Trump v. Wilcox

The Supreme Court just made it easier for Trump to fire heads of independent federal agencies. Unitary executive theory, anyone? If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Hosted on Acast. See acast.com/privacy https://acast.com/privacy for more information. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:05Speaker 00

  Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about Trump v. Wilcox. This is a recent case about the president's authority to fire the heads of independent federal agencies. Earlier this year, President Trump ordered the firing of Gwynn Wilcox, a member of the National Labor Relations Board, and Kathy Harris, a member of the Merit Systems Protection Board. Wilcox and Harris sued, claiming their firings violated federal law. A lower court ruled in their favor, but the government healed the case and asked the Supreme Court to allow the firings to proceed. Supreme Court sided with Trump in a move that could enable him to remove the heads

• 0:49Speaker 00

  of other independent federal agencies. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 0:59Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have meddled with our civil rights, like the DOJ meddling with the Harvard Law Review. I'm Peter. I'm here with Rhiannon.

• 1:10Speaker 02

  Hey, yeah, priority, Harvard Law Review.

• 1:13Peter Shamshiri?

  And Michael.

• 1:14Michael Liroff?

  Yeah, they got their eyes on the most important issues of the day.

• 1:19Peter Shamshiri?

  Yeah.

• 1:20Michael Liroff?

  Who is and isn't being reprimanded on the Harvard Law Review.

• 1:23Peter Shamshiri?

  Yeah, the Department of Justice is investigating the Harvard Law Review, the most prominent law journal at Harvard, for discrimination against whites. And the best part is that they have a cooperating witness who apparently now works at the White House under Stephen Miller.

• 1:44Michael Liroff?

  Yeah.

• 1:45Speaker 02

  Oh, my God. I didn't know that part.

• 1:47Peter Shamshiri?

  A white man who believes that he was overlooked, perhaps, at the Harvard Law Review, not given the position that he deserved due to his whiteness.

• 1:59Speaker 02

  You know, what's funny to me is I think we've mentioned this on the podcast before, certainly in like the Welcome to Law School episode or whatever, when we're talking kind of about journals at law schools, Law Review is like looked at as like scholarly journals, but they're so different from the way that, for example, like a science scholarly article is like published and all that, in that the Harvard Law Review and Law Reviews at law schools across the country are like fully run by law students, including like the editing and vetting and like everything. And so it's like much less of like a scholarly journal than like how we think of academic scholarly journals. And so it's just really funny,

• 2:41Speaker 02

  like the DOJ is, is just investigating Harvard Law students.

• 2:45Michael Liroff?

  Yeah, right. For anti-white discrimination.

• 2:47Speaker 02

  Yes.

• 2:48Peter Shamshiri?

  Anti-white discrimination. And by the way, like, isn't it just like they vote on who's like the editor in chief, for example?

• 2:56Michael Liroff?

  I mean, that was how ours worked, I think.

• 2:58Peter Shamshiri?

  Yeah.

• 2:59Speaker 02

  I think they probably all have their own like specific process and procedures, but like, yeah, it's law students, you know?

• 3:04Peter Shamshiri?

  How are you going to figure out whether they are like, well, you know what? No, I don't, I don't even want to.

• 3:13Peter Shamshiri?

  I'm not doing this. I refuse to do this. The anti-white discrimination thing is every fucking law school had that one guy who would complain about like the elevation of minorities.

• 3:25Michael Liroff?

  And Harvard has so many of them.

• 3:27Speaker 02

  Or more than one guy.

• 3:29Peter Shamshiri?

  Yeah.

• 3:31Peter Shamshiri?

  Yeah. And that person is always a misery, always a misery.

• 3:36Speaker 02

  Yeah, real blight on the entire class.

• 3:38Peter Shamshiri?

  They're never like an otherwise nice person who's like really upset about anti-white discrimination.

• 3:44Speaker 02

  No, no. They're going to clerk for a conservative judge. They're really proud about it. Yeah, no, they're always a rogue donor.

• 3:52Michael Liroff?

  I've known a number of these people in my life, and my biggest regret is never having punched any of them. It's a, it's a real oversight on my part.

• 4:01Speaker 02

  Unfortunately, they proliferate. Yeah.

• 4:04Peter Shamshiri?

  So many stories are popping into my head and I have to push them down so that we can do this episode.

• 4:10Speaker 02

  We should have a premium episode, special subscriber only episode about this type of guy in law school.

• 4:16Peter Shamshiri?

  Let's do an episode that's just guys we knew in law school.

• 4:18Speaker 02

  Mm hmm. Yes. I actually adore that.

• 4:22Michael Liroff?

  Yeah, that's good. That's good.

• 4:24Peter Shamshiri?

  We need to think about how to do that without violating some civil laws, you know, but.

• 4:30Michael Liroff?

  Yeah.

• 4:31Speaker 02

  Right.

• 4:31Peter Shamshiri?

  But I'm in.

