Subscribe
Share
Share
Embed
This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Speaker 1: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. And now your host, Nia Rogers, public affairs librarian and Dr. John Aughenbaugh, political science professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I am excellent, and I'm very excited. How are you?
J. Aughenbaugh: I'm good. As longtime listeners well know, this is one of the high points of my calendar year.
N. Rodgers: Yeah. Every time a case drops, by the way, at this time of the year, I get a call or a text from Aughie going, did you see that? And I'm like, I don't even have to watch SCOTUSblog, keep an eye on the blog or any of those things. I don't have to open the news because Aughie's going to hit me with, did you see the case? Oh, my gosh, it's so interesting. And I'm like, you say that about every one of them. You say that every one of them is interesting.
J. Aughenbaugh: Yeah.
N. Rodgers: Your idea of interesting and other people's ideas idea of interesting don't necessarily line up. But I'm excited for the first case we're going to talk about today because, listeners, Aughie makes notes about the case. The reason he does that is so that I can understand what we're going to talk about. He gives me sort of a primer. He usually says in a 6-3 in a 5-4 in a 9-0 and whatever, whatever decision. This one is the first time I have seen fractions. We've been doing this now for several years, this summer SCOTUS. This is the first time when I've seen a 5.5 to a 3.5 decision. I think that is the perfect encapsulation probably of this court. You said later in your notes and we'll get to that in another episode where he tries to give you the overall tenor of the court or the overall vibe of the court for the season. I'm thinking fractions. Fractions are going to be the overall vibe for the court.
J. Aughenbaugh: Yeah. Listeners, the first case we're going to look at, by the way, the day we're recording this, the Supreme Court earlier in the week dropped their last seven decisions. And these were all big ones.
N. Rodgers: It felt like 8,000.
J. Aughenbaugh: Yes. These were all big ones in the amount of writing.
N. Rodgers: Yeah, because remember, listeners, we've talked about the fact that what they do is they throw these things out the front door, and then they bail out the back door as fast as they can once they're done. Right now, no one knows where any Supreme Court justice is because they have all disappeared. They're gone. They want to be tracked down by the press. They don't want to be talked about by the.
J. Aughenbaugh: Yeah. Other than their families and their security details, nobody in the United States know where the nine Supreme Court justices are.
N. Rodgers: They are more or less missing right now.
J. Aughenbaugh: So the first decision we're going to look at today in this episode is Trump v. Barbara. This was probably the a most heavily expected case coming from the Supreme Court, and it looks at the anticipation.
N. Rodgers: Anticipation, the way they used to sing that in the.
J. Aughenbaugh: Anticipation. Anyways, I'm sorry, listeners. You just had to hear my rather poor singing. This is the case that looked at the constitutionality of President Trump's executive order in regards to birthright citizenship and whether or not this executive order violates the birthright citizenship clause of the 14th Amendment.
N. Rodgers: This executive order was signed on the first day of Donald Trump's second presidency.
J. Aughenbaugh: Yeah, second term in the office.
N. Rodgers: In 2025, he signed it the first day. His theory was that he could revoke automatic citizenship for people born in the United States.
J. Aughenbaugh: United States. That's right. The Supreme Court in a 5.5-3.5 decision, struck down the executive order. And the majority opinion written by Chief Justice John Roberts held that the guarantee of citizenship to basically virtually everyone born in the United States, no matter if their parents are also US citizens. We'll get into which Justice is the half. Spoiler alert, it's Justice Brett Kavanaugh. Basically the Supreme Court agreed with virtually every lower court in the United States who had an opportunity to rule on the constitutionality of this executive order. Roberts was joined in the majority by the three liberal justices, Sotomayor, Kagan, and Brown Jackson. But he was also joined in the majority by Coney Barrett and he was joined by Kavanaugh in regards to the outcome of the case, but not the reasoning. We'll get to that in just a moment.
N. Rodgers: That's not unusual, right? Although most of the time, those are concurrences. They're just straight concurrences.
J. Aughenbaugh: But Kavanaugh would not have decided the case on the Constitution. Kavanaugh would have decided the case on the fact that the United States Congress after the 14th Amendment was written. The United States Congress in two different immigration laws defined birthright citizenship in the way that the Supreme Court ruled. His argument was, the court did not need to get to the constitutional issue. The court could have decided the case on legislative grounds instead of constitutional grounds. For my listeners who are my former students, in constitutional law, this is known as the rule of justice ability, known as strict necessity. Don't rule on constitutional grounds when you can decide a case on legislative grounds. Why? Because it's far easier for a law to be changed than the Constitution, which would require a constitutional amendment.
