A flurry of rulings from the Supreme Court over the past 24 hours | Hour 3

What's going on. Thank you so much for listening to this podcast. It is heard live every day from noon to three on WBT Radio in Charlotte. And if you want exclusive content like invitations to events, the weekly live stream, my daily show prep with all the links, become a patron, go to thepeteclendershow dot com. Make sure you hit the subscribe button. Get every episode for free, write to your smartphone or tablet, and again, thank you so much for your support. This from SCOTUSblog dot com. Scotus stands for Supreme Court of the US written by Amy Howe, which, by the way, if you are interested in all things Scotus, Scottis Blog is a good website to go check out. They post all of the opinions they have, like live chats with you know, lawyers and stuff that are in there, and they react when the rulings come down as they're reading through this stuff. And Amy Howe does good write ups. I find them to be good write ups. You know, she covers the legal questions and does so in a pretty impartial manner, So I appreciate this resource cotisblog dot com. And so she writes about the Supreme Court ruling on the ability of the president to fire people inside the executive branch and to hire people inside the executive branch. This was. The This was the case about an FTC Federal Trade Commission, I think commissioner. And so the Supreme Court this is the I think this is the Slaughter case. Not to be confused with the slaughter House case. That's slaughter House. This is slaughter I think that's the I think this is the case. Let me see here, let me the little check. Yes, Slaughter named after the woman who was on the FTC who got fired. So the Supreme Court yesterday gave President Donald Trump sweeping new authority over approximately two dozen multi member agencies that Congress intended to be independent. By a vote of six to three, the justices struck down a federal law that bars the president from firing members of the Federal Trade Commission except in cases of quote inefficiency, neglect of duty, or malfeasans in office. Okay, so that was what the law said. You could remove somebody from the FTC. Four those were the causes. That law, according to a majority of the justices, violates the constitutional separation of powers between the three branches of government because you cannot create and quote independent body that is separate from the three branches, unless, of course it's the Federal Reserve, and I will get to that case, which is like, oh, the irony. Anyway, the. Piece here goes on to say, in reaching that decision, the court overruled a ninety one year old decision called Humphreys Executor versus United States, which had upheld that law at the center of the dispute. More broadly, the decision was a major victory for proponents of what is called the unitary executive theory. This is the idea that the president should have complete control over the executive branch. Under this theory, the president should be able to fire any member of the executive branch, and laws like the one that the court struck down that restrict his ability to do so violate the separation of powers right Congress, What they say here is that Congress cannot create a separate body that is beyond the reach of the executive branch if that body is to be housed under the executive branch, because Congress makes the laws and then the executive carries them out. And you could see where if you have a body that is appointed to say ten year terms or something, and then a new president comes in and they're like, this is what I want to do, this is my agenda, and you have you know the body that's like all the members of that body are like, well, we disagree with your agenda, so we're not going to help you do these things. Well, now, like, who does that body answer to? Nobody, because they're not under any of the branches, Apparently. Roberts. Chief Justice Roberts wrote this opinion, and he contended, quote, the president must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the president would prefer to work. Neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the president's power are subject to removal by him, because again, if you create this body and it is housed under the executive branch, they are acting on behalf of the president. And so therefore the president has the ability to remove that person if they are not doing the job that they were hired to do. Right then and only then, he says, can they remain accountable to the president, and the president accountable to the people. Justice Sonya Sotomayor penned a forty nine page dissent that was joined by Alana Kagan and Katanji Brown Jackson. So, you Or said, today, the Court discards the democratic regime created by the Constitution in favor of one that distorts the structure of government to fit the majority's theory of unitary total executive control. The result is a president who emerges with far greater power than ever before. Yeah, well, maybe this is a reason to I don't know, I'm just spitballing here, but maybe don't give the president lots of power that you don't want the president to wield. How about that? See, this is the dirty secret is that all of these politicos and partisans, right, they want a strong presidency. And this goes for people on both sides of the political aisle. They want a strong executive when it's their guy. If the strong executive is doing things they like, then they want a strong executive. And a lot of this stuff has been built up into the you know, infrastructure sure of our federal government going back one hundred years, and now all of a sudden that Trump is in there, and we hate Trump so therefore we don't want him to have any power. And that's why you see all of the litigation whenever he tries to do something via executive order or something, things that you know, the prior presidents that were Democrats could do, like, for example, the immigration stuff, right, Obama did