• 4:32Speaker 02

  Keep it anonymous. Yeah.

• 4:33Michael Liroff?

  Yeah, yeah. It's, uh, names changed to protect the not so innocent.

• 4:38Speaker 02

  Yeah.

• 4:38Michael Liroff?

  Yeah. To protect the innocent us from libel suits.

• 4:43Peter Shamshiri?

  Unfortunately, some of mine are very identifiable characters.

• 4:46Speaker 02

  If anybody like from your class is listening, be able to clock it quick.

• 4:49Michael Liroff?

  Yeah.

• 4:49Peter Shamshiri?

  Yeah, they'll be like, oh, well, that's clearly one of the five closeted gay, hyper right wing men.

• 4:57Speaker 02

  Yeah.

• 4:58Peter Shamshiri?

  From the class of 2013.

• 5:01Speaker 02

  Right.

• 5:02Peter Shamshiri?

  All right. Today's case, Trump v. Wilcox. This is a case from just a few days ago about the president's ability to fire the heads of independent federal agencies. Shortly after Trump's term started, he fired a member of the National Labor Relations Board and a member of the Merit Systems Protection Board. The only problem with that is it's against the law. There's a statute saying that if the president wants to fire those members, he can only do it for cause and only after they've been provided with notice and a hearing.

• 5:37Speaker 02

  Oops, I did it again.

• 5:40Peter Shamshiri?

  So the firings were challenged and a lower court put them on hold. But Trump appealed and brought it up to the Supreme Court. And the court, without officially deciding on the substance of the case, lifted the lower court's order, allowing the firings to proceed. This is a dumb little procedural case that contains within it several absolutely deranged holdings and conclusions packed into just a couple of pages.

• 6:09Speaker 02

  Yeah.

• 6:10Peter Shamshiri?

  So let's go through it. And then if we have time at the end, we'll also discuss Trump's.

• 6:17Peter Shamshiri?

  Shall we say falling out with the Federalist Society?

• 6:20Speaker 02

  Trump the Leonard Leo on social media.

• 6:22Peter Shamshiri?

  Yeah, yeah.

• 6:24Speaker 02

  Yeah, let's jump into this case. So back in January, Trump fired two people who were, you know, administrative agency officials in the federal government, NLRB Chairman Gwynn Wilcox and Merit Systems Protection Board Member Kathy Harris. Now, what do these agencies do? The NLRB, of course, we've talked about many times, incredibly important federal agency. It is an independent agency that protects the rights of private sector employees. The MSPB, on the other hand, Merit Systems Protection Board, might not have heard about it. It is an independent agency that protects the federal merit systems, the rights of employees in the federal government. These two administrative agencies, quite important,

• 7:07Speaker 02

  obviously, for labor protections, the rights of workers. Now, let's talk a little bit more in depth about the firing of Gwynn Wilcox and what that did to the NLRB, just to kind of illustrate the effect, the impact of these firings in the way that they happened. Gwynn Wilcox, by the way, first black woman to be a member of the NLRB. She was nominated by Biden to be a member of that agency in 2021. She was confirmed by the Senate later that same year. And in 2023, Biden nominated her for a second term, for which she was also confirmed by the Senate. And in December of 2024, she was designated Chair of the NLRB after the previous chairperson's term expired.

• 7:52Speaker 02

  Now, Gwynn Wilcox's term as Chair of the NLRB would have expired in August 2028, some three years from now. And I'm talking about terms here. This is important because these folks are, you know, nominated and confirmed by the Senate into positions that traditionally you serve in according to terms, you know, a number of years. And so, notice, Trump is firing people who serve terms, have sort of like tenure protections in their roles. Okay, so what happens to the NLRB? What's like some practical effects here as a result of Wilcox's firing? Now, by the way, Trump removed Chairperson Gwynn Wilcox.

• 8:35Speaker 02

  He also removed Jennifer Abruzzo from the NLRB. Jennifer Abruzzo was a member of the board. That brought board membership at the NLRB down to two people. Now, the NLRB, in order to make decisions, needs to have a quorum of three people. So these firings bring the membership down below the necessary quorum that is needed at the NLRB to decide cases that come before it. Effectively, these firings have deactivated the agency, right?

• 9:07Michael Liroff?

  Right.

• 9:07Peter Shamshiri?

  But she'll be replaced with that white boy from Harvard soon enough.

• 9:13Speaker 02

  He's coming. Now, let's get into a little bit, you know, what these positions actually do, like the functions of these roles in terms of the chairperson at the NLRB, the member of the MSPB. These are what are called or known as quasi judicial functions. If you are a worker and you make a complaint at the NLRB, there's a sort of judicial process that you're getting started. It's not in federal courts, but you know, there's hearing officers, your case is adjudicated within this administrative agency.

• 9:52Peter Shamshiri?

  It's also ultimately appealable to federal courts, if you want to get technical.

