Constitution Breakdown #2: Rep. Sharice Davids

This month, Roman and Elizabeth dive into Article One with Rep. Sharice Davids.

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

• 0:01Roman Mars?

  This is the 99% Invisible Breakdown of the Constitution. I'm Roman Mars.

• 0:05Speaker 01

  And I'm Elizabeth Cho.

• 0:07Roman Mars?

  Today, we're covering Article I of the Constitution, which established the legislative branch of the federal government. And our guest for our discussion is a member of the US House of Representatives, Sharice Davids. Representative Davids has served Kansas's 3rd Congressional District since 2019. She is one of the first two Native American women elected to the United States Congress, along with Deb Holland from New Mexico, who was elected in the same year. She was raised by a single mother. She is a first-generation college student. She put herself through school. She eventually graduated from Cornell Law School. When people learn about her, they can't help but mention that she was a professional, promising MMA fighter for a short period of time. I can't seem to resist it either.

• 0:46Speaker 01

  It's awesome.

• 0:47Roman Mars?

  If I was invited to a party with everyone in the House of Representatives, I would make a beeline to Representative Davids and talk about infrastructure with her all night long. She's very into infrastructure.

• 0:57Speaker 01

  And it turns out, she's extremely into the processes and procedures of getting things done in Congress, the hidden aspects of Article I.

• 1:06Roman Mars?

  That's right. And that's one of the reasons why we invited her as our book club guest. Representative Sharice Davids, thank you so much for being on the 99% Invisible Breakdown of the Constitution.

• 1:18Speaker 01

  Thank you for having me.

• 1:19Roman Mars?

  So, we're covering Article I of the Constitution, and we're kind of dividing our discussion roughly into two parts, with today's discussion centering on the first half of Article I. So, Elizabeth Cho, do you want to give us a summary of Article I? What is it all about?

• 1:32Speaker 01

  Sure. Here goes. Article I is all about Congress. The most important part is right at the beginning. And Section 1 says, "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." So, basically, this first part of Article I gives or vests the federal government's lawmaking power to a representative body of two houses, the House and the Senate. And the "herein granted" part of Section 1 means that Congress can only use power that is specifically given to it in the Constitution. So, that's not like, say, the state legislatures of California or Kansas.

• 2:14Speaker 01

  And the first couple of sections establish the fundamentals. What are the qualifications for a member of the House? Who can be a senator? How can they be elected? Now, who sets the rules that govern Congress? Congress does. Article one is also very clear about how lawmaking works. Our national bicameral legislature, that's the House and the Senate, is supposed to draft bills and then present these bills to the president for their approval or veto. Now, the big part of Congress's authority comes from Section 8, and those are the powers that Congress has. Broad but specific powers in Article 1, like the power to spend money to tax and to regulate interstate commerce.

• 2:58Speaker 01

  So, the purpose of Article 1 is both to recognize the enormous power of Congress, but at the same time to reflect the concerns of the founders, that there be clear limits on what a national legislative body can do. So, for most people, I think the words Article 1 don't have much significance in their daily lives, but it really is the how and the why of Congress. And many of the things folks might be reading about today, from the massive increase in funding for ICE, or the freezing of federal money for cancer research, or foreign aid, these are happening not just because President Trump wanted them to happen, but because of the actions or inactions of Congress itself. That's the short summary.

• 3:41Roman Mars?

  So, Representative Davis, you've been serving Kansas' 3rd congressional district since 2019, and I'm so curious. So, when you get elected, do you read and scrutinize Article 1 in a different way? Because like, James Madison never wrote about my job, but your employee manual was written on stretched animal skin 250 years ago. So, when you first got elected, how did the Constitution change for you?

• 4:05Speaker 02

  That's a great question. You know, I don't know what it's like for people who aren't lawyers when they come to Congress. But the first time I really thought about the impact of the Constitution, not just Article 1, but like as a whole document was both when I was in law school and when I was practicing law because I practiced law at the intersection of federal Indian law and corporate transactional and financing.

• 4:34Speaker 01

  The most common of intersections.

• 4:36Speaker 02

  That's right. I mean, there's at least 20 of us. No, just kidding. And now there actually, when I first was, when I was a baby lawyer, I think there weren't as many people practicing at that intersection, but there definitely are more now. But the reason I say that I had, I was already thinking a bit about that is because Congress has plenary power over the relationship between tribal governments and the federal government. And that's part of the Interstate Commerce Clause, or sometimes what they call the Indian Commerce Clause. But when I got elected, even though I had already spent so much time thinking about Congress's powers, which powers have been vested in Congress

• 5:19Speaker 02

  with what was retained by the states, what carries over when it, when it comes to tribes and federally recognized tribes and the federal government, it did definitely take on a new meaning when I, when I started this job. Because, well, one, just personally as a Native American in this country, who, I'm Ho-Chunk from Wisconsin, which is a federally recognized tribe, it meant that my own personal relationship to my tribe and the kind of like my relationship to all of Indian country was different.

• 5:53Roman Mars?

  Yeah.

• 5:55Speaker 02

  And so there was like a personal thing. And then there's just the impact of knowing that like, you know, for each of the members, we each represent.

• 6:07Speaker 02

  Uh, you know, somewhere around 700,000 people, a little more, um, in some places, a little less in others. And most people are not going to be familiar with Article One. Most people are not going to be familiar with like federalism and states, you know, states' rights and the delineation of those things. And so, um, yeah, it, I mean, it, it really did take on a, a whole different, a whole different meaning because not only was I doing the tasks, as you said, that are laid out, um, you know, meeting the qualification, but then actually like performing the tasks of, uh, of a member of Congress. I'm also like,

• 6:48Speaker 02

  I'm the person who has to be most responsible in all of the Kansas Third for making sure that I'm adhering to the things that are in the Constitution.

• 6:56Speaker 01

  I mean, that's such an interesting point because, you know, when you look at the lawmaking part of Article One, it seems pretty straightforward, right? It's just the House and the Senate get together and they pass something and then the President decides to do something.

• 7:08Speaker 02

  And then the President signs it, maybe.

• 7:09Speaker 01

  That's right. But what I'd love to know is, you know, what's a common misconception do you think people have? Like, there's probably a lot there that's not mentioned in the Constitution, right? So what is it that we should know about that's actually hard or unknown about lawmaking?

• 7:24Speaker 02

  Um, I mean, one of the things, and actually, I was just, I was just mentioning this to someone on my team. I was like, oh, I wonder if it's going to come up. My view on, uh, you know, the, when people are running for president, um, or are actually are the sitting president, often the president or presidential candidates will say something to the effect of, when I, when I passed this law, when I wrote this law, I'm going to pass a law that does X. Like, usually, you know, when they're making campaign promises, they'll say, I'm going to pass a law that does X. And it's like, I mean, you'll sign it. But

• 8:09Speaker 02

  it's actually the Congress and the Senate that pass the laws. Um, it takes effect because the President signs it and it, you know, it is, they're bills and then they become a law once the President signs it. But, um, but it really is like a...

• 8:25Speaker 02

  A much longer negotiation process in the House and then in the Senate. And then when the two have to come together and go into conference is what it's called. When the two pass bills that are substantially similar, but not exactly the same. And they have to work out the differences. I just think that one, there's a lot more steps than most people probably imagine. And then, because there's nothing in here about committees. You know, there are committees of jurisdiction for each piece of legislation. And so that there's like layers much deeper than the broad parameters that are set out by the Constitution. And the president doesn't, doesn't write the legislation, the Congress does.

• 9:08Roman Mars?

  Yeah, yeah.

• 9:09Speaker 01

  So when you first start, how do you learn how to do that? What is the process like? Is there like a manual someone hands you on your first day?

