‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power

Donald Trump will enter office at a time when presidential power has significantly expanded, because of a string of Supreme Court decisions in recent years. These decisions can be understood to have two functions: They give presidents a “sword” to act more decisively and unilaterally, and a “shield” that protects them from prosecution against actions taken in their official capacity. What will these capacities mean for Trump’s second term — especially as he has promised to radically transform the federal government? Gillian Metzger is a professor at Columbia Law School who has studied the presidency, the administrative state and the Supreme Court’s relationship to both. In this conversation, guest-hosted by Kate Shaw, a New York Times Opinion contributing writer and law professor, Metzger discusses two key Supreme Court cases — the Trump immunity case, which gave presidents broad protections from prosecution, and the Loper Bright Enterprises case, which overturned the Chevron doctrine, expanding judicial power. Shaw and Metzger also cover how much leeway Trump actually has to take some of the bolder executive actions he’s floated, including ending birthright citizenship; what still remains uncertain about the federal government’s regulatory powers in the post-Chevron regime; and more. “The Demise of Deference — And the Rise of Delegation to Interpret?” by Thomas W. Merrill “The DOGE Plan to Reform Government” by Elon Musk and Vivek Ramaswamy Book recommendations Creating the Administrative Constitution by Jerry L. Mashaw The Forging of Bureaucratic Autonomy by Daniel Carpenter “Curation, Narration, Erasure” by Karen M. Tani Thoughts? Guest suggestions? Email us at [email protected]. You can find transcripts (posted midday) and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs. This episode of “The Ezra Klein Show” was produced by Elias Isquith. Fact-checking by Michelle Harris, with Mary Marge Locker. Mixing by Isaac Jones, with Efim Shapiro and Aman Sahota. Our supervising editor is Claire Gordon. The show’s production team also includes Rollin Hu, Kristin Lin and Jack McCordick. Original music by Pat McCusker. Audience strategy by Kristina Samulewski and Shannon Busta. The executive producer of New York Times Opinion Audio is Annie-Rose Strasser.

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

• 0:00Ezra Klein?

  Hey, it's Ezra. So I'm taking a bit of time off this month, and we're going to have a few friends of the pod on the show to guest host episodes. And today's host is the brilliant constitutional scholar Kate Shaw. She is a professor at the University of Pennsylvania Carey Law School. She's co-host of the podcast Strict Scrutiny and a contributing writer for New York Times Opinion. Enjoy.

• 0:27Ezra Klein?

  From New York Times Opinion, this is the Ezra Klein Show.

• 0:54Kate Shaw?

  In recent years, the Supreme Court has handed down a string of decisions that have fundamentally changed the federal government. Court decisions have hamstrung the capacity of administrative agencies, and they have shored up the power of both the president and the court itself. These decisions mean that Donald Trump will be entering office at a time when presidential power has arguably never been stronger or more unchecked. At the same time, Trump has promised to radically transform the federal government. Now, I don't want to make the mistake of ascribing too much coherence to Donald Trump's vision of the federal government or of governance more broadly. But it is worth taking a hard look at the way the court has reshaped the tools at his disposal and what that could mean for how the federal

• 1:36Kate Shaw?

  government might work and what it might be able to do going forward. To talk about all of that, I wanted to bring in Gillian Metzger, a professor of law at Columbia Law School, who's been thinking very deeply for a long time about the presidency, the administrative state, and the Supreme Court's relationship to both.

• 2:02Kate Shaw?

  Gillian, welcome to the show.

• 2:04Speaker 02

  Thanks for having me.

• 2:05Kate Shaw?

  Okay, so to begin, I thought we could start with a proposition. President-elect Donald Trump will enter office in January 2025 with more power and with fewer constraints than any other president in modern US history. Agree or disagree?

• 2:21Speaker 02

  I agree. I agree. I think there are some factors that complicate the assessment a little bit in terms of some decisions that have pulled back on administrative power compared to presidential power. But when you're focusing on presidential power specifically, the president's control of the executive branch, or the most recent immunity decision, the president's immunity from prosecution, those are decisions and areas where the president's powers have really been expanded.

• 2:45Kate Shaw?

  So I agree that there are certain complexities, and I do want to get into some of those. But it seems at the outset as though we do agree that the president's power has been expanded in recent years and recent decisions, and that the immunity decision is really a critical piece of that story.

• 3:00Speaker 02

  Absolutely.

• 3:00Kate Shaw?

  And so I think that actually, one way to think about a number of recent Supreme Court opinions, maybe first and foremost, the immunity opinion, is that they give the president both a sword, right, like new powers, and a shield, right, new protections from any sort of meaningful accountability. So one of the most important decisions that I think operates as both sword and shield is the court's immunity ruling from earlier this year, Trump versus United States, in which the Supreme Court handed Donald Trump sweeping new immunity from criminal prosecution for virtually any official acts taken as president. So what did you think was the most significant consequence or implication of that ruling?