N. Rodgers: Which in this instance, I have to admit worries me because he wrote basically a plan for how to get to birthright citizenship. You would do that by passing certain laws and removing certain statutes. And I'm like, no, no. But the court regularly does that. The court regularly says, if you just did this and this and this, you would meet the criteria, blah, blah, blah, blah, blah.
J. Aughenbaugh: Yeah. So Roberts emphasized in his majority opinion that, "Children born of parents unlawfully or temporarily present in the United States satisfy both elements of the citizenship clause. So under the Constitution, they are citizens at birth." There were a number of justices, three, who disagreed. Justice Alito wrote in a dissent that this was one of the most important decisions in the history of the court and a serious mistake. He said that if you look at a careful analysis of the text of the 14th Amendment and the process that led to its adoption, shows that it does not degrade the concept of citizenship in this way. He says, "The 14th Amendment confers citizenship only on those children who at birth owe their allegiance solely to this country." There was also another dissent written by Justice Thomas in this case. It's one of the longest dissents. I think it was the longest dissent written by any justice this term, where he went ahead and pointed out that the purpose of the birthright citizenship clause of the 14th Amendment was to protect former slaves, that those who wrote the 14th Amendment did not have immigration in mind because immigration was not a significant issue at the time the 14th Amendment was written.
N. Rodgers: I'm not entirely certain that Justice Thomas understands the Mexico California border, but okay, we'll roll with that for now.
J. Aughenbaugh: This case it's dominated American politics, Nia. Let's be very clear. It's dominated American politics since the executive order was issued. It led to [inaudible 00:10:57].
N. Rodgers: It's been a question since the 14th Amendment. There have been people in politics going all the way back who have been like, whoa, whoa, whoa, whoa, whoa. What do you mean birthright citizenship and blah, blah, blah, blah, blah.
J. Aughenbaugh: But in terms of this particular case, the court had an opportunity last term to take a look at the executive order in regards to how lower federal courts were processing challenges to the executive order. This is what led to last term's Trump v. CASA, where the Supreme Court went ahead and said that universal or nationwide injunctions, which were orders that barred the enforcement of laws or policies anywhere in the country, were not part of the authority of the lower federal courts. We covered that last time.
N. Rodgers: You and I discussed that. And I have to say, there can only be one Supreme Court. And if any court can act like a Supreme Court, then you lose the thread on which one is the Supreme Court. If any court can offer a nationwide injunction or universal injunction, then's that's a big bite out of the apple, as it were.
J. Aughenbaugh: The difficulty for the Trump administration and the Trump administration tried to respond to this was that the Supreme Court had previously looked at birthright citizenship in 1898 in the case of Wong Kim Ark. In that decision, the United States held that Wong Kim Ark, who had returned to the United States after visiting China, was a US citizen because they were born in the United States. As Roberts pointed out, for basically 128 years, we have in this country understood the rule to be, you have citizenship if you are born in the United States. Even if your parents are here illegally, even if your parents are citizens of another country, because you were born in the United States, you could claim US citizenship if you so desired. Now, one of the key questions was, do these children who are born in the United States of parents who are not here legally, where is their domicile? Domicile is a legal word, meaning place where somebody has a permanent home. Now, the Trump administration argued, how can these individuals born in the United States claim that their permanent home is the United States when their parents don't owe allegiance to the United States? Again, they're here illegally. They could go back to their former country and claim citizenship there. But according to Roberts, the difficulty in the Trump administration making that argument is that the United States Congress in two different immigration laws, went ahead and said that individuals born in the United States, even if their parents are here illegally, their domicile is the United States.
J. Aughenbaugh: According to Roberts, both this court and the United States Congress have clearly interpreted the birthright citizenship clause of the 14th Amendment as conferring domicile status to these citizens born in the United States.
N. Rodgers: Isn't that the argument that DACA makes, like, these kids that are born in the United States are American? Whether their parents are here legally or not, they did not ask to be born in the United States, but they are born in the United States.