• 9:17Speaker 02

  Not exactly, but there is, I'd say two somewhat in-depth. It's weird to say in-depth because everything moves so quickly. But we have two orientations, basically. There's an orientation, I guess there's three. One is optional, because they're all optional technically. But you know, the Congressional Research Service is, it's part of the Library of Congress. And they are this like amazing wealth of expertise. There are experts on, on all matters that the Congress might take up or look at. And they host an orientation for members of Congress who are just starting. I'm not sure what happens on the Senate side.

• 10:02Speaker 02

  But for the House, the Congressional Research Service hosts a, an orientation. And they go over all kinds of stuff with us. They'll go over various powers. They go over the fact that, you know, tax policy has to originate in the House. They go over those types of things. And then they also help, depending on which committee assignments you are hoping to get. They'll help with like jurisdictional. Is this okay how nerdy I'm getting?

• 10:31Roman Mars?

  This is exactly what is in this moment. Yeah.

• 10:36Speaker 02

  That's one of them. So the Congressional Research Service hosts something that really does help with some of the substantive policy and committee work that we might be doing. There's also a orientation that happens like in the building at the House and some of it is, you know, it's a federal job. So some of it is like, here's your laptop. Here's your cell phone, sign the paper.

• 11:00Roman Mars?

  That's not in the Constitution.

• 11:02Speaker 02

  No, I know. And some and some of it is even like, you know, we do our trainings. There's an ethics training and then, you know, like a office policy, making sure people aren't harassing each other type of training. So there's all these different things that go into making sure that that we're trained up sufficiently, including like you go down to the House floor and they like, this is your voting card. Here's how you use the machine. But I will say, just so you guys know, when someone comes in in a special election, they don't get any of that. They just fly by the seat of your pants? I mean, it's it's like an on the job training for at least a portion of it because usually

• 11:44Speaker 02

  when a special election happens, the person gets sworn in like a lot of times, like literally in the middle of a vote series. So it'll be like, we have a procedural vote and then the person gets sworn in and then debate starts on a piece of legislation and then later that day they'll have to come in and vote.

• 12:04Roman Mars?

  Do you see them just wandering around aimlessly on the House floor and just try to help them out?

• 12:10Speaker 02

  You know, Congress is filled with just like humans. So a lot of times what happens is that it's like a new kid being at school.

• 12:17Roman Mars?

  Yeah.

• 12:18Speaker 02

  So like someone comes in and everybody's all like, oh, congratulations. And and actually, people are coming up, just so you guys know, from both sides of the aisle to congratulate someone when they've come in in a special election. And

• 12:32Speaker 02

  It's just a lot more like volume and chaos at the very beginning of a session of Congress. So when we're all coming in for the first time, or it's the new session, we're all going around and congratulating all of our new colleagues and stuff. It doesn't mean we're not going to like argue and fight about stuff later, but.

• 12:50Speaker 01

  Yeah. So you mentioned the formal steps about how to get acclimated as a member of the House. But what about that sort of informal stuff? How does one figure that out when you're newly elected? Like, who is the person to talk to and you need to, you know, get your voice heard in a committee? How does that work?

• 13:05Speaker 02

  Yeah, I can tell you how I did it. A lot of it was really looking around and seeing who are the more senior members that are doing the things that I'm interested in. And so I can tell you, when I first came to Congress, Nancy Pelosi was elevated to Speaker in my first term, reelected as Speaker, I should say. And then Steny Hoyer was our Majority Leader. And so he was the person who ran the floor. So the Majority Leader is the person who's in charge of, in charge of the House floor, which means they set the calendar. So, you know, if you can go to congress.gov and see what is the legislative calendar

• 13:48Speaker 02

  for, for 2025, and then at the beginning of 2026, the Majority Leader, and that's true for either side of the aisle, the Majority Leader will set the calendar for the whole calendar year. They also determine and negotiate with the majority and the minority sides negotiate these things, which bill, like, how many bills, and this is done in ratios, like, how many bills are going to be put on the suspension calendar, which means that they don't go through the regular Rules Committee process? Then there are bills that are subject to a rule, and we vote and pass what, what are the parameters of that rule? Um, the majority leader is, the office is in charge of, of all of that.

• 14:33Speaker 02

  Like, that's their, that's within their purview. And so I asked Steny Hoyer and his team, his floor staff, and there's a floor director. Um, I asked them all kinds of questions, like, you know, what, what is a discharge petition? How many people need to sign it? How do we decide if something is on suspension or subject to a rule? And usually whoever's the majority leader and the staff in that office are kind of the experts on literally like the rules of the floor. And so, you know, there's, there's the big picture constitution. We originate tax legislation.

• 15:15Speaker 03

  Yeah.

• 15:15Speaker 02

  And then there's the, okay, but what month are we going to handle that? How many, like, how many, um, how many bills related to tax are we going to do? When are they going to actually come to the floor? And what, how long is it going to take to get through the Ways and Means Committee, then the Rules Committee, and then come to the floor? So I literally thought, that seems really interesting. So I went and asked, I went and asked the people that I could tell were working on that. And then I did a lot of asking, like, hey, I'm interested in, like, on transportation and infrastructure, I'm on, um, I'm going to try to dig into the most nerdy thing, if that's okay.

• 15:59Speaker 03

  Yeah, absolutely.

• 16:00Speaker 02

  Please. Transportation and infrastructure has jurisdiction over the federal, over federal buildings. Federal buildings actually make up quite a bit of, if you look at, um, emissions, uh, carbon emissions, all buildings, any kind of building, generally is responsible, but that's like. A pretty decent sized percentage of carbon emissions in our country. The federal government has a ton of inventory of federal buildings that we own. And the building codes for federal buildings would, any kind of building codes for federally owned buildings would come under the jurisdiction of the Transportation and Infrastructure Committee.

• 16:44Speaker 02

  Because we have a subcommittee that addresses that emergency management, the Economic Development Agency, which is in the Department of Commerce. So there's like this hodgepodge of things in there. And I was very interested in that. So I was like, who, once I found out that TNI, because I sit on that committee, has jurisdiction over that, I was like, oh, well, who do I talk to? And so we had a couple of experts come in. I often reach out to the Congressional Research Service to come and do briefings to help me and the people on my team understand, how did we get to the policy place we're at right now?

• 17:25Speaker 02

  And what are some of the proposals that have come up that either never got voted on, or because we might be able to find that sort of thing out, or did get voted on and just didn't get adopted? So there's a bunch of different avenues. You can ask the committee staff, and usually committee staff are there for, they kind of have a longer tenure of service on the Hill. And they're usually like substantive experts. You can ask other members who've been there for a little while. You can ask, hopefully, your own team will be able to help you figure some of that stuff out. You can ask the experts at home. So for Transportation and Infrastructure, Kansas, the Kansas City metro area, like

• 18:08Speaker 02

  we have the second largest rail hub in the country, the Kansas and Missouri meet here. We have a number of major highways that intersect here. So there's just, there's a lot of expertise at home in each member's district. Did that answer the question? I'm sorry.

• 18:25Roman Mars?

  No, it did.

• 18:26Speaker 02

  I think you asked, how do we get? How do I? How do I get up to speed on that stuff?

• 18:30Roman Mars?

  I mean, it absolutely does, but it points to another part of the Constitution that I actually want to highlight, which is like in Article One, Section Five, there's this phrase that says, each House may determine the rules of its proceedings, which is a very short, you know, like

• 18:42Speaker 02

  Kind of dry.

• 18:43Roman Mars?

  section of, but of a sentence of which so much of what you just said is like embedded in that those few words that these proceedings are extremely complicated. They can be dry to some. I find them kind of invigorating. It sounds like you kind of find them invigorating, you know? Could you sort of explain why these procedures, why these things are set up in this way? Do you feel the import of them when you're, when you're sort of navigating these different committees and things and jurisdictions? Like their role is important.