• 3:41Speaker 02

  I think a couple are really significant. I mean, I think it's really an unprecedented expansion of immunity for the president. The court divided up the instances when the president would be immune into a couple of different camps. So one of them has to do with what we might call core or exclusive presidential powers, where the president has authority and it can't be intruded on, for example, by Congress. In that area, what was really striking was how broadly the court viewed what counted as core power, including things like Prosecution and investigation suggesting that maybe Congress can't impose restrictions on how those are undertaken, which would be really quite novel. The other aspect was one that you mentioned about how broadly it viewed official acts

• 4:24Speaker 02

  and the tests that it established as to when immunity would apply. And it said the immunity would be presumptive, but it's kind of hard to see how that presumption's going to be overturned because immunity is going to be there unless the government can show there's no intrusion on the president's power. That's a really high bar. And so for a vast area of actions, anything up to the outermost perimeter of the president's official authority, all of that are areas in which the president's going to be immune. And that's a pretty significant move.

• 4:52Kate Shaw?

  Just to underscore the first thing that you mentioned about the opinion, I continue to be kind of gobsmacked by the breadth of some of the rhetoric about things like the exclusive authority of the president over the investigative and prosecutorial functions of the Justice Department and its officials. Since essentially time immemorial, to my mind at least, there has been a complex and nuanced and subtle set of dynamics and relationships between the president and other entities in the executive branch, but maybe the Department of Justice first and foremost, this delicate dance of the White House trying to maintain arms-length relationships with investigations and prosecutions at the Justice Department. And that, I think, is something presidents of both parties have engaged in in good faith.

• 5:36Kate Shaw?

  And this opinion just seems to wipe all of that away and say, all of the power resides in the president, he can direct investigation and prosecution, full stop, or at least he can't be prosecuted for any of that. There might be some distance between the proposition that he can do whatever he wants and he can do whatever he wants and not be prosecuted for it, right? I think that those two might not be exactly the same.

• 5:57Speaker 02

  That's true. They may not be exactly the same. And the focus on immunity for the president, I think, allowed the court to think that it could use some broader phrasing than had it really been thinking about the respective authority of Congress and the president in this area. That it might be more willing to acknowledge Congress has more of a role to play here. But I think you're really right. I mean, one of the interesting things, particularly post Nixon, is how much attention has been paid to try and ensure the independence of prosecution and investigation, to make sure that those tremendous powers of the government are not used to serve a president's political goals. And this opinion seems oblivious or to intentionally get rid of that.

• 6:37Kate Shaw?

  Oblivious or hostile to the project of maintenance of that separation? Yeah, I honestly don't know which it is. But I do think, you know, you mentioned the focus on the president. And that, I think, is one important question about the sweep of this opinion, how focused it is on just the president personally, and how much it will have ripple effects involving underlings of the president, right? So on its face, this opinion just talks about the immunity of the president, right? It doesn't say anything about shielding the president's top deputies from potential criminal prosecution. So I guess, is that also how you read this opinion, as limited to the president by its terms and on its logic? Or can you imagine the Supreme Court deciding to expand the immunity it announces in this

• 7:21Kate Shaw?

  opinion to encompass top advisers, say?

• 7:24Speaker 02

  I think if you focus on the language of the opinion, they were bullseye on the president and really concerned about future administrations calling former presidents into court and the kind of abuse that our polarized politics might lead to. I don't think they took a broader view and thought about all of the individuals and officials that the president would need to be interacting with in order to exercise his presidential power. And I think it really would be a significant move to say all of those people are now immune. That said, the way the president exercises power is through other officials. The president doesn't directly engage in prosecution or investigation. So it's somewhat naive to think that if you're talking about this as a core

• 8:07Speaker 02

  Presidential power, that it's not going to have an overhang, at least for a lot of officials with whom the president has to engage in order for him to exercise that power.

• 8:14Kate Shaw?

  Yeah, there's this line in the opinion, "The president is a branch of government." It's like, no, he's not. There are 2 million people in a branch of government. He is enormously important, and I don't think either of us wants to discount presidential power. I actually really do think a powerful presidency is a part of our constitutional tradition, at least now, maybe not from its inception. But the idea that he is a branch of government, which is, it just seems, like you said, is it oblivious, or is it hostile to the reality of what the executive branch really looks like?

• 8:43Speaker 02

  Right. I think it also connects to the theoretical underpinnings that the decision reveals. And that's the connection here to this idea of what's called often unitary executive theory. And the idea is actually that indeed, all executive power reposes in the president. And if you take that view, and then you have the language that says the president is a branch of government, again, it's unclear how you're going to pull out those other officials and say Congress can regulate and impose liability on them, but not on the president.

• 9:12Kate Shaw?

  So, but even if down the road, you can imagine this line of thinking resulting in such an expansion, as we sit here, I think it would be rash if I were advising the future president's underlings to assume that they're necessarily going to enjoy the same scope of immunity that the court announces as to the president personally.

