So About That Recent Supreme Court Presidential Immunity Decision... - Ep. 54
Download MP3Welcome to litigation nation. I'm your host, Jack Sanker, along with my co host and Eso Watkins. This is the show where we round up some of the most important and interesting legal news of the past couple of weeks. It's a reminder you could find us on Apple Podcasts, Spotify, YouTube, or wherever you get your podcasts. Danessa, what do we have up today?
Danessa Watkins:Well, perhaps against my better judgment, I am taking on the tall task of summarizing the 119 pages compromising the opinion, concurrences, and dissents in the Trump versus United States ruling, which was just published by the Supreme Court on July 1, 2024, and deals with the issues of presidential immunity in criminal cases.
Jack Sanker:And I'm gonna be covering an interesting petition for certiorari, to the Supreme Court out of Ohio on the question of whether the Occupational Safety and Health Act is itself an unconstitutional delegation of power. This ties in with the recent Chevron decisions and is a a good point of discussion for us here on the show. All that and more, here's what you need to know.
Danessa Watkins:Okay. So we just had this monumental ruling come down in, Trump versus United States. And I have to say a few months ago when Jack and I sat down and started discussing me coming on the podcast and what we wanted to cover, we expressly said we were not going to be another, you know, SCOTUS blog, and let's leave that to, you know, the DC people. But this court has just come down with, you know, monumentally changing just crazy decision after decision. So it's so hard to, like, turn away from it.
Danessa Watkins:And especially this one with the issue of whether a president or former president can be immune from criminal acts. I mean, there's just been an uproar on social media. I mean, there people are just picking parts of the opinion out and sensationalizing it. And so I thought it might be good to just kinda walk through it, give a summary of what I understand to be the the findings and then the dissents and, just what it means going forward and, you know, what is the reaction from legal community scholars, some of the former lawyers of presidents who maybe now would have been immune, for for criminal acts. So, let's dive in.
Danessa Watkins:Alright. So back in August of 2023, former president Donald Trump was indicted by a federal grand jury in DC regarding his alleged efforts to overturn the results of the 2020 presidential election. So in the 45 page indictment, it details allegations that after losing the election, Trump conspired to overturn it by spreading knowingly false claims of election fraud, tried to obstruct the collection and counting and certifying of the election results. And then all of this culminated in the events that occurred on January 6th. So in that case at the trial court level, Trump moved to dismiss all of the indictment saying that he had absolute immunity from criminal prosecution for the alleged actions he took, which would fall within the core of his official duties as president.
Danessa Watkins:The district court denied the motion and held that former presidents do not possess federal criminal immunity for any acts committed while in office. Now at this point, it's worth noting that in a regular criminal case, this matter would have moved forward to trial, and only after a criminal conviction would that defendant be able to appeal the court's refusal of the motion to dismiss. But in this case, the court granted an interlocutory appeal. So that means before before the case proceeded to trial, they stopped everything and said, let's send this one issue up on appeal, before we move forward. And it makes sense.
Danessa Watkins:I mean, it's, you know, if if he's immune, that's the end of the case. So, so they did grant the the appeal. I believe the prosecutor pushed for it to go straight to the Supreme Court because, he didn't wanna delay things. But that was denied, and it did go to the DC Circuit Court of Appeals first. At that level, they affirm the decision of the lower court concluding that, quote, the separation of powers doctrine as founded in Marbury and its progeny necessarily permits the judiciary to oversee the federal criminal prosecution of a former president for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the congress's laws, end quote.
Danessa Watkins:Now both of those courts, though, declined to decide whether the alleged actions that Trump engaged in actually involved official acts of the presidency. They just said, point blank, there is no immunity. So the Supreme Court granted certiorari, and it's it considered the following question. Whether and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office? So I just wanna start with a quick explanation that actually, justice Jackson provided in her dissent, and that's just what immunity is.
Danessa Watkins:So just to be clear, it's an exemption from duties and liabilities imposed by law. So it's not a defense. It's it's saying that the law does not apply to you at all to begin with. So conferring immunity on someone essentially creates a privileged class that would be free from liability for wrongs inflicted or injuries threatened. So it it is a very, I don't know, specialized, I guess, thing.
Danessa Watkins:We don't see it much in in law because it's essentially saying, even though this this would otherwise be a, you know, a violation of our laws, we're not even gonna consider you as as being liable. So our majority opinion here was written by chief justice Roberts. The court ultimately came down 6 to 3.