J. Aughenbaugh: Yeah. Now, as I pointed out, Kavanaugh would have decided the question more narrowly. He agreed with the outcome, but he thought that the reason why the executive order should not be considered invalid because of constitutional reasons, but because of legal reasons. Now, as Nia points out, listeners, Kavanaugh's concurrence in part and dissent in part basically could lead to the Trump administration asking the United States Congress to rewrite immigration law that defines citizenship as not where you are born, but where your domicile is.
N. Rodgers: Or the legal status of your parents. It could be based on the legal status of your parents. There are several ways he offered up. By the bye, Donald Trump's response to this was muted because of that, because the immediate response that the Trump administration made was, okay, then we'll put something through the legislature. He didn't react. Donald Trump reacts with fervor in many instances when he feels he has been wrong in some way. But in this way, he was like, okay, well, then we'll go through the legislature, and we'll do it that way. That should be the next thing we should watch in terms of legislative agendas, is that this will find its way onto the legislative agenda of at least the House, if not also the Senate.
J. Aughenbaugh: Then, if Congress did rewrite immigration laws to define birthright citizenship in a much more narrow way, Nia, then it could force, once again, the lower courts to go ahead and take a look at this. It could end up being in front of the Supreme Court again. Listeners, you ought to pay attention to this. Okay?
N. Rodgers: Right. Because this may be a boomerang. This may be coming back at some point; in fact, it will. This is not a may; this will come back at some point. It's just in what form?
J. Aughenbaugh: Yeah. Now, as we've already pointed out, there were three dissenting justices; each one wrote. We've already covered Alito's dissent. Clarence Thomas, as we also previously discussed, argued that the 14th Amendment was designed to secure equal rights for freed blacks, and that once again, the Supreme Court was adding additional gloss to the 14th Amendment to cover groups that those who wrote the 14th Amendment could not have envisioned. For me, once again, the most idiosyncratic dissent was penned by Justice Gorsuch.
N. Rodgers: He's an odd duck, isn't he?
J. Aughenbaugh: Yeah, he is an odd duck.
N. Rodgers: All the little ducks walk left foot first, right foot first, and he's always one step off just a little, odd, little duck.
J. Aughenbaugh: He's just like, is there a pond of water over here. But he went ahead and said that this case was argued on whether or not the executive order violates the birthright citizenship clause of the 14th Amendment. He said what was not argued was a point that could also perhaps mean that the executive order violated the Constitution for a different reason. Because he said, if you focus on where is the domicile of these people born in the United States, if their parents aren't domiciled here, then where are they domiciled? It's fascinating.
N. Rodgers: There is this group of people who are not welcome in their home nation and are not welcomed here for a variety of reasons. Where do they call home? What is home? I'm thinking in terms of the temporary refuge that's given to some. You can't go back to Haiti because your house there is completely destroyed, your life there is completely destroyed. But you're not technically an American citizen; you're just here in this refuge status. Where are you domiciled, and therefore, where is your baby domiciled? It's complicated.
J. Aughenbaugh: Yeah. On one hand, it was the court's decision was a resounding defeat for the Trump administration. That's the way it was described, Nia; it was described in the press as a resounding defeat for the Trump administration.
N. Rodgers: Probably overstating it.
J. Aughenbaugh: We are cautioning listeners that, in particular, Justice Kavanaugh's concurrence provides, if you will, a roadmap. Nia can affirm this. Back in January of last year of 2025, when the Trump Administration, first day of the second term in office, issued this executive order, Nia went ahead and asked me off recording, "What do you think of this executive order?" I said, well, it's going to get challenged to the Supreme Court. I said, the difficulty is going to be Supreme Court precedent. But I said, what confuses me is, once again, if Trump was willing to go through the more time-consuming process of working with Congress, he could rewrite immigration law.
N. Rodgers: And settle this question.
J. Aughenbaugh: Could settle this question. That would have forced the Supreme Court to go ahead and look at the constitutionality of a law passed by Congress instead of an executive order because historically, the Supreme Court has deferred to the Congress in regards to immigration law because in Article 1, Section 8 of the United States Constitution, Congress quite clearly has the authority to regulate immigration into and out of the United States. That is what mystified me. Now, I understood why: because Trump doesn't like to go ahead and take his time and go through the normal process. He's a process breaker, if you will. He doesn't like to go ahead and take the time that typically a separate but shared powers arrangement requires. But the idea was to go ahead and actually change birthright citizenship. I thought then, and after reading Kavanaugh's concurrence, I think now, that would be a more fruitful way for Trump to achieve this policy goal. Now, let's be very clear.
