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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.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
Dr. John Aughenbaugh: Good morning, Nia.
Nia Rodgers: Normally, I would have greeted you, but I was ignoring you. However, now that you've pressed the case, good morning Aughie.
Dr. John Aughenbaugh: Rightfully so. More people should ignore me, or at least blow me off.
Nia Rodgers: Sorry. You should have seen your face when I was just sitting here looking at you.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: Is not how this works.
Dr. John Aughenbaugh: Now, the funny thing about this listeners is, Nia and I record our episodes the a Zoom. We get to see each other. Nia is doing the hand gesture of Aughie, go ahead. I was just like, wait a minute here. Usually we start with Nia saying, Good morning, Aughie. I was like we're flipping the script here, and I'm not entirely sure what script we're using this morning. Then it dawned on me, because today's episode listeners, the title of When do government institutions and or persons ignore the Supreme Court.
Nia Rodgers: It's part of our Summer of Scots 24.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: I asked Aughie. I was like, what happens when you blow the Supreme Court off and he was like things. Then he made a whole set of notes about the things that happen when you ignore it, depends on who's doing the ignoring.
Dr. John Aughenbaugh: At what point in our country's history, and this is like a whole big subject, and I'm like ask my students. It is a whole big subject. There have been numerous conference papers and books written about when government institutions and or persons just basically say to the Supreme Court, hey thanks for sharing. Then they do nothing, or in some cases.
Nia Rodgers: Or they're like, I'm sorry, were you talking? Sorry. What were you saying? I was not paying attention because I don't care. To me, the argument here comes down to what you quoted Alexander Hamilton writing in Federalist 78?
Dr. John Aughenbaugh: Yes. For our listeners, we have done the occasional episode about well known federalist papers. One of the better known is Federalist number 78, where Alexander Hamilton is responding to the anti federalists arguing that there was a lot of power in the then proposed Constitution given to the federal judiciary, but the federal judiciary is not democratically accountable to the people. For our non American listeners, the federal judiciary in the United States, federal judges are picked by the president and then either confirmed or rejected by the United States Senate. The American public doesn't pick them in an election and doesn't hold them accountable.
Nia Rodgers: We don't get to vote on who's on the Supreme Court. We don't get to vote on who who's in the federal judiciary at all.
Dr. John Aughenbaugh: At all.
Nia Rodgers: We do in some states. But not state judges are elected, but not in the federal system. What did he say they have neither the power of the personal or the sword.
Dr. John Aughenbaugh: That's right. Hamilton's response was, the anti federals concerns are overblown.
Nia Rodgers: They calm down.
Dr. John Aughenbaugh: Hyperbolic, if you will. They're just a touch melodramatic.
Nia Rodgers: Which is a little rich coming from Alexander Hamilton.
Dr. John Aughenbaugh: But nevertheless. If you don't know what we're talking about, go see Hamilton the play or actually read the biography about Alexander Hamilton.
Nia Rodgers: He had a pretty melodramatic life and style.
Dr. John Aughenbaugh: Yes. But his response was, we have nothing to fear from the federal judiciary, because he said it would be the least dangerous branch. Why? Because Nia, as you pointed out, just a few moments ago, he said, the federal judiciary does not possess two rather important government powers. The power of the purse and the power of the sword. Power of the purse is budgetary authority. Think about all the ways people get you to do things because of money.
Nia Rodgers: Generally speaking, that's why people do a lot of things.
Dr. John Aughenbaugh: A lot of things.
Nia Rodgers: For instance, you work to get paid.
Dr. John Aughenbaugh: That's right.
Nia Rodgers: Most people don't say, I'm going to go to my job because I just love it. Even if they didn't pay that thing where actors say, if they didn't pay me, I would still do that. Really? We won't pay you for the next movie. Let's see how you react.
Dr. John Aughenbaugh: The next season of episodes of a really well known TV.
Nia Rodgers: We're not going to pay any of the actors. Let's see how quickly they have a cow. Public rely.
Dr. John Aughenbaugh: We think about all the ways in your life that your behavior gets incentivized because of money.
Nia Rodgers: When you go to the grocery store and things are buy one get one free. You're more likely to buy it. Now, you perceive that you're getting two of them for the price of one.
Dr. John Aughenbaugh: Or think about when you are a child or in high school. Nia on this bodcast, you and I both have talked about our parents, in my case, my mom. She incentivized me all ways when I was in high school to go ahead and do things with money. Can I get a new pair of basketball shoes for the upcoming basketball season?
Nia Rodgers: You need to mow some lawns.
Dr. John Aughenbaugh: My mom would say, if you do X and make a little bit of money, I will pitch in the rest.