• 9:30Speaker 02

  I think that's right. And I would think that the underlings would also be careful about that. That said, there's one aspect of the immunity decision that I don't think has gotten that much play. One of the things that knowing the president and others may be liable for criminal prosecution does is it affects what happens inside the government. And it affects the ability of executive branch lawyers to push back at actions that violate the law, and to make clear the kind of consequences that violating the law could mean. If you've got immunity outside, then you can't make arguments based on those kinds of legal consequences that are going to carry as much weight inside the government.

• 10:06Kate Shaw?

  I think it's such an important point, and there were so many examples from the first Trump term of the possibility of criminal exposure actually operating as this kind of important tool that Trump advisers used to resist some of Trump's most extreme directives or instincts on the grounds of potential future criminal liability, right? Like, think about former White House Counsel Don McGahn, who told investigators that he resisted Trump's entreaties to get him to direct Special Counsel Robert Mueller's firing on the grounds, according to McGahn himself, that if Trump removed Mueller or interfered with the investigation, that action would be used to accuse the president of obstruction of justice. It is very hard, after the immunity decision, to see how a future White House Counsel makes

• 10:50Kate Shaw?

  those same arguments to a president determined to push or transgress the boundaries of the law.

• 10:58Speaker 02

  I think that's right. You know, then what you're relying on is going to be the officials pushing back, but the president may very well then fire them until we get somebody who's more complacent.

• 11:08Kate Shaw?

  So that's a really good segue to the next topic I wanted to turn to, and that is to kind of take this question of presidential control and control over personnel and firing specifically to talk about the FBI director. Okay, so last week, FBI Director Christopher Wray said that he would resign at the end of the Biden administration. Trump had made it very clear during his campaign that he wanted Wray gone, but there was some question about whether he would and maybe whether he could fire Wray outright. The FBI director is one of a few presidential appointees whose position is designed to be held for a term of years, in his case, 10 years. So these are not people who just serve at the pleasure of the president. They're actually meant to be in their position for a set period.

• 11:50Kate Shaw?

  Now, there's nothing in the statute that says the president has to provide a good reason before firing the FBI director, but the tenure term, the legislative history, and consistent practice make clear that one of the goals in creating this tenure term was to insulate the FBI director from the president. So, OK, the question of Ray getting fired is now moot. But the question remains as to other officials, members of what we think of as independent agencies, like the Federal Trade Commission or the Federal Reserve, who, both by tradition and by law, have more independence from the president than, say, the Secretary of Defense or another member of the cabinet. So, Gillian, can you start by talking about what the older Supreme Court cases have to say about that?

• 12:32Speaker 02

  Sure. So, there's actually a lengthy history of removal restrictions and also debate over them. And as you note in your question, the nature of the position makes a difference in terms of whether or not you might think that a cause removal restriction is appropriate. The court in the 1920s invalidated a removal restriction for a postmaster. But pretty much since then, it has upheld a whole slew of for-cause removal protections. One of the most important decisions came in 1935, and it involved the Federal Trade Commission. And there, the court upheld a for-cause removal restriction for the members of the commission at the very top of the agency. And, you know, the court argued that they were exercising more quasi-legislative and quasi-adjudicative authority, but didn't seem to have any qualms about the fact that

• 13:17Speaker 02

  you could protect them from presidential removal. The court has also long upheld what we might call removal protections for inferior officers, which are basically officers who have somebody supervising them, even though they may also exercise some discretion. And one of the big decisions on inferior officers actually happened in 1988, and it involved the independent counsel, which was an official who was charged with investigating high-level members of the executive branch when there was some concern they might have acted unlawfully. And there, again, the court upheld the removal restriction on the independent counsel.

• 13:56Kate Shaw?

  OK. So, we have, through these cases and some others, a pretty well-settled understanding that, at least as to some positions, Congress can decide that there are reasons to give officials a degree of independence from the president, and one way of doing that is to place limits on the president's ability to fire those officials. And then, around 15 years ago, the Roberts Court begins to really cut back on that reasoning. Tell me about those cases.

• 14:20Speaker 02

  Yeah, right. So, starting in 2010, the court has issued a series of decisions. In which it has invalidated removal restrictions of a variety of sorts. First, it invalidated an arrangement where an agency that was headed by officials with removal protections was nestled inside another agency headed by officials with removal protections. And then 10 years later, it invalidated the removal protection for the director of the Consumer Financial Protection Bureau. That was a single director who served a five-year term. And in both of these cases, the court's argument was that this arrangement represented just too much of an intrusion on the president's control over executive power and over the executive branch. The idea that they espoused was that the president gets to exercise

• 15:04Speaker 02

  the entire executive power, and it's the president who is politically accountable and therefore needs to be able to exercise close control over these executive branch officials to ensure that the law is faithfully executed.

• 15:17Kate Shaw?

  So that's your describing the reasoning in those cases. What do you make of the reasoning?

