisory Opinions podcast, Sarah Isker
is with us. You can find all of our work
and a whole lot more at the dispatch dot com.
You can also follow her on x at Wig Newton's
and Sarah Today, we talk about your recent piece in
the New York Times and correct me if I get
(00:21):
this general summary wrong. But the case you seem to
be making here is that Congress needs to do its
freaking job.
Speaker 2 (00:33):
Yeah, it was a.
Speaker 3 (00:34):
Pretty short of that. Actually, Congress to your job.
Speaker 1 (00:38):
So tell us about this piece. It says, actually the
Supreme Court has a plan, and you break down something
that we've talked about numerous times, just how out of
whack our constitutional order is at the moment.
Speaker 2 (00:52):
Yeah. So, you know, we I think have had a
broken Congress for many years now. There's lots of points
in history that you can point two that accelerated this,
but certainly one of the more recent ones is Barack
Obama's pen in.
Speaker 3 (01:07):
Phone year where he said, you know, if Congress.
Speaker 2 (01:09):
Won't pass the legislation I want, I'll just do things
through executive order. And what Congress learned from that is like,
oh great, Actually we don't have to legislate and have
messy compromises that then people can bring up in primaries.
The president of our party will just do everything we
want for us, and the president of the opposing party
(01:30):
will make a good foil that we can run against
in the elections. And that's where we are now. Basically,
we have a Congress filled with Instagram influencers, cable news pundits,
and small dollar fundraisers. There are no legislators left because
if you are actually sort of a mister Smith goes
to Washington type, you either got frustrated and left, as
(01:50):
many members have in the last few years, or you
lost a primary because you know, if you're a voter
and one of the guys is like, I work night
and on this legislation to make healthcare more affordable, or
our immigration system work, or climate change, you know, anything
you care.
Speaker 3 (02:07):
About, that legislation never got to the floor.
Speaker 2 (02:10):
It's certainly never passed. And the other guy was on
cable news, on Instagram whatever, raising money saying the other
side was you know, evil and everything wrong with them.
If you're a voter, the difference you saw is a
guy you'd heard of versus someone you've never heard of
who didn't have any accomplishments. And so eventually Congress got
(02:30):
replaced with the Instagram influencers, and that's what we have now.
I think the Supreme Court has a unique moment in
this term. There's two different cases that I'm thinking of,
the tariff case that you and I have talked about
last month, and this slaughter case that just got argued
this week about independent agencies. To really make both branches
(02:53):
go back to their sides of the car on our
constitutional road trip, Congress needs to actually do legislation if
the president wants to exercise execute those laws, and the
president needs complete control over his branch to do that
because also right now we say it's the most important
election of our lifetime, but for large flaws of the economy,
(03:16):
the president actually has very little control over it, as
opposed to these so called independent agencies, the alphabet agencies,
the Federal Trade Commission, the.
Speaker 1 (03:24):
Securities and Exchange.
Speaker 3 (03:25):
Commission, YadA, YadA, YadA.
Speaker 2 (03:28):
And so if the Court can sort of put both
branches in their place, I think we've got an opportunity
to kind of retry this whole self governing republic thing.
Speaker 1 (03:39):
And what we've seen, and again we're joined by a
senior editor at The Dispatch and host of the Advisory
Opinions podcast, Sarah Isker. What we've seen because Congress has
neglected to do its job, You've got the executive branch
taking more of an active role in trying to do
what the legislative branch should be doing. That's led the
(04:00):
courts to step in and say wait, wait, wait, wait, wait,
not so fast. And that's impacted how Americans view the courts.
Speaker 2 (04:09):
Exactly. You know, when Congress isn't doing anything and the
president's trying to govern by executive order, the court gets
pulled into all of our most bitter political fights because
it's so easy to say, well, the president didn't actually
have the authority to do that.
Speaker 3 (04:24):
Because all of the president's.
Speaker 2 (04:25):
Authority has to come from some statute from Congress, even
if it's some really old one. I mean, we have
President Trump going back to seventeen ninety six claiming that
that's what gave him the statutory authority to do some
of this immigration stuff. And you know what, statutes from
seventeen ninety six are still.
Speaker 3 (04:42):
Good law, but.
