So About That Recent Supreme Court Presidential Immunity Decision... - Ep. 54 - Litigation Nation

Episode Transcript
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Jack Sanker (00:05):
Welcome to litigation nation. I'm your
host, Jack Sanker, along with myco host and Eso Watkins. This is
the show where we round up someof the most important and
interesting legal news of thepast couple of weeks. It's a
reminder you could find us onApple Podcasts, Spotify,
YouTube, or wherever you getyour podcasts. Danessa, what do
we have up today?

Danessa Watkins (00:25):
Well, perhaps against my better judgment, I am
taking on the tall task ofsummarizing the 119 pages
compromising the opinion,concurrences, and dissents in
the Trump versus United Statesruling, which was just published
by the Supreme Court on July 1,2024, and deals with the issues

(00:47):
of presidential immunity incriminal cases.

And I'm gonna be covering an interesting petition
for certiorari, to the SupremeCourt out of Ohio on the
question of whether theOccupational Safety and Health
Act is itself anunconstitutional delegation of
power. This ties in with therecent Chevron decisions and is
a a good point of discussion forus here on the show. All that

(01:12):
and more, here's what you needto know.

Okay. So we just had this monumental ruling
come down in, Trump versusUnited States. And I have to say
a few months ago when Jack and Isat down and started discussing
me coming on the podcast andwhat we wanted to cover, we
expressly said we were not goingto be another, you know, SCOTUS

(01:38):
blog, and let's leave that to,you know, the DC people. But
this court has just come downwith, you know, monumentally
changing just crazy decisionafter decision. So it's so hard
to, like, turn away from it.
And especially this one with theissue of whether a president or

(01:59):
former president can be immunefrom criminal acts. I mean,
there's just been an uproar onsocial media. I mean, there
people are just picking parts ofthe opinion out and
sensationalizing it. And so Ithought it might be good to just
kinda walk through it, give asummary of what I understand to

(02:20):
be the the findings and then thedissents and, just what it means
going forward and, you know,what is the reaction from legal
community scholars, some of theformer lawyers of presidents who
maybe now would have beenimmune, for for criminal acts.

(02:41):
So, let's dive in.
Alright. So back in August of2023, former president Donald
Trump was indicted by a federalgrand jury in DC regarding his
alleged efforts to overturn theresults of the 2020 presidential
election. So in the 45 pageindictment, it details

(03:06):
allegations that after losingthe election, Trump conspired to
overturn it by spreadingknowingly false claims of
election fraud, tried toobstruct the collection and
counting and certifying of theelection results. And then all
of this culminated in the eventsthat occurred on January 6th. So

(03:26):
in that case at the trial courtlevel, Trump moved to dismiss
all of the indictment sayingthat he had absolute immunity
from criminal prosecution forthe alleged actions he took,
which would fall within the coreof his official duties as
president.
The district court denied themotion and held that former

(03:48):
presidents do not possessfederal criminal immunity for
any acts committed while inoffice. Now at this point, it's
worth noting that in a regularcriminal case, this matter would
have moved forward to trial, andonly after a criminal conviction
would that defendant be able toappeal the court's refusal of

(04:09):
the motion to dismiss. But inthis case, the court granted an
interlocutory appeal. So thatmeans before before the case
proceeded to trial, they stoppedeverything and said, let's send
this one issue up on appeal,before we move forward. And it
makes sense.
I mean, it's, you know, if ifhe's immune, that's the end of

(04:30):
the case. So, so they did grantthe the appeal. I believe the
prosecutor pushed for it to gostraight to the Supreme Court
because, he didn't wanna delaythings. But that was denied, and
it did go to the DC CircuitCourt of Appeals first. At that
level, they affirm the decisionof the lower court concluding

(04:53):
that, quote, the separation ofpowers doctrine as founded in
Marbury and its progenynecessarily permits the
judiciary to oversee the federalcriminal prosecution of a former
president for his official actsbecause the fact of the
prosecution means that theformer president has allegedly
acted in defiance of thecongress's laws, end quote.

(05:15):
Now both of those courts,though, declined to decide
whether the alleged actions thatTrump engaged in actually
involved official acts of thepresidency. They just said,
point blank, there is noimmunity. So the Supreme Court
granted certiorari, and it's itconsidered the following
question. Whether and if so, towhat extent does a former

(05:38):
president enjoy presidentialimmunity from criminal
prosecution for conduct allegedto involve official acts during
his tenure in office? So I justwanna start with a quick
explanation that actually,justice Jackson provided in her
dissent, and that's just whatimmunity is.
So just to be clear, it's anexemption from duties and

(06:01):
liabilities imposed by law. Soit's not a defense. It's it's
saying that the law does notapply to you at all to begin
with. So conferring immunity onsomeone essentially creates a
privileged class that would befree from liability for wrongs
inflicted or injuriesthreatened. So it it is a very,

(06:26):
I don't know, specialized, Iguess, thing.
We don't see it much in in lawbecause it's essentially saying,
even though this this wouldotherwise be a, you know, a
violation of our laws, we're noteven gonna consider you as as
being liable. So our majorityopinion here was written by

(06:47):
chief justice Roberts. The courtultimately came down 6 to 3.

Wait. What which 6 which 3? Just curious.

Oh my gosh. I was like, do I really need 6?
Well, for anyone who wouldn'tknow, the 3 dissenters were
Sotomayor, Jackson, and, Kagan,which should come as no
surprise. Mhmm. But and I willget into this.
Interestingly, Amy Cohn Barrettdid author she, I think she only

(07:19):
did yeah. She only dissented toone part of of the majority's
opinion, but I do appreciatethat she takes the time to to
set those sort of things out.Like, she doesn't just, you
know, join the majority. She sheexplains why maybe the court
went a little too far in itsruling. So I did appreciate
that, and we'll get into it.
But, so yes. The finding was,kind of in 3 parts. A president

(07:45):
or former president isabsolutely immune from criminal
prosecutions for actions takenwithin his conclusive and
preclusive constitutionalauthority. So that's part 1. The
second is kind of expandingoutward from his core.
So other acts that he takeswithin his presidential

(08:06):
responsibilities. So this couldbe, for example, you know, the
president does have powers, buthe maybe shares those with
Congress. So things like that.He will be entitled to at least
a presumptive immunity fromcriminal prosecution. So there
is the opportunity for thegovernment to try to overcome

(08:27):
that immunity by showing, youknow, I don't he went beyond the
bounds essentially or what whathow the president acted was not
actually within, you know, thefour corners of his,
responsibilities.
And then 3rd, if the criminalconduct at issue comprises

(08:48):
unofficial acts, then there isno immunity. So I will say this
opinion is dense. As much as Iwould invite anyone who has, you
know, a free 2 hours to readthrough it, it is, it's a
history lesson. All of thejustices are literally relying
on quotes taken as far back asAlexander Hamilton's Federalist

(09:11):
Papers from 17/76, which makessense. I mean, they're trying
those papers were to try toexplain and help laypeople
interpret what was then theproposed constitution in an
effort to get them to ratify thesigning of of the constitution.
So they're really looking backto what were the founders
intending when it came to theseparation of powers. Yeah. I

(09:36):
know. You love that part. And, Imean, rightly so, this opinion
also makes repeated referencesto decisions that were rendered
in connection with presidentNixon and the Watergate scandal
as well as Yeah.
As well as president Clinton.So, I mean, that's that is the

(09:57):
press that is the only precedentthey that the court really has
to look at because this issuehas never come up before. There
has never in our history beenwhere a president or former
president is facing criminalconviction in connection with
actions he took while in office.So this is uncharted territory.