Nia Rodgers: My mom used to do that. If you come up with half.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: I will come up with half. When I wanted to go on my senior trip to Carnes.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: That's how we worked it out was that I had to babysit and get enough money to have my half. Then mom would pay the other half. We tend to do that, and we tend to do it in the reverse of making things hyper expensive when we don't want you to do it.
Dr. John Aughenbaugh: That's right.
Nia Rodgers: For instance, cigarettes are enormously expensive.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: Because we are trying to discourage people from smoking.
Dr. John Aughenbaugh: That's right. Historically, in the United States, the power of the purse is controlled by the Congress. Now the power of the sword is controlled by the executive branch, the president as commander in chief.
Nia Rodgers: In his day of Sword and in our day AR 15.They are still.
Dr. John Aughenbaugh: Or really good lawyers. But nevertheless the Supreme Court has no budgetary authority.
Nia Rodgers: No army. No military. No cops. They do have security but they don't have cops.
Dr. John Aughenbaugh: When the Supreme Court issues a controversial ruling, Chief Justice John Roberts just doesn't call up the Supreme Court, police and say, now, I want you to run around the countryside and make sure these people are following this ruling. Now, hypothetically, I think that would be actually really cool if it could happen, but he doesn't have that power. J Rob gets on the phone hey.
Nia Rodgers: Sends out the federal Marshal. That be cool, although I don't know how he would handle that pressure. What's to stop people from blowing off whatever the Supreme Court says then?
Dr. John Aughenbaugh: There is, as Shakespeare would say, the rub Because the Supreme Court can issue all controversial rulings that you don't like elected officials or government institutions don't.
Nia Rodgers: I can say, rub it.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: Keep moving.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: Exactly. What are you going to do? Call me names? Seriously. Were none of you going to show up at my house? I don't think so. When I am president.
Dr. John Aughenbaugh: Yes. We're going to back to these things.
Nia Rodgers: It's always in the back of my mind, Aughie. Always. I'm just going to say in the summer of 2024, given my choices, I don't know that I'm a bad choice.
Dr. John Aughenbaugh: We've wandered far afield rather quickly.
Nia Rodgers: The lists of this podcast may agree that I would make just as good a candidate as the ones currently available to them. Anyway, but aside from that, what's to stop the president from saying, Hey, thanks, Supreme Court for your writings.
Dr. John Aughenbaugh: 2024.
Nia Rodgers: It's the Rogers, Aughenbaugh ticket.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: What's to stop the president from saying, that's really a great little decision that you wrote there, but rip, shred. I'm sorry, was there something written here? I don't have to obey it.
Dr. John Aughenbaugh: In listeners, the rest of this broadcast episode are going to highlight some pretty well known examples of where presidents, the Congress, states, both political parties, let's face it. If there's one thing that unifies everybody else who doesn't serve on the federal judiciary, particularly the Supreme Court?
Nia Rodgers: Is that they don't like certain decisions.
Dr. John Aughenbaugh: That's right. You basically know when you're a Supreme Court justice that at some point in time, your institution is going to issue a decision in a case that's really going to upset a whole bunch of people, and they're going to start thinking about ways to ignore that decision.
Nia Rodgers: You're going to tell me about other people who are thinking my thoughts.
Dr. John Aughenbaugh: That's right. Yes. Now, in full disclosure, the anti authority, the irreverence side of me, and listeners you probably have picked up, that's a healthy part of my personality. But for my former students, you well know. When other government institutions or actors do this, there's a part of me, where my heart gets warmed. It's not just Nia when she becomes president in January of 2025 who would contemplate this. Both parties of this particular podcast have a certain kind of streak to where we hypothesize, we think about this. We have some really good examples throughout our country's history to follow. Let's first start with the Office of President, because as Nia, as you pointed out.
Nia Rodgers: It's the best one.
Dr. John Aughenbaugh: It's the best one. We've had a number of presidents who have basically ignored the Supreme Court. Probably the best known, and this is covered in constitutional law courses, judicial politics courses, is our good friend Andrew Jackson. We haven't discussed Andy in a few episodes.
Nia Rodgers: Wasn't he is the first one to be?
Dr. John Aughenbaugh: A populist. Yes, he was.
Nia Rodgers: No, impeached.
Dr. John Aughenbaugh: No, that was Andrew Johnson.
Nia Rodgers: Thank you. Sorry, wrong president.
Dr. John Aughenbaugh: Wrong Andy. As though I know them on a first name basis. In 1832, this would be what Jackson's second term in office. No, right before his second term in office. The Supreme Court issued a decision in the Worcester versus Georgia case. Worcester is actually spelled Worcester, but nevertheless.
Nia Rodgers: But it's pronounced Wooster.