• 9:56Speaker 02

  That's right. So it starts a legal process, in some sense, in the administrative agency, right? So these are quasi judicial functions that these people, as members of these boards, are carrying out. They play quasi judicial roles in deciding cases that come before them. And so they're protected in those roles by having specific terms of office. This protects the independence of these agencies and that sort of thing. So when Congress enacted the NLRA, the National Labor Relations Act, in 1935, it did so because of unhappiness, dissatisfaction with how the federal courts were handling like

• 10:38Speaker 02

  labor management cases and labor management relations. And so in the NLRA, Congress created the NLRB. It wanted to like substitute an independent agency like the NLRB to

• 10:51Speaker 02

  Possess expertise, independence, you know, and these kinds of characteristics that are like associated with the judicial process. And so let's talk about legal justification. How would somebody be removed from their job, from their positions in these agencies? If that is done properly? Now, there is a Supreme Court case called Morrison v. Olson that says that Congress provides these kinds of tenure protections to certain administrative officers, you know, who have these very specific duties so that they can't be fired except for cause.

• 11:26Michael Liroff?

  Yeah, and just to define some terms. In employment, we have like at-will employment, which is, you know, you might imagine like a service worker, for example, who can be fired at the will of the employer. Whereas some employees, often people with employment contracts, for example, salaried employees and such, might have protections or people who are members of unions and their unions have bargained for protections. And so they can only be fired for cause. And so the employer has to show a cause that there was some sort of bad behavior on the job that justifies the firing.

• 12:06Speaker 02

  Exactly, yeah. And there's also this federal statute, in addition to this precedent that says this, there's also a law, it's 29 U.S.C. Section 153, that says that members of the NLRB, quote, "may be removed by the president upon notice and hearing for neglect of duty or malfeasance in office, but for no other cause." So this law says there is a cause for which members of the NLRB can be removed. But if they are, if they're going to be removed for this cause, it must be upon notice and hearing. They have to be notified of it and there needs to be a hearing. This is an example of due process. And Trump fired these folks without notice and hearing, much less any stated cause, right?

• 12:51Michael Liroff?

  Right. They don't even dispute, by the way. Like, they're like, yeah, no, we don't have cause.

• 12:55Speaker 02

  Yeah.

• 12:55Michael Liroff?

  We don't need cause.

• 12:56Speaker 02

  Yeah, yeah.

• 12:57Michael Liroff?

  Like, that's, fuck the law.

• 12:58Speaker 02

  Yeah. So importantly, like we've just run down, Congress intended that these folks serve in their roles according to terms. They can't be removed except for cause. There's a federal statute saying that if they're removed, it needs to be with notice and hearing. And in addition, just some like look back at the history, no board member has been removed in the 90 years since the NLRA has passed. And so That's the background here, these two people being fired where there's longstanding precedent and federal law saying they cannot be removed from their positions in exactly this way. And so Wilcox and Harris sued in federal court.

• 13:34Michael Liroff?

  Yeah, and they sued and they won and the Trump administration appealed, but they also wanted to just skip the whole appellate process and went to the Supreme Court on its emergency docket, the shadow docket, as it's called, and basically asked for this ruling to be put on hold, saying, look, we're being irreparably harmed by having to keep these people who we fired back in their positions.

• 14:08Speaker 02

  Right.

• 14:09Michael Liroff?

  So we need to have them fired while this litigation is pending.

• 14:15Speaker 02

  Mm hmm.

• 14:15Michael Liroff?

  And that's the posture the Supreme Court takes this up on.

• 14:19Peter Shamshiri?

  Right, so there's this law saying Trump can't fire these people, at least not like this, but what he's arguing is, well, this law is actually unconstitutional. It infringes upon the president's authority to control the executive branch. Now, this issue has come to the Supreme Court before, very famously 90 years ago, in a case called Humphries Executive, the United States. FDR tried to fire the head of the FTC, and that was very similarly forbidden by statute, right? The court ruled against FDR. They basically said, look, the FTC was created by Congress. It serves a function that sort of straddles the three branches of government. It's within the executive branch, but it has both legislative and judicial functions, too.

• 15:04Peter Shamshiri?

  So it's not within the unfettered discretion of the president like a cabinet position might be, right? Like a cabinet agency like the EPA, for example.

• 15:14Speaker 02

  Right.

• 15:14Peter Shamshiri?

  And this situation is very similar, right? The NLRB and the MSPB, technically within the executive branch, but they also have legislative and judicial functions, right? The NLRB interprets the National Labor Relations Act. It has its own judicial functions, like we mentioned. It hears labor cases.

• 15:32Speaker 02

  Yeah.

• 15:33Peter Shamshiri?