• 19:12Speaker 02

  Yeah. I mean, I do. And I feel like most members of Congress do. Even if I don't, I mean, we might not agree on a bunch of stuff, but when I'm interacting with my colleagues, I often do feel like the, the magnitude of what we're doing is pretty like apparent. But I also, I mean, this is one of those things that I try to keep in mind. If I ever think that what I'm doing feels like something that's just kind of like perfunctory or whatever, then I, that's probably time to start looking at other stuff.

• 19:52Speaker 02

  Because like something else to do, because literally like every single thing the Congress does is important. And there are some things that are less contentious, but doesn't make them less important. There are some things that are less hot button, but they're not less important. You know, the, I mentioned the suspension calendar and sometimes people will say, oh, those are just suspension, suspension bills. Other people who know how the Hill works and how the legislative process works, like a suspension bill is, is going to pass. You know, we're going to get more than two thirds.

• 20:33Speaker 02

  It requires two thirds of the members to, to vote in favor of it. If it's on a suspension calendar, it's because it's non-controversial and, and a bunch of the things have been worked out. And it's usually, a lot of times it's like, Like addressing issues that we see in programs, but that doesn't mean it's not important. Like, they're all important. Every single vote that a member of Congress takes is important, whether it's a procedural vote to, like, we have to, we basically vote on a procedural matter to just even be able to vote on the floor for a bill.

• 21:09Speaker 03

  Right.

• 21:09Speaker 02

  You know, so we're like voting on whether or not we're gonna vote.

• 21:11Speaker 03

  To vote, yeah.

• 21:12Speaker 01

  Right, right.

• 21:13Speaker 02

  But, and it, and it might seem, you know, to someone who doesn't spend, nor should they, like, doesn't spend their time thinking about every single little thing that Congress does, but for those of us who are doing it, like, every time I put my card in the reader to vote, I'm doing that on behalf of, like, over 700,000 people, you know? So, uh, whether I vote yes or no, even if it's a procedural vote, it matters because that's, that's literally the people's voice being heard or not in DC. And so I think that a lot of people recognize the importance, like, a lot of the people

• 21:57Speaker 02

  who are in the building, who are in, um, the Capitol.

• 22:01Speaker 01

  But it also sounds like what you're saying is that the key to getting things done in the House is being a procedure nerd, that you can't get things done without knowing procedures intimately. Is that right?

• 22:11Speaker 02

  Yeah. I mean, and I think that the interesting thing, I think, about, about the Congress is the goal isn't always to actually get a piece of legislation done in that term, even though, like, ultimately, that probably is the goal, but, um, and I don't, I don't do a lot of this, but you'll, you can, you can often tell when something is, uh, meant for, uh, messaging and when something is, is meant to be, uh, a piece of, of substantive legislation. And, um, I say that not because, and this is not a, that's not a political party thing. That's literally like, sometimes, uh, you could probably go back

• 22:57Speaker 02

  And look at any major piece of legislation, getting the Small Business Administration set up. And I think we're at like 52 years or something that that's been set up. And it comes to mind because I got to go to the celebration because Dwight Eisenhower, President Eisenhower is the one who signed that piece of legislation. And I bet we could go back into the congressional history and see multiple pieces of legislation that were introduced and, you know, passed in the House or passed in the Senate. They didn't, they didn't make it through conference. Like was initially introduced and only was in whichever committee at the time had jurisdiction. And, and you can go through and you can see the, the evolution and process of something

• 23:42Speaker 02

  major like a department or an agency getting set up. I'm sure the same thing happened when the USDA came into being or the Department of Interior. You know, the, the, for the Bureau of Indian Affairs, that used to actually be situated in the Department of War. And then when the Department of Interior was created, they moved over, they moved the Bureau of Indian Affairs or the BIA over into the Department of Interior, which was a major policy shift for the United States. So there were pieces of legislation that were getting introduced. I'm sure of it. I, I can't say, I haven't done the research on which pieces, but there, I'm sure there were pieces of legislation getting introduced to try to figure out how is Congress going

• 24:27Speaker 02

  to, to change the actual interaction between the federal government and federally recognized tribes now that the policy shift has been happening. There was a political shift that turned into a policy shift that turned into a legislative shift. Does that make sense?

• 24:42Roman Mars?

  It does.

• 24:43Speaker 01

  Yeah, absolutely. So fascinating.

• 24:45Roman Mars?

  But it points to one of the things that is in Article One, which is the, the term limits. House members are limited to just two years, which limits how much you can get done. It means that when you're thinking about legislation, you might have to think about it as something that's going to happen, you know, past this term. Because the House of Representatives were supposed to be subject to accountability with more frequent elections and the Senate was somehow, you know, was slightly different from that, held off to be, to be less accountable.

• 25:11Speaker 02

  And also didn't use to be directly elected.

• 25:13Roman Mars?

  Well, of course, yeah.

• 25:15Speaker 02

  Which is an interesting.

• 25:16Roman Mars?

  It totally is an interesting change.

• 25:18Speaker 02

  Can I share something about that?

• 25:20Roman Mars?

  Please.

• 25:20Speaker 02

  Sure. About the House. So I do think, this is something that I never would have thought about until I got to Congress, which is that Congress, like you have to be elected. In the Senate, you can be appointed, like a governor or a commissioner or something can, if there's a vacancy. In the House, no one can ever be appointed to the, to the, to the House of Representatives. And this concept of us being the closest to the people, you know, we have, because there are so many districts, but we have the smallest number in terms of constituency and population in each of our districts. Because then, you

• 26:00Speaker 02

  know, with the Senate, they have two for, I guess that makes like Wyoming and, anyway.

• 26:07Roman Mars?

  It's possible.

• 26:07Speaker 02

  Yeah. So I guess there's some senators who represent less people than House members. But. Right. Point being. Sure. That you, like, when, when we say, like, the people's house, that is actually a thing that I, that, that my colleagues really feel. And I can, I can tell in conversation with people, and it gets brought up a lot. And it's something that, until, until I got there, I, I don't even know if I ever would have noticed somebody saying the people's house. I wouldn't have, I don't know if I would have thought about it in the way that when members of Congress are saying that, what they actually mean, which is like, we are the federal electeds who are the closest to the people. And, and you cannot get into

• 26:52Speaker 02

  the House of Representatives without going through an election. And, and there is some, I do think there is something special about that, both because it means that there was enough people who were, like, trusted you enough to be willing to checkmark your name on the box, but also that it means that, that the accountability, you know, a senator can be, and I'm not, this is not to disparage senators at all, but it's like, you know, you can get into, you can be a United States Senator without ever having gone through an election, which means that, like, you can get into the Senate and be making laws

• 27:30Speaker 02

  without ever having had the, the majority of the people that you're representing checkmark your name and say, I trust this person to make decisions on my behalf. And I do think that's like, so to the, to the point about the accountability and the every two years, I do think there's, there's a level of importance and like investment that a bunch of House members really have in that.

• 27:57Speaker 01

  Well, that having been said, I would imagine that the moment you enter the House for your term, you start thinking from day one about reelection, right? And so, you know, all of this being true, being representing the people, you know, do you think in 2025, if we could rewrite Article One from scratch, would you want the length of a House member's term to be maybe just a bit longer?

• 28:18Speaker 02

  Yeah, I mean, I have spent like some time kind of like, you know, turning that over in my head. I have felt since I started this job particularly, that the structure that we have is, is actually like pretty good. I mean, you know, there's, there's no one right way to do anything. If there was, we wouldn't even need to do all of this. But the thing is, there's not a right way. There, there's like some ways that are better than others. And, and I think that having the mixture of representation by population,

• 29:03Speaker 02

  representation by state, so the House is represented by population, the Senate is represented by state, we've got an executive whose job is to execute on the laws, but they have to be elected by, I know we've got the Electoral College, but they have to be elected by the entire country, that, that has a, there's, there's a system there of, of different levels of accountability. I think the two-year term.