Dr. John Aughenbaugh: Yeah, Worcester. This is a case where the Supreme Court vacated the conviction of Samuel Worcester, and held that Georgia's criminal statute that prohibited non-Native Americans from being present on Native American lands without a license in the state was unconstitutional. Now, Andrew Jackson hated this decision. It would have required the federal government to basically come into Georgia and say, you can no longer enforce this law. Jackson's response was, "John Marshall has made his decision. Now let him enforce it.'' John Marshall was the Chief Justice of the Supreme Court. Andrew Jackson basically told the public the executive branch of the federal government is not going to enforce that decision.
Nia Rodgers: Basically, make sure I understand, so Worcester wanted to be on native lands?
Dr. John Aughenbaugh: Yes.
Nia Rodgers: Without native permission.
Dr. John Aughenbaugh: That's right.
Nia Rodgers: The court said, you can't do that.
Dr. John Aughenbaugh: That is correct.
Nia Rodgers: There's tribal sovereignty, basically.
Dr. John Aughenbaugh: That's right. There's nothing Georgia can do to go ahead and change tribal sovereignty because tribal sovereignty is controlled by the United States Congress.
Nia Rodgers: Andrew Jackson said, I'm not going to enforce this. He can go on tribal property all he wants, and there's nothing, that we're not going to enforce it.
Dr. John Aughenbaugh: That's right. Andrew Jackson was a huge states rights supporter.
Nia Rodgers: Got you.
Dr. John Aughenbaugh: He did not think the federal government.
Nia Rodgers: Probably not a huge supporter of native rights.
Dr. John Aughenbaugh: Native government, no. He was not. Because I believe it was the trail of tears began in the Andrew Jackson administration. Yes. Now, another good example.
Nia Rodgers: But that case ends up being the basis for tribal rules.
Dr. John Aughenbaugh: Yes. Tribal sovereignty in the United States.
Nia Rodgers: That still hold today.
Dr. John Aughenbaugh: That is correct. It's the idea.
Nia Rodgers: Jackson lost it. He may have won it in the short term by not enforcing it but he lost it in the long term.
Dr. John Aughenbaugh: Long term, yes.
Nia Rodgers: That's the one bad thing about the Supreme Court as an enemy. It's going to be around.
Dr. John Aughenbaugh: Yeah, it's not going.
Nia Rodgers: It's going to be around. After you're dead, they'll still be there.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: That institution will still be there. Anyway.
Dr. John Aughenbaugh: The next prominent example of a president basically ignoring the Supreme Court actually occurred during the civil war. In the Merryman case, what was at issue was the Lincoln administration's imposition of martial law. Basically, President Lincoln, without consulting Congress suspended the writ of habeas corpus. This allowed the Union Army to round up confederate sympathizers and put them in military prisons during the war. Now, Lincoln's justification was, we can't fight a war if we can't go ahead.
Nia Rodgers: Take prisoners.
Dr. John Aughenbaugh: Take prisoners.
Nia Rodgers: Arguably, that is one of the rules of war.
Dr. John Aughenbaugh: The problem is the war was occurring on US soil against other US citizens.
Nia Rodgers: Now you have a due process question?
Dr. John Aughenbaugh: Yes.
Nia Rodgers: You have a question of, can you hold people?
Dr. John Aughenbaugh: Yes.
Nia Rodgers: Definitely. We don't allow that in the criminal judicial system.
Dr. John Aughenbaugh: Yes. Moreover, there's language in Article 1, Section 9 of the Constitution that says, "The federal government can suspend the writ of Habeas Corpus in the time of a rebellion, etc." But because it's in Article 1, it would suggest that only Congress can suspend the writ of Habeas Corpus.
Nia Rodgers: Not the President.
Dr. John Aughenbaugh: Not the president.
Nia Rodgers: I see. Okay.
Dr. John Aughenbaugh: This gets challenged, and it goes to federal court and the judge who was hearing the case, riding circuit was Chief Justice Roger Taney, and Taney issues a ruling against Lincoln.
Nia Rodgers: You can't do that. Lincoln's like, Don't make me tear up the Constitution.
Dr. John Aughenbaugh: This led to Lincoln's infamous speech at the Congress. Because some members of Congress were like, why do you think you can get away with suspending the writ of Habeas Corpus? Hasn't Chief Justice Roger Taney say that that's unconstitutional? This led to Lincoln's infamous speech where he said that it was far better to ignore one law, IE, one section of the Constitution, to save the Union, than to comply with the Constitution and lose the war in the Union, right?
Nia Rodgers: Yeah. I mean, I see his argument.
Dr. John Aughenbaugh: I see his argument.