  They're what we call independent agencies, right? Other independent agencies include the SEC, the Federal Reserve. So as you've heard us say many times before, under the precedent, this is kind of open and shut. But many conservatives do not like that precedent because they have a much more expansive view of executive power. They don't like the idea of this gray area where these agencies are like partially legislative, partially executive, partially judicial. They think of it as a hard line, right? If the agency is technically within the executive branch, that's it. The president has full control of it. This is the unitary executive theory, the legal nerds call it, very much comports with the conservative taste for like a singular

• 16:17Peter Shamshiri?

  strong leader, right? They love to bathe in the comfort of the shadows of stronger men.

• 16:26Michael Liroff?

  For what they perceive as stronger men.

• 16:31Peter Shamshiri?

  Right. A man draped in silk and cologne.

• 16:34Michael Liroff?

  And fake tanner.

• 16:38Peter Shamshiri?

  Applies his own seaside heights level tan, fake tan. That is, that's the sort of masculine dominance they crave.

• 16:49Speaker 02

  That's their alpha. Yeah.

• 16:51Peter Shamshiri?

  So, the good news for us is that the majority opinion is two pages long. It is unsigned, which isn't uncommon for a procedural order like this, but in this particular case is a little bit insane because they're functionally overturning a century old precedent.

• 17:08Speaker 02

  Yeah, that they don't even mention.

• 17:09Michael Liroff?

  Yeah. Literally, they don't mention the case that they're absolutely overruling.

• 17:14Peter Shamshiri?

  Right. The Humphreys executor, the case from 1935 that they are, again, functionally overturning, they do not reference at all.

• 17:21Michael Liroff?

  Yeah. They don't even cite it. It's unbelievable.

• 17:24Peter Shamshiri?

  So, basically, there are two broad things to note about this opinion. The first is that they are very disingenuous about what they're doing. They say, hey, we're not reaching the merits here. This is a procedural thing. We're not deciding whether this firing was legal or illegal. We're just lifting the lower court's stay. But what that means is that the firing goes into effect. It's like, they are fired.

• 17:47Speaker 02

  These two people are fired.

• 17:48Michael Liroff?

  Right. Yeah.

• 17:50Peter Shamshiri?

  The court says, quote, "A stay is appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of the litigation." But they're the...

• 18:02Michael Liroff?

  They're the ones who are ordering the repeated removal.

• 18:06Peter Shamshiri?

  Like, how does it do that? The status quo is that these people have their jobs, right?

• 18:11Michael Liroff?

  Right.

• 18:12Peter Shamshiri?

  So, now the court steps in. And changes that status quo. So it's you who is doing the removal and reinstatement thing, right?

• 18:19Michael Liroff?

  Yeah.

• 18:20Peter Shamshiri?

  How does that avoid disruption?

• 18:21Speaker 02

  Right, I noted this exact quote also. It's like, it's hilarious. Like, what about the disruptive effect of giving the president power to remove people from their jobs without cause in contravention of a law that says he cannot do that? Right? Like, that's incredibly disruptive to the federal government.

• 18:37Michael Liroff?

  Yeah.

• 18:38Peter Shamshiri?

  I mean, this is part of the preliminary injunction analysis is you're supposed to like factor in what's the status quo? And you sort of err on the side of the status quo because doing otherwise is disruptive and also might force a change that's hard to ratchet back. Right? But like, how can you say with a straight face that you're trying to avoid the repeated removal and reinstatement of these people while you're having them removed? Like, what are you talking about? They were removed, the court reinstated them, and now you're removing them again? And you're saying that you're trying to avoid the repeated reinstatement and removal? I mean, come on.

• 19:18Michael Liroff?

  I think Kagan gets it right in the dissent that what's really going on here is they're like, well, look, we know we're going to order them fired when we hear the merits case in a year or whatever. And so

• 19:30Peter Shamshiri?

  Right, right.

• 19:31Michael Liroff?

  Why bother?

• 19:32Peter Shamshiri?

  Yeah, we're disrupting the status quo as it is now. But what about the status quo as it's going to be?

• 19:38Speaker 02

  Yeah.

• 19:38Michael Liroff?

  Exactly.

• 19:39Speaker 02

  As we imagine it, right?

• 19:41Michael Liroff?

  Why bother with this year interregnum where we pretend like we're not going to do this when we know we're going to do this? So let's just get it out of the way.

• 19:51Peter Shamshiri?

  Right. The other real absurdity in this opinion is how it treats a certain hypothetical question. If Donald Trump can freely fire the heads of independent agencies, that would mean that he can fire Jerome Powell, the head of the Federal Reserve.

• 20:06Michael Liroff?

  Right.

• 20:06Peter Shamshiri?

  He could then replace him with someone who would do his bidding with respect to monetary policy. And that would put Donald Trump in functional control of our monetary system. This would be a big problem because Donald Trump is a fucking idiot. Every single person involved in this case, including the Supreme Court justices, are vaguely aware that Donald Trump is a fucking idiot.

• 20:27Speaker 02

  Yeah, that he introduces volatility at the very minimum into the economy.

• 20:32Peter Shamshiri?