• 15:21Speaker 02

  I think the reasoning has a lot of flaws. So the reasoning in these cases emphasizes this clause that vests the executive power in the president. But it's unclear exactly what the Constitution means by executive power, and it's at odds with the other provisions of the text of the Constitution and the structure of the Constitution to think that the president just gets to embody all of the executive power without any checks, without Congress being able to regulate the structure of the executive branch. So I think it's hard as a constitutional basis to argue it. I think it's also really hard to argue as a matter of history, because there's actually a long extending history of these removal restrictions and various kinds being put on executive branch officers.

• 16:01Kate Shaw?

  So let's make the question concrete in the context of the Federal Reserve. So the Federal Reserve's members have statutory protections against presidential removal, except for cause. During his first term, Trump apparently considered trying to demote or even to fire Fed Chair Jerome Powell, but he never did. And Biden renominated Powell to another four-year term as chair, and that term isn't up until 2026. So in a recent interview on NBC, Trump suggested he wouldn't try to remove Powell, but he's changed his mind before. So if he did, and if Powell did not just engage in this kind of anticipatory compliance, the way it seems that Ray is doing, would the law permit that?

• 16:42Speaker 02

  Well, there are really two questions here. There is one question about what the statute gives the Fed Chair as a matter of protections, and then there's a question about the constitutionality of a removal restriction. As for the statute, it's actually a hard call. The statute, going, this is the 1913 Federal Reserve Act, provides for a 14-year term for the Board of Governors, members of the Board of Governors. The Fed Chair is one of the Governors. And then it also provides for a four-year term for the Fed Chair. The provision for the 14-year term of the Board of Governors expressly says that they have cause removal protection. Doesn't say, the statute does not say that for the Fed Chair in the role as Chair. There's a longstanding practice and convention that the Fed Chair is not removed, and that's

• 17:26Speaker 02

  sort of been politically constructed over time, but it's not expressly in the statute. So, as a matter of statutory interpretation, I think it's a pretty close call.

• 17:34Kate Shaw?

  And just to make it clear, so, maybe, as a matter of statutory interpretation, before we get to the Constitution, Trump could demote Powell back to being a regular Governor. But the text of the statute isn't unclear or ambiguous as to the 14-year term, right? Firing somebody, Chair or not Chair, would clearly violate the statute.

• 17:52Speaker 02

  Yeah.

• 17:53Kate Shaw?

  Okay, but so you said there's a statutory question, and what about the Constitution?

• 17:56Speaker 02

  So, the constitutional question is different if you're talking about a member of the Board of Governors or the Chair. If you're talking about a member of the Board of Governors, I think actually, there's a very good likelihood the Court would sustain it. I think part of the reason why the Court has not overruled some of its earlier precedent, particularly that 1935 case about the FTC, is because it doesn't want to call the structure of the Federal Reserve into constitutional question. That goes for the 14-year term of the Board of Governors. When you're talking about the Chair, I think it's a closer call. One of the points that the Court has emphasized in, for example, that case involving the Consumer Financial Protection Bureau, is the importance of the President being able to pick a Chair. And a Chair is somebody who can really control how the agency operates and has additional powers.

• 18:41Speaker 02

  So, I think that the Court would look more askance. At a removal protection for a position as powerful as the Federal Reserve's chair. But that said, the Federal Reserve is a kind of unique thing. And the court might very well just think of it as not necessarily being traditional executive power or just being historically ratified in a way that puts it outside of the other kinds of agencies that it's willing to call removal protections for into question.

• 19:07Kate Shaw?

  So in some ways, I think what is most striking about this conversation is that we are having it at all, right? Fifteen years ago, the idea that the Supreme Court might deign to invalidate the structure of the Fed based on this, at best, I think, historically and structurally and texturally questionable theory about the necessity of presidential control over the whole executive branch is kind of mind blowing, right? So maybe they would actually be sympathetic to a challenge of some sort to limits on the president's ability to designate a chair, even if they would say, well, the governors can't be fired just because the president decides by fiat he wants to do that. But in some ways, it just underscores the enormous power that this court has asserted for itself over what our government looks like.

• 19:50Speaker 02

  Yeah, I think that's really true. And, you know, the interesting thing is also going to be, in the case of the Federal Reserve, you're not just talking about the legal questions, you're talking about how does the market respond? And that's a whole nother set of forms that the court hasn't had to deal with in its other removal cases.

• 20:37Kate Shaw?

  So let's shift gears for a moment. And we have been talking around the Supreme Court, but I want to talk now more directly about the Supreme Court. And I want to do that by asking about the court's recent decision in Loper Bright, which is a case that overruled the 40-year-old Chevron decision. Chevron basically said that a lot of the time, courts should defer to expert agencies about what statutes mean. And there's been a lot of public attention paid to the way that eliminating the rule announced in Chevron will reduce the power of agencies like the FDA or the EPA. But Loper Bright is a little bit more complicated than that. Maybe let me start by asking you, when it comes to power, government power, who are the big winners and who are the losers under Loper Bright?