N. Rodgers: That's separate from, do we think this policy goal should be achieved?
J. Aughenbaugh: Should be achieved. That's right.
N. Rodgers: Aughie is not saying that.
J. Aughenbaugh: No.
N. Rodgers: He is saying there are ways to do it.
J. Aughenbaugh: Yes.
N. Rodgers: And I advocate those ways. We should separate those two things. I think that what I find fascinating about this whole case and the discussions around it, on the far right, there's this insane attachment to the idea of tourist birthsm, where you wait until you're 9 months or 8.5 months pregnant and you get on a plane, which I don't know why anybody's letting you get on a plane at that level of pregnancy, anyway, but whatever, I'm not in charge of the airlines, because they'd run on time if I was in charge of them. But anyway, you come here in order to have a baby, what they call an anchor baby. Once you are the parent of an American citizen, it is theoretically harder to throw you out. I don't know if anybody's been noticing what's been going on with ice, but I don't know that that's necessarily true either. That is no longer a thing that we hold [inaudible 00:25:34] But also, it's like, less than 1% of all births in the United States are tourism births.
J. Aughenbaugh: The research that I read is that even in more lenient presidential administrations in regards to allowing people to come to the United States, birthright tourism was not a growing concern.
N. Rodgers: It's just not. The talking heads that are talking about that, they're putting up a smokescreen. On the far left, the people who are suggesting that birth in the United States automatically confers status without taking into account the status of the parents are doing themselves and the children no favor, either, because that will always be open to question. What we need is immigration reform for the parents so that we can get them to a status that is recognized in the United States, and then their children are protected by them having status in the United States. It frustrates me that every immigration question comes back to we could solve this if we would just fix our immigration laws. If we would just sit down and say, okay, I'm going to give up some stuff I really care about, you're going to give up some stuff you really care about, I'm going to swallow some crap I don't like, you're going to swallow some crap you don't like, and we're going to get to a reasonable way that human beings can cross our borders legally, and be here subject to American law.
J. Aughenbaugh: Yeah, we discussed this in a recent podcast episode when we looked at some other Supreme Court rulings in regards to Trump administration immigration policy. Nia and I have been fairly consistent about this. A lot of these cases are rising in a current political environment where neither side of the ideological spectrum, and neither political party seems to be all that willing to go ahead and engage in meaningful discourse at immigration reform.
N. Rodgers: They're scared of their extreme basis. They're scared of being primaried by somebody who's willing to say something publicly hardcore.
J. Aughenbaugh: Because there are legitimate issues that need to be addressed. Listeners, let's not forget, the United States, in many ways, is unusual among developed nations in regards to how they confer citizenship status on immigrants.
N. Rodgers: It's worth more discussion.
J. Aughenbaugh: Yeah, and because, as this case points out, a lot of it flows from the language of the 14th Amendment. Again, neither side of this debate is willing to go ahead and just take a look at, okay, is this what we want to do going forward? But nevertheless, that's one big decision.
N. Rodgers: Can we talk about the next two?
J. Aughenbaugh: Yes.
N. Rodgers: I think I can sum them up very easily.
J. Aughenbaugh: Okay. Go ahead.
N. Rodgers: You ready?
J. Aughenbaugh: Yep.
N. Rodgers: I think that the court watchers, I think we all went, huh?
J. Aughenbaugh: Yeah.
N. Rodgers: That's how I feel about the next two. The next two, if they were taken separately, I might not feel that way because I came out of the same term with the same justices on the same dang week.
J. Aughenbaugh: Yeah.
N. Rodgers: Am like, okay, now I'm totally lost.
J. Aughenbaugh: This episode is going to take a look at two more actions taken by the Trump administration. They both deal with a president's ability to remove a federal government official.
N. Rodgers: [inaudible 00:30:33] likes to say, you're fired. He's known for that
J. Aughenbaugh: Okay. The first one is Trump v. Cook. And Lisa Cook is a member of the Federal Reserve Board. Trump would like to remake the Federal Reserve Board. He would like the Federal Reserve Board to have more of his people who would be interested in lowering interest rates. Why? Because when interest rates are lower, typically we see greater economic activity. And most presidents like to see as part of their legacy greater economic activity while they are president. Trump attempted to remove Lisa Cook without following the reasons stated in law passed by the United States Congress. These reasons are what's known as [inaudible 00:31:39].