immigration stuff. He did DACA. Obama did the Deferred Action on Childhood Arrivals right or DACA if you prefer, but nobody says nobody says auction, they say action, so it should be DACA. So anyway, he did DACA executive order. And then remember Trump's first term, he comes in and he's like, I'm undoing that. He gets sued and the courts are like, yeah, you can't undo that. So wait a minute. So a president of a particular political persuasion is able to do do something via executive order, but then if the opposing party wins and they want to undo that EO, now they're not allowed to. This is why I say, like in the progressive mind, Republicans may win an election, but you will never be permitted to govern. Roberts emphasized the constitution gives the president the executive power as well as the responsibility to quote take care that the laws be faithfully executed. He acknowledged the Supreme Court decision in Humphrey's Executor upholding the same law at the center of the case, but that decision, he contended, quote, was tethered to a highly circumscribed and almost fictional view of the FTC's role as being very limited. They were neither political nor executive, but predominantly quasi judicial and quasi legislative. This was a big problem for the FTC in this case is that the body has broad powers. The FTC exercises executive power and must therefore be controlled by the president. The response to this has been quite hilarious. A University of Michigan law professor, former US Attorney for the Eastern District of Michigan, also a legal analyst for MSNBC now called miz now Barb McQuaid. She said the Slaughter case overturning president returns us to a spoils system where a president can clean house every four years, destroying our professional, independent civil service, to which a hilarious account on Twitter called Jarvis Best said, Yeah, people are dunking on Barb mccuad for this, But under the old patronage system, Republicans would hire Republican civil servants and Democrats would hire Democrats. But we wisely got rid of that system so that no matter who was elected president, the federal workforce would always be Democrats. And that's why they're man all right. For over a year now, you've heard me talking about Create a Video. 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They all dissented, which I found to be troublesome because it should have just been two of them. Because Supreme Court Justice Katanji Brown Jackson, she said, remember she could not define what a woman is, and she said, I'm not a biologist, so she should recu She should have recused herself. It should have been a six to two because she was obviously unqualified by her own admission during her confirmation hearing when she was asked what's a woman and she said, I'm not a biologist. She refused to define it. So if she can't define what a woman is, then she should not have been able to rule on the case. Right, or she should have at least been educated as to what a woman and a man is, But there's no indication that she went through any such education. There is a point to be made here. White House official May Mailman says, in their decision, the court uses the term biological males who identify as female, which is like, that's better than what they could have written, which was trans girls or trans women. Right, But they said biological males who identify as female in their ruling. So that's a win. Let me write that one down. Win on the. Trans sports issue. So we got the Slaughter case that I would says a win, the transports case, that's a win. And then we have the Cook decision, and I'm gonna call this one a draw because it dealt more with process than any underlying question, although it is troublesome. So in this case Trump versus Cook, the court surprised court watchers. See, that's the way you say that. When you like when when you've got people that comment about the Supreme Court, and that's what they are known for whatever, and they offer opinions and speculation on stuff. They're called court watchers, right, So they were surprised by not only doing the expected thing and blocking Donald Trump from removing Federal Reserve Governor Lisa Cook, but also going further to create a special rule. Just for the FED. So the Fed is apparently now a fourth branch of government. I guess I'm not sure that. So what they said was that Congress can, but doesn't have to restrict the president from removing the governors. Congress can, but doesn't have to restrict the president. So, as we were talking about the Slaughter case, the editors at National Review say, that's good law, good policy. It restores how the executive branch was understood to work before the nineteen thirty five case Humphrey's Executor, Okay, which the court then distorted the law. But the Cook ruling is another matter. Trump tried to comply with the law restricting Cook's rem by alleging that she had committed mortgage fraud and thus could be removed for cause. Trump never argued, as the administration did in the Slaughter case, that he had the power to remove her at will. He was saying that there was cause there because of the the mortgage fraud allegations. The investigation into the mortgage fraud stuff for once, The editors say, Trump listened to shrewd legal advice from good lawyers, and the court hung him with it. Did it need to Trump's campaign to bend the powers of his office against Cook and Jerome Powell in order to get cheaper money is bad monetary policy, they say, shameful abuse of his proscatorial powers and an ominous precedent for the moment. However, Congress seems to have stopped him, and done so by means of its traditional leverage over his appointments. Roberts and Capaw, who joined the three liberals to make a five to four majority in the Cook case, were quite blunt in emphasizing their view that the federal reserve is essential. Huh okay, so that's not so that's not under the control of the executive branch. Even though you just ruled that the