• 21:21Speaker 02

  Well, I think one thing to bear in mind is we don't fully know yet. This is a decision that is changing a watershed precedent in terms of deference to agency views. How it plays out, what the courts will do, are questions that it's going to take years to work out. And that, I think, is actually one of the biggest condemnations of the decision, that it will lead to tremendous uncertainty and transition costs as we move from the prior regime we've been under to this new approach to agency interpretation. That said, I think one clear winner is the courts. Under the prior Chevron regime, if an agency offered a reasonable interpretation of an ambiguous statute, a court was supposed to defer. Now, what Loper Bright says basically

• 22:06Speaker 02

  is that a court is required to exercise independent judgment in determining the meaning of a statute. The court can give weight to longstanding and contemporaneous interpretation by an agency or an interpretation by an agency that it thinks has persuasive power. It may also read the statute as actually delegating interpretive authority to the agency. But it's the court that exercises independent judgment. And so the power moves from the agency to the court.

• 22:38Kate Shaw?

  So you mentioned the uncertainty about the full kind of scope and meaning of Loper Bright. Is that, do you think, a result of just sloppy drafting on the part of Chief Justice Roberts, who wrote the opinion? Is it something maybe more nefarious? The court wants to sow chaos in the agencies and in the lower courts? Is it just that the whole thing is a product of a less than fully developed vision of the Constitution, the role of agencies in our constitutional order? What explains the uncertainty, you think, that remains in the wake of Loper Bright?

• 23:10Speaker 02

  I think it's a really complicated question. Lying in the backdrop to this decision was a view that when agencies offer interpretation statutes that courts have to defer to, that that allows agency to usurp the constitutional function of the courts to say what the meaning of the law is. That was partially why the court had pulled back so much on deferring under Chevron in recent years. That idea of the constitutional role of the court suggests that courts should always be exercising independent judgment. But it's perfectly possible for Congress to decide that it wants agencies to exercise more power and to determine what the meaning of terms would be.

• 23:55Speaker 02

  If the court weren't to recognize that, that would be the court usurping Congress's power to structure the executive branch and to structure legal regimes. So when the court in Loper Bright determined that it was necessary for courts to undertake independent judgment, it didn't actually rely on this constitutional idea. Instead, it said that a statute that governs how agencies operate, called the Administrative Procedure Act, that goes back to 1946, that that statute required courts to take independent judgment in reviewing agency interpretations. But it also wanted to leave Congress, as it should, room to give agencies power to interpret statutes, and that's what Congress wanted.

• 24:36Speaker 02

  And in order to do that, it had to say, sometimes the best reading of a statute means you delegate to an agency. And once you start recognizing the complexity of how a statute might actually give agencies the kind of authority that they were wielding, then you can't just go with a "we will never defer," right? Then you need to be sensitive to context and to statutory interpretation and to the different roles agencies play in different aspects of statutory regimes. My colleague Tom Merrill has a recent article assessing Loper Bright, where he really emphasizes how much time it's going to take to move from the Chevron regime to this new regime and to figure out, for example, what kind of statutory

• 25:20Speaker 02

  language means the agency is being delegated a degree of discretion and what kind of language doesn't mean that and when it is, agencies can give weight to longstanding agency interpretations and when they can't, as well as questions like, what will happen with other doctrines the court has constructed precisely to rein in Chevron deference?

• 25:40Kate Shaw?

  So it seems to me that there are a couple of different ways to read the practical consequences of the court asserting this enormous new power for itself. And I take the point that the contours of that new power are actually very unclear as yet. But I guess if it's possible to make some kind of predictive judgments at this point, is the result a weaker administrative state? Is it an administrative state that is just run by a smaller and less well-equipped number of bureaucrats, that is, the members of the federal judiciary? And I guess, do you have thoughts about how this decision interacts with presidential power? You talked a little bit about Congress, and I think

• 26:21Kate Shaw?

  it's clear that if courts are a big winner here, Congress, depending on how the opinion gets understood, might be a big loser because Congress has made many decisions about what kind of agencies to create, what kinds of powers to give them, what kinds of procedures to tell them to follow, and also pass substantive statutes that tell them to do things, identify endangered species, ensure workplace safety, right? Obviously, the list is infinitely long. So court big winner, Congress big loser. Do we know yet, I guess, about agencies? And what about the president?

• 26:52Speaker 02

  So I think you're right on both of those. Court big winner, Congress big loser. When you focus on these cases, the underlying theme of the court's recent decisions in the space of out deference, in all aspects of the administrative state, is a real skepticism of administrative power and of the actions by administrative agencies. It's a very anti-regulatory court.