(10:22):
And I was telling Jack before westarted this recording, you
know, I'm reading this majorityopinion and I'm like, okay.
Yeah. That makes sense. I getit. It's a little bit vague. And
then you get to the dissent,you're oh my gosh.
I can see how this could goreally bad depending on who's,
you know, who's holding theoffice. So, let's dig into it a

(10:43):
little bit. So throughout thisopinion, justice Roberts
definitely tries to impart theimportance of we can't just
focus on, essentially presidentTrump. And, you know, think
about this in terms of him beingin office or being a former
president. We have to lookforward and, consider more

(11:03):
broadly what does the office ofthe presidency mean, How do we
ensure that whoever holds thatoffice is able to, fully engage
in their duties andresponsibilities?
So one of the the major issuesthat the court is concerned
about is that the presidentneeds to be able to, act with
the vigor and energy of theexecutive that is taken from The

(11:27):
Federalist Papers number 70. Sohaving this looming threat of
trial, judgment, imprisonment,looming over them at all times
during their presidency couldchange how they act. It could
change their decision making. Itcould cause them to be more
cautious, than they wouldotherwise. Now and I don't mean

(11:49):
to jump ahead, but I I tend toagree more with the dissent in
this position particularlybecause if you think about it,
civil lawsuits can be filed byanyone at any time.
So, certainly, protecting thepresident from a civil
litigation while he's in officeor at least delaying it, that to

(12:11):
me makes sense because, itdoesn't have the same checks and
balances as a criminalprosecution. You know, in
criminal cases, you have a grandjury. You're, you have a
prosecutor who is supposed to beacting on behalf of the people.
They can't just bring a, youknow, a a fraudulent or a a
claim that has no evidencebehind it. You know, they are

(12:33):
held to a higher standard than,I guess, a, I guess well, they
are.
They simply are held to a higherstandard than a plaintiff's
attorney. Sorry. Plaintiff'sattorneys. Right. But it's true.
Because you're, you know, you'reacting on behalf of the people.
And, and the effects of afinding against whoever the

(12:56):
defendant is are that you couldlose your your right to freedom.
So, it's it's just a differentstandard. And so to me, the as a
sitting president, the threat ofa civil action seems way more
prevalent than the threat of acriminal action. Not to mention,
it seems a lot easier to staywithin the bounds of criminal

(13:19):
law versus, you know, a civilaction can be brought for any
reason.
You're presenting Yeah. Yeah.You're presenting a nuisance.
You're hurting someone'sfeelings. You defamed them.
I mean, the it's just waybroader, under the civil
landscape than it is when itcomes to criminal. But either
way, that was one of the themajor things that was really

(13:42):
driven home in the majority'sopinion. Now on and on about,
you know, why they think thatthey why they I should say,
Justice Roberts and themajority. Why? Those justices
think that they have, theauthority based on history to
make this decision.
But at the end of the day,again, this is, this is new

(14:06):
territory. So the dissent reallytears apart the way that they
interpret history, which I'msure Jack will appreciate, you
know, saying that the justicesaren't the the perfect
historians that they think theyare, and they cherry picked, you
know, what they needed in orderto get the results that they

(14:27):
got. Now the court did get intothe specific, indictment against
president Trump in this case.I'm gonna go into those in more
detail rather than the broaderconcepts because I think that's
what's really interesting. Itdid make certain rulings that

(14:50):
will kick out some of thecounts, against Trump down at
the trial level.
Other counts have to go back tothe trial court level for
further investigation,essentially, and the court needs
to be the gatekeeper as towhether there is evidence
supporting immunity or not. So,actually, 2 of the indictments,

(15:10):
I'm gonna deal with themtogether because they're they're
similar. They involve Trumpmeeting with the acting attorney
general and the, senior justicedepartment officials to discuss
investigating purported electionfraud. And then when the
attorney general resistedTrump's request, Trump
repeatedly threatened to replacehim. So the court found that

(15:33):
investigation and prosecution ofcrimes is a quintessential
executive function.
So the authority to decide howto prioritize and how
aggressively to pursue legalactions against defendants who
violate the law is exclusivelywithin, the president's
authority. For that reason,their the absolute immunity

(15:57):
would apply. The same is truewith, the president's ability to
appoint appoint and removeexecutive officers. So even
though he threatened theattorney general, the attorney
general essentially serves athis pleasure. So, his decisions

(16:18):
on whether to remove thatperson, it's completely within
his constitutional authority.
And regard motives he may havehad, the court said it would be
improper to look at thosemotives. It's within his
authority. It's absoluteimmunity. So back at the trial
court level, those indictmentswill be stricken.

The actual ruling, the supreme court ruling is to
is sending this back to thecircuit court to determine
whether, the specific acts are,quote, unquote, official acts

or not. Right? Yes. And so certain of it
because they said they didn't dothat the at the district court
level, they didn't actuallybrief those issues as thoroughly
as they should have. Right.
It's because that we didn't havea test for it yet. So, you know

Was was there any guidance offered in the opinion,
which I didn't read? I'm sorry.But in the opinion is, to
determine what is, you know,official, or not, or is that up
to the sorry. Court to determinefor itself?

It's pretty loose. Let me just give you a
couple more examples so you cankinda see how potentially loose
it is. So, one of theindictments was that Trump
attempted to enlist the vicepresident to use his ceremonial
role at the January 6thcertification proceeding to
fraudulently alter the electionresults. So the court found that

(17:44):
whenever the president and vicepresident discuss their official
responsibilities, they engage inofficial conduct. So even
though, the vice presidentreally serves as the president
of congress, that is that is hisrealm, The fact that he speaks
to the president about thingsthat are happening in Congress,

(18:06):
that could directly affect thepresident and what it what he
does in his duties and hisresponsibilities.
So in that situation, the courtfound Trump is at least
presumptively immune fromprosecution, and then you know,

(18:27):
you know, how how much wouldTrump's ability to do his job be
affected by finding him liablefor his conversations with the
vice president. So it's it'sloose. Trying to see some other
examples here. Oh, a lot of histhe rest of his indictment

(18:52):
actually involved a bunch ofdifferent actions that
essentially led up to, theJanuary 6th interaction. But, I
mean, even basic things like,tweeting out that people should
come to the the White House,addressing the public, directing
them to march to the capitol,and try to put pressure on the

(19:15):
vice president regarding thecertification proceeding.
The court finds that thepresident possesses
extraordinary power to speak tohis fellow citizens and on their
behalf. So it instructed thetrial court to do an objective
analysis of content form andcontext, and that will inform
the inquiry. Again, just it ityou know, it's just so loose.

(19:41):
And I think, you know, dependingeverything's gonna come down to
how it's framed. If

Well, yeah. Right. I mean, you know, there's the
the stuff that's, like, inarticle 2, which is, like, ex
explicit, you know, core vestedpowers of, like, the presidency,
like, appointing people to, youknow, agencies or, like,
diplomatic, recognition or,like, the stuff that, like, you

(20:08):
can pull up, you know, theconstitution and read. That
stuff is all going to be thebroadest level of immunity.
Right?
Mhmm. It's it's this other thisother level here that we're sort
of, we don't really know exactlywhat to do with. And what's, you
know, what's interesting, and Iand I've seen people kind of

(20:29):
bickering about this online, is,you know, if the president if
you're the president and you aregenuinely of the belief that, an
act of, you know, incredible,like, fraud and deception has
occurred, and an election wasstolen. You know? Mhmm.