Jack Sanker:Wait. What which 6 which 3? Just curious.
Danessa Watkins:Oh my gosh. I was like, do I really need 6? Well, for anyone who wouldn't know, the 3 dissenters were Sotomayor, Jackson, and, Kagan, which should come as no surprise. Mhmm. But and I will get into this.
Danessa Watkins:Interestingly, Amy Cohn Barrett did author she, I think she only did yeah. She only dissented to one part of of the majority's opinion, but I do appreciate that she takes the time to to set those sort of things out. Like, she doesn't just, you know, join the majority. She she explains why maybe the court went a little too far in its ruling. So I did appreciate that, and we'll get into it.
Danessa Watkins:But, so yes. The finding was, kind of in 3 parts. A president or former president is absolutely immune from criminal prosecutions for actions taken within his conclusive and preclusive constitutional authority. So that's part 1. The second is kind of expanding outward from his core.
Danessa Watkins:So other acts that he takes within his presidential responsibilities. So this could be, for example, you know, the president does have powers, but he maybe shares those with Congress. So things like that. He will be entitled to at least a presumptive immunity from criminal prosecution. So there is the opportunity for the government to try to overcome that immunity by showing, you know, I don't he went beyond the bounds essentially or what what how the president acted was not actually within, you know, the four corners of his, responsibilities.
Danessa Watkins:And then 3rd, if the criminal conduct at issue comprises unofficial acts, then there is no immunity. So I will say this opinion is dense. As much as I would invite anyone who has, you know, a free 2 hours to read through it, it is, it's a history lesson. All of the justices are literally relying on quotes taken as far back as Alexander Hamilton's Federalist Papers from 17/76, which makes sense. I mean, they're trying those papers were to try to explain and help laypeople interpret what was then the proposed constitution in an effort to get them to ratify the signing of of the constitution.
Danessa Watkins:So they're really looking back to what were the founders intending when it came to the separation of powers. Yeah. I know. You love that part. And, I mean, rightly so, this opinion also makes repeated references to decisions that were rendered in connection with president Nixon and the Watergate scandal as well as Yeah.
Danessa Watkins:As well as president Clinton. So, I mean, that's that is the press that is the only precedent they that the court really has to look at because this issue has never come up before. There has never in our history been where a president or former president is facing criminal conviction in connection with actions he took while in office. So this is uncharted territory. And I was telling Jack before we started this recording, you know, I'm reading this majority opinion and I'm like, okay.
Danessa Watkins:Yeah. That makes sense. I get it. It's a little bit vague. And then you get to the dissent, you're oh my gosh.
Danessa Watkins:I can see how this could go really bad depending on who's, you know, who's holding the office. So, let's dig into it a little bit. So throughout this opinion, justice Roberts definitely tries to impart the importance of we can't just focus on, essentially president Trump. And, you know, think about this in terms of him being in office or being a former president. We have to look forward and, consider more broadly what does the office of the presidency mean, How do we ensure that whoever holds that office is able to, fully engage in their duties and responsibilities?
Danessa Watkins:So one of the the major issues that the court is concerned about is that the president needs to be able to, act with the vigor and energy of the executive that is taken from The Federalist Papers number 70. So having this looming threat of trial, judgment, imprisonment, looming over them at all times during their presidency could change how they act. It could change their decision making. It could cause them to be more cautious, than they would otherwise. Now and I don't mean to jump ahead, but I I tend to agree more with the dissent in this position particularly because if you think about it, civil lawsuits can be filed by anyone at any time.
Danessa Watkins:So, certainly, protecting the president from a civil litigation while he's in office or at least delaying it, that to me makes sense because, it doesn't have the same checks and balances as a criminal prosecution. You know, in criminal cases, you have a grand jury. You're, you have a prosecutor who is supposed to be acting on behalf of the people. They can't just bring a, you know, a a fraudulent or a a claim that has no evidence behind it. You know, they are held to a higher standard than, I guess, a, I guess well, they are.
Danessa Watkins:They simply are held to a higher standard than a plaintiff's attorney. Sorry. Plaintiff's attorneys. Right. But it's true.
Danessa Watkins:Because you're, you know, you're acting on behalf of the people. And, and the effects of a finding against whoever the defendant is are that you could lose your your right to freedom. So, it's it's just a different standard. And so to me, the as a sitting president, the threat of a civil action seems way more prevalent than the threat of a criminal action. Not to mention, it seems a lot easier to stay within the bounds of criminal law versus, you know, a civil action can be brought for any reason.