• 27:17Speaker 02

  It's hard to think that a decision like Loper Bright isn't going to end up pulling back on agency power precisely because the motivation of it is so anti-administrative. In terms of the president, what we're kind of left with is this oddity where the president is given some powers that are expanded, the removal power we were talking about, the immunity. But when the president wants to do something, what the president is going to need often is administrative capacity and administrative authority. And that's exactly what the court is pulling back. And particularly if you think that their motivation in emphasizing the president's power to remove executive officials is some desire to preserve political accountability.

• 28:00Speaker 02

  Well, political accountability means the president being able to actualize the things the president promises the president will do. And to do that, the president needs administrative capacity. So there's a real tension there about what the impact will ultimately be of the full arc of the court's decisions on presidential power.

• 28:19Kate Shaw?

  So we have been talking through a number of trends involving pretty radical transformation of legal rules. So we have an ascendant president with few checks, a disempowered or reconfigured administrative state, a hugely powerful Supreme Court sitting atop all of that. And I want to drill down a bit more on this Supreme Court, but first I would like to dip a bit into history. So you have written about the parallels between this anti-administrative, anti-regulatory Supreme Court and the anti-administrative, anti-regulatory court of the 1930s. Can you tell us a little bit about the court of the 1930s?

• 28:54Speaker 02

  So the court of the 1930s, this is the court over the period of the New Deal. So it begins the 1930s with tremendous antipathy towards the new regulatory regimes that restricted business power, that gave labor new rights, and argue that those regimes are unconstitutional. They exceed Congress's power under the Commerce Clause, for example, or they represent untoward, in one case, untoward delegation of power to agencies. But by the end of the 1930s, starting in 1937, the court accepts these regulatory regimes and starts rejecting those constitutional attacks.

• 29:34Kate Shaw?

  So by 1937, the court has largely reconciled itself to the constitutionality writ large of things called administrative agencies and some version of an administrative state. But before that, in, you know, maybe 1935, the high watermark for Supreme Court hostility to the New Deal. I guess, how does that court and its radicalism compare to today's Supreme Court and its radicalism?

• 29:59Speaker 02

  I think that actually is quite similar. I think that the court of the 1930s saw the idea of government regulating and intruding on business owners as a real invasion of individual liberty, particularly from the national government, from the federal government, right? And the idea that some of the powers potentially could be exercised by the states, but not by the national government. We don't have as much of a focus on national versus state power with the Roberts Court, but we have very much this idea that you have bureaucrats out of control, regulating in ways where they're, you know, intruding on individual liberty, looking in nooks and crannies for violations of laws, and are essentially uncontrolled exercises of bureaucratic authority.

• 30:44Kate Shaw?

  So I think that that prose is woven throughout a lot of recent Roberts Court decisions, that the administrative state is, in some sense, an existential threat to liberty. And you have argued that this Supreme Court often fails to appreciate the ways that agencies, that the administrative state actually protects liberty. So can you say a little bit about that?

• 31:12Speaker 02

  Sure. I mean, so there are a couple of different ways. One is just having internal to government. Officials and individuals who take seriously the legality of government action and will push back on excesses of authority by officials above them, that's critical towards ensuring a rule of law. The other aspect that's essential to individual liberty is to recognize that what agencies are often doing is implementing programs enacted by Congress that are intended to build out in a more positive way what we understand liberty to mean and what we understand individual rights to mean and to entail for people to exercise those rights fully. Having competent, expert individuals in roles

• 31:57Speaker 02

  where they can implement those programs to make them more effective and to make them more powerful also contributes to individual liberty. The idea that administrative governance only infringes on individual liberty requires believing in a very negative conception of liberty, where the government is just a threat and it's not also in power.

• 32:17Kate Shaw?

  Yeah, but I do think that this court holds a very, very narrow conception of liberty. So you're referring to the kinds of positive liberty government might pursue: environmental protection, consumer welfare, racial justice, gender justice. And if this court does not imagine those as encompassed within its conception of liberty, and I think it doesn't, I guess it's not surprising that is deeply hostile to agencies' pursuit of those kinds of projects. Because I don't think it's a random list of agencies that the court has demonstrated its hostility towards. It seems to be the agencies, in particular in the kind of consumer protection and consumer welfare space, where it seems very, very skeptical of agency authority. And the court somewhat gets the cases served up to it. But the hostility is not consistent

• 33:02Kate Shaw?

  across all of the different kinds of tasks that government performs.

• 33:05Speaker 02

  No, it's not. And it's very much on, as you say, those kinds of agencies where you see the hostility coming out the most. I think this is partially why it's important to not be fooled by some of the constitutional cover that the Roberts Court invokes. Because this is really a supercharged conservative court. And this is a conservative legal agenda that is being advanced. Even if it's invoking constitutional bases, it's fundamentally driven by the conservative agenda.

• 33:30Kate Shaw?

  So you do view all of these moves, we've been talking about them in somewhat disparate ways, as part of an ideologically unified project?

• 33:36Speaker 02

  I do. I think it really is a war on the administrative state that the Roberts Court has been undertaking, and I think we're not at the end of it yet.