  Yeah.

• 20:32Michael Liroff?

  We're going to have a strategic crypto reserve.

• 20:35Peter Shamshiri?

  Right, so.

• 20:38Peter Shamshiri?

  A lot of people were worried about this. It was brought up in briefing by Wilcox, for example, right? The fired members said, hey, if he can do this, then he can fire the head of the Fed. So think about what you're doing here, right? The court says, quote, "We disagree. The Federal Reserve is a uniquely structured quasi-private entity that follows in the distinct historical tradition of the first and second banks of the United States." Now, this is incredible for a few reasons. First, in a vacuum and on its own merits, this doesn't make much sense. They say the Fed is quasi-private. What that means is that the structure of the Fed is that you have the central bank on top, and then below that, you have these 12 regional Federal Reserve banks, right?

• 21:23Peter Shamshiri?

  Which in some ways operate like private commercial banks. So you'll occasionally see the Fed holistically described as quasi-private. But I don't understand why that would matter constitutionally, and the court doesn't explain it. So like, the NLRB is quasi-judicial.

• 21:43Speaker 02

  Yeah.

• 21:44Peter Shamshiri?

  And they don't seem to think that matters. So why would being quasi-private matter, right? And to get a little technical here, I mean, yes, the Fed is quasi-private, but the appointment of the Chair of the Federal Reserve is not done privately. It's done by the President. So the quasi-private nature of the Fed shouldn't really matter here? It shouldn't weigh here?

• 22:04Michael Liroff?

  The flip side of being quasi-private is that's also quasi-public. They monitor banks, they issue regulations, they're in this fucking CFR or whatever. Like, they have enforcement actions, they have judicial and legislative and executive functions like every other agency.

• 22:23Speaker 02

  Doesn't the Fed set, like, interest rates?

• 22:26Peter Shamshiri?

  Yeah.

• 22:26Speaker 02

  Yeah, like, this is very public.

• 22:30Michael Liroff?

  It's a very public agency that has massive impact on regulation enforcement and public policy.

• 22:38Speaker 02

  The value of the dollar, like, this is, yeah.

• 22:41Peter Shamshiri?

  This is the classic distinctions without differences, right?

• 22:44Michael Liroff?

  Yes.

• 22:44Peter Shamshiri?

  We want to carve out the Fed because we want to protect the economy from Donald Trump, right?

• 22:49Michael Liroff?

  Yes.

• 22:50Speaker 02

  Yeah.

• 22:50Peter Shamshiri?

  And so we're going to find some distinction that we can hang our hat on, even if it doesn't actually make sense to hang our hat on that distinction, right? Distinctions without differences. It's so transparent what's happening here.

• 23:00Michael Liroff?

  Yeah.

• 23:00Peter Shamshiri?

  Even, even Kagan references it in her dissent, right? That the court doesn't want to send the markets into turmoil. So they're basically carving out this little bespoke exception that they're making up as they go along. You know, you know, we won't let him do this to the Fed because we're not going to fuck with the money. And I, again, I, I love that this feels like a tacit admission that they're like, look, we're not going to let this fucking moron run the Fed. Like, are you kidding?

• 23:21Michael Liroff?

  Yes.

• 23:22Peter Shamshiri?

  This isn't like the NLRB over here. He can, he can literally commit any crime he wants. We already told you that, but he will not touch the Fed.

• 23:31Michael Liroff?

  Yeah.

• 23:32Peter Shamshiri?

  Which, by the way, reminds me, and this is something I now I'm on the lookout for in any Supreme Court opinion that tells Donald Trump that he can't do something. I'm always looking for the immunity loophole, right? Because he could kill Jerome Powell.

• 23:46Michael Liroff?

  Right, as you say, he could remove Jerome Powell.

• 23:49Peter Shamshiri?

  He could just kill him.

• 23:50Michael Liroff?

  Yeah.

• 23:50Peter Shamshiri?

  This decision actually protected Jerome Powell's job, but it put his life in severe danger.

• 23:55Speaker 02

  Yeah.

• 23:56Michael Liroff?

  That's right.

• 23:56Peter Shamshiri?

  All it takes is one conversation in the Oval Office where someone's like, you know what you could do?

• 24:00Michael Liroff?

  Yeah.

• 24:01Speaker 02

  Yeah.

• 24:01Peter Shamshiri?

  And he's going to put out a Truth Social post that's like, I could do it. I could do it.

• 24:08Peter Shamshiri?

  And I, I think the, what this brings to mind is Bush v. Gore, right? In Bush v. Gore, they basically sided with Bush by saying that it violated equal protection. They wanted to side with Bush and they're like, well, this is an equal protection issue. But then they realized that people could use this moving forward to protect voting rights.

• 24:31Michael Liroff?

  Right.

• 24:31Peter Shamshiri?