(20:51):
And all the things that peoplesaid happened in 2020 happened,
and you believe that. Right?What what what are now the
limits of your quote, unquoteofficial capacity, right, as the
president? Like, if you believethat, then you can probably
justify doing a whole bunch ofstuff. You know?

Well, and the crazy part, Jack, is that you
don't even need men's right.Yeah. Doesn't come into it.

Sure. Yeah. Right.

You know? So the prosecutor can't even probe
into what was his intent or thecourt can't even consider that.
It's just as a duty to ensurefairer election procedures.
Okay. So what actions can hetake within that?
Well, I

mean right. That's that's the thing. That's that's
the rub here because if if if itcan just be the fig leaf of, you
know, anything that I can callan an official act, because I
can find the the pretext of onething or another to to, you
know, to put over it.

Mhmm.

Then that's gonna justify everything. Right? And I
Mhmm. Would like to think thatthe court understands that and
and also that the circuit courtwill understand that, you know,
on remand, but, I mean, we'llsee.

Yeah. It's I mean, when and when we go back
to, you know, on remand, there'sgonna be I I think that it's
gonna be a couple months, youknow, that they're gonna have to
do more investigating. I'm surethere's gonna be more briefing.
It just seems like especially Imean, the indictment itself is

(22:26):
already 45 pages long. There's alot of information in there.
The fact that there's not enoughfor a judge to make a decision
on, you know, whether thepresident acted within his the
scope of his authority andfunctions. I mean, it almost
seems like the court now needsto presume that all of the
actions he took were immune, soit's actually on the prosecutor

(22:49):
to show that allowing thiscriminal trial to go forward
will not, I guess, improperlyintrude on the authority and the
functions of the executivebranch. Mhmm. That's that kinda
seems like that's that's the,the bar that has to be passed.

Right. It's the, whether the prosecution could
demonstrate there's no dangersof intrusion on the authority.
Yeah.

Right. Right. Which I mean, I I don't know. I
I guess I don't understand howhe's gonna do that, but, we'll
see.

So there there's some again, there's a really
interesting, you know, kind oflooking at the fallout from
this. It it like, the thefamous, like, Saturday night
massacre that, Nixon was, youknow, maligned for and
everything during the thefallout from Watergate. You
know, that is an example of,Nixon basically, threatening to

(23:53):
to fire a bunch of folks or orfiring people who don't wanna
play ball and do things the wayhe wants to do things. That, at
least according to this opinion,would be, would be legal. And I
think at the time, I don't thinkthere were ever was a ruling on
it, but I think at the time whatwas legal because that's the the
president's ability to, viaarticle 2, to fire to hire and

(24:18):
fire folks within the executiveagencies.
You know, he the he or she has,you know, absolute authority to
do so, you know, for for forwhatever reason. There's no,
like, for cause requirement inthat scenario. So when Trump,
for example, is, like,threatening to fire people from
the DOJ who, you know, don'twant to investigate, election

(24:40):
fraud or whatever, if I lookingat the opinion, it looks like
that would be absolute immunityin that scenario. Right?

Yeah. Absolutely. So there actually
was a a finding that in Nixon.So it was Nixon versus
Fitzgerald. He was Yes.
Fitzgerald was a an Air Forceemployee, and I think soon after
Nixon took office, he fired him,saying that it was, you know,
restructuring or reorganization.But Fitzgerald said it was

(25:10):
actually because of testimony hegave before congress that Nixon
didn't like. So he did bring acivil lawsuit against him, and
the court found that thepresident had absolute immunity,
because, like you said, that waswithin, you know, the core of
the executive's authority.

Like, even if they're and I I I didn't read
it. So but even if the findingwas that Nixon was fired this
individual because he testifiedbefore congress, that's still
protected. Like, that's theextent of immunity that they
get.

Right.

Yeah.

Be because the court said if you start looking
into the reasoning behindthings, well, then all's if you
allow that inquiry, and this iswhere there's a difference
between immunity and a defense.So if you are gonna allow a
defense, that means that thecourt will consider, alright,

(26:06):
what was Nixon really thinkingat the time? But the court said,
no. We're not even getting tothat. We don't care what he was
thinking.
We don't care what his motiveswere. He had absolute authority
to hire and fire. He is immunefrom any civil litigation as a
result of his exercise of thosethose privileges.

Right.

So that's that is now, the court is applying
that absolute to, criminalclaims when the president is
acting, within his exclusiveauthority, and it has to be
exclusive under theconstitution. So, like I said,

(26:48):
there are, you know, there's alot of overlap where, the
president shares, certain powerswith Congress. Those it's
presumptive immunity. It can beovercome. So those cases can be
brought, and, there will stillbe, I'm sure, you know, motions
to dismiss, but they're at leastnot gonna get kicked out in the

(27:08):
first instance.
Yeah. There are there's gonnabe, you know, some discovery on
those. But, yeah, putting, Idon't know, absolute immunity on
without I guess, the the scarypart for me is is that I
understand why within the, youknow, the Nixon firing. I

(27:28):
understand why the courtexplains, you know, we're not
gonna look into what was whatwas his intent, but it gets a
little scarier when you'redealing with criminal actions.
Yeah.

Yeah. Right. I mean, I I understand that too. I
think I think what the court issaying is that the whether civil
or criminal prosecution ofeither could be politically
motivated. Therefore, it wouldimpinge on the rights of, you
know, and and of the executiveand, like, civil or criminal,
like, you know, being sued formoney damages, it can be worse

(28:03):
depending on what they are thanbeing prosecuted for a low level
felony or misdemeanor.
Mhmm. So, you know, I I I I getthat to some extent.

So going back to the opinion for a minute, and
this is going to justice AmyCohen Barrett's concurrence in
part. Well, the part where shediffered, is that and here's,
actually, she gives a reallygood analogy to explain why she
differs on this, so I'llexplain. Actually, I'll probably
quote that verbatim. But it'sessentially that the majority

(28:36):
ruled that once a president'sconduct is deemed absolutely
immune or even if if theprosecutor is not able to
overcome that hurdle. So,essentially, anytime there's a
finding of immunity, whateveract is deemed immune cannot
serve as evidence in in acriminal prosecution against the

(29:00):
the president for actions thatmaybe he took beyond his
executive privilege.
To put a finer point on it,justice Barrett gives this
example. So consider a federalbribery statute that would
forbid any public official toseek or accept a thing of value
for or because of an officialact. The constitution, of
course, does not authorize apresident to seek or accept

(29:22):
bribes, so the government mayprosecute him if he does so. Yet
excluding from trial, anymention of the official acts
connected to the bribe wouldhamstring the prosecution. So to
make sense of charges alleging aquid pro quo, the jury must be
allowed to hear about both thequid and the quo, even if the
quo standing alone could not bea basis for the president's

(29:46):
criminal liability.
And her, I mean, her objectionsto that is is pretty obvious.
You know, the court is concernedabout allowing evidence of
official acts for which thepresident cannot be criminally
liable for, to be heard by thejury because it could prejudice
the jury. But we have rules ofevidence to handle that. So, you

(30:09):
know, a a trial court canexplain this is why you can
consider this evidence and youcan't consider it for this
purpose. You know, there's justways to to deal with those
things.
It happens every day in criminalcourt.