• 33:45Kate Shaw?

  We hear the phrase "the administrative state" a lot, and I think a lot of the time it's used almost as a pejorative, right, like by people who don't like the administrative state. It sounds maybe kind of ominous, maybe like it's not part of the government, it's like some other thing. So I want to give you a chance to offer a corrective. How do you understand what the administrative state is?

• 34:07Speaker 02

  I understand the administrative state as being all of government. Other than Congress, maybe you want to pull out the president, it's everything else, and it's huge, but it's very familiar, right? So it's firefighters brought in to deal with a wildfire. It's people who are expert in water control, who are brought in to make sure that water is drinkable, particularly after a leak. It's people who inspect food to make sure that food safety requirements are being adhered to. It's people who approve medicines. It's also teachers. It's your DMV. It's maybe some people you don't necessarily like, like your DMV. But it's every aspect of the ways that government touches our lives and a lot

• 34:49Speaker 02

  of aspects of government that are going on all the time that we may not be aware of, but that are essential for modern society to function.

• 34:58Kate Shaw?

  Who is the kind of standard bearer for this war on the administrative state on the current court, in your view?

• 35:04Speaker 02

  Well, I think Justice Gorsuch would be a clear frontrunner. His recent book, I think, really embodies a lot of these kind of anti-administrative ideas. And he has been one of the more eloquent spokespersons for articulating this broader anti-administrative account. Justice Thomas has also certainly shown his anti-administrative stripes over the years, and a third would be Justice Alito.

• 35:28Kate Shaw?

  Who is just hostile, right? I mean, he's not an originalist. And he doesn't have as developed a theory of the liberty that is fundamentally threatened by the administrative state as, say, Justice Gorsuch does. He just seems really hostile, to my mind at least, to some of the more redistributive projects that government engages in that we were just talking about. Is that fair?

• 35:50Speaker 02

  I think that's fair.

• 36:19Kate Shaw?

  As much as this court seems to endorse the project of reducing, refashioning, reconstituting the administrative state, are there nevertheless areas where you can envision this court acting as a check on some of the second Trump administration's more ambitious designs?

• 36:38Speaker 02

  Potentially. I think one area that it's going to be interesting to pay attention to is how administrative agency actions are reviewed, under ordinary standards of review. We've talked about how agencies have an obligation of reasoned explanation. And at times, the Roberts Court has required a fair bit of explanation. If it continues to require a fair degree of explanation, that would be one way in which it would constrain the Trump administration and really any administration, because the need to provide a reasoned explanation is something that requires in an agency to put a lot of time and effort and resources into developing an expert account of why it's taking the action that it's doing, responding to different comments that it gets and so forth. So that could be a potential check.

• 37:23Speaker 02

  The other area where you might see the court pushing back is on some suggestions, for example, that the president just has the power to decide not to spend money when the president wants to. That's at odds with statute called the Empowerment Control Act, and it's also at odds with the longstanding understanding that Congress is the entity that controls the power of the purse.

• 37:43Kate Shaw?

  Right. That Empowerment Control Act theory is one of the many things floated in a recent op-ed in The Wall Street Journal by Elon Musk and Vivek Ramaswamy, under the guise of what they are calling this Department of Government Efficiency, or DOGE. Does it drive you as crazy as it drives me to hear people refer to this as an actual department?

• 38:01Speaker 02

  Yes.

• 38:02Kate Shaw?

  And why?

• 38:02Speaker 02

  Because a department is part of government, and this is not part of government.

• 38:06Kate Shaw?

  And even if the president can't do it unilaterally, anyway, Congress, right, has to create departments.

• 38:11Speaker 02

  Congress creates departments.

• 38:12Kate Shaw?

  And maybe, sure, if they wanted to, if the next Congress wants to create a Department of Government Efficiency, I guess we will have to call it that. But unless and until that happens, I refuse to.

• 38:20Speaker 02

  Yes, we shouldn't call it a department. And also, if Congress were to create a department, then the individuals appointed to lead it would have to go through the methods for appointment that are laid out in the Appointments Clause, which is not just the president issuing a tweet.

• 38:33Kate Shaw?

  Right, yes, okay. So, the so-called DOGE, or the entity, you know, calling itself DOGE, we can decide what to refer to it as. But what about other suggestions that Musk and Ramaswamy have floated regarding, you know, large-scale reshaping of employment in the executive branch? So, there have been references to things like mass layoffs and departmental reorganizations, though I will note that actually, the Wall Street Journal op-ed that I mentioned seems to sort of back away from some of that, focusing instead on things like, you know, early retirement incentives, which clearly, you know, the executive branch can decide to offer. But do you want to just talk in general terms about whether some of the rhetoric that is

• 39:14Kate Shaw?

  the most expansive about fundamentally overhauling government employment is even plausible under existing law?