Nia Rodgers: But I also see Taney's argument.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: He can't just go around imprisoning your own people like civil wars are weird. They're weird because it's.
Dr. John Aughenbaugh: You have to go ahead.
Nia Rodgers: Do those people still have constitutional rights? I mean, they should.
Dr. John Aughenbaugh: At least according to the Constitution, the president didn't even have that authority.
Nia Rodgers: Right. Put that aside, yes. But it's a greater question.
Dr. John Aughenbaugh: It is really fascinating because think Nia about how Abraham Lincoln is considered by most historians, most presidential scholars as one of our best presidents. Well, if one of our best presidents is going around and basically ignoring the Chief Justice of the US Supreme Court, is it a big shock that presidents after Lincoln were like, Hey, wait a minute. In certain circumstances, this constitution doesn't apply to me, and the Supreme Court's rulings don't apply to me.
Nia Rodgers: Can I just say that Lincoln opened the door for the insanity that came with Richard Nixon saying, Well, when the president does it, it's not illegal.
Dr. John Aughenbaugh: Legal.
Nia Rodgers: I mean, that's the door that starts opening the idea of, well, but the president is different.
Dr. John Aughenbaugh: The president is different.
Nia Rodgers: From all the other people in the nation, 380 million of us plus one.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: That one is different, somehow mystically, magically different. That person has 1,000% immunity. That person has, there's all these. You get presidential from then until literally today. Presidents saying, Oh, I mean, do I really have to comply?
Dr. John Aughenbaugh: In listeners in another podcast episode, Nia and I look at a theory known as the unitary executive theory. In it, is this idea that all of the Article 2 of the Constitution's powers rests solely with the President. They can't be checked by the other branches of government. In part, that flows from okay, the argument made by Lincoln.
Nia Rodgers: I'm in charge of keeping the thing together.
Dr. John Aughenbaugh: Together.
Nia Rodgers: Whatever it takes to keep the thing together is within my power to do.
Dr. John Aughenbaugh: Power to do.
Nia Rodgers: You have charged me with keeping the Union. With keeping the Union and keeping it safe, and no matter what I do, it's okay.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: It's not just presidents that think that.
Dr. John Aughenbaugh: Oh, no. Listeners, if you think we're beating up on presidents, okay, for blowing off the US Supreme Court, Congress also does this. Probably the most prominent example of Congress doing this was Congress's response to a well known US Constitutional law case known as INS versus Chadha, which was decided in 1983. In this case, what was at issue was a tool used by Congress known as the legislative veto. Congress created this huge, modern administrative state, all those federal government agencies in the 1930s 40s, they expanded it in the 1960s. Congress basically delegated a whole bunch of its power to the executive branch. But it then it begs the question, how do we hold the executive branch accountable? Congress began to put into laws what's known as a legislative veto. Congress would delegate its authority to the executive branch with the provision that either or both houses of Congress could veto how the executive branch used the power. That's what was at issue in the case of INS versus Chadha. Chadha challenged the legislative veto that would have forced him to be deported from the United States, goes the whole way to the Supreme Court in the Supreme Court held that the legislative veto was unconstitutional. Congress could no longer use the legislative veto. Congress's response was, okay. Thanks, but we're still going to use it. They just don't call it a legislative veto.
Nia Rodgers: What if they just write the law in such a way that and if they don't comply with us in this way.
Dr. John Aughenbaugh: Well, the way they write it, the way they typically write it now when they want to still use the legislative veto is that, they will say, for instance, they'll go ahead and say, we allocate this amount of money to pick an agency.
Nia Rodgers: NASA.
Dr. John Aughenbaugh: We give this amount of money to NASA for its.
Nia Rodgers: Mars exploration program.
Dr. John Aughenbaugh: Yes. But they can only spend a quarter of it and then they have to come back to Congress and describe the progress that they're making on the project. At that point if Congress doesn't like the progress they can go ahead and take back the rest of the money. Now, various presidential administrations hate the continued use of the legislative veto.
Nia Rodgers: Well, because it doesn't let you plan. Speaking as a person who knows people who work at NASA, there's no program at NASA that is not a multi year, multi long thing. If they could just yank your money at any time and say, psyche, you don't have any more money to finish. Now you've got this enormously expensive boondoggle because you can't finish to get it to go do what it needs to do. Let's see where that would be incredibly annoying to the agencies involved.
Dr. John Aughenbaugh: Listeners, Nia is being rather positive about the executive branch. I'm going to go with the more cynical take. Presidential administrations don't like this because they basically want the power and the money, and they don't want any accountability. But either justification the executive branch goes along with it because they want what from Congress?
Nia Rodgers: Money.
Dr. John Aughenbaugh: The money and the authority to do X.
Nia Rodgers: They'll steal money.