N. Rodgers: You can fire a member of the Board of Governors of the Federal Reserve for the following reasons, blah, blah, blah.
J. Aughenbaugh: These are known as for cause reasons. Now, the Supreme Court in this case, ruled in favor of Lisa Cook, The vote was 5-4. The five in the majority, Chief Justice John Roberts, Justice Kavanaugh, and the three liberals versus Justice Thomas, Alito, Gorsuch, and Coney Barrett. The court held that Cook can remain on her job while she challenges Trump's efforts to fire her.
N. Rodgers: He actually has to show cause. He has to take her through the process. They have to fight it out in court and she gets to defend herself. She doesn't. Now, she may still lose and at that point he may then win the right to fire her. But he has to follow the procedures. As Aughie will tell you, the procedures are always what gets you. If you would follow the Procedures Act, you can do almost anything in the United States. If you would just follow the proper administrative procedure.
J. Aughenbaugh: Yes. The difficulty, once again, and we just mentioned this with the previous case, of all of the character flaws of the current president, one of the most glaring in regards to being president of a democratic nation founded on separate but shared powers is that Trump doesn't like to follow the well-established process in law.
N. Rodgers: Yeah, he never asks, how do we do that? He always says I'm going to.
J. Aughenbaugh: Going to do X, right?
N. Rodgers: Right. Every time that I bring up any kind of any weird thing in the library procedurally, Aughie will say, what do your bylaws say? What do your guidelines say? What's your procedure in the library and is it being followed? And oh, that's a good point. I should go look, right?
J. Aughenbaugh: Yes.
N. Rodgers: Because you can do amazing things as president if you will just follow the procedures.
J. Aughenbaugh: And the difficulty for Trump, and we talked about this during his first term in office. One of the difficulties that many of us predicted Trump was going to have as president is that in government, things take more time than when you are the CEO of a corporation in the private sector. This case is a perfect example of this. Because you can remove members of the Federal Reserve Board. But Congress when it created the Federal Reserve Board in the 19-teens wanted to insulate it from normal political pressure. And you do this by saying, you can only remove members of the Federal Reserve Board for a cause. Malfeasance, fraud, general incompetence, etc. Well, he can't get her on incompetence because she shows up to every single meeting, and she still is. You can't say malfeasance because she's not using her position to further her, if you will, own personal, private pecuniary gains. So he wants to remove her for fraud, but he doesn't want to go through the process, right?
N. Rodgers: Right. He doesn't want to prove fraud. He just want to yell fraud in general direction and then fire her.
J. Aughenbaugh: Right. Okay.
N. Rodgers: That is how Donald Trump operates. If he took her to court and he showed fraud and his lawyers proved fraud, then the court would say, yeah, that's cause. You have proven your case. But instead, he wants to yell, there's fraud, there's fraud. It's like when he wants to yell, elections are stolen. They weren't. But I think sometimes he convinces himself that the thing is true because he just says it to himself so many times. But anyway. Sorry, a quick side note, Board of Governors serves their seven members. They serve 14-year staggered terms. The theory here is that no one president would be appointing a whole bunch of these people because you want to remove them from the pressures of the White House, because as Aughie pointed out, it is very important to presidents that they be able to say, the economy exploded under under my presidency, and we are doing better than we have ever done in the history of all the world. They all want to say that. They all think that they know how to get that through the Board of Governors. So if they could appoint a bunch of people who would do what they wanted them to do, then if the Congress had wanted the president to be in charge of the Federal Reserve, they would have just stuck it under the executive. Like, they didn't want him to be in charge of it. Because sometimes presidents have really bad ideas about what will make the economy go. And the reason you have seven people is to say, if that's really going to work or not.
J. Aughenbaugh: And listeners, Nia and I in a previous podcast episode took a look at the creation of the Federal Reserve Board in the 19-teens. And one of the main reasons why the United States Congress created the Federal Reserve Board and created this kind of unusual appointment structure was as Nia just pointed out, Congress wanted to remove politics from banking policy in the United States. The 19-teens followed a number of decades, like easily three or four decades where the United States economy went through these huge boom and then bust cycles. And Congress wanted to go ahead and have the Federal Reserve Act as, shall we say, more of a moderating, stabilizing force in regards to the US economy. You use monetary policy as a way to smooth those boom and bust cycles, right?