  Right? To say, well, my voting rights are being infringed upon. It's, you've already said this is an equal protection violation. So. What can we do about this? So what they said was, by the way, this isn't really precedent. Right? This is like, this is a really unique situation. It's not really precedent.

• 24:48Michael Liroff?

  Right. It's confined to the facts of this case, which are very unique.

• 24:51Peter Shamshiri?

  Right, right. And it's just like, they don't want to be subject to the consequences of their decision.

• 24:59Peter Shamshiri?

  But their decision has necessary consequences. So they have to specifically exempt themselves. Right? They have to specifically say, this won't apply to the things that we don't want it to apply to. It's not a real rule. Right? It's just, you know what we're doing? We're fucking around.

• 25:17Michael Liroff?

  I mean, like, this is sort of cliche to mention at this point, but what it reminded me of is a Calvin ball from Calvin and Hobbes, where if you didn't read it, was a game that Calvin made up. And the only rule was that the rules were never the same twice. And he always was making new rules to make sure that he won in the way he wanted to win. And the people he wanted to lose would lose.

• 25:40Speaker 02

  Yeah, there's no like reliability in any of this.

• 25:43Michael Liroff?

  Yeah, but there's nothing you can actually use in this to predict future behavior and have some sort of

• 25:52Peter Shamshiri?

  Right.

• 25:53Michael Liroff?

  stable regime on which, you know, you can have reliable expectations that you can use to modify your behavior. Right? And be like, I know what's right and what's wrong and what's permitted and what's not. Which is the whole point of like, a stable legal regime and a series of precedents and all that.

• 26:11Peter Shamshiri?

  Right.

• 26:12Michael Liroff?

  Is that people understand what the rules are and comport themselves appropriately. Like, there's just none, there's just nothing. This is just literally whatever we feel like. We feel like overruling a 90 year old precedent on the shadow docket without even citing it. We can do it. We feel like accepting the Fed from that because our portfolios are at risk. We can do that too. We can do whatever we want.

• 26:33Speaker 02

  Random sauce.

• 26:36Peter Shamshiri?

  And by the way, like worth noting, even though it's sort of obvious, if Joe Biden had done this, right?

• 26:41Michael Liroff?

  Oh.

• 26:41Peter Shamshiri?

  There would be an opinion that started like, on a cold Christmas morning, George Washington. Set out to cross the frigid Delaware.

• 26:50Speaker 02

  90 years ago, this court ruled, yeah, yeah.

• 26:56Peter Shamshiri?

  Like, it would have been just sopping wet, fucking, like, just can't believe how much our founding principles have been violated, sort of whiny little opinion. Trump does it, and they're like, what's the Fed when you think about it, right? What's the, what is the executive branch, right?

• 27:18Peter Shamshiri?

  It's just, it's just fucking embarrassing.

• 27:20Michael Liroff?

  Yeah. So we should talk dissent. Kagan has a dissent.

• 27:25Peter Shamshiri?

  Four times as long as the opinion.

• 27:27Michael Liroff?

  Yep. Which is still a very modest eight pages.

• 27:30Peter Shamshiri?

  Also still short.

• 27:31Speaker 02

  Yeah.

• 27:32Michael Liroff?

  She's clearly livid. This is, this is Kagan at her angriest, which still isn't quite angry enough for my taste, but I, grading on a curve, I give her a B plus slash A minus for this dissent. She raises all the right points. I think she's strongest when she's talking about, like, let's be real, you know, you're not even citing Humphries, but this is just a tacit admission that you're going to overrule Humphries. Let's be real, you're accepting the Fed because you don't want to accept the consequences of overruling Humphries for the markets. So you're just making it up. She says something like rushed decisions require bespoke rules or

• 28:14Michael Liroff?

  something along those lines. But she also, I think, gets them very well, but maybe not quite strong enough on the balance of equities and irreparable harm discussion that the majority does, because the majority phrases this as, on the one side is the government's interest in seeing the president's will enacted, essentially. And then on the other side is, you know, these individuals' interests in retaining their job.

• 28:43Peter Shamshiri?

  Right.

• 28:44Michael Liroff?

  She's like, well, first of all, it's not the government's interest, it's the executive branch's interest. But like, Congress is part of the government too.

• 28:52Speaker 02

  Yeah.

• 28:52Michael Liroff?

  And Congress passed a law saying that these people can only be removed. For cause. And so Congress has an interest in seeing its laws executed, right? Like faithfully executed and not subverted.

• 29:06Peter Shamshiri?

  Also, the public, you know?

• 29:08Michael Liroff?

  Right. And then she's like, and then on the other side, it's not just that these individuals are being denied a job that they like are owed. There's the public's interest, the public's interest. And this is where I think her language could be even stronger, but she, at least she's got the right point, which is like, democracy doesn't just mean majority rules and you vote for a king and then the king does whatever he wants, right? A constitutional representative democracy means that like we are honoring democracy and the will of the people when we honor the laws validly passed by their representatives in Congress. And signed by their representative in the executive branch, right?