Dr. John Aughenbaugh: Yes, they'll go along with it simply because.
Nia Rodgers: They'll take the authority if they need the money.
Dr. John Aughenbaugh: Yes, right. Okay.
Nia Rodgers: I mean, they'll just take the authority. Not from Congress necessarily, but they'll just overreach if they have the money to do the thing that they're trying to overreach to do sadly.
Dr. John Aughenbaugh: Yes. But when the Supreme Court issued the Chatter ruling, the Supreme Court invalidated over 200 laws that had legislative vetos. But since the Chatter ruling, there have been hundreds of laws that still have legislative vetos in them.
Nia Rodgers: They just not called that.
Dr. John Aughenbaugh: They're just not called that, and presidential administrations don't challenge it because, again, they want the cash. They want the authority. So unless a specific person gets harmed, like Chatter was harmed in this particular case, the legislative veto keeps on being used.
Nia Rodgers: Basically, Congress is quietly saying in your Faith supreme Court. But like that, they're not saying it really loud. They're just saying it in that low BMI voice in your Faith Supreme Court.
Dr. John Aughenbaugh: Yeah and because the federal courts in the United States have to wait until somebody brings a case.
Nia Rodgers: They can't just say, hey. We see you, Congress. We see you over there doing this, because if nobody is complaining. That's right. That's the weakness of the Supreme Court, which we will get to when we discuss this at the end. We discuss the failures of this.
Dr. John Aughenbaugh: We've called out the President, we've called out the Congress.
Nia Rodgers: But wait.
Dr. John Aughenbaugh: It gets even better.
Nia Rodgers: There's other players.
Dr. John Aughenbaugh: There's other players. State governments, historically, have hated the power of the federal judiciary, particularly the federal judiciary's power to review their behavior and compare it to the requirements of the US Constitution. Because remember, listeners, prior to the US Constitution being ratified, states were basically their own sovereigns.
Nia Rodgers: That's right states rule Feds rule.
Dr. John Aughenbaugh: That's right, that was the condition in the Articles of Confederation.
Nia Rodgers: That was what the entire argument about federalist papers are. Is the whole idea of states rights versus federal rights and how we're going to manage all this make sure it stays fair and even for folk?
Dr. John Aughenbaugh: Yes, probably the best known example, Nia, of the states, blowing off the Supreme Court was the response to Brown versus Board of Education. So this is a landmark US Constitutional law case.
Nia Rodgers: Often referred to as Brown V.
Dr. John Aughenbaugh: Yes brown V.
Nia Rodgers: Because everybody seems to know that that means Brown V Board of Education.
Dr. John Aughenbaugh: That's right, so in brown versus Board of Education, the first case.
Nia Rodgers: There are two of them.
Dr. John Aughenbaugh: There are two. In the first case decided in 1954, the Supreme Court held that segregation in public schools in the United States was unconstitutional.
Nia Rodgers: Based on the equal protection clause of the 14th amendment.
Dr. John Aughenbaugh: That's right. The second Brown case answered the follow up question. How quickly desegregation occur and the Supreme Court said, it should occur. How quickly, Nia?
Nia Rodgers: With all deliberate speed. If you heard quotes around, that's because I was saying quoted things "with all deliberate speed". This was in 1955. Can I tell you that in 1972, I was being bussed across town to try to desegregate the schools in Greensboro, North Carolina.
Dr. John Aughenbaugh: That's right.
Nia Rodgers: That's how long they drag their feet in the face of with all deliberate speed.
Dr. John Aughenbaugh: That's right. So the response of Southern states it was multi faceted. In some states, it was described as massive resistance, what did massive resistance include? Well, in some school districts in some states, they closed all public schools.
Nia Rodgers: That would be Virginia.
Dr. John Aughenbaugh: Would be Virginia. In other Southern states, they refused to allow African American students to attend previously all white schools. You saw this in Arkansas.
Nia Rodgers: With Little Rock seven.
Dr. John Aughenbaugh: That's right.
Nia Rodgers: They have to be escorted by the police into school.
Dr. John Aughenbaugh: In other cases, it was more bureaucratic.
Nia Rodgers: We'll just fuss them, but it's going to take a while because we got to buy buses and blah. They dragged it and dragged it out as long as they could in many Southern places.
Dr. John Aughenbaugh: In many border states, according to one scholar, the last court order desegregation plan still in effect in the United States, Post Brown.
Dr. John Aughenbaugh: Was still in effect in a school district and I believe Maryland this millennium.
Nia Rodgers: See, that is terrifying. The 50 years on.
Dr. John Aughenbaugh: This is just one exam.