executive branch does have the power to fire and hire people, this kind of seems paradoxical, just a smidge. So the president can fire people that are on like the FTC, these quote unquote independent commissions that operate under the executive branch. Supreme Court said he could do that, but the Federal Reserve, hands off, buddy, not allowed to do that. The editors at the National Review point out, if we've had fewer financial crises and depressions under the Federal Reserve's watch, I mean, we have not had zero, and there's nobody to hold accountable when they did happen. Moreover, any government agency that needs answer to nobody is prone to mission creep. This is the problem with the Federal Reserve. They're acting as I as a fourth branch of government. Now. Justice Clarence Thomas wrote in dissent, if the Court prefers an independent Federal Reserve Board, then its issue is not with the president but with the Constitution. And he's exactly right, he says. The editors say the founders may have concluded that a central bank free of political pressure was necessary, and Alexander Hamilton may have won the argument with James Madison that the Constitution empowers con risk to create a central bank, but we know very well that they typically preferred to strike the separation of power's balance in favor of democratically accountable branches that were checked by other branches. Right, So what is the check on the Federal Reserve? Which branch is the check? Where's the balance? Right? We are to believe that the central Bank was not mentioned in the Constitution, but they really did mean for it to be there as a fourth branch that is not checked or balanced by any other branch. And this was a fight. Alexander Hamilton was a big believer in the central bank in having one, but there were opponents to this idea, which is probably why it didn't make it into the Constitution, because you were trying to get the thing ratified and didn't put it in there because it would have jeopardized ratification. Right when they wanted, when the Founders wanted to create a truly independent branch, like they did with the Judiciary, they did it explicitly. It got its whole Section Article three right. Article one is Congress. Article two is the executive. Article three is the judiciary. They spelled it all out, and that was it. Those were the three branches of government, despite what our sheriff may lead you to believe, there are only three branches of government, although now I guess Roberts and Kavanaugh seem to think that there's and the three liberal judges they all seem to think that there's a fourth branch that's unaccountable to anybody. They could have put an independent central bank into the constitution, right, and we could still do that if we wanted to with an amendment to the Constitution, but they did not. The editors say, as things stand, the court's decision would not stop Congress if it decided to end the fed's independence. If the president controls the executive branch and does not control the Federal Reserve, then what is the federal reserve. It's not a legislature. Article one creates only two houses of Congress. It's not a court. The Constitution doesn't mention a fourth branch. But apparently now we have one. Good times, so I would put this decision. Well, they say that he could. The president could get her removed if she has an ability to respond to the allegations and whatever, so like there may be some process here, but right now, like I'm calling this a draw, but very concerning, a troubling draw, but kind of also maybe a loss. Ed shipley, he says. He calls this a no harm, no foul outcome because us Cook remains as a governor at the FED while the matter remains pending. The due process defect in her termination was the failure to provide her documentation of the cause for her firing and to give her an opportunity to respond. The government did not argue in this case that four cause that the four cause requirement in the federal Statute is unconstitutional, as was the case in the Slaughter ruling. The court has already signaled that the FED is different, and the Trump administration did not want to litigate that issue. It only argued that cause existed because of the based on the President's view of the allegations, and that was all that was required. Once she's given notice and an opportunity to respond, I do not think she'll have a path through the district court again to challenge her termination. So that's why he's saying this is maybe a draw. So it may be a draw from Justice Thomas. He writes, as the Court tells it, the Board of Governors of the Federal Reserve System has for the past century served to provide the American people with stable prices, maximum employment, and no ruinous financial panics, as well as a banking system free from suspicion. The Court credits this century of supposed success to the board's independence from the President and in turn the voters, the common people who play the antagonist in the Court's account of the nineteenth century. However, many do not share the Court's rosy appraisal of the past century. But if the Court prefers an independent Federal Reserve Board, then its issue is not with the President but with the Constitution, regardless of whether unaccountable executive officers like Cook would better govern the economy. The Framers rejected such a promised land of technocratic governance. They instead chose government by the people. As a court, our duty is not to second guess that decision, but to uphold it. I don't know. I feel like it's a tie. I feel like I feel like it's a tie for me between Alito and Thomas, Like I'm not sure which one I love Mark, I agree with both of these guys on like virtually all of their rulings. There are occasions where. Thomas will will, you know, offer opinions on things that I think, I don't know if I agree with that, But that's like the extent of it's like, I'm not sure if I agree with it. I don't think he's ever written anything where