• 39:21Speaker 02

  Right. So, I mean, we have statutes that grant the civil service cause protection against being just fired, and that also gives them procedural rights to appeal adverse actions taken against them. President doesn't have the authority to just do away with a statute. In fact, the president's supposed to take care that the law be faithfully executed. So that statute is a constraint on what the president can do. The part that gets a little complicated is that the statutes do give the president some authority over the civil service. And in the first Trump administration, they issued what was called famously Schedule F, which was an effort to pull employees who perform a policymaking or policy advocating

• 40:06Speaker 02

  or confidential function out from the protections of the civil service. And the president tried to do that by executive order, using authority that the president has under the statute. Because it happened so late in the term, agencies just didn't implement it, and President Biden revoked it immediately on coming into office. I think we're going to see another executive order imposing Schedule F or something pretty similar to it very quickly in the second Trump term. And I think whether or not that ends up being something that's within the president's authority will be a question that the courts will have to grapple with.

• 40:42Kate Shaw?

  What about this idea that Trump floated during the first administration and has suggested that he will pursue again in the second Trump administration, which is seeking to end birthright citizenship?

• 40:56Speaker 02

  Birthright citizenship is in the Constitution. It's in the 14th Amendment. So it's not something the president can end. What I would really hope is that if the president tries to get an agency to take action based on the idea that there is no birthright citizenship, that executive branch lawyers would say no, because it's patently wrong as a legal matter.

• 41:19Kate Shaw?

  I think that's such an important kind of callback to the first part of our conversation. So I think we have this tendency to say, Trump says he's going to end birthright citizenship. Will the Supreme Court let him? And I don't think that's an unimportant question. And I hope, and actually do kind of trust that even this Supreme Court would say, no, of course, the president can't unilaterally end birthright citizenship if he wants to pursue a constitutional amendment. Article five does allow the amending of the Constitution. He could push for that. That is the only way to end birthright citizenship. But a lot can happen before you get there, right? And a lot does happen inside the executive branch. The president has lawyers in the White House. The Department of Justice has lawyers in the Office of Legal Counsel and the entire Department of Justice.

• 42:01Kate Shaw?

  And those lawyers swear an oath to uphold the Constitution, just like every federal official does. And there are certain constitutional questions that are hard or close, and I don't think birthright citizenship is one of them. And so whatever new powers, whatever new sword and shield this Supreme Court has given the president, none of those erase the obligations of executive branch lawyers to the Constitution. I think that's a really important point.

• 42:24Speaker 02

  I agree.

• 42:25Kate Shaw?

  I think that's actually a good place to end it, as always. What are three books or articles you would recommend for our audience?

• 42:31Speaker 02

  So one of the silver linings, maybe the only silver lining, of the court's attack on administrative governance is that it has sparked a whole range of great administrative law historical scholarship, really investigating the origins of the United States administrative state. The first book that I'd recommend is one by Jerry Mashaw called Creating the Administrative Constitution. It was one of the first in this line of cases looking historically and traces out all of the ways in which we had a robust and developing administrative state in the first 100 years after the Constitution was adopted. And it's a great read.

• 43:08Kate Shaw?

  It's a classic.

• 43:09Speaker 02

  Yep. The second is another book in the historical vein. It's by Dan Carpenter, and it's called The Forging of Bureaucratic Autonomy. And it looks in the progressive era, when a lot of the agencies that we now take for granted, Were developed and developed their independence and expertise. And particularly in this period where we have a war on the deep state and a war on administrative expertise, it's really worth reading that account of the efforts that were undertaken to forge a sense of autonomy for administrative government and what the reasons were and why people thought that was so important and valuable. The third is actually not a book.

• 43:46Kate Shaw?

  It's okay.

• 43:47Speaker 02

  It's 99 pages, so I think it kind of counts. But it's an article by Karen Toney, and it's the foreword to the Harvard Law Review's Supreme Court issue, which comes out in November. And it's called "Curation, Narration, and Erasure: Power and Possibility at the United States Supreme Court." And it is just a wonderful account of the narratives that the Supreme Court is telling us, what counter narratives we could find, and what the narratives the court is telling us tell us about the court and about ourselves.

• 44:16Kate Shaw?

  Karen is my colleague at Penn, and it is a beautiful article. Even if you don't think you enjoy reading Law Review articles, or you would enjoy reading Law Review articles, maybe try this one. It might be an exception. Gillian Musker, thank you so much.

• 44:28Speaker 02

  Thank you for having me.

• 44:49Kate Shaw?

  This episode of The Ezra Klein Show was produced by Elias Isquith, fact checking by Michelle Harris with Mary Marge Locker, mixing by Isaac Jones with Afim Shapiro and Aman Sahota. Our supervising editor is Claire Gordon. The show's production team also includes Roland Hu, Kristin Lin, and Jack McCordick. Original music by Pat McCusker. Audience strategy by Christina Samulski and Shannon Busta. The executive producer of New York Times Opinion Audio is Annie Rose Strasser.