Nia Rodgers: In many states, we have more subtle resistance in the sense of white flight and the segregation of cities that caused the schools to be segregated. We know now that schools are more segregated now than they have been in decades.
Dr. John Aughenbaugh: In decades.
Nia Rodgers: Because of the way if there is encouragement for-
Dr. John Aughenbaugh: Settlement patterns because you have white families in many instances, left urban cities for the suburbs because they didn't want their kids to go to, substandard schools or to go to schools with a whole bunch of students of color.
Nia Rodgers: Well, now you get charter schools and you get specialty schools and all stuff with this. This still isn't done. This still is not accomplished.
Dr. John Aughenbaugh: You now have research to show that even families of color don't want to go ahead and be forced to be bused across town or to a suburban school district.
Nia Rodgers: In order to desegregate.
Dr. John Aughenbaugh: They want their kids to go to neighborhood schools which often times means that you don't have diversity of student population.
Nia Rodgers: The states are still fighting this out. The states are still fighting this in a myriad ways.
Dr. John Aughenbaugh: Now, if you think we're just picking on institutions, let's also be very clear that both political parties do this and really the genesis of this podcast episode was that Nia and I were reading the newspaper as we are want to do and we both came across examples of recent vintage where political parties, both political parties, dominant political parties in the United States were seemingly ignoring Supreme Court rulings. The one that Nia found was how the Republican controlled Texas government has openly defied Supreme Court rulings that would force Texas to stop getting involved with migration issues that Texas has at the Mexican border.
Nia Rodgers: The Supreme Court has said, immigration is a federal issue. The feds are in charge of it. That's why we have a bunch of agencies, alphabet agencies that the feds deal with this and Texas is like, I'm sorry, I can't hear you over the sound of me trying to deal with my own border issues. I get where Governor Abbott is coming from. I get where Texas is coming from because it's a long way from the Supreme Court in DC to the Texas border where this stuff is actually happening. I have some level of sympathy for Texas that it's like well, then freaking do it. If you're supposed to be doing it, get down here and do it. Do whatever it is that you're saying that the feds should be doing and they do not perceive that that is happening or that that is happening quickly enough.
Dr. John Aughenbaugh: That's right.
Nia Rodgers: I grok that part of it, but the Supremes have been very clear about who deals with. It's like Texas can't make a treaty with Mexico either.
Dr. John Aughenbaugh: That is correct.
Nia Rodgers: Because there are certain things that the federal government just has the power to do.
Dr. John Aughenbaugh: That's right.
Nia Rodgers: That's not part of, like Amendment 10 is the catch all amendment. Anything not covered in the previous nine amendments or the constitution, the body of the constitution itself is left to the state, but a whole bunch of stuff comes before that that does cover.
Dr. John Aughenbaugh: Because in Article 1 Section 8, pretty clearly it says the United States Congress controls immigration.
Nia Rodgers: Hello. You can't go with article with Amendment 10, but you have to read the actual constitution first.
Dr. John Aughenbaugh: Again, Texas and other states have been complaining for decades.
Nia Rodgers: Arizona, California and Florida all struggle with the same thing. Funnily enough, the Northern states don't care if Canadians come over which is I think is interesting. There's a whole thing there to be explored on a podcast that's not our podcast, but there's not a big push of, we got to keep the Canadians out but they're in there.
Dr. John Aughenbaugh: Neither here nor there, but you know what's really interesting is these states know this and it's not like the Supreme Court has only recently changed its mind.
Nia Rodgers: Exactly. They know they're going to get called out. They're doing it anyway.
Dr. John Aughenbaugh: They're doing it anyways. Now, if you think it's just Republicans then it's not because the example that just drives me bonkers because of administrative law background is the fact that the current presidential administration, a Democrat, Joe Biden continues to create student loan and environmental protection programs and regulations that it has to know will be declared illegal by the Supreme Court and the reason why that they have to know this is that-
Nia Rodgers: It's already been done. It's the student loan think the courts were like no.
Dr. John Aughenbaugh: You don't have the authority to do this.
Nia Rodgers: You can't do that. You can't just wipe it and Biden was like but wait, what if I write it this and you know when it gets challenged the Supremes are going to go, we said no and at some point, the Supreme Court is going to say to both Texas and the Biden administration don't make me tell you again, like don't make me pull over because it's not going to be pretty for anybody. They're going to start threatening like parents. Because seriously come on, you know this is not okay with the Supreme Court. You know this is not okay. Why are you continuing to do it? On both sides. In some ways it's a good thing because it's actually bipartisan which we have so little bipartisan thing. But the bipartisan blowing off of the Supreme Court is in some ways heartening.
Dr. John Aughenbaugh: It's refreshing to see that bipartisan.