I'm like, oh, no, that's not right. I don't agree with that at all. All right, So Alito and Thomas, who are by the way, the NPR report today said that Alito was retiring, and then they had to issue a correction that that was not true. So bang up work over there in NPR. But you got it first. I mean, it wasn't true, but you did report it first. From the text line, David says, the Federal Reserve is not federal and it has no reserves. That is discuss radical reconstruction. It was not radical, no reconstruction. It's an SNL bit. John from Indian Land says the FED was created to be independent of Congress, not the president. And Beth's favorite Russ says his sister in law was euphoric about the Alito retirement news. But now we think we might have to do a wellness checks that might be for the best. I guess NPR falsely reported that Alito was retiring, and I've seen I did not read the article. I think it was taken before I even saw the original version of it. I saw, well, I know, I saw the correction that NPR had to post that we've deleted this story because it's not true. But I saw somebody comment that it looked like a boilerplate story, which a little peak behind the curtain for you. In the world of journalisming this is pretty standard. There will be uh there, there are already obituaries written, retirement stories written. These are things that are done. It's pretty standard for famous people, and so when the event occurs, then you can post something immediately. That's why sometimes, like I remember there was one I don't remember who it was that passed away, but I remember reading a story and it was a local story and it was the boy of the reporter with somebody who no longer works for the Charlotte Observer, let's say, and I'm just saying Charlotte Observer. I don't remember the story, but it probably was. But I knew that they were long gone, they had long retired. But they had the byline because they had written that oh bit piece years and years prior, but it may have been now I don't remember. It doesn't matter. But it was a famous person who died, and I remember reading the obituary and I was like, oh, that person hasn't worked at the Observer for years. But they wrote it long time ago, So they probably have this story. It's sitting in the can as we say, ready to go, and they obviously thought that it was time to publish it because they got word or something that Alito was retiring and maybe he still will. Don't know if Alito or Thomas if they have plans to retire. I hope they do so while Trump is president. They do not want to have a Ruth Bader Ginsburg situation, especially I mean and especially right now because the Republicans control the Senate. You know, you don't want to lose the presidency and or lose the Senate and then have to replace one or two justices because that's going to create that's going to create just a completely corrupted court and I mean jurisprudently corrupted, a living, breathing constitutional interpretation. One of the other decisions that came down yesterday. I mentioned this briefly on the program yesterday, or maybe not so briefly, but the Supreme Court yesterday ruled that states can't count ballots that arrive after election day. This is from the Associated Press. The decision rejected a Republican led attack on laws. There's the always watch for the lane would that the ap uses or media outlets use in order to frame a particular narrative, See that Republicans are attacking this thing, right, it's not just a challenge, no, no, no, it's an attack because Trump. So it's an attack on laws in more than half of the states, basically all of the Democrat ones that permit mailed ballots to arrive and be counted any number of days after the election, provided they are postmarked by election day, although as we find out in California, they're kind of they're kind of lenient, they're. Flexible on that whole postmark thing. You know, if if there's a postmark that they can't read, for example. Then we'll just assume that you got it in on time, that kind. Of thing, or we'll just you know, we'll divine the idea that well, it would not have arrived here within a week. If it wasn't mailed a week ago, so obvious it must have been dropped in the mail before election day. Huh right, yeah, sure, Okay. The outcome spares officials the headache of changing their ballot rules just a few months before the midterm congressional elections. The legal challenge was part of Trump's broader attack on most male balloting, which he has said breeds fraud despite strong evidence to the contrary. That's always the caveat that the ap throws in there. It's like, you know, Trump says this without evidence, right. They always they always tell you how to think about an issue with those types of qualifiers, and they do the same thing here. The Mississippi law that went to the Supreme Court that was at the heart of this case was a law that was passed during COVID. That's why it was passed, and Mississippi has kept it on the books. Like North Carolina just made its ballot yes only count if it's received by the close of polls on election day, which is appropriate. That makes sense. So this way, it's like if you don't get it in when everybody else has to vote, then you don't get any You don't get any special dispensation unless you are overseas military. That's it. That's the only carve out that you get. Okay, and I think that's fair. But you have other states that want to allow as much time as possible to harvest as many votes. That's where we are, so Republicans better learn how to play this game. All right, that'll do it for this episode. Thank you so much for listening. I could not do the show without your support and the support of the businesses that advertise on the podcast, so if you'd like, please support them too and tell them you heard it here. You can also become a patron at my Patreon page or go to dpetecleanershow dot com. Again, thank you so much for listening, and don't break anything while I'm gone.