• 29:49Michael Liroff?

  Like duly passed laws, duly enacted constitutions get followed because those are the written representations of the will of the people. And so when the executive branch is just saying, I don't like this law, I'm not following it, fuck it, you're fired. Someone make me stop, you can't. It's the people's interest in their government that's being subverted, right? Like this is literally a subversion of democracy. And the casual nature with which the majority just is like, yeah, but we're going to find this law in constitutional year anyway, so whatever.

• 30:32Michael Liroff?

  Is so, I find it very upsetting. Like I find this case very upsetting. This is a court that's like, they don't feel restrained at all right now. They certainly are butting heads with Trump on some stuff and letting him go wild on other stuff. But they are just as out of control as Trump. And this case is a court that is wildly out of control.

• 30:56Peter Shamshiri?

  And sort of like not functioning like a court, right?

• 30:59Michael Liroff?

  No, no, not at all.

• 31:00Peter Shamshiri?

  Like, it's wild to step back and think about how little the Supreme Court functions like an actual court, in the sense that it's like not interested in resolving the dispute in front of it, right?

• 31:10Michael Liroff?

  Right.

• 31:11Peter Shamshiri?

  Like fundamentally, this case is about whether Trump has the power to fire these people. And the court knows how it's going to rule. It basically says it in the opinion. They're like, we're leaning this way pretty heavily, right?

• 31:21Speaker 02

  Yeah, yeah.

• 31:22Peter Shamshiri?

  They know they're ultimately going to hold that Trump can do this. They also know that there's an urgency here, right? This is about who runs federal agencies. That's not something you can just like figure out in a year or two when you finally take up the case in full and have everything be normal, right? They do this intentionally to insulate themselves while also helping Donald Trump. They're being cagey on purpose. It reminds me of the SB eight case from a few years ago.

• 31:47Michael Liroff?

  Oh, absolutely.

• 31:47Peter Shamshiri?

  Right? The SB eight law, if you don't remember, before Dobbs, before Roe was overturned, there was this Texas law, basically providing for bounties for people who get abortions or aid abortions. And the court had an opinion that like dodged the constitutional issue, but allowed the law functionally to proceed. And it's like the same thing happening here. We're not overruling this precedent. We're just allowing this thing that definitely violates the precedent to proceed, right?

• 32:20Speaker 02

  Yeah. And I think part of this, like not functioning like a court, like not actually doing the adjudication in the traditional way that we think about, you know, an independent federal judiciary doing that. It's structurally transforming what the Supreme Court does. You know, some background, some related background is that the Trump administration is bringing constitutional challenges to the existence of the NLRB at all, right? And so you see the court here functioning as just part of the conservative legal project. They know that case is coming too, you know, eventually. And so here they're saying, yeah, he can fire these folks. And we think later on, when the full case comes before us about whether he can fire these folks.

• 33:05Speaker 02

  We're gonna rule like this and that just kind of like snowballs into the bigger project that they know is a bigger project that they know is coming that there's gonna be cases about, you know, the constitutionality of the NLRB at all and we're leaning away on that too. And so why would we care if the head of the NLRB is fired illegally? Because we already see this as stepping towards a regime where there's no NLRB at all.

• 33:35Michael Liroff?

  Yeah, they're acting in this case as a quasi or not even quasi supra legislative body, right? Like they're essentially amending the existing laws and removing these for cause firing protections. But really what they're doing is they're acting as like we said, an arm of the conservative movement and they're saying, look, we control all three branches of government. We're in charge. We can do whatever we want and we don't need to adhere to the formalities anymore of like, you know, our role in a three co equal branch system. It's just whoever's up at bat gets to swing sort of thing like,

• 34:20Michael Liroff?

  you know, it's our turn to do something right now because we got this case and so let's do it. And that's just the way it's gonna be until there's an opposition party that is seriously committed to driving these people out of power and we don't have that yet. Speaking of the conservative movement.

• 34:41Peter Shamshiri?

  Yeah, yeah. Little addendum. It feels like this sort of aligns with this case almost, right? In a sense, you have like the the confluence of MAGA and like the traditional conservative legal establishment. So.

• 34:57Peter Shamshiri?

  A few days ago, Donald Trump got very angry at the Federalist Society. A Trump appointee from his first term had sided against him in the tariffs case. And that was not the first time that like one of these Federalist Society Trump appointees had sided against him. He's had trouble with like the Alien Enemies Act stuff, some due process issues here and there. And this has started to grate on him, right? Because back in 2016, he basically cut a deal with the Federalist Society that was like, if you deliver me the like, serious conservatives, right?

• 35:42Peter Shamshiri?