Speaker 2 (04:45):
It would be surprising if Congress hasn't had anything else
to say about immigration since then, and for presidents to
claim broad sweeping powers here two hundred years later, and
so yeah, the courts get pulled into these fights, and
then they get seen more and more as a political
actor in these fights instead of what they're actually supposed
to be, which is a countermajoritarian institution that you know,
(05:09):
stands against the majority to say, I know this is
what you think you want right now, but if you
really want that, you need to amend the Constitution or
you need to go through the legislative process in Congress.
But you know, we're going to stand here and say,
there are these individual rights that you can't mess with.
There's the structure of the Constitution that you can't mess with.
And that can be very unpopular when the branch that's
(05:31):
supposed to stand against the majority well tells the majority no.
Speaker 1 (05:36):
You also note in your piece in The New York Times,
and again we're joined by a senior editor at The
Dispatch and host of the Advisory Opinions podcast, Sarah Isker,
that one of the problems even when Congress does legislate,
they tend to do it so vaguely. That that allows
(05:57):
the executive to say, all right, well, this is how
we interpret what you guys did, and then the courts
step in and say wait wait, wait, wait, wait wait wait,
and that creates a whole other mess.
Speaker 2 (06:10):
Yeah, I mean some of this is they're vague on purpose.
I've certainly heard from people who've gone up to the
Hill to talk about pieces of legislation and they're like, hey,
shouldn't we change that word so it's like more narrow.
And the person's like, yeah, we couldn't decide what.
Speaker 3 (06:24):
The legislation's actually be.
Speaker 2 (06:26):
Will leave it vague and let the courts work it out.
That was a literal quote from a staffer.
Speaker 3 (06:30):
Yeah, that great, which is horrifying.
Speaker 2 (06:33):
At the same time. Sometimes Congress may think they're being
pretty clear, but you know, thirty years, one hundred years later,
it seems, you know, it's open to multiple interpretations. You know,
even take AEPA. The tariff statute, Congress I think was
intending to be pretty specific. This was a post Nixon
trying to reign in the presidency statute, but it says,
(06:56):
you know, the president when there's an emergency can regulate
imports and there's a whole lot of other you know
verbs in there by the way, But does regulate he
can ban imports? Certainly we know that from some of
the other words sanction, uh ban, But regulate does.
Speaker 3 (07:13):
That mean that he can impose paris or just.
Speaker 2 (07:16):
Regulate sort of fall within the type of things that
look like banning and sanctioning. You know, I don't know
that that's Congress being intentionally vague. I think that's us now,
you know, a president trying to like fit his tariff
elephant into a congressional mousehole. And and now the court
is going to be left to decide. You know, what
(07:37):
regulate imports mean is really the question. But of course
we're all going to read the headline the next day
as sums up or sums down on President Trump's terarif.
Speaker 1 (07:45):
Yeah, last question for you, what is your confidence level
that the Supreme Court will do what you're basically advocating
for in this piece and and straighten everybody out. Gee
A hard question.
Speaker 2 (08:00):
Yeah, you know, my confidence level on the independent agencies
that they will say that the president has to have
firing power over people who work for him. Otherwise, you know,
these people can tell the president to go jump off
a Bridge and there's nothing he can do and voters
can't hold him accountable. I think that's pretty.
Speaker 3 (08:17):
High at this point.
Speaker 2 (08:19):
The problem is that, you know, having a lot of
partisan agencies that do all of this big, big stuff
now controlled by the president might be worse than what
we had before, because now suddenly we don't have a
legislative branch and we've got a president with all of
this power. I mean, this is judicial, legislative and executive
(08:40):
power all in one branch, the very definition of tyranny,
according to James Madison in the Federalist Papers in seventeen
eighty nine. So I'm concerned that that one. I'm very
confident about the tariff case. I'm less confident about, but
I think they have to go hand in hand. You
can't hand the president all this power without saying and
(09:01):
your whole branch has less power. You know, you have
power over your people, but those people have less authority
from Congress. I hope that I'm right, but confidence level,
I don't know. I guess we'll find out.
Speaker 1 (09:15):
Senior Editor the Dispatching host of the Advisory Opinions podcast,
Sarah Isker, with the new piece That's a must read
in the New York Times. You can find more of
her work at the Dispatch dot com, and you can
follow her on x at Wig Newton's Sarah really appreciate
time and insight. Thanks so much.
Speaker 2 (09:31):
Thank you.
Speaker 1 (09:32):
We The Ryan Gorman Show five to nine, every weekday
morning on news radiow WUFLA
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