N. Rodgers: Right.
J. Aughenbaugh: Now, presidents hated this, have hated this. And Trump's not the first one to go to war with the Federal Reserve Board.
N. Rodgers: Yeah. That is, in fact, he is in a long line of presidents [inaudible 00:39:16].
J. Aughenbaugh: Presidents who have complained about monetary policies.
N. Rodgers: In fact, I'm not sure there's one that hasn't said if the Federal Reserve Board would just blah, blah, blah, blah, blah, blah, blah, we could do blah, blah, blah, blah blah, blah, blah. They all complain about the Federal Reserve Board.
J. Aughenbaugh: But as Roberts pointed out in his majority opinion, the purpose of this appointment and removal process for the Federal Reserve Board would be completely undercut. And he said, the Federal Reserve has followed a long line of historically the United States Congress trying to insulate banking and monetary policy from presidential politics, from politics writ large. In fact, his majority opinion goes back to the First National Bank, which was created and advocated by whom, Nia? First National Bank. I'll give you a hint.
N. Rodgers: Hamilton.
J. Aughenbaugh: Hamilton, right?
N. Rodgers: Hamilton.
J. Aughenbaugh: Yes. The second one, which was created after the War of 1812, the United States economy was, in tatters, the United States Congress created a second national bank, which by the way, the US Supreme Court in McCulloch v. Maryland said it could then went ahead and told the states, you can't tax it simply because you don't like banks. Let's face it, listeners, particularly for our non-American listeners, US dislike of banks. And banking policy is almost as acute as our dislike of taxes, right?
N. Rodgers: None of us trust the banks. In fact, that's how we refer to them, the banks, as if they are a conglomerate of evil that just wanders around the country pooping on things we like. There's no segment of the American economy except maybe the guys on Wall Street, maybe that like banks. Nobody else. People feel forced to use banks. It's not a popular institution. Not as unpopular as Congress or the Supreme Court, but still unpopular.
J. Aughenbaugh: On the other hand, in his dissenting opinion, Justice Clarence Thomas said the ruining was "incorrect". Thank you very much. He says, "If we are going to allow presidents to have removal authority over other federal government institutions that have huge policymaking authority, then how can we say presidents can't remove members of the Federal Reserve Board?
N. Rodgers: Right. What's so special about the Federal Reserve Board? That is, in fact, the question that we are asking now in light of the next case we'll talk about. But I do think it's important to point out that the court didn't say she's going to keep her job. The court said she is due process. Like every other person, she has to get due process. You have to follow the rules in order to fire her. They didn't say you can't fire her. "She's not safe in her job." Now, I don't know whether she did or didn't and we'll see how all of that turns out. And she was accused of mortgage [inaudible 00:43:17].
J. Aughenbaugh: Yeah, mortgage fraud. She lied on applications to receive mortgage loans. And I was just, we're only now recognizing that she made it. What? And by the way [inaudible 00:43:33].
N. Rodgers: And she has been accused of that. She says it's flimsy and there's no proof and blah, blah, blah. Because that's what everybody in court cases say. I can prove it and the other person says, no, you can't because I didn't do it. We won't know until a court actually settles that question. But the Supremes did say, we're not saying you can't fire. We're saying you can't fire her right now. You have to follow the rules.
J. Aughenbaugh: The process laid out in the law. So there's that. But then we get to the next one, and this is the last case we're going to cover for this podcast episode. Now [inaudible 00:44:15].
N. Rodgers: This is bonkers. You can't fire her for cause, but you can fire this guy.
J. Aughenbaugh: Yeah, because in Trump v. Cook, the Supreme Court said, Congress did have the authority to limit presidential removal of Federal Reserve Board members. [inaudible 00:44:37] Trump v. Slaughter asked a similar question. Can Congress limit a president's ability to remove members of independent regulatory commissions? In this case, Slaughter was a member or is a member of the Federal Trade Commission. And the Supreme Court said, yes.