• 29:32Speaker 02

  And the six-year term, um, like, I can see why, why that was, why that was, uh, put into the constitution because, uh, you know, it was, it was a pushback against, uh, uh, monarchy, a tyrannical, um, monarchy. And it's like, okay, so two years probably made sense when there were only, you know, I mean, when they were counting like 16 million people, when there were like 30 million people in the country, um, in a certain number of states. But as, as the country has grown, I, I don't, I don't know if in this moment, we would

• 30:12Speaker 02

  do a two-year term because the cycle feels so, because it, it, what that, the consequence is that it almost feels like there's no, there's no end or beginning. It's literally just a cycle, uh, an endless cycle of, of, uh, uh, politics and politicking and that sort of thing. I can say that for, from the legislative perspective, I do think about, now, I mean, I'm in my fourth term now, so I do think about if there's something that, if there are changes that we're trying to make that might be, um, more substantive, uh, when you think about, and I'm, uh, uh, because I'm on transportation and infrastructure

• 30:56Speaker 02

  and it's really like my area of, of passion, um, you know, like, major infrastructure projects are usually, those are on like a 10-year timeframe. Absolutely. You know? Right. And so there's something really disjointed and ineffective about having people making decisions on two-year timeframes for projects that take 10 years to, to come to fruition. Um, and so. I think about ways that we can alleviate some of that disjointedness. And some of it is like increasing pace of of being able to get projects done.

• 31:35Speaker 02

  So permitting reform would probably be like the most salient example right now. We've been talking about permitting reform since I got to since, hmm, maybe since my second term. And I say we, meaning me personally, me and my team. Like, like engaging in like substantive conversations about how do we? How do we do permitting reform? We need to, some of the regulatory and legislative, you know, I'm putting this in air quotes, burdens or barriers exist because we we don't want a lake catching on fire.

• 32:16Speaker 02

  You know, like clean water, clean air, those things exist for a reason. But there are so much of our climate and environmental policy is is so old that like we have technologies that are that have completely alleviated some of the concerns that would have existed before and slowed and slowed down a process. But, you know, you've got the federal government with their policies. You've got the state level government and in some cases you have local stuff. And that's just on the environmental piece of permitting reform. Then there's there's all the different touch points of of getting a project done.

• 32:58Speaker 02

  And because of that, I mean, it's complex, you know? And if you think you're gonna introduce a piece of legislation, get it through a committee, which like something with permitting reform would touch on like multiple committees, the Energy and Commerce Committee, Transportation and Infrastructure, probably some other one like USDA might be impact. There's all these different committees that come in to play. And then you have the whole House floor, so 435 members. So if you think in two years, you're gonna be able to get like, like.

• 33:38Speaker 02

  For the first time, introduce a piece of legislation, get it through the committees, get it through the floor, just in the House, get it, like, have the Senate take it up, go through their process with committees and getting it to the floor, and then go to conference and get all of that done in two years? It's just like that, that's just not gonna happen. But what you can do is introduce legislation, get to work on it, have it in the committee, people, you know, the negotiation process starts. Maybe it makes it through committee the first time around or the second time around. So, when I think about like, like, major policy changes, I think about how many terms do we think this would take in the House?

• 34:17Speaker 02

  The Senate, luckily, because they're there for six years, like, you know, uh, the, that's three terms. So, probably, you can really build up some momentum with, with certain senators, and you can build up momentum with House members who, who are likely to be around for, you know, longer than, longer than one or two terms.

• 34:40Speaker 01

  So you're saying Article One is not designed for efficiency?

• 34:43Speaker 02

  No. But I actually don't know if it should be.

• 34:47Roman Mars?

  Yeah.

• 34:48Speaker 02

  I mean, this doesn't mean make things inefficient when it comes to federal programs and stuff. If the federal government's doing it, it should be done well and it should be done efficiently. But if we're gonna make changes that impact literally every single person in this country, I'm not sure if it should, I'm not sure if it's something that should sail through super quickly. Should it take 10 years? Probably not. So, it's not built for efficiency, but I'm not sure inefficiency is, is caused by the constraints of the Constitution so much as the, like, messiness of, of human negotiation.

• 35:30Roman Mars?

  Yeah. You know, there are a lot of powers listed in the later sections, but it's, it's interesting to me that the power to impeach is like, right there, like, front and center, like, it says, like, here's the House Representatives, what they do is impeach, you know, like, it's like, listed in the first section of, of their introduction. And, and it makes me think of, like, this is really, there, a lot of the concern when they're writing this is the balance of powers.

• 35:55Speaker 02

  Yeah, the checks and balances.

• 35:57Roman Mars?

  Do you read it that way, first of all? And like, what do you think about the balance of powers in, in the current moment and, and how it's evolved over time?

• 36:03Speaker 02

  It's so interesting because while...

• 36:07Speaker 02

  The power to impeach is, I mean, it's, it's right there. There's not that many things that are like directly laid out. It's like impeachment and post offices, you know, or like, like impeachment war, post offices and taxes. The, the list of, of specifics that are laid out in the constitution, it's, it's a pretty short list, but in some ways it speaks to the import. Like, how important is it that impeachment is laid out? To me, it's, it, it means that it's probably something that should be done very rarely and, and the most egregious and like significant times.

• 36:49Speaker 02

  And then it's the responsibility of the Senate to truly like dig in and investigate and essentially perform the function of the, you know, the trial for an impeachment. I think that because of the current like climate, it's the type of thing that it, it gets brought up like this, you know, like it gets brought up so quickly. And whether it's the president or Supreme Court justices or other, you know, officers that can be impeached, just because something can be done, doesn't mean that that is the, that that's the most effective way to address an issue that is happening.

• 37:31Speaker 02

  And I think that, I, I do think that the fact that it's even mentioned in the constitution to me means that it, it's of such great importance that it, that it shouldn't be just thrown around really lightly, if that makes sense. But I, maybe it would be nice if there was a little more of a direct correlation for the benefit of others that, um, that, uh, Congress sets the rules and parameters and process for everything that we do. Cause impeachment is also, it's a whole process. It's not, it's not like one vote, um, which, which maybe is one of the misconceptions. I should have.

• 38:11Roman Mars?

  That's right.

• 38:13Roman Mars?

  Yeah, yeah, it's, it is an interesting part of it.

• 38:16Speaker 02

  Yeah. And it's really weird to like. The number of things that have happened in the Congress that I've been a part of since I got here is is pretty wild. Just, you know, I've participated in two, two impeachments that like went through the full process, the process and procedure of of an impeachment.

• 38:40Roman Mars?

  Yeah. I mean, does it feel heavy when you're going through it?

• 38:43Speaker 02

  Yeah. One, there's an oath. Like, you take an oath when you get sworn in to office to protect and defend the Constitution and of the United States against all enemies, foreign and domestic. And so, you know, there's, there's, there's a level of importance around that. I grew up an army brat. It was just me and my mom. And then I have two little brothers who are eight and nine years younger than me. So for like, a lot of my formative years, it was just me and my mom. And the president is also the commander in chief of the military. Like, I don't think that impeachment is something that, this is like

• 39:24Speaker 02

  a tool of last resort, in my opinion, you know, because, you know, democracy doesn't mean that you agree with the outcome of all the elections.

• 39:34Roman Mars?

  Yeah, in fact, it almost means the opposite.

• 39:36Speaker 02

  Yeah, I mean, you know, I don't remember, I think, I think at one of the state, like, I get to go to the State of the Union, like, that's crazy. Cool, you know. But one of the things that I'm pretty sure President Biden said during one of the State of the Union addresses that I went to was that you don't get to love our country just when the person you wanted to win wins. Like, we gotta, you know, we gotta have respect and love for our country regardless of the outcome. And we're lucky in the United States because we get to, if the government's doing something you don't, you don't agree with, or you don't

• 40:20Speaker 02

  like, or you don't, you want it to be different, you can do something about it.

• 40:23Roman Mars?

  So on our first episode of the show, we talked to Nikole Hannah-Jones a lot about the preamble, so "we the people." And one of the things we talked about a lot was "we the people" didn't include her when it was written because she was black.