Yeah. I mean, right. What's interesting is, we
do we do handle those every day,and then a lot of people anyone
who tries cases will say, okay.Well, those instructions are
worthless. You know, once thejury's heard it, they've heard
it.
And there's you know, to someextent, that's true, but that's
what we do for everyone else.So, like, why why why are we

(30:44):
making a new rule that's, onlyapplicable in this case?

Well and think about it in in terms of this
case. You know, they foundcertain acts that he took are
absolutely immune, so hisdiscussions with the attorney
general. Now let's say also hisdiscussions with, vice president
Pence. He ends up gettingimmunity for those. So how are
you going to explain the seriesof events leading up to maybe a

(31:11):
charge that's allowed to gothrough, like him directing the
crowd to storm the Capitolbecause Pence wouldn't, you
know, do the recount or or sendthe the ballots back.
Like, how do you even get tothat point without explaining
everything, you know, leading upto that? You can't give those

(31:32):
facts to the jury. It just, Idon't know. It it seems like the
that really is hamstringing theability to to bring any criminal
action if it's, you know, basedon other criminal acts that that
the president's immune from.Mhmm.
So I thought that was a that wasan interesting descent, and and

(31:54):
I thought she brought up a agood point there. Now and I
don't want to belabor this toomuch, but the descent is kind of
amazing. I mean, JusticeSotomayor does not hold any
punches. I I think, Jack, youand I had talked about this

(32:16):
before. Just the way that shewrote this, I mean, she is
citing Dobbs to Right.
Get get back at the majority.She says this official acts
immunity has, quote, no firmgrounding in constitutional
text, history, or precedent, endquote, quoting to the Dobbs
majority opinion. Because it istrue. I mean, this this issue

(32:39):
has never been before the court.So it's not like they can ground
themselves in anything, yetthey're attempting to.
The majority makes selectivesites to history. Hamilton made
clear, however, that thepresident would be distinct from
the King of England and would beheld personally responsible as
opposed to untouchable. So,essentially, the majority is

(33:02):
relying on Hamilton yetcompletely ignoring that he he
made clear we're gonna hold ourpresidents accountable.

Mhmm. I as an aside on Amy Cummingbird's ruling and
or discussion of admissibilityand all that stuff. Quick aside,
I I do have to point out, nevera trial judge. I she was never a
trial judge, and I and in fact,I I don't believe that she has
any trial experience. Although,if I'm wrong about that, we'll

(33:31):
edit something in here.
But she was on the,

so Right?

Yeah. It's 3 years in the court of appeals and
then, right to the supremecourt. So, you know, this whole
what's admissible, what isn'tthing is a is a bit that is a a
bigger can of worms than I thinkthis opinion even gives credence
to because it it there's notadmissible, then there's not
admissible for certain purposes,like, to what you mentioned. And

(34:01):
and just I don't know. The waythat it's kind of written out of
this opinion, is only the waythat someone would write it if
they did not have a lot of trialexperience.
Put it that way.

That's an interesting point. Yep. True.
Yeah. 2 other interesting pointsraised by justice Sotomayor.
And not that this is conclusive,but as a litigator, this was
intriguing to me. She quotedTrump's own lawyers, during his
2nd impeachment trial, and thestatements that they made to

(34:32):
senators, let's see, saying thatTrump Trump's conduct related to
January 6th, if, essentially, ifthe senators decline to impeach
him, it would not leave him,quote, in any way above the law,
end quote. The lawyers insistedthat a former president, quote,
is like any other citizen andcan be tried in a court of law,

(34:54):
end quote. Quote, no formeroffice holder is immune. If my
colleagues on this side of thechamber actually think that
president Trump committed acriminal offense after he is out
of office, you go and arresthim, end quote.
So, I mean, these lawyers'statements, are definitely right

(35:15):
here because, obviously, nowthey're, you know, backing off
from all of that, and he's notbeing treated like any other
citizen or at least, you know,that's that's what his attorneys
are arguing now. But just, yeah,from a litigator standpoint,
that's always interesting to seethat because Mhmm. There are
times in a case where you argueone thing, and then maybe later

(35:38):
on, it's doesn't serve you sowell or comes back to bite you.
Mhmm. But the transcript isforever.
So, another interesting thingshe brought up was the Watergate
tapes. So Yeah. So she saysafter the Watergate tapes
revealed president Nixon'smisuse of official power to

(36:00):
obstruct the FBI's investigationof the Watergate burglary,
president Ford pardoned Nixon.So both Ford's pardon and
Nixon's acceptance of the pardonnecessarily rested on the
understanding that the formerpresident faced potential
criminal liability, or else, youknow, why would they have done
that, which I thought was aninteresting point too. So even

(36:21):
though we can't even though wedon't have any lawsuits that we
can point to, we can point tothe actions of, you know,
different players throughouthistory to show that it was
always the understanding that apresident could be held
criminally liable.
That's the argument she's tryingto make.

Yeah. I mean, it you know, there is some you
know, when we say, like,unprecedented that
unprecedented, that's a wordthat gets thrown out a lot. I
mean, this is like a new a newthing and is not you know, we
don't have experience dealingwith this. And, I mean, the
issue is so when you're decidingfrom the justice's perspectives,

(37:02):
deciding this case, it it's likeyou're deciding this case
itself, and then you are tryingto decide every other case that
could come after it and makingsure that the way that you
decided this one is not goingto, you know, blow up in your
face, you know, 10, 20, or a 100years from now. Right?

Mhmm.

Mhmm. So, you know, it is it is tough to be in this
position. I and I and Iunderstand there's slippery
slope argument, which kind ofunderlies all of this, which is
if the president doesn't haveabsolute immunity on certain
things and the president isgonna be, like, gun shy to act.
And, you know, this goes back towhat I was saying earlier. What

(37:43):
if there what if there actuallywas a scenario where some
massive election fraud happened?
And, like, let's let's, youknow, assume for a moment that
all of those horrible thingsthat people that, you know,
whatever. Like, what if thatactually happened? Right? What
if it really happened? Then thethe president should be
justified and I would say oughtto be able to I don't know.

(38:07):
Whatever you do in thatscenario. Like, do you deploy
the National Guard? Like, do youyou know what I mean? Like, what
do you do? Right?
And so I I I, you know, I getthat. I I do I do like that
ability preserving that abilityfor the president to act without
fear of, like, retribution downthe road. That seems to be the,

(38:28):
like, the slippery slope thatthat the, all of the concurring
justices are, you know, are areworried about here. And and I do
think it's, like, worthwhile toto keep that in mind even
though, like, maybe you don't wedon't like the outcome here, or,
you know, if you don't like theoutcome here or whatever. I I

(38:49):
just, I I think that we're gonnabe right back where we started
pretty soon getting into thisofficial acts question.
And I and especially the lack ofkind of guidance on that. And,
you know, I I don't know whatthe how the court's gonna handle
that in particular.

Yeah. That that part too is is gonna be
difficult, and, you know, thethe court didn't really provide
too much guidance. It it, like,justice Roberts tried to, I
guess, explain how certain actsthat Trump took should have a

(39:29):
presumption of immunity. Like,so he kinda provided that
framework, but then didn'ttotally explain definitely, I
don't think gave any guidance tothe prosecutor about how to
overcome it.

Yeah. There's, like, a rebuttable presumption
that can be overcome, but, like,I'd I if I at least when I
skimmed it, didn't see exactlyhow. Right. Without without
really getting into the, thekind of mens rea aspect of this,
which I don't think they'reallowed to.