  Get them on my side. I give you the judges. You can pick the judges. It was his way of showing his conservative bona fides. And it's backfired to some degree because he put into place a lot of people who have an agenda that is not just the continued ascendance of Donald Trump. At the time, that was sort of a trade off that he had to make. But now, I guess not so much, right? And this pissed him off to the point where he made a Truth Social post that accused Leonard Leo, the longtime head of the Federalist Society, although now he's no longer the

• 36:20Peter Shamshiri?

  head, of hating America and also being a sleaze bag, which is true, but I don't think he understands why. And then like Leonard Leo responded being like, it's been great changing the federal courts with Donald Trump. Like not, you never, you don't lash out at him because you'll be friends again soon enough. But I thought it was interesting. I wrote a newsletter about this because I, I do think that there's a real conflict here in the sense that like all conservative ideology gets like swallowed up by Donald Trump, right? Yeah. And it can't like, it can't exist side by side with him. You can't have this agenda that is not just Donald Trump and have him like you and like

• 37:05Peter Shamshiri?

  be in his good graces. It just doesn't work like that. Your agenda needs to be Donald Trump, otherwise he will eventually hate you.

• 37:11Michael Liroff?

  Yeah, I think that's right. And I think there's like,

• 37:16Michael Liroff?

  We're going to see a lot of this also because there's just, he's not a very good manager. And there's all these competing factions now running around, like trying to do their own things, right? Like you see this with like the, the internal fights over tariffs that have like bled out into public. You see this with the courts, the Federal Society Courts not necessarily being fully on board with the mass deportation program, at least so far. Like there are all these different factions within the Republican Party that are held together by this sort of loose knit white supremacist ideology, but they're all trying to do their own thing right now. And so they're butting up against one another and there's

• 38:00Michael Liroff?

  going to be lots of conflict as a result. So it's not surprising to see these two butting heads. But yeah, like Peter said, you gotta be nice to him. He'll be nice to you back eventually because taco, Trump always chickens out, guys. I learned that from Chuck Schumer.

• 38:18Peter Shamshiri?

  That's right. That top tier messaging coming from the Democrats. For anyone who isn't aware of this, the Democrats, I guess, inspired by him caving on tariff shit over and over again, decided that they're gonna hound Trump on caving. And so they created the acronym Trump Always Chickens Out.

• 38:37Michael Liroff?

  Yeah.

• 38:38Peter Shamshiri?

  Taco. And I don't feel like challenging him to stand up for like tariffs and shit is the move here. Although maybe it is because maybe the best thing that can happen for the Democrats is that Donald Trump really does tank the economy.

• 38:51Michael Liroff?

  Yeah.

• 38:52Peter Shamshiri?

  So I don't know. It's hard to tell.

• 38:53Michael Liroff?

  I just see videos every day of more militarized law enforcement, you know, terrorizing communities. And I feel like so far, it doesn't feel like he's chickening out on everything.

• 39:04Peter Shamshiri?

  Right.

• 39:04Michael Liroff?

  So like. I mean, maybe that makes sense if you're like a stock trader or something.

• 39:09Peter Shamshiri?

  It's it's so fucking annoying. Did you see that Schumer the other day like put out a video criticizing Trump for not being harsh enough on Iran?

• 39:17Michael Liroff?

  I did see that. Oh, my God.

• 39:20Peter Shamshiri?

  What are you fucking doing, dude?

• 39:22Speaker 02

  It's the same with like Kamala Harris saying she'll be like harsher on immigration than Trump. Why are you trying to out fascists? Like, why are you trying to be more conservative than them? This is a losing battle.

• 39:35Peter Shamshiri?

  I mean, Schumer's an ideologue. He he vote Schumer voted against the Iran deal under Obama.

• 39:39Michael Liroff?

  Yeah, the JCPOA or whatever.

• 39:42Peter Shamshiri?

  Yeah, I mean, this is for him. It's like actual ideology. He wants Donald Trump to confront Iran because that's like a political goal of his. These fucking old losers like we're gonna just watch them lose forever until they die in like five years.

• 39:59Michael Liroff?

  Yeah, at least at least it won't be too long.

• 40:02Peter Shamshiri?

  They're gonna die off and never see the scope of their failure.

• 40:06Michael Liroff?

  Yeah, well, they're getting a taste of it right now. I don't know if they're fully internalizing just how fully they failed, but.

• 40:13Peter Shamshiri?

  Now they're gonna pick up three seats in the midterms and be like, we're doing it.

• 40:23Peter Shamshiri?

  All right, next week, we're actually gonna do a couple of cases that just dropped about Doge, about our nerdy little friends at Doge. Specifically, the Supreme Court has just granted them access to our social security records, mine and yours. That should be enjoyable to read about. Follow us on social media at 54pod. Subscribe to our Patreon, patreon.com/54pod for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.

• 40:58Speaker 02

  Bye, y'all.

• 40:59Michael Liroff?

  Bye.

• 41:10Michael Liroff?

  Five to Four is presented by Prolog Projects. This episode was produced by Dustin DeSoto. Leon Nefok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community, and more, join at patreon.com/fivefourpod.