• 40:35Speaker 02

  Right.

• 40:36Roman Mars?

  But she is still engages with the open-ended promise of the Constitution. And so it's pretty interesting that slaves and slavery are not mentioned in the Constitution, even though a lot of it is written around slavery. But one thing that struck me in Article I is that Indians are explicitly named in Article I as people excluded from being counted in the census to determine representation. So obviously, you are here, you are a U.S. Representative, times have changed. But when you read the Constitution, how do you take that mention? And like, how do you sort of incorporate that into how you operate as Representative?

• 41:15Speaker 02

  Well, I think, so a couple of things. I think probably because of, again, like, growing up as an Army brat, you know? And it wasn't just my mom that was in the Army. It was my grandfather. I have like, there's actually like so many people from my tribe who have served in the military in various branches. And so I think because of just like my experience growing up, I kind of just always thought of our country as a work in progress. Like, I've just kind of always thought like, well, yeah, when the country first started,

• 41:58Speaker 02

  like, this is all the stuff that I'm glad we were able to change, you know? I got elected less than 100 years after Native people were recognized as citizens of this country. So, because that happened in 2024, because in 1924, in June of 1924, is when the Indian Citizenship Act passed. And so I think that, you know, in my mind, it was kind of like, oh, and it's not a natural progression, it's a progression, but it's not a natural progression. It's one that has to be, it has to be cultivated and grown and supported and fought for depending on what types of progress we're talking about.

• 42:41Speaker 02

  And so to me, it's like, you know, I mean, it kind of feels like... You know, when I went to law school, so I got into Cornell. People are always like, how, like, how, how'd you choose Cornell? And I'm like, well, they let me in. Like, that's how I chose it. Yeah. But I remember feeling really insecure about going. I'm like, oh, I'm gonna go to the East Coast. I'm gonna be all Kansas and New York. And then I was like, oh, I'm not even in a city like I'm in Ithaca, which is like a college town. And then I remember just feeling really insecure about the fact that like all, I was like, all these people that are gonna be there went, probably went to private

• 43:20Speaker 02

  schools and they, you know, like their parents are lawyers or just like, like went to private schools for like all of their lives and to some kind of big wig, private college or university or whatever. So I had all these thoughts in my head. And then I also was like, but we're in the same place now. So what does it matter? Like, you know, we're in the same place now. And, and it's not to say that the beginning part of this country doesn't matter. It matters a lot. But we're in the same place now. Like that, this is the place we're in now. You know, 105 years ago, I wouldn't have been even considered an American. And now I'm in Congress.

• 44:03Speaker 02

  And all I can do is make sure to do as much with the time and the place that we're at right now as I can. And, you know, and I think there's a lot of us in this country who are doing that.

• 44:16Roman Mars?

  Well, Representative Davids, thank you so much for taking the time to talk to us.

• 44:20Speaker 02

  Thank you so much. It was wonderful. Yeah. Oh, my God, this is like one of the more fun things I've done in like a while.

• 44:26Roman Mars?

  It was delightful. I really, really appreciate it.

• 44:29Speaker 02

  Yeah, it was great. Thanks.

• 44:31Roman Mars?

  We have more about an Article I power that's vested in Congress but not explicitly listed by name. I'm talking about tariffs, people. Tariffs. Strap in after this.

• 44:48Roman Mars?

  Each month after our book club breakdown section with our guest, Elizabeth is going to use constitutional law to explain something in the news. So it is Tuesday, September 23rd, 10:40 a.m. as we are recording this. What are we going to be talking about today?

• 45:04Speaker 01

  All right, Roman, today, let's start with the opening lines of a novel. So here goes. "Ours is essentially a tragic age, so we refuse to take it tragically. The cataclysm has happened. We are among the ruins. We start to build up new little habits to have new little hopes." So Roman, are you familiar with the novel Lady Chatterley's Lover?

• 45:27Roman Mars?

  No.

• 45:29Speaker 01

  Okay, well, if you've never read it, Lady Chatterley's Lover is a novel written by the British author David Herbert Lawrence in 1928.

• 45:37Roman Mars?

  D.H. Lawrence.

• 45:38Speaker 01

  D.H. Lawrence, right. And the plot revolves around an affair between an upper-class woman, Lady Chatterley, and a working-class man, Oliver Millers, her gamekeeper. So despite the abstract nature of the beginning of the novel, it's a very sexually explicit novel.

• 45:55Roman Mars?

  Of the things I know, that's what I know.

• 45:57Speaker 01

  You're right. And it's controversial for that explicitness. Lady Chatterley's Lover was subjected to bans in different countries for being indecent or obscene. And in fact, British readers could not actually buy the novel legally until 1960, at which point it became a bestseller and remains an influential work of literature. And it also became the subject of heated debate on the floor of the U.S. Senate in March of 1930. The question was, how obscene was this book? And in the eyes of some senators, very. In fact, one senator stood on the Senate floor and stated that Lady Chatterley's Lover

• 46:38Speaker 01

  was "so disgusting, so dirty and vile that the reading of one page was enough for me." And the debate wasn't just about D.H. Lawrence's novel. The senator targeted all so-called obscene books. He said, "I want them all kept out. I want to say to the senators now that a father of a child would never want the child to see this obscene matter. They are disgusting. They are beastly, beastly."

• 47:06Speaker 01

  You see, the Senate was debating a proposed change to existing law, and federal law at the time allowed customs officials to ban literature they considered indecent or obscene from entering the country. Senator Bronson Cutting from New Mexico supported an amendment to eliminate the censorship in the name of free speech. You know, he argued that censors trampled on freedom of thought. And as Senator Cutting observed, "You could buy plenty of racy literature at your local stores." He listed titles like "Joy Stories," "Paris Nights," "Hot Dog," "Hot Lines for Flaming Youth," "Jim Jam Gems," and "Whiz Bang." But Cutting's opponent wasn't having it.

• 47:50Speaker 01

  He said, "If I were a customs inspector, this obscene literature would only be admitted over my dead body. I'd rather have a child of mine use opium than read these books." The debate packed the Senate galleries and titillated journalists. And the attempt to lift the censorship of the obscene literature failed. Indecent literature imported into the country would continue to be seized. The winner of the debate, the senator who said Lady Chatterley's lover was beastly, his name was Reed Smoot, senator from Utah. And Smoot's performance was so widely covered that it generated headlines like "Smoot smites smut."

• 48:34Speaker 01

  And in 1931, Ogden Nash mocked the senator with this poem. "Senator Smoot is an institute not to be bribed with pelf. He guards our homes from erotic tomes by reading them all himself. Smite, smoot, smut for yout. They're smuggling smut from Balt to Butte. Strongest and sternest of your sex, scatter the scoundrels from Can to Mex." The debate was a colorful highlight of an otherwise pretty boring subject. The censorship amendment was part of a larger bill that had started in the House Ways and Means Committee chaired by Representative Willis Hawley of Oregon.

• 49:14Speaker 01

  That bill, originally intended to help farmers, eventually levied tariffs on more than 20,000 imported goods by an average of 20%. Now economists generally agree that the bill, signed into law by President Herbert Hoover in June of 1930, made the conditions of the Great Depression even worse. The law would come to be remembered not as the Tariff Act of 1930, but the Smoot-Hawley Act. You know, the question the teacher asked in the 1986 film Ferris Bueller's Day Off. Do you remember that?

• 49:47Roman Mars?

  I do.

• 49:48Speaker 01

  Yeah, where he says, "Anyone? Anyone? Anyone? The tariff bill? Anyone?"

• 49:53Roman Mars?

  Raises or lowers raised tariffs.

• 49:54Speaker 01

  Right. Anyone raised, raised tariffs. Well, Smoot-Hawley is back in the news because President Trump, like Senator Smoot, is very fond of tariffs. So Trump has decided to impose lots of them. But can Trump impose these tariffs in the same way? Is he allowed to do that?