Well, yeah. Especially when you can't get
into that, then you're

Like, it right. Because everything I mean,
that's what Nixon said. Well, ifthe president did it, it's not
illegal.

You know? That's Right. That's Yeah.

It's a and it's

like same idea. Yeah.

Yeah. I mean, hey. Nixon, vindicated.

He's Yes.

He's yeah. Bring him back.

That's it. Well, go ahead.

Yeah. No. So I just I I I understand that idea, and
I do understand. I remember,like, the Bill Clinton case,
which was like it was just likea big a huge portion of my con
law class for whatever reason inlaw school was on the the, the
Clinton case. And and we thesethese three different buckets,

(40:38):
the, official acts, the kind ofgray area in between, and then
the strictly private acts andall that stuff is I mean, this
isn't out of the blue.
You know, this is this is thestandard has existed before and
was applied to Bill Clinton, inthe nineties and everything
else. You know? But, right, ifit's very interesting because I

(41:02):
do think that if a case likethis were to have happened in
the nineties or or before, Ithink that the court and I can't
remember which case it was. It'sreally bothering me now. But
they drew a distinction between,like, campaign acts and, like,
official acts as president.
And, you know, in acts campaignacts on on are not you know, if

(41:27):
you're acting as as a personwho's running for the United
States and you're acting yourcapacity as a camp as a a
candidate for president, like,you know, what you don't have,
same privileges and immunitiesas you do if you're acting as
the president. So, you know,you're giving a rally for
yourself to be reelected. It'sdifferent rules apply in that

(41:50):
scenario than if you're givingthe state of the union. It seems
like here, they're they're kindof bulldozing that distinction
as well, because or at leastthey're not they're avoiding it,
because I you know, it's thethere's, like, proponents of
kind of what happened, aroundsome of these things around,

(42:12):
like, January 6th and whateverwill say that they, that that
this was an and, you know, theseacts were official and that they
were, you know, like, Trumptrying to protect the election
or whatever you wanna call it. Ithink you'd also look at it and
say he was acting as acandidate, though.
He was saying, like, I I Ishould have won. I actually did
want win. Like, I'm go I'mcontinuing my campaign. For

(42:34):
those of you who support me, youshould show up and and, you
know, do this rally or whatever.And I I haven't seen any
discussion of that either, whichis I don't know.
It it it seems to me to blur theline more between candidate and
the actual office of theexecutive, and I would have
liked to have seen, the justicespend some time on that.

Yeah. And, actually, I just pulled up the
opinion again because I doremember reading something about
that, but it they didn't cite tothat case. It doesn't look like,
the the government, though, didargue that his conduct didn't
qualify as official conduct butas campaign conduct.

Yeah. Yeah. Yeah.

So that's so they did try to draw that
distinction. They don't cite acase for it. But but that brings
up another issue of okay. So hewas a sitting president. So his
so because at the time he wasrunning I mean, I think the
government is trying to makethat just like let's not just

(43:34):
give him, a, you know, immunitybecause he was a sitting
president.
He was an incumbent is what I'mtrying to say, as opposed to,
you know, how his his campaignconduct should not be treated
differently than somebody who isnot an incumbent.

Yeah.

Like, we should, yeah, actually look at
what we're again, but then itgoes to intent. I was gonna say,
what were the purpose of hisactions? But,

Yeah. I mean, actually, here's the here's the
part I was thinking

of here, and I'll I'll read it from the
opinions on page 26.

This is, quote, government disagreed contending
that this alleged conduct doesnot qualify as official conduct,
that is is campaign conduct. Andthen it says, on Trump's view,
the alleged conduct qualifies asofficial because it was
undertaken to ensure theintegrity of the proper
administration of federalelections. And, after that, the
word campaign does not appear inthe opinion, so I don't think

(44:26):
the court addresses that.

No. No. It doesn't. It definitely skirts
over it.

So I guess that's for the circuit court to decide.

It seems that way. Yeah. I'm really interested
to see how this plays out. I Ido not, envy who is it? District
Court Judge Tanya Chutkin?

(44:58):
Yep. So she is the one, thatwill be presiding over this. So
just to be clear of how this allwrapped up, so certain certain
charges were kicked out. Theother ones are being remanded
back down to the district courtlevel. The judge is going to
have to, I'm sure, have theparties submit more briefing or

(45:26):
hearing or something to thateffect because now, effectively,
this judge is the gatekeeper.
Right. So this ruling definitelymakes clear that in the first
instance, the judge needs todecide whether immunity applies
or it doesn't. Yeah. The, like,the the court doesn't want that

(45:50):
issue to go to the jury. Thecourt doesn't wanna delay that
issue for appeal.
When it comes to the president,it all those issues need to be
decided up front. Mhmm. Is it?So it doesn't seem likely that
this case will go if if any ofthese charges are found to to be

(46:16):
able to move forward, thatimmunity will not apply. It
doesn't seem like trial willhappen before our election.
I think there's probably gonnabe a couple months of
investigation and hearings onthis issue, and then it looks
like the judge had already toldTrump's legal team that she
would give them approximately 90days to prepare for trial. I

(46:37):
just think that time is gonnaget eaten up pretty quickly. So

Yeah. And I saw, already the the, and the other,
you know, Trump cases and stuff,which we don't need to get into,
but their their lawyers arealready seizing this opinion and
and using it. I wanna say it wasthe, I wanna say it was the

Well, the New York one that we covered, his
where he was just, convicted ofthe 34 counts. Yeah. So this
this sentencing was supposed tobe, I think, July 15th or right
around right around mid July,and they just pushed it back to
September to, I guess, allow forarguments to be made, you know,

(47:25):
regarding this ruling that justcame out. I though and I haven't
looked into this history, sothis is totally off the cuff.
But Mhmm.
My understanding was all ofthose charges or convictions
were regarding Trump's activitybefore he was elected president.
So I'm not sure how this opinionwill affect that because this

(47:47):
has to do with, obviously, theexecution of powers under the,
you know, under the executivebranch.

Also, I don't know that this opinion is
retroactive. It's another thing.

Oh, yeah. Sure. That too.

It's conviction in state court. I don't know that,
you know, an opinion 2 monthslater from supreme court gets to
undo it or not.

Mhmm.

But the, like, the federal, like, documents case,
like the Mar a Lago, bankersboxes in the bathroom case, you
know, that I think that's an a apretty obvious, application of
this. You know, it'll say hetook the documents for official
purposes. Yep. Yeah. You knowyou know, like, that's or
whatever.

(48:27):
Sure. Right?

For sure.

And which is also you know, it'll be very
interesting because, he can onlybe acting in his official
capacity of president if he isstill the actual president and
which would require the SupremeCourt to rule on whether or not
he was president in February,March, and April of 20 and and
really the year after.

Oh, interesting.

So the supreme court's gonna have to decide
whether he won the election ornot is what it what it boils
down to. So I don't know. Ithey'll probably kick that one.
They probably they probably

won't kick. Yeah.

Yeah. Okay. Interesting.