J. Aughenbaugh: In the process overturned a decision from 1935, I have been studying and teaching this decision, the decision in 1935, Humphrey's Executor, and the Supreme Court, he says, We got it wrong, and Humphrey's Executor Well, is not the purpose of an Independent Regulatory Commission the same thing as the Federal Reserve Board, which is, they're supposed to be politically independent so that they can go ahead and issue regulations that are free from the normal political pressures that you would see with a cabinet level department. You think. Right?
Nia Rodgers: Sometimes I think that the Supremes use a magic eight ball to make their decision. You're going to have to unteach this case now, lawyers have been learning this case for like 91 years, and we're just going to be like, no.
J. Aughenbaugh: I'm an administrative law scholar. I've been teaching this case for basically the entirety of my existence as a professor.
Nia Rodgers: Are they saying that the reason that he can do it in the FTC is because it's an executive agency?
J. Aughenbaugh: Yes. We're going to get to him in just a moment.
Nia Rodgers: The Federal Reserve Board is not an executive agency. It's outside. Is that the reasoning?
J. Aughenbaugh: Yes. But again, the logic that Congress had in creating independent regulatory commissions was the same as the logic for creating the Federal Reserve Board, which is that we have agencies regulating certain areas of American life and economy that we want to remove from-.
Nia Rodgers: Political machinations.
J. Aughenbaugh: Yeah. We want them to be independent. Thus, their title Independent Regulatory Commission.
Nia Rodgers: In case you're wondering, Aughie is a little fired up about this.
J. Aughenbaugh: Yes. By the way, the vote in this case was 6-3. It was the six Conservatives versus the three Liberals. Once again, the majority opinion was written by John Roberts. By the way, John Roberts, as we will get to when we discuss the statistics in a future episode, he doesn't write a lot of opinions. He's in the majority, 95% of the time. But he assigns the big opinions to himself. In this one, he had to have intellectual or internal whiplash. Now, for those of you who are wondering, and a lot of the media and a lot of scholars went ahead and said, this decision the Court seemingly was supporting a particular theory about the executive branch of the federal government. It's known as the unitary executive theory. The basic idea of this theory is that the president should have complete control over the executive branch and one of the ways you make sure as president, the executive branch is doing what you want them to do is that you should be able to fire any member of the executive branch who is implementing law. This flows from two clauses of Article 2 of the US Constitution. The vesting clause, which says the executive power of the United States resides with the president, and then the other clause is the take care to faithfully execute the law. Well, how can you make sure that somebody in the executive branch is faithfully executing the law if you can't fire them for not faithfully executing the law? This is rooted in human resource management theory. This is theory X. You want to make sure that somebody's doing their job, you have to be able to go ahead and say, well, if you don't do your job, I'm going to do what to you, Nia?
Nia Rodgers: [inaudible 00:49:48]
J. Aughenbaugh: Terminate. Yeah, bye-bye. That's Robert's majority opinion. Just Sonia Sotomayor wrote a 49 page dissent, which was like one third longer than Robert's majority. I'm like, Oh, my goodness.
Nia Rodgers: Was just like, wait, we just talked about this.
J. Aughenbaugh: Yes. As she pointed out, it's not only Trump, as she pointed out, any president now can remove any commissioner from an independent regulatory commission. There's nearly 20 of them in existence.
Nia Rodgers: Do the inefficiency, neglect of duty or malfeasance in office rules still apply or are we done with it now?
J. Aughenbaugh: No, we're done with that now, because what the Court said was.
Nia Rodgers: We don't have to have to have cause.
J. Aughenbaugh: For these officials, you do for the federal reserve?
Nia Rodgers: They got this totally wrong, didn't they? They got this totally wrong.
J. Aughenbaugh: Well, it's inconsistent, because if the logic for both the Federal Reserve and the Independent Regulatory Commissions was that Congress was creating independent bodies to implement policy. How can you on one hand, say, Congress can limit presidential removal of Federal Reserve Board members for these reasons of case, but Congress can't limit presidential removal for independent regulatory commission members. Now, some of you might be saying, well, monetary policy is more important than what independent regulatory commissions do. Really? How about the Federal Election Commission?
Nia Rodgers: Right.
J. Aughenbaugh: That's voting, Securities and Exchange Commission.
Nia Rodgers: I was going to say the SEC.
J. Aughenbaugh: How about the FCC, the Federal Communications Commission?
Nia Rodgers: On which the Internet completely relies.