• 50:12Roman Mars?

  Yeah, that's a good question. What does the Constitution say about this?

• 50:14Speaker 01

  Well, tariffs aren't actually in the Constitution, but remember tariffs are taxes on imported goods. And Article I of the Constitution gives Congress the power to lay and collect taxes, duties, imposts, and excises. And Article I also gives Congress the power to regulate commerce with foreign nations. So the framers were very explicit about giving Congress the specific power to impose tariffs, which are taxes, on goods. And that power was extremely important during the 18th and 19th centuries because tariffs were the main source of revenue for the federal government. But tariffs can be a kind of unpredictable source of federal funding. They go up, they go down, and if tariff revenues decline, that means fiscal instability for

• 50:58Speaker 01

  the federal government. And that's part of the reason why Congress imposed the first income tax in 1862, and it's the ratification of the 16th Amendment in 1913 that ultimately gives Congress the constitutional power to impose a nationwide income tax. And from that point forward, it's income tax, not tariffs, that becomes the main basis of funding the federal government. But tariffs didn't disappear completely. Like in 1930, when a Republican-majority Congress tried to protect agricultural interests and then many other interests by passing the Smoot-Hawley Act. And of course tariffs aren't just a means of raising revenue, right? They're also economic policy.

• 51:39Speaker 01

  And that's the main reason tariffs exist today, not to make money, but to be part of how the United States has trade relations with the rest of the world. And the Smoot-Hawley Act was just bad economic policy. It was an extremely protectionist law. As a result of the Smoot-Hawley Act, other countries imposed their own retaliatory tariffs on American goods. And by 1932, US exports and imports fell by almost 70%, and both Smoot and Hawley were voted out of office. Even though the Smoot-Hawley Act was a terrible policy, it was a straightforward use of Congress's power. The law passed a set of tariffs and specified tariffs in something like 95 pages of tariff schedules.

• 52:21Roman Mars?

  So if this is Congress's job, how is it the president gets involved in this? Like, that's what's happening right now?

• 52:27Speaker 01

  So there are two developments that are really useful to Noah's background. Since tariffs today really serve the purpose of global economic policy, that's a really complex job just for Congress to do. And one response is Congress creating things like the Nonpartisan International Trade Commission in 1916. Another response is to give some of its own authority through legislation to the president. So what this means is that Congress is giving the president limited powers to impose or suspend tariffs through international agreements with other countries. Now, the second important development to understand is the use of emergency powers by the president.

• 53:10Speaker 01

  So let's talk about the 1917 Trading with the Enemy Act, okay?

• 53:14Roman Mars?

  Okay.

• 53:15Speaker 01

  That law allowed the president to decide whether to impose certain kinds of economic penalties on foreign transactions if the president declares that there's a national emergency. So this act, the Trading with the Enemy Act, is a significant expansion of presidential power. It was used by many presidents in the post-World War II era. So for instance, President Truman relied on the act to impose economic sanctions on North Korea and China in 1950. But it was Nixon's use of the act in the 1970s that eventually causes a problem. It's always Nixon.

• 53:48Roman Mars?

  Yeah, yeah.

• 53:49Speaker 01

  Talking about Nixon, right. So in 1972, Nixon used the law to impose a 10% tariff on all imported goods as part of a set of economic measures to fight inflation. It's the 1970s, there's high inflation, there's a potential currency crisis in the United States. And Nixon's use of the Trading with the Enemies Act to impose these tariffs is challenged in court, but eventually upheld. But, you know, that raises a question. Who really has the tariff power? Is it the president or Congress? And it's that legal fight that leads Congress to reform the emergency powers available to the president. And one of the things Congress does is, in 1977, they pass a law called the International

• 54:31Speaker 01

  Emergency Economic Powers Act, also known as AIPA. That's a terrible name, but I think we're gonna have to use it.

• 54:39Roman Mars?

  Okay. AIPA. Okay. So what does AIPA do?

• 54:43Speaker 01

  Well, with AIPA, Congress is still granting some of its authority to the president. But the law says two things important to understand what's happening now. First, the law says that the president of the United States can use AIPA to deal with any unusual and extraordinary threat coming from outside of the country. And that can be a national security threat, a foreign policy threat, or even an economic threat, so long as the president declares a national emergency. The second thing to keep in mind is that if the president declares a national emergency, one of the things the president is allowed to do under AIPA is to regulate importation or exportation of goods.

• 55:25Speaker 01

  So with AIPA, Congress is trying to be much more specific and limiting in the kind of power it's giving to the president. Since 1977, presidents of both parties have relied on AIPA dozens of times. And so in the past, they've done things like ban transactions with a specific country or to freeze assets with a foreign entity because there's some declared national emergency. And so even though AIPA is considered an attempt by Congress to rein in presidential power, it's still an example of Congress trying to give the president some emergency authority. So part of the problem is that AIPA doesn't really define what a national emergency is, right?

• 56:05Roman Mars?

  Totally.

• 56:06Speaker 01

  Or what an unusual and extraordinary threat to national security or foreign policy is. Well, one way to curb that is that federal law also allows Congress to terminate an emergency through a joint resolution, even if the president doesn't agree. But on the other hand, Congress has never once terminated an emergency declaration under AIPA against the wishes of a president.

• 56:28Roman Mars?

  So is Trump relying on AIPA to do the tariffs that he's imposing right now?

• 56:33Speaker 01

  So a lot of the tariffs do fall under AIPA. So as soon as Trump started his second term, he issues a series of executive orders on tariffs, a lot of tariffs. You might have heard about tariffs on specific industries like steel and aluminum, but we're going to put those aside for now. The ones we want to talk about today fall into two types. First, there are the so-called trafficking tariffs. Trump announced these by executive order on February 1st, and these are tariffs imposed on products from Canada, Mexico, and China. And then there are the worldwide or reciprocal tariffs. This is a tariff of at least 10% on basically every country we trade with. These tariffs were imposed on April 2nd by executive order.

• 57:17Speaker 01

  And some of these tariffs are even higher, as high as 50% in some countries. And to make things even more confusing, certainly for me, many of these tariffs have been altered or changed or suspended temporarily several times, so it's really hard to figure out which tariffs are in place right now.

• 57:32Roman Mars?

  So why does Trump claim that he can use AIPA, you know, to do like a worldwide reciprocal tariff on like the entire world? We can't be in an emergency with the entire world, can we?

• 57:43Speaker 01

  Right. So Trump is relying on ambiguity, right? First, he's claiming that imposing a tariff in this way, or a set of tariffs, is part of what it means to regulate under AIPA, because that's the word in the statute. And second, Trump is claiming that there are two emergencies here. Remember, this is an emergency power. And one emergency is allegedly that Canada, Mexico, and China are not doing enough to stop the flow of illegal fentanyl into the United States. The other emergency, again, according to Trump, is the ongoing trade deficit between the United States and other countries. In April, a group of small businesses and a group of states sued in a special court

• 58:25Speaker 01

  called the Court of International Trade, and they tried to challenge Trump's use of AIPA to impose these specific tariffs. These two cases can be considered together.

• 58:34Roman Mars?

  And what were their arguments in the Court of International Trade?

• 58:37Speaker 01

  So it's actually a really simple argument. Does AIPA allow this? They're saying no. There's no question that with AIPA, Congress has definitely given the president the ability to do a lot of things once an emergency has been declared. But there's no mention of the word tariff in AIPA. So the question is, does the power to regulate, which is in the statute, does that include the power to impose tariffs? And then a secondary question could be something like, even if the president could do this, is something like the existence of a trade deficit with other countries, something that's been going on for decades, does that really count as an emergency under the statute? That's another kind of issue.

• 59:17Roman Mars?

  Yeah. And so what's the status of this case? Because that seems like a pretty fundamental argument about presidential powers and stuff. They should figure that stuff out, right?