Okay. I just because I I just think that the
her writing is is impressive,and I it is doomsday, but,
Justice Sotomayor, I think shejust, you know, takes the
gravity of the majority'sdecision, to heart in a way that

(49:21):
it is chilling and it is scary,but it's you know, she sees the
potential for for what this thisruling could do. So I just
wanted to quote this this lastpart of her dissent. The
president of the United Statesis the most powerful person in
the country and possibly theworld. When he uses his official
powers in any way under themajority's reasoning, he will

(49:43):
now be insulated from criminalprosecution.
Orders the Navy Seal Team 6 toassassinate a political rival,
immune. Organizes a militarycoup to hold on to power,
immune. Takes a bribe inexchange for a pardon? Immune.
Immune.
Immune. Let the presidentviolate the law. Let him exploit
the trappings of his office forpersonal gain. Let him use his

(50:05):
official power for for evilends. Because if he knew that he
may one day face liability forbreaking the law, he might not
be as bold and fearless as wewould like him to be.
That is the majority's messagingtoday. Never in the history of
our republic has a president hadreason to believe that he would
be immune from criminalprosecution if he used the
trappings of his office toviolate the criminal law. Moving

(50:27):
forward, however, all formerpresidents will be cloaked in
such immunity. If the occupantof that office misuses official
power for personal gain, thecriminal law that the rest of us
must abide by will not provide abackstop. With fear for our
democracy, I dissent.

Yeah. That that jumped out to me because, like,
I remember very vividly, the, Ithink justified, objections to a
specific event during the Obamaadministration, which was an
Obama president Obama,authorized a drone strike on a
US citizen, who was designatedas an enemy combatant.

Mhmm.

And there was a whole a whole it was a whole
ordeal. It was a wholepolitical, cycle of whether the
president could do that. I don'tremember the guy's name,
unfortunately. But it wasAmerican citizen who I think was
with or was affiliated with theTaliban and and president Obama,
authorized a drone strike, whichkilled him. And that was like
there was a time where, therewere a lot of people that were

(51:26):
saying, well, this is a criminalact.
This is outside the scope of,you know, what the president can
do. And I know it doesn't helpto, like, both sides or, like,
you know, to call someone ahypocrite. Everyone's a
hypocrite. Don't get me wrong.But, like, I remember that very
vividly where there was, like,opposition to that.
Like, this this person is a UScitizen. Therefore, they're
entitled to due process rights.Therefore, you know, summary

(51:48):
execution

via drone is illegal, and therefore, Obama,
you

know, should be, via drone is illegal, and
therefore, Obama, you know,should be charged or whatever.
Well, I mean, this wouldretroactively clear him that,
you know, discharging the powersof the presidency to, you know,
order a strike on a on a theenemy combatant or whatever.
He's, like, probably in a fit aquote, unquote, official act.

(52:10):
You know? So there's not gonnabe civil or criminal liability
for that anytime soon, Barack.
You you know, not not thatanybody was worried. But I guess
my point is, like, this howeveryou, like, however you slice it,
like, the way that weunderstood, immunity as
evidenced by even people thatwanted to, like, go after the

(52:32):
last Democratic president, youknow, before Joe Biden. Like,
there it has expanded. You know?Yeah.
No one, not even I don't thinkBarack Obama and his proponents
were saying, I'm immune fromthis. There was other
justifications for it.

Yeah.

You know, the the but no one was saying, you can't
come after me for this. I'mpresident. I'm immune from
criminal acts committed in thisofficial capacity. So, you know,
that's the this is an expansionof that rule. People will just
say it's a clarification andthat this rule has already
existed.
Maybe that's the case, but itcertainly has never been pushed

(53:07):
up to the limit like this wherewe've had someone draw a line,
and now we have that line. And Ithink that the line is a little
further than we all probablyexpected. And,

Yeah.

You know? And that's just it it is what it is.
I I understand.

Well, I think it goes back to sorry to cut you
off. Do I catch your thought? II think this court has just as
we've seen, decision afterdecision after decision is
really honing in on separationof powers. And I think it would
have been, I don't know,potentially easy or, you know,

(53:42):
splitting the baby to say that,yes, the, the president's
actions taken in his officialcapacity, you know, pursuant to
his authority are presumptivelyimmune, period, and leave it at
that. Yes.
But they separated that firstpart based on, the separation of

(54:03):
powers, saying there are certainpowers that are exclusive to the
executive branch. The foundersnever intended for congress to
have any oversight in that,never intended for the judiciary
to be able to make any rulingsbased on that. So that is

Don't even don't even get me started

on this issue. But that is but that is, you
know, what they're saying thatif it is exclusive to the
executive branch, period. That'sit. He's immune.

Right. Yeah. I mean, you know, we'll get there
one of these days. I'm gonna, myI'm a try to convert you to, to
being Marbury pilled, or Isupreme court does not have the
right of judicial review. Thatis the biggest, separation of
powers, seize seizing of powersby the judicial branch in our

(54:55):
history, but, you know, that's aseparate issue.

Yep. Gosh. Another fun one. Yeah. Fun's
scary.
I say fun loosely. Fun in that.We just spent 45 minutes
discussing it. But, Yeah.There's definitely more to be
seen, though.
I mean, this is how this playsout will, you know, will become

(55:18):
more clear over the next couplemonths. But,

I mean, I think what we're gonna get out of
this, one way or the other, iswe will get a set of rules, by
which because we didn't know. Wewe did not know expressly what
the rules were when it came cameto either suing or prosecuting
presidents for for certainthings they did while in office.

(55:42):
Like, we had some idea from theClinton cases in the nineties,
and we had some idea from, youknow, Nixon in the seventies.
But this will this this willresult in a number of new rules
on how that works, and thenevery president going forward
will, you know, will have thoserules and the benefit of those
when making decisions one way orthe other. And that's either

(56:03):
gonna help or hurt us long term.
I would say that and, you know,it's just that that's just
that's the trade off here. And,we'll we'll have to see. That's
you know, I I think kind of theveiled threat of maybe getting
prosecuted for criminal actswhile in office, like, even if
it wasn't clearly articulated,probably kept some presidents

(56:26):
sometime along the last 250years in line. You know? They
would like, this idea of, oh,boy.
I I wanna do this, but I I worrythat I might get thrown in jail
after I'm done here. So I betternot. I'm willing to bet that
that's happened more than onceto a sitting president where
they've been like, okay. Nevermind. And now that's kind of
off.
And maybe that's off the tablenow. So, like, you know, maybe

(56:46):
we're gonna get some crazydecision making from the
executive. You know? I don'tknow.

But Right. Well or even just the understanding
that you're gonna leave officeat some point, and, you know,
your opposing party may be theone filling your spot. So, you
know, don't I don't know. Don'ttake action that's could come
back at you someday, sort ofthing. You know, that probably
kept people in line too.

So I'm gonna be covering actually the denial of
a petition for certiorari to theSupreme Court, which is in
itself not really newsworthy andnot usually wouldn't be
something that we cover, butthis one jumped out because it's
in an area of law that Ipractice and kinda specialize
in, which is, OSHA. And, so itwas on my radar for that
reasons, but, also, it's kindaspeaks broadly to more of the

(57:34):
constitutional issues that we'reseeing regarding, the
administrative state delegationof powers from congress to to
executive agencies and so on. Sothis is the, Allstate's
refractory contractors versusJulie Su. Julie Su is the acting
secretary of labor, then the defacto head of OSHA right now.

(57:54):
And the petitioners here were anOhio based contractor.
They're challenging theconstitutional authority of
OSHA, which is kinda similar towhat we've seen discussed in the
recent, rulings on Chevrondeference and even some cases
going back to 2019, which we'lltalk about here. This specific
court, does seem to have theadministrative state in their

(58:18):
sites and and and looks to betaking on these types of cases.
So this is kind of something tokeep your eye on here, and I
think this case is aninteresting illustration of
that. So 7 of the justices heredeclined to grant certiorari.
Justice Gorsuch and justiceThomas dissented, and justice
Thomas actually drafted adissenting opinion short.