Nia Rodgers: Them working together to hate stuff. The enemy of my enemy is my friend, so there's that. But I do think that there's a danger in both blowing off the Supreme Court. I think there's a real danger in, I think in the idea of that, well, if Governor Abbott doesn't have to comply, why do I? If Joe Biden doesn't have to comply, why do I? If Lincoln didn't have to comply, why should I? That opens the door to this idea that the Supreme Court isn't really supreme. You have to take into account their name. The Supreme Court, the last one, the big one, whatever they can do that. If you don't believe that is the final answer, like if you're watching Jeopardy and they say final answer, and you say yes. Like you've committed to that being the final answer and then they reveal that your answer is wrong and it's sad and you lose all your money or your Ken Jennings and you win. Whatever however that works.
Dr. John Aughenbaugh: But you don't get to ask for a redo.
Nia Rodgers: You don't get to say well, but it wasn't really my final answer because I didn't know that were going to be all pooky about it.
Dr. John Aughenbaugh: Or that the question was confusing and once you create that precedent then every other contestant on Jeopardy gets to go ahead and say, really that wasn't my final answer and my final answer would have been this, which would have been the correct one, so give me the cash. No. It doesn't work that way. Once you create the precedent of I don't have to go ahead and comply with the Supreme Court, then you are basically saying to everybody else in your position that it's all right to act that way, and at that point then you have absolutely no ground to complain when others in the future do exactly as you did.
Nia Rodgers: Exactly.
Dr. John Aughenbaugh: If you're Governor Abbott now and you're complaining that the Immigration is not being enforced border, but you blow off the Supreme Court. Guess what happens when you get a president in who does enforce immigration laws the way you like, but other states say well, that's true to Draconian and we're a sanctuary state and we're not going to comply. Well, you can't get to complain. You don't get to go ahead and call them out because they're basically doing what you did with a different presidential administration with a Supreme Court ruling that you didn't like and it undercuts the the court's legitimacy here.
Nia Rodgers: Which if there is no final answer then no question ever gets answered. If your students take a test in your class and they get to argue you to a different position from the actual answer to the question.
Nia Rodgers: Well, okay Aughie, maybe George Washington was the first president of the United States, but maybe it could also be considered that George Washington wasn't actually a president. From the way that he was building an administrative state, but we don't get presidency until you get Thomas Jefferson. Do you know what I mean? Then the question never ends. It never ends, and that is no way to run a country. You have to have an organization that says, like it or not, good answer or not, this is the answer. I can't believe that I'm about to say that in this instance, I agree with Scalia. Which is, you got to let it go. I mean, he was rude and sarcastic in the way that he said it to people, and he should not have said that to people about the goal result because they were emotionally involved in it, and he was being a callous jerk. But in some sense, he was also right, which is okay, but it's done now. It's done.
Dr. John Aughenbaugh: Because as economists would describe it, what we are creating is a morally hazardous condition. If there's not a final answer, then there's no good reason to change your bad behavior. Think about if the Supreme Court didn't back up lower federal courts in regards to desegregation, Southern states would have never been forced.
Nia Rodgers: Would still be segregated.
Dr. John Aughenbaugh: If the Supreme Court doesn't occasionally go ahead and tell a president, you've gone too far, there are limits on your authority, then presidents will go ahead and continue to push the envelope. Not necessarily for bad reasons, they might be thinking they're doing good, but nevertheless, if you're a supporter of Biden or if you're a supporter of the Loan Forgiveness program, you're like, go Joe. Ignore the Supreme Court. But what happens when it's a different president with a different program, and that president says, hey, Joe Biden blew off the Supreme Court, why can't I?
Nia Rodgers: Exactly.
Dr. John Aughenbaugh: Nobody learns that this is unacceptable. Because, as Hamilton pointed out, the court doesn't have an array of enforcement tools, then if these government actors and institutions don't comply, then is the rule of law actually the rule of law?
Nia Rodgers: That's where you get into the question of legitimacy. This idea of, well, if I don't have to believe in the Supreme Court and the Supreme Court rulings, then why do I have to comply with state rulings? Why do I have to comply with my local law? Now you're getting into the Wild West. I know people are going to say Nia is a conspiracy theorist, and they're right. But I also have a point here, which is that is a seriously slippery slope. When we talk about slippery slopes, that's like the kahuna of slippery slopes. Because once you say institutions don't matter, once you start to say, well, we'll just replace all of the Supreme Court with people that we prefer, or you're Roosevelt and you're like, we'll put 800 people on the Supreme Court and weaken the Supreme Court. Once you start to mess with the legitimacy of the institutions, then it trickles down to the people saying, well, why do we believe in anything? Why do we have to have any respect for any institution?
Dr. John Aughenbaugh: Because democracy, like many things in life, is a matter of faith.
Nia Rodgers: It relies entirely on the belief that we will all do a thing. Public schools rely on the fact that parents will send their kids to school.
Dr. John Aughenbaugh: The parents rely on the fact that if they send their kids to school, most years, most days, their kids may learn something.
Nia Rodgers: Their kids will be educated, there's a contract there. If one side starts to believe that the other side isn't going to do, then you get home schooling and you get private schools and you get charter schools, but it weakens the school systems.
Dr. John Aughenbaugh: That's right.
Nia Rodgers: Because now they're not getting the number of kids and they're not getting the diversity and they're not getting the support that they need.
Dr. John Aughenbaugh: The rest of society begins to lose faith in the public school system, so they may not want to pay the taxes to fund it. You may use the phrase trickle down. This trickles, because once you begin to start losing faith in institutions, then why comply with the institutions? Why participate in the institutions? Why not ignore the institutions? Because they ain't working, nobody else is following them, nobody else is participating in them. Their faith has been questioned, my faith has been questioned. Well, and now we get into a situation where you have lawlessness. Again, if government officials blow off the Supreme Court, why in the hell should I pay attention to the Supreme Court?
Nia Rodgers: Aughie.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: I just realized I should be encouraging this.
Dr. John Aughenbaugh: Yeah, because when you become president, you can be.
Nia Rodgers: I don't have to worry about the institutions. That would be dictator Rodgers for life.
Dr. John Aughenbaugh: Yes.
Nia Rodgers: Nia for dictator 2024. Hello. Why even pretend? I've been doing this all wrong. I've been going about this all wrong Aughie. The final message from this podcast is, ignore them all. Do what you want to do, go wild.
Dr. John Aughenbaugh: No. His the court gesture, I'm whispering in your ear. No.
Nia Rodgers: To wrap this up and be totally serious for a second. When you lose faith in the Supreme Court, that is one of the things that leads to dictatorship. When you believe that you cannot get a fair hearing, and that that body is not trying to act in the best interest of all the people. When you stop believing that, it's another nail in the coffin for democracy. It's this idea of, well, the dictators are ruling the henhouse as it were.
Dr. John Aughenbaugh: As somebody who's a huge fan of sports. The metaphor I always like to use is the Supreme Court or the refs.
Nia Rodgers: The instance you start throwing crap at the refs, game's over.
Dr. John Aughenbaugh: Because at that point in time, nobody thinks the game is fair. They think the outcome is rigged, and you stop participating, you stop voting, you stop playing by the rules because you basically think, you don't have to. Nobody else is. Again, democracy is predicated on certain values and principles, and we can define them different ways, but if we don't have faith in them, then at that point, you don't have a democracy. You have other kinds of government, which we explored in previous broadcast episodes with our good friend.
Nia Rodgers: [inaudible] Chris [inaudible] there is some salty line.
Dr. John Aughenbaugh: Yes, but nevertheless, Thank you, Nia.
Nia Rodgers: Thank you, Aughie. I think it's a good thing for us to remember that even when we don't like a particular ruling, we still need to keep in mind that the institution is trying to thread the needle such that the majority of people are affected positively by the rulings.The justices of the Supreme Court hardly ever say, let's screw them all over. That's not how they rule and it's not why they rule the way they do. You may not like an individual ruling. They've had some doozies in my opinion, but things that I just am appalled by. But I also think, but they've also done stuff that I thought was fantastic that other people were appalled by. Brown is a perfect example. School should be desegregated. There shouldn't be separate but equal. That's a horrible way to live. It's a horrible way to educate children. If I'm going to champion that, I have to accept the ones that I'm less fond of.
Dr. John Aughenbaugh: In a lot of these cases where government actors didn't like the decisions, were tough cases. Maybe the court gets them wrong, at least from your vantage point, but if you believe that they're trying to make sense of complicated situations, then you have to go ahead and accept it. Again, this goes back to, do you believe in the authority of the institution, even if it's not used exactly the way you would like it to be used?
Nia Rodgers: Exactly.
Dr. John Aughenbaugh: There are a lot of people that I interact with who have institutional authority over me, and I don't like necessarily how they use it. But if I think they are using the authority to the best of their ability, and that a lot of these are judgment calls, then I go along with it simply because I still have belief. This is what's dangerous when other government institutions and actors just basically blow off the Supreme Court. We joked a lot in this episode, but also there's some important takeaways here, and I hope listeners we gave you some metaphorical food for thought. Thanks, Nia.
Nia Rodgers: Or if you do want to go to the dictator route, Rodgers for president 2024. Thanks, Aughie.
Dr. John Aughenbaugh: Thank you, Nia.
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