• 59:24Speaker 01

  Yeah. So in May of this year, the Court of International Trade, that's where the case was first filed, ruled against the Trump administration. The three-judge panel in the case decided that Trump didn't have the authority to use AIPA in this way. The Trump administration appealed that decision. And at the end of August, the Federal Appeals Court also decided against the Trump administration for basically the same reason. Trump does not have the authority under AIPA to impose these tariffs. Tariffs are presumptively Congress's responsibility, not the president's. Then the Trump administration appealed this decision, and on September 9th, the Supreme Court agreed to hear the case. And the court has fast-tracked the case and has agreed to hear arguments in the case on November 5th.

• 1:00:09Roman Mars?

  So but what's really at stake with this case? Because this, I mean, this isn't just about tariffs. Declaring emergencies and doing things that should be Congress's job seems like Trump's MO across the board. So what, you know, like, what are the implications of all this?

• 1:00:24Speaker 01

  Well, of course, the tariffs themselves are a big deal. If you're a business or you're a consumer, the lawfulness of these big tariffs are of immense importance. Tariffs are a tax, and we pay those taxes through higher prices on the things we buy. But the case is also going to have very big implications for the power of the presidency because it's now up to the Supreme Court. Does Trump have the power to do this? The Supreme Court could say, well, look, Trump lacks the authority under AIPA. He can't impose tariffs this way. They could interpret the statute and decide that the word "regulate" does not include the power to impose tariffs. That would be the end of that. But if the court sides with Trump, then this would be a major expansion of presidential power.

• 1:01:09Speaker 01

  Trump has said that invalidating his tariffs will literally destroy the United States of America. Spoiler, it would not. But there is a very big question at the heart of the case. And because the case, which is now called VOS selections versus Trump, focuses on how the Supreme Court will interpret AIPA, which is a federal statute, there's a connection between the tariff case and student loan forgiveness.

• 1:01:33Roman Mars?

  Oh, OK. Tell me more. That was out of left field for me, but OK. I'm following along. Let's go.

• 1:01:42Speaker 01

  Here we go. So during the height of the pandemic, the Federal Department of Education suspended loan repayments for everybody who was paying back their federal student loans. Many people weren't working at home, so if you're not working, you can't pay back your loans. It seemed really unfair to make people try and repay them when everybody was stuck at home. Remember that student loan debt is a huge policy issue, whether or not you have the pandemic. Americans owe something like 1.6 trillion dollars in student loan debt, and a lot of those loans are loans guaranteed by the federal government. So in August of 2022, the Biden administration announced a major student loan forgiveness program. And that program was pretty straightforward. Every borrower who made less than $125,000

• 1:02:28Speaker 01

  received $10,000 of loan forgiveness.

• 1:02:30Roman Mars?

  So as we've been talking about, most of the money business of the government is done by Congress. So why did Biden think he could do this?

• 1:02:37Speaker 01

  So Biden relied on the 2003 Higher Education Relief Opportunities for Students Act, or the HEROES Act. And that law says that the Secretary of Education can waive or modify terms related to student financial aid if it is necessary in connection with a war or other military operation or national emergency. See, it's an emergency power. An earlier version of the HEROES Act was passed to help borrowers affected by the September 11 terrorist attacks. So this goes way back. But the 2003 HEROES Act extended this coverage. Now, remember, in March of 2020, the president declared that the pandemic was a national emergency. Remember who the president was?

• 1:03:20Roman Mars?

  In March of 2020? That was President Trump.

• 1:03:22Speaker 01

  That was President Trump. Now, a group of states challenged the loan forgiveness program. And in 2023, the Supreme Court was asked to answer this question. When the HEROES Act says that the Secretary of Education, which is, of course, part of the executive branch, when the Secretary of Education can waive or modify student aid, does that include the power to forgive student loans? And the Supreme Court decided, no, it does not. And the reason why is important. Because, you see, over recent years, the conservative majority in the Supreme Court has been relying on what it calls the major questions doctrine.

• 1:04:00Roman Mars?

  So let's talk about the major questions doctrine, because this has been a thing that's been percolating up over the last few years.

• 1:04:06Speaker 01

  That's right. And so the idea behind the major questions doctrine is that if there's a dispute about what a federal statute means, let's say Congress puts in some ambiguous language. And the disputed part of the statute involves the executive branch trying to exercise a power involving deep economic and political significance. The Supreme Court is not going to assume that that power is okay. The court will say, look, if Congress is going to give the executive branch some very big power, they have to be clear about it. We're not going to interpret the law to say the executive branch gets to exercise this major power unless Congress says so. And they really have to be clear about it. So in the Biden student loan forgiveness

• 1:04:47Speaker 01

  case, the Supreme Court relied on the major questions doctrine to say, look, the forgiveness of billions of dollars of student loans by the Department of Education is a huge issue. And if Congress had intended for this to be a real possibility for a president to do, they would have made the HEROES Act much more specific and clear about this. And so, no, major questions doctrine means Biden cannot use the HEROES Act, which says you can waive or modify student federal financial assistance, can't use it in this way to forgive student loans. And that's not the only case where the Supreme Court has found that Biden era actions were not authorized by Congress.

• 1:05:26Roman Mars?

  Huh. And so what does this mean for all the Trump cases?

• 1:05:30Speaker 01

  Well, if the Supreme Court's going to be consistent, then the tariff case would also appear to pose a major questions doctrine problem. And that's because no president, no president before Trump has ever used AIPA in this way to impose tariffs around the world, meaning this is the very first time a president has used emergency economic powers to impose global ongoing tariffs. So that would seem to implicate a question of deep economic and political significance.

• 1:06:04Roman Mars?

  A major question, you might say.

• 1:06:06Speaker 01

  That's right, a major question. But AIPA says only that the president can regulate importation. So if the words waive or modify do not mean cancel student loans under the HEROES Act, why should regulate mean tariff under AIPA, especially when many other federal laws specifically refer to the word tariff or the power to impose tariffs? Now, in the student loan case, the Supreme Court said that the Biden administration was, and I'm quoting here, "modifying student loans only in the same sense that the French Revolution modified the status of the French nobility."

• 1:06:47Roman Mars?

  Oh, my God. Okay.

• 1:06:48Speaker 01

  And so, in the tariff case, the federal appeals court used the same reasoning to say that Trump can't impose these tariffs. They're of unlimited duration on imports of nearly all goods from nearly every country with which the United States conducts trade. That was a transformative, unprecedented power, and President Trump just didn't have the authority to do that. So, in other words, Trump's use of IEPa to impose global tariffs requires a major questions doctrine analysis. And if we're going to be consistent, it would seem that the tariffs have an uphill battle to climb if they're really going to fall under this emergency statute. If Congress intended for this worldwide tariff scheme to happen,

• 1:07:31Speaker 01

  well, shouldn't they have said so explicitly? And that's the question for the Supreme Court. Will the justices consistently apply the cases of just a few years ago and decide that Trump lacks the authority to use a federal law in this unprecedented way? Or will they side with Trump because they side with Trump?

• 1:07:52Roman Mars?

  The pattern of siding with Trump makes me fearful for the outcome of this case.

• 1:07:58Speaker 01

  Yeah, I mean, there's lots to be worried about because in a lot of cases, it seems like that has the most explanatory power, right? That, like, how can we explain what happened here? They seem to simply be siding with the Trump administration. Either way, it could be that the tariffs continue. I mean, the court could say that, yes, Trump has the power to use IEPa in this way. Or, you know, the court could strike down this use. But then, you know, a lot of other folks have pointed out that Trump can rely on other statutes to impose tariffs. So tariffs might continue. But I think the real heart of the matter is, you know, what's going to happen to what seems to be an expanding office of the president?

• 1:08:42Roman Mars?