(58:38):
It's only 3 pages, but it isworth noting. And justice Thomas
points out that the occupationalhate and health and safety act
was, granted legislative powerto promulgate rules to enforce,
any rules that it, quote, deemsreasonably necessary or
appropriate to OSHA. And whathe's gearing up for and what the
general complaint from theconservative justices is that

(59:02):
congress cannot delegaterulemaking authority to an
executive agency. The rulemakingauthority, legislative authority
of United States government isvested entirely with congress,
etcetera, etcetera. He doesn'tinitially take that outright
hard line and say that congresscannot delegate this kind of
authority, but but he ends uppretty close to it in effect.

(59:23):
And I'll I'll quote from hisshort opinion here. Quote, under
our precedents, a delegation ofauthority is constitutional so
long as relevant statute set outan intelligible principle to
guide the agency's exercise ofauthority. The Court of Appeals
of the 6th Circuit upheld thedelegation of authority to the
Occupational Safety and HealthAdministration under this
intelligible principle testover, and this was a dissent,

(59:47):
that occurred in the 6thcircuit, overjudged Nalbanian's
dissent. And justice Thomascontinues here, quote, I
continue to adhere to my viewthat the intelligible principle
test does not adequatelyreinforce the constitution's
allocation of legislative power.And here he actually cites to a
Gorsuch dissent in the Gundyversus United States case from

(01:00:08):
2019.
And in that case, Gorsuch says,the intelligible principle test
has no basis in the originalmeaning of the constitution in
history or even in ourprecedents. Thomas continues
here, quote, this caseexemplifies the problem.
Congress purported to empower anadministrative agency to impose
whatever workplace safetystandards it deems appropriate.

(01:00:30):
That power extends to virtuallyevery business in the United
States. This agency claimsauthority to regulate everything
from a lawnmower's design to thelevel of contact between
trainers and whales at SeaWorld,unquote.
So he later goes on to say thatOSHA might be the broadest
delegation of power toadministrative agency found in
the US code, and he kind of,ends here with, a quote again,

(01:00:57):
quote, if this far reachinggrant of authority does not
impermissibly confer legislativepower on an agency, it's hard to
imagine what would. It would beno less objectionable if
Congress gave the InternalRevenue Service authority to
impose any tax on on aparticular person that it deems
appropriate, and I doubt anyjurors would sustain such a
delegation, unquote. Now thereason I'm talking about this,

(01:01:20):
and this is it's become a bit ofa theme on the show, is this,
reexamination of the SupremeCourt's tendency to delve into
this kind of historical analysisof, you know, basing their
decisions on, well, this is ourhistory. This is our tradition.
This is how the US has alwaysdone things based on, you know,

(01:01:41):
what I think is the justicesitting here today.
And therefore, I'm gonna decideit the law in accordance with
those that history andtradition. I have voiced
objection to that and how thathappens in in the way in which
the Supreme Court kind of doesthat analysis before in a couple
of episodes here in the show,and I'm kind of going back to

(01:02:03):
the well on that today. If onlybecause I just again, I don't
think that this is correcttechnically or factually. As an
aside, the first executiveagency that was established in
US history was actually as earlyas 17/89, of course, and this is
the state department. That's anexecutive agency, but it's only

(01:02:25):
executing executive powers.
It's held by the executivebranch. It's not exactly what
we're talking about, but it goesto show that the administrative
state as it were, wascontemplated and immediately put
into effect the moment that theconstitution was ratified.
Right? I'm really gonna justnitpick here on Thomas's
quotation of the Gorsuchopinion, which is to the effect

(01:02:48):
that there's no history ofupholding this kind of
delegation of congressionalpower to the executive branch
because, frankly, yes, there is.And, of course, it's even when
you read his opinion that Thomasis relying on here, he
acknowledges as much.
So So the question I'm kindadiscussing here is just whether
there is a history andtradition, in our country or in

(01:03:12):
our supreme court president, ofthis type of delegation from
congress to the executive forrulemaking purposes. And I just
think that justice Thomas iswrong when he says that there
isn't. The biggest example andthe kind of earliest example
that I could find with thelittle bit of research I was

(01:03:32):
able to do here is the JWHampton Junior and Company case,
versus the United States. Thisis from 1928, and this is where
the the quote, unquote,intelligible principle test
comes from. Here's the portionof that opinion which really
underlies a lot of whatadministrative law, as we

(01:03:53):
understand it today is.
Quote, congress shall lay downby legislative act an
intelligible principle to whichthe person or body authorized to
fix such rates, and this is atax case, by the way. The fix
such rates is directed toconform to such legislative
action is not forbidden not aforbidden delegation of
legislative power. If it isthought wise to vary the customs

(01:04:17):
duties according to changingconditions of production at home
and abroad, this this gets intotaxing and tariffs and things
like that. It may authorize thechief executive to carry out
this purpose with the advisoryassistance of a tariff
commission appointed undercongressional authority. So

(01:04:38):
that's the JW Hampton case 1928.
And in that case, the SupremeCourt is express expressly
saying congress can delegaterulemaking and enforcement
authority to an executive agencyso long as they're an
intelligible principle, to whichthat rulemaking body is going to
act under. That's in accordancewith this congressional

(01:04:59):
authority. Right? Since then,that case has been cited up and
down, through all the federalcircuits and, of course, the
Supreme Court to justifyempowering congressional
agencies and executive agenciesrather with carrying out acts of

(01:05:20):
congress and making rulesthemselves that will be enforced
by themselves. So think of,like, the EBA.
OSHA is a great example, thingslike that. In this opinion, by
the way, since we're going to besince we're kinda talking about,
you know, history and traditionhere, it's worth noting that
this opinion from 1928 wasauthored by justice, Taft. He's

(01:05:41):
in, like, William Howard Taftwho was the 27th president, and
who was kind of famous in hisday for actually pushing back
against the expansion ofexecutive power, and back
against specifically TeddyRoosevelt, who was kind of all
about the expansion of executivepower in his time, before he

(01:06:04):
ultimately got stabbed in theback by Teddy Roosevelt in the
election of 1912. TeddyRoosevelt kinda Ross Perot Taft,
and he ran as a third partycandidate and handed the
election to Woodrow Wilson. ButI digress.
The point is here that Thomasand Gortje say this stuff is all

(01:06:25):
outside of our history andtradition, yet there's an
example of a particularly antiexpansionist justice in Taft,
someone who actually served aspresident, authoring an opinion
which says, sure. Congress candelegate some power to the
executive in certaincircumstances so long as there
is intelligible principle thatCongress sets out, in the

(01:06:46):
delegation of rulemaking andenforcement power. So it's I I
Gorsuch explains this away, andand he kind of does so in a
throwaway paragraph and adissent in the Gandhi case from
2019, and we don't really needto get into that. He just
basically says, no. No.

(01:07:07):
No. The JW Hampton case doesn'tsay what we all think it does.
It it says something different,etcetera. No citation to
authority for on Gorsuch's part.No really getting into, the
specifics of that delegation orwhether it had happened before
or whether there is indeed ahistory of this happening in our

(01:07:28):
congressional, record or not,things like that.
He just kinda just says, youknow, hey. We think this says
this, but it didn't. And now theGandhi opinion from 2019 is
being used to bolster whatThomas is saying in his dissent
on this, denial of certiorari,all of which is the 2

(01:07:52):
conservative justices saying,look. This we don't we don't
have a congressional history ofdoing this. We don't have,
Supreme Court jurisprudence ofholding this up, and and we we
shouldn't be doing it this waybecause we never have really in
the past.
And that's just, you know,frankly not true.