Danessa Watkins:You're presenting Yeah. Yeah. You're presenting a nuisance. You're hurting someone's feelings. You defamed them.
Danessa Watkins:I mean, the it's just way broader, under the civil landscape than it is when it comes to criminal. But either way, that was one of the the major things that was really driven home in the majority's opinion. Now on and on about, you know, why they think that they why they I should say, Justice Roberts and the majority. Why? Those justices think that they have, the authority based on history to make this decision.
Danessa Watkins:But at the end of the day, again, this is, this is new territory. So the dissent really tears apart the way that they interpret history, which I'm sure Jack will appreciate, you know, saying that the justices aren't the the perfect historians that they think they are, and they cherry picked, you know, what they needed in order to get the results that they got. Now the court did get into the specific, indictment against president Trump in this case. I'm gonna go into those in more detail rather than the broader concepts because I think that's what's really interesting. It did make certain rulings that will kick out some of the counts, against Trump down at the trial level.
Danessa Watkins:Other counts have to go back to the trial court level for further investigation, essentially, and the court needs to be the gatekeeper as to whether there is evidence supporting immunity or not. So, actually, 2 of the indictments, I'm gonna deal with them together because they're they're similar. They involve Trump meeting with the acting attorney general and the, senior justice department officials to discuss investigating purported election fraud. And then when the attorney general resisted Trump's request, Trump repeatedly threatened to replace him. So the court found that investigation and prosecution of crimes is a quintessential executive function.
Danessa Watkins:So the authority to decide how to prioritize and how aggressively to pursue legal actions against defendants who violate the law is exclusively within, the president's authority. For that reason, their the absolute immunity would apply. The same is true with, the president's ability to appoint appoint and remove executive officers. So even though he threatened the attorney general, the attorney general essentially serves at his pleasure. So, his decisions on whether to remove that person, it's completely within his constitutional authority.
Danessa Watkins:And regard motives he may have had, the court said it would be improper to look at those motives. It's within his authority. It's absolute immunity. So back at the trial court level, those indictments will be stricken.
Jack Sanker:The actual ruling, the supreme court ruling is to is sending this back to the circuit court to determine whether, the specific acts are, quote, unquote, official acts
Danessa Watkins:or not. Right? Yes. And so certain of it because they said they didn't do that the at the district court level, they didn't actually brief those issues as thoroughly as they should have. Right.
Danessa Watkins:It's because that we didn't have a test for it yet. So, you know
Jack Sanker:Was was there any guidance offered in the opinion, which I didn't read? I'm sorry. But in the opinion is, to determine what is, you know, official, or not, or is that up to the sorry. Court to determine for itself?
Danessa Watkins:It's pretty loose. Let me just give you a couple more examples so you can kinda see how potentially loose it is. So, one of the indictments was that Trump attempted to enlist the vice president to use his ceremonial role at the January 6th certification proceeding to fraudulently alter the election results. So the court found that whenever the president and vice president discuss their official responsibilities, they engage in official conduct. So even though, the vice president really serves as the president of congress, that is that is his realm, The fact that he speaks to the president about things that are happening in Congress, that could directly affect the president and what it what he does in his duties and his responsibilities.
Danessa Watkins:So in that situation, the court found Trump is at least presumptively immune from prosecution, and then you know, you know, how how much would Trump's ability to do his job be affected by finding him liable for his conversations with the vice president. So it's it's loose. Trying to see some other examples here. Oh, a lot of his the rest of his indictment actually involved a bunch of different actions that essentially led up to, the January 6th interaction. But, I mean, even basic things like, tweeting out that people should come to the the White House, addressing the public, directing them to march to the capitol, and try to put pressure on the vice president regarding the certification proceeding.
Danessa Watkins:The court finds that the president possesses extraordinary power to speak to his fellow citizens and on their behalf. So it instructed the trial court to do an objective analysis of content form and context, and that will inform the inquiry. Again, just it it you know, it's just so loose. And I think, you know, depending everything's gonna come down to how it's framed. If
Jack Sanker:Well, yeah. Right. I mean, you know, there's the the stuff that's, like, in article 2, which is, like, ex explicit, you know, core vested powers of, like, the presidency, like, appointing people to, you know, agