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- [00:00]
A
Hey, everyone, it's me, Sam Stein, managing editor at the Bulwark. And I am joined by Andrew Egger, author of Morning Shots and friend of the program, Kyle Cheney from Politico. We're here to talk about the slate of Supreme Court decisions that happened today. This morning, it's Monday. We have about four more big ones. We could talk about those later. But yeah. So today's big decisions were Trump, which is about the ability of the executive to fire heads of independent agencies. Trump got a big victory on that one. We're going to talk about that in a second. We also had the issue of Lisa Cook's firing, or attempted firing, I should say, from the Federal Reserve Board. Trump was told he cannot do that. He maybe do it in the future, but for now, they did not give her enough time to defend herself to justify firing with cause. We'll get into that in a second. And then this one's Kyle's bread and butter. It's about mail in voting and whether or not you can count votes that arrive after election Day. And this one, Trump did have a loss that and some E. Gene Carroll stuff that we're going to talk about in addition. But look, let's start with the expert, which is not Andrew. Let's start with Kyle. Like, what's the big like 30, 000 foot takeaway here from these decisions?
- [01:14]
B
I mean, we're all bracing for. You mentioned this already birthright citizenship. But, but I think, right. To be honest, look, Trump, I think to me the takeaway is the Supreme Court is going to rule in Trump's favor on a vast majority of these executive power questions. But they are not invested in the Trump project, the sort of MAGA project of reinventing the presidency in Trump's image the way he wants. And so that's why things like mail in balloting is something that's existential to Trump. It's part of his identity since 2020, at least about you can't have a legitimate election if you count votes after election Day. The court didn't buy that as a legal matter. But also, again, like just like with the tariff ruling, they're just central to Trump's identity. They ruled against him there. They are not like lockstep with him on these things that are very personal to him.
- [01:59]
A
Yeah. And I do want to get back to. But I did notice instantaneously another truth post from Trump being like, okay, we got to do the save act. Has to happen now. And online. People going nuts with Amy Comey Barrett again, again, because she cast the Deciding vote here on the 5 to 4 vote. Andrew, let's talk quickly about Humphrey's executor, which is the Trumpy slaughter. So basically Court says yeah, you can fire the head of the, not the head, you can fire the Democratic appointed commissioner of the ftc. It's within the executive's authority. And they said that the, the 80 year old sort of practice of giving deference to the independency of these agencies, that had been basically standard for a while now. They, they went out of their way to say no, that is invalid. And in fact, I think Robert said if, and if there' lingering element of Humphrey's executor, which is the thing about giving these independent powers to the agencies, that's null and void. It's over. Which I thought was sort of on a fundamental level. And if you're talking about real world impact of these rulings, maybe Kyle's right about the mail and stuff. That's, that is, we can have debate about that, but I think this one has the capacity to kind of reshape governance going forward.
- [03:07]
C
Yeah, and Kyle gestured at this a second ago. But this is, I, I think it's, I think it's inaccurate to say the Supreme Court is taking marching orders from Donald Trump on all these things that Donald Trump once done. But this particular kind of thing is the kind of thing where we have seen that this Supreme Court, this conservative Supreme Court and this particular President have a lot of synergy with what they want to do because it has been sort of a growing thing in conservative legal circles for a number of years now. To talk about this, this unitary executive, to talk about the idea that, that this system we've had over the past hundred years where Congress sets up these quasi executive institutions and just by statute basically vests them with different parts of executive power and says the President's not allowed to touch them. Conservatives have been arguing that's just unconstitutional on its face. These are powers that belong to the President in an executive capacity and he has to be able to, you know, basically pinned them to his will, which is great for Donald Trump. Donald Trump loves bending anything and everything to his will. He never met anything that he didn't want to bend to his will. So when he's in charge of the executive branch and wants to do that with all these agencies, he and the Supreme Court have, have been very simpatic on this stuff.
- [04:18]
A
Let me, let me push a theory of, and you could tell me how stupid this is in. Andrew, you take this first. Is this not like In a way, what, you know, obviously Democrats don't appreciate ruling, but in a way, doesn't this allow some sort of freedom? Because these agencies are going to be stocked with Trump appointees, right? And when the next Democrat comes into power, assuming we have presidential elections and we get another Democratic president, they're going to want to clear House. And now this gives them a free hand to do so.
- [04:48]
C
Yeah, I, I think I, I'd be interested in what Kyle has to say about that. But for first blush, for me, I just think this is part of the sort of demise of what we're seeing of the idea of this sort of independent, technocratic, you know, professionalized career people getting into some of these executive branch roles. And that can cut both ways, right? It can, it can. It basically says if you're, if you're empowering a Republican president, you're empowering a Democratic president too. Now, there are plenty of Republicans out there who would take that trade, who are basically saying, you know, the whole problem here is that we have set is not that we've like made these guys a bunch of Democrats necessarily, but that we've set these things outside of the political process when it comes to, you know, presidential elections and things like that, which then they would argue basically tilts things Democratic in the long run because it's staffed by a bunch of, you know, educated technocrats who, who tend to see things the way the Democrats see things. But yes, you're right. I mean, this does potentially free up a future Democratic president to do the same sort of slash and burn clearinghouse that Trump has tried to do, although hopefully on somewhat less, less flimsy pretexts.
- [05:51]
A
Well, you got, yeah, you got a little bit of regulatory whiplash here. But Kyle, is that a fair read?
- [05:56]
B
I think so. And to me, I think a sort of historical perspective here, which is, it's kind of interesting that this is the week, you know, J.D. vance decided to say let's reevaluate the Nixon sort of legacy because a lot of these independent so called agencies were vestiges of the Watergate era. These were things that were put in place to sort of be checks on their internal checks on the executive, things that were insulated from political pressure. Because there are certain functions that people want the gut in the government to be, be insulated from political pressure. I don't think anybody would argue that they shouldn't be for the most part, some of the functions we're talking about at these agencies, and yet the Supreme Court is essentially dismantled in a series of rulings but especially with this one now, it's. The capper is like there really can't be these in this insulation. You can't, you know, inspectors general aren't insulated from political pressure. Other, you know, you know, the office of Special Counsel that polices political inter, political actions by executive branch officials can't be insulated from that kind of pressure. And now this is just sort of the end, the, the end point of that trajectory.
- [06:55]
A
And then you add, but that's a good point because tomorrow, and I have no idea what this case is about, so I'm going to pretend like I know. But there is a big campaign finance case coming tomorrow, right?
- [07:04]
B
Oh God, that's, that's one that's also out of my purview. But yes, there is.
- [07:09]
A
Okay.
- [07:09]
B
Right there. There is a long trajectory of removing, you know.
- [07:13]
A
Well, that's also a post Watergate. Yeah, these are all post Watergate reforms where it's like we have to actually get a, our hands around the idea that money is a pernicious influence in politics. And all those post Watergate reforms around campaign finance have basically been ripped away. And I suspect that's going to happen tomorrow.
- [07:29]
B
And to Andrew's point too, like, this is, you know, the, the post, the project of this Supreme Court, it's not a Trumpian project, but it is this sort of post Watergate project of pulling back from that, like the reaction to Watergate. This is the reaction to the reaction to Watergate and you know, other, you know, decades long reform. So that is sort of the, the path. And as, as Andrew said, this is a sympatico a lot of what Donald Trump wants, but it's not exclusively what Donald Trump wants.
- [07:56]
A
All right, so then we get to the Fed case and, and this is where sort of we should have a longer conversation because while the Supreme Court held that there is executive authority to go over these independent agencies, basically remake them as you want because it's within the power of the executive. They did have a, an extraordinary carve out for Fed independence. And they literally said in the ruling. So there was a 5 to 4 ruling. Sotomayor, Kagan, Kavanaugh and Jackson, along with Chief Justice Roberts, who rule that Donald Trump cannot fire Lisa Cook in this very specific incident. And as I read it, Kyle, they, they are very, they're very deliberate about saying she did not have the right or she didn't have the opportunity to push back against firing for cause and that you have to give her a chance to see this. And then they have this. I'M going to read what's on the screen. In this extraordinary case, we've had the benefit of not only the amici but oral argument, but months of internal consultation and deliberation. We see no reason to leave the public in limbo or to sow doubt as to the status of one of our nation's and world's most important financial institutions. This doesn't seem like sort of a, I'm not a lawyer, but this doesn't seem like, like a, sort of, like a, this is the, the text of the Constitution there, therefore we have to abide by it type of reasoning. It's basically like, hey, this kind of matters a lot and we know it and we have to be careful with the Fed, which means they didn't feel like they had to be careful with the ftc. Right. So how do they get a. I just, it doesn't make sort of logical sense to me that there's a through line here. I mean there are suggested through lines, but not legal through lines.
- [09:37]
B
Yeah, I mean they, this is their sort of go to is like historical practice and precedent. They, they, I mean they go back to the founding essentially with this and there's been seeds of this in several other rulings, you know, that the Fed, the Federal Reserve is a vestige of sort of the first national bank back in, you know, the founding era, and that that makes it a unique institution in the history of the country. That and the stability of it is uniquely important beyond what other institutions. Even beyond other institutions. So they are carving. And they said, they. That line that you flagged was part of their explanation for why they did this in a case decided in an emergency posture, why they essentially got to the heart of it instead of letting this sort of pend even further in the lower courts because they want to resolve this conclusively, that the Fed stands apart in their mind.
- [10:30]
C
Can I add one quick thing to that? Because it's not, correct me if I'm wrong, Kyle, but my reading is that it's not just that it's really important in all of these things and really old, but also that it has existed as a, an independent body for all of this time. So it's not just that the institution itself has this long historical tradition, but it is also, you know, it. The Fed's independence long predates Humphrey's executor, long predates, you know, any of these, like the FTC or, or the Consumer Financial Protection Bureau or any of these other, you know, ones that have been stood up later. And I don't know, like, I, I see the argument that, like, they're just kind of trying to arrive at different outcomes and just getting there. But, but, but, but I, I do, I think there's something to that. Right. I mean, I'm not ready to just sort of throw it out. This is just them, you know, dressing it all up nice and trying to figure out how to let Trump fire anybody who's not about to destroy the country. Right. I mean, I think there's something to this, this argument, basically this historical argument that, like Federal Reserve independence is as old as the Constitution and, but it's not.
- [11:31]
A
The Fed was created in the 1910s, so why would that be around long enough?
- [11:37]
B
The historical. I know the first bank predecessors, they consider that the pre, the precursors or the predecessors of the Fed. And so that's how they, that's how they get there. I mean, I think, you know, in some ways it's an implicit acknowledgment that there is good reason to have certain functions of the government be independent. But it does create this tension. I mean, it does create this tension with the idea that the executive is supposed to be one president who gets to control the executive branch. Not, you know, not necessarily in a unitary executive sort of way. Although that's mostly what the justice is businesses believe or have at least endorsed over time. But at least in the sense that it's a little bit, There is something a little bit off about having some executive of some agency out there saying, well, the president wants this and I disagree, so I'm not going to do it. How that. Where, like, what branch of government is that person in then?
- [12:24]
A
Okay, well, let's do a little trivia for you wizards here. What year was the Fed created? Andrew, don't Google you.
- [12:30]
C
I don't know. I do not know the answer to your trivia.
- [12:32]
B
The 1910s.
- [12:34]
A
I gave you the decade 1913. What year was the FTC created?
- [12:40]
C
Don't believe this was live.
- [12:43]
A
1914. I mean, what is that? Was that an important year? The.
- [12:49]
C
The point that they make is that there is a tradition of independent central banking in the United States dating back, not necessarily that exact institution. But you are right. You are right.
- [13:00]
A
I was. I'm done with you. They're not done with Lisa. Right. Like, they're gonna. It's because I saw Bill Pulte, who's now both still running the Federal Housing Authority and also our dni, being like, I still believe that. Here it is. As I've repeatedly said, I believe Lisa Cook will be indicted For Mortgage Ride. Again, this is our DNI, just, you know, casually on Twitter at 1023, watching Skoda's blog like the rest of us. But it, I mean, they're still going to go after. So it doesn't strike me that we've resolved the issue of Fed independence here. It just seems like they punted. Unless I'm misreading this, Kyle.
- [13:36]
B
I mean, look, you saw what happened to the Jay Powell investigation. That, that imploded on itself because of how transparently retaliatory it was.
- [13:44]
A
Right.
- [13:45]
B
So I think DOJ would be a little bit shy about, you know, you know, going after Lisa Cook for, for, you know, nonsense reasons. That said, if she's indicted, that that changes the for cause analysis of maybe removal.
- [14:00]
A
Yeah. If you're cynical about it, you look at this and you're the, let's say you're the president, you really want her out, and you're very cynical about this. You then sort of try to start the clock for her to be able to defend herself. And then you're saying, and then you give it another go and you say, okay, we hit the benchmarks that SCOTUS wanted and now she's been fired for cause. And then you just go through this whole rigmarole all over again.
- [14:20]
B
What I found was important there too, though, was they said she needs a chance to defend herself, respond to the allegations against her, and then we can decide whether for cause was legitimate or not. So they didn't say, well, then just because you set up a sham kind of fake process to make the, give the appearance of due process, that's the end of the story. Because I think that was raised at the lower courts was, well, they could just pretend to give her due process even though they know what the outcome is going to be. But the court here said, well, we would, we would analyze it after she gets that chance to respond. And so I think there was some sense that they could decide that maybe something was still a sham and not legitimate due process.
- [14:56]
A
Right.
- [14:57]
B
Later on, too.
- [14:59]
A
Well, one of the one point I want to make here about this is not conspiratorial and it's not original, frankly, because I've, I've seen it elsewhere. But like, there is, the through line here is not necessarily legal, but it is financial. Right. So business really wants a sort of lax ftc, but they want stability at the Fed. And this court, whether you can say it's deliberate or not, has traditionally sided with moneyed interest, corporate interest. They seem to be not in the pocket, but their disposition is towards, you know, that type of, you know, strong corporate governance. And you can see it, too, with the campaign finance stuff as well. Again, I'm not trying to be conspiratorial about it, but it is, Andrew, something to note that in this case, it did align like that.
- [15:46]
C
Sorry, I'm talking with my mic off. No, I totally agree. And, like, I'm not, I'm not saying people are crazy to make these connections. I mean, I think this is part of the reason why John Roberts has spent so much sweat over, over how to approach the Trump era, because he understands that it is an extreme, like, credibility challenge to have one branch of the government just so off the chain and just sort of rampaging and, and, and throwing so many controversial cases at the Supreme Court. And the Supreme Court then sitting here trying to, you know, not throw the baby out with the bathwater, not trying to, like, just block him on every single thing he does just because it's him, but also understanding that anytime they do cross him, and anytime they don't cross him, they create these giant credibility concerns for themselves with some group of the public or other, and him and him trying to shepherd all that stuff through. Like, I, I completely understand the sort of pull of, of these arguments, even if I don't buy all of them myself.