Danessa Watkins (01:08:07):
So if I can interject for a minute. Yeah.
And this is maybe just me beingtoo practical about this this
issue. But, I mean, we haveagencies for a variety of
different areas. I mean, OSHA isjust one.
I think you mentioned the EPA. Idon't know. Others don't come to

(01:08:28):
mind off the top of my head, butthere are a bunch of different
agencies that, we have alwaysallowed to, regulate, I guess,
kind of internally because theyare, you know, quote, unquote,
the experts in whatever areathat may be. So I'm just curious
what is the alternative to that?Is it is the expectation that
congress is going to now take alook at what these guidelines

(01:08:53):
are and make their own revisionsthat will become effective
immediately?
Are they gonna wipe the wholething clear and start fresh? I
mean, I just don't maybe becausein our lifetime, it's just
always been so obvious that,yes, of course, you're gonna let
these agencies who understandthe issues. You know? Like, so
what is the alternative?

Jack Sanker (01:09:12):
Well, it depends on kinda where we go politically.
Right? But there there is a billthat's actually pending.

I don't know if

it's ever been introduced or anything, but it's
the REINS act, rei rei n s. Theidea behind that as far as I
understand it is that theseexecutive, agencies can go about
recommending, rules, that fallunder their normal, like,
purview. Like, the EPA can goahead and recommend, you know,

(01:09:42):
what acceptable lead levels areor something like that, but
they'll all have to then be,codified in the law by congress.
Right? So it it basically saysthe agencies can no longer issue
their own rules that would havethe force of law.
It has to be run throughcongress, which, you know, means

(01:10:03):
that these agencies, whether youlike them or not, their
rulemaking authority, I mean,goes away and gets subject to
the kind of political willynilly that happens in our, you
know, modern congress, I think,which is to say that none of the
rules ever get passed.

Well, I was just gonna I was thinking that
too. I mean, part of this isalmost like I mean, what we call
judicial economy. So I don'tknow if you wanna put
congressional economy. Like,they can't handle everything.
You know?
So some things need to bedelegated. So this I mean, I
could see that I'm just gettingbogged down in a full session
with just one of the agencies,you know, new proposals.

Exactly. That's, I think, the point, by the way,
from proponents of that type oflegislation is, like, they they
don't want new rules. And andthat's a kind

of a

libertarian, you know, political way of looking
at things. And, you know, whatand I'm not making a merit
judgment on that one way or theother, but I I think,
ultimately, like, if you pointout correctly, this is gonna
make it hard for any of thesenew rules to go into effect. I
think opponents of that type oflegislation would say good. You

(01:11:17):
know? Mhmm.
Mhmm. So, so yeah. And theSupreme Court for all that we've
talked about, how they'resupposed to be nonpolitical and
everything else. What they'resaying here is effectively or at
least what Thomas is implying,here is that, yeah, we can't

(01:11:40):
delegate that type of broadrulemaking authority to an
executive agency, violates thedelegation of powers and all
that stuff, whether you like itor not. But what what really
bothers me is is Gorsuch saying,like, well, when we never have
before.
So this is this is all new. Youknow, we haven't been doing
this. And it's like I mean,here's an example. It's 96 years
old that it that was able tofind pretty quickly. And and

(01:12:05):
insofar as the Supreme Courtwe've talked about this on
previous episodes.
They they like to kind of clothethese decisions and sticking
with, you know, the legal and,political history of the United
States. This is to me anotherexample of them kind of, either
making something up or justdoing bad historical

(01:12:26):
scholarship, in that regard.And, you know, the result is
they get to kinda claim to beapolitical by saying, no. No.
No.
We're just looking at what ourhistory is here when when making
a pretty heavily politicallycharged decision. And some
examples of, like, some thingsthat I think that the Supreme
Court, you know, ought to getinto, especially if they're

(01:12:49):
gonna talk about this, whichneither Gorsuch did. Obviously,
Thomas didn't. Not that he woulddo it in this dissent, but,
still, you know, you wouldexpect to see this somewhere is,
like,

off top

of my head, some things I would wanna know. You
know, when was the 1stcongressional delegation of
rulemaking authority to anexecutive agency? Like, when was
that what date did that firsthappen? Because, like I said, I
found an example of an opinionon that happening from 1928.
Does it go back much further?
Because now it seems like youwould call that a tradition,

(01:13:23):
right, if we're over a 100years. You know, when was the
first executive agencyestablished anyways? I think I
mentioned before that was thestate department, in 1789 or
1788. And then, you know, arethere other examples of congress
delegating rulemaking authorityto different executive branches

(01:13:46):
that go back even further? Like,off the top of my head there,
I'm thinking about, you knowactually, Danessa, do you wanna
guess what what period inAmerican history I'm I'm
thinking of?

Shoot. What is it that you're obsessed with?
It's a it'll be the the, the

Reconstruction era.

Yes. Yes.

But the Freedmen's Bureau. This was, the Freedmen's
Bureau. I mean, congressdelegate all sorts of power to
the Freedmen's Bureau, and thiswas I mean, I don't even I don't
know if this is the earliestexample, but I can tell you
that, there there's that wouldbe part of the, quote, unquote,
history and tradition, of how wedo things in this country, that
seems to just be ignoredwhenever it's convenient, for

(01:14:34):
the supreme court to do so. Andand that's just that's a bugaboo
of mine that I'm gonna talkabout as often as I can, I
think? It releases often as, youknow, the audience doesn't get
bored with it.

Mhmm.

But for now, I'm gonna keep beating this drum on
the level of historical analysisthat's coming out of the Supreme
Court, which I think is usuallypretty bad, and that it
shouldn't be guiding thesedecisions, to begin with. One of
the reasons that we're covering,you know, the denial of
tertiary, is in the wake of therecent decision on the Chevron

(01:15:14):
Chevron, deference and the courtreally throwing that out. It's
guided by similar principles.It's this idea that the
administrative delegation powersbetween the executive and
congressional branches are, havegone too far, etcetera,
etcetera. And we're not gonnadive into that that decision

(01:15:35):
here on the episode today.
We might get into it later. Butif you're listening to this
podcast and you're interested inthis type of news, undoubtedly,
you've seen the headlines aboutthe Chevron decision. So we
wanted to just kind of pick upwhere those would have left off
and and give you an maybe apreview of where this is going,
which is, you know, 2 of the 9,justices already expressing, at

(01:15:58):
least some intent to maybe getrid of OSHA or get rid of
OSHA's, rule making and,enforcement capacity. So this
is, this is how decisions likethat, you know, could affect
your sort of day to day.

Alright. Well, the supreme court is now on
summer recess until it sayslet's see. 1st Monday in
October. So you'll have a littlereprieve listeners on us talking
about supreme court cases. Butthis has been interesting.
Thank you, Jack, for for hearingme out on this very complex

(01:16:34):
ruling. And, that's all we havefor this week. Remember to like
us, follow us wherever you getyour podcasts, Apple, Spotify,
YouTube, and we'll have a newshow coming out in 2 weeks.
Thanks for listening.

Thanks, everyone.

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So About That Recent Supreme Court Presidential Immunity Decision... - Ep. 54

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}So About That Recent Supreme Court Presidential Immunity Decision... - Ep. 54