J. Aughenbaugh: Yes.
Nia Rodgers: Like hello, do we want those decisions being made by the unitary executive? I think not, especially, unitary executives who can't find the Internet without help. But I just want it noted for the record, by the way, Rebecca Slaughter was nominated by Trump to fill a Democratic seat. Then she was reelected or renominated by Joe Biden, and apparently, Joe Biden liking her was enough to taint her in the eyes of Trump. Because now he's like, no, going to fire you because I don't believe you're going to follow my administration's policies priorities, even though I nominated you in the first place.
J. Aughenbaugh: Well, the great irony of this case, is Humphrey's Executor, was about Humphrey, who was a member of the Federal Trade Commission, who President Franklin Delano Roosevelt wanted to remove because, again, it was the FTC. Because Roosevelt was just like, I want the FTC to be more aggressive in regulating the trade practices of industries and corporation. Trump wants the converse. He would like the FTC to be, shall we say, much more lenient of mergers and other kinds of trade practices, etc. But as you pointed out, Nia, Slaughter never gets on the FTC if Trump had not appointed her in the first place. But because she was, shall we say, did not have the same policy orientation as Trump would like for the FTC during his second term, he was just like, hey, I want to go ahead and get rid of her. I want you to step down. And she was just like, no, I'm not going to step down. I got a few more years left.
Nia Rodgers: If you're wondering, listeners, FTC is made up of five governors or board members. You have to have at least two from one party. You could, I suppose. But it's generally three and two. What I think he's trying to do, Donald Trump is trying to do is pave the way to put on another Republican and say, okay, fight me for it. Because then it will go through the Court. Because does the Congress have the right to limit him or force him to have people from a party not his own? That's going to be the next question that gets asked of this court, because they chuckleheaded this decision, in my opinion. Where's her due process? They insist that Governor Cook, the Board of Reserve Governor Cook has due process, but Slaughter heck with her process. Like, really? What are y'all smoking, and how can I get some? Because I would like the relief of the not having to keep these contradictions in my brain at the same time. That's the thing.
J. Aughenbaugh: I think for both me and I, where we fall on this is okay, pick a logic and stick with it. Because in this argument that the Federal Reserve Board is special or different. I think perhaps Nia and I are reflecting the long standing GenX, equal treatment for similar people.
Nia Rodgers: It's unfair. It's fundamentally unfair.
J. Aughenbaugh: Yeah. I get it. Fair is a four letter word as it relates to the US Constitution. I get that. But if you're going to go ahead and use one logic for the Federal Reserve, but then turn around and use a completely different logic for independent regulatory commissions, then you're going to get some, huh? Okay.
Nia Rodgers: Well, what you've done is undermined our belief that you're making reasoned decisions.
J. Aughenbaugh: That's right.
Nia Rodgers: For me, this just makes the Supreme Court go lower in my brain than they already were, which I have to admit was pretty low. I love that in Sotomayor's dissent. She wrote, where is it? "Gives the president a power unknown even to the English crown against which the founders revolted, elevating him above his co equal branches, once co equal branches by transforming a duty to take care of the laws, be faithfully executed into a license to act in defiance of those very laws." I'm hoping that we see another case. I'm hoping we see this be revisited, because I think this is the wrong decision in a big way. I don't want all of these agencies or rather all of these commissions to be part of the executive branch and therefore part of presidential power. I don't want the Nuclear Regulatory Commission to be under the president. I don't want the Consumer Protection Safety Commission to be under the president.
J. Aughenbaugh: Yeah, the National Labor Relations Board. I'm just kind of swear.
Nia Rodgers: I don't want Donald Trump making those decisions. I want an independent board making those decisions. Very crabby about this particular. The president has lost a couple. Won a big one.
J. Aughenbaugh: Won big one. Yes.
Nia Rodgers: There's still more that we need to cover.
J. Aughenbaugh: Yes. In our next podcast episode, we will wait through three or four more. But thank you very much, Nia, for this discussion.
Nia Rodgers: Thank you, Aughie. Now my blood pressure's all up, and I need to go eat something calming. Like a pudding. Thank you.
J. Aughenbaugh: Drink a warm glass of milk. Anyway.
Nia Rodgers: Exactly.
J. Aughenbaugh: See you, Nia.
Speaker 1: You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the workshop for technical assistance. Music by Isaac Hobson. Find more information @guides.library.vcu.edu/discourse. As always, no documents were harm to the making of this podcast.