  A lot of this began with Congress abdicating some of its responsibility here to the president so that emergency action could be taken in a good faith sense. A lot of these roads that we go down are often when these three branches aren't defending their space the way that we need them to for the structure of the Constitution to work. The one thing that gives me a little bit of comfort in this is that it seems that the major questions doctrine is a lot of the Supreme Court standing up for itself in its role of determining these things and pushing Congress to do the things that it needs to do to hold its place

• 1:09:26Roman Mars?

  as an equal branch. In the interest of defending their role as the Supreme Court, as the arbiter of major questions, maybe they will be consistent here.

• 1:09:36Speaker 01

  It could be. I mean, that's the optimistic view, right? And then even if there is a check in the case, in the tariff case, when the Supreme Court ultimately decides it, passing the ball to Congress, we can only hope that something works. I mean, the law itself actually gives Congress the ability to check the president, but they have not done so. And so we need everybody to get involved.

• 1:09:59Roman Mars?

  That's right. But it also seems like the fig leaf with which these expansive powers that the Supreme Court has been giving Trump is a little bit of like, well, this Congress should stop. You know, like, then Congress passes a law. That's their job. But we have a complicit Congress who's just in the pocket for Trump and so that it doesn't work that way. And my optimistic read is that the ideologies align here to thwart Trump in this case, to reserve more power to Congress. I don't know.

• 1:10:31Speaker 01

  Yeah, that could work. I mean, I think one of the ironies here is that AIPA, the very law that's at the heart of this case, is actually an attempt in the 1970s by Congress to try and claw back some power. But it absolutely hasn't worked this way at all. In fact, folks have pointed out that presidents seem to declare emergencies all the time and then get to do whatever they want.

• 1:10:51Roman Mars?

  Yeah, it's that word emergency. Replacing the word emergency with the word emergency didn't seem like the most prudent.

• 1:10:59Roman Mars?

  Because like, it's like, I don't know, I have emergencies every single day. My kids have emergencies about stuff that you wouldn't believe.

• 1:11:05Speaker 01

  Exactly. And that's part of the problem. That's part of the problem. The word that doesn't exist in the Constitution, but everybody seems to be focused on. So I didn't want to end on like a gloomy note, Roman. So before we end, why don't we go back to Lady Chatterley for a moment?

• 1:11:19Roman Mars?

  Okay.

• 1:11:20Speaker 01

  There is a wonderful song mentioning it from 1965 by Tom Lehrer that I thought we could end with. Maybe, Roman, you could read the lyrics. The song is called "Smut."

• 1:11:30Roman Mars?

  Tom Lehrer, of course, who just passed away.

• 1:11:32Speaker 01

  I know.

• 1:11:33Roman Mars?

  Really, really like a national treasure, as far as I'm concerned. Okay, so here it is. "Who needs a hobby, likely tennis or philately? I've got a hobby, rereading Lady Chatterley. But now they're trying to take it all away from us unless we take a stand and hand in hand, we fight for the freedom of the press."

• 1:11:53Speaker 01

  Great.

• 1:11:53Roman Mars?

  That's so good.

• 1:11:54Speaker 01

  Yeah, it's awesome.

• 1:11:55Roman Mars?

  What's fascinating to me here is like when we're talking about Article One in the last section when we're doing our book club, like the fights over Article One seem to be the fights of our age. You know what I mean?

• 1:12:07Speaker 01

  Right.

• 1:12:08Roman Mars?

  Like, what are the powers of Congress and what are the powers of the executive? We haven't gotten to Article Two yet. But it's like, it's really something to think about, like, what is enumerated? What is not? What is thought about? What is not? But what is clear to me is that, as I read it, the tone of Article One is that the tie goes to Congress almost all the time. That's what it reads to me like, right?

• 1:12:32Speaker 01

  But I think part of the problem is that, as you can see, you can't really talk about one branch without talking about the other today. Because when you talk about Article One, you talk about a president who tries to take some of their power. And in fact, Congress has given the president some of this power. Why? Because in some ways, in the 20th century, Congress realizes, you know, we can't really deal with all these things efficiently. But there's one person who can act quickly, and that's the president. So we'll give them some of our power. And it turns out to have all of these unintended consequences, or perhaps intended consequences. A president decides to run with that power and do much more than what Congress intended.

• 1:13:07Roman Mars?

  Yeah, it's really set up for a revolutionary mindset that each branch would be defending its turf in a kind of way. Like, it's not made for collusion across branches. It's really made for like, Congress, even Congress, even like senators of the same party, to be offended by presidential overreach. And when I, when I read like, the other Robert Caro books on Lyndon Johnson and stuff like this, like, Democratic senators like, take umbrage to, you know, to Johnson, not just because they're racist and he's trying to like, create the great society, but like, also because of just the like, the fundamental fact of overreach and powers is like, is like, something that they just like, immediately react to, uh, in a way that I just don't really see anymore.

• 1:13:52Speaker 01

  Yeah, I mean, I think this idea of like, I think you're referring to this idea of like, jealously guarding, you know, your, your branch. Um, I mean, that definitely is not part of, a major part of our conversations that we're seeing or having. In fact, there's just this extreme partisanship that seems to explain a lot of what's happening. And that's not the way we set up the separation of powers. It's called the separation of powers for a reason. Um, and yeah, and so that's a kind of fatal collision, right? A Congress that decided decades ago to say, "Well, we'll be flexible with our authority and what, how we think of our powers," and kind of transfer some of them to the executive. Now, what happens when you have extreme partisanship across two branches, maybe three? There is no inter-branch checking going on.

• 1:14:37Roman Mars?

  Right, right. I mean, it's sort of like, you know, like, our whole criminal justice system is based on an adversarial system, and, and it wouldn't function if there was this great deal of collusion across the different adversarial, like, standpoints of criminal trial. Like, it would be unfair and just unjust. You know, like, it's adversarial for a reason, it's adversarial by design. And it would seem to be losing that when it comes to, um, these powers and different branches.

• 1:15:03Speaker 01

  Yeah, I mean, basically, what you see are two different conversations happening today, which is, on the one hand, a kind of small group of people yelling loudly that there's something wrong with the structure here, that the way things are supposed to work with checks are not working, and then most of the conversation not caring about that at all. Really just a results-oriented approach to the way the federal government works. Um, and you, I mean, I think that that's a real failure to connect that the abstract structure helps people get to the substantive results that they voted for.

• 1:15:35Roman Mars?

  We learned that in the last reelection, that this idea of the death of democracy, or like our democratic norms are eroding, wasn't really like that motivating of an idea.

• 1:15:44Speaker 01

  Right. It was just, it was too much. It was too much classroom and not enough, you know, get out there and vote with your feet.

• 1:15:52Roman Mars?

  Thank you so much.

• 1:15:53Speaker 01

  Thanks, Roman.

• 1:15:55Roman Mars?

  Join us next month. We're continuing our discussion of Article One with special guest Senator Elizabeth Warren.

• 1:16:02Speaker 01

  The 99% Invisible Breakdown of the Constitution is produced by Isabel Angel and Jacob Medina Gleason, edited by Committee. Music by Swan Real and from Doomtree Records. Mixed by Martine Gonzalez.

• 1:16:17Roman Mars?

  99% Invisible's executive producer is Kathy Teer. Our senior editor is Delaney Hall. Kurt Colstead is the digital director. The rest of the team includes Chris Berube, Jason DeLeon, Emmett Fitzgerald, Christopher Johnson, Vivian Le, LaShamadon, Kelly Prime, Joe Rosenberg, and me, Roman Mars. The 99% Invisible logo was created by Stefan Lawrence. The art for this series was created by Aaron Nester. We are part of the SiriusXM Podcast family, now headquartered six blocks north in the Pandora Building in beautiful Uptown Oakland, California. You can find the show on all the usual social media sites as well as our Discord server. We have fun discussions about constitutional law, about architecture, about movies, about music, all kinds of good stuff. It's where I'm hanging out most of these days. You can find a link to the Discord server

• 1:17:00Roman Mars?

  as well as every past episode of 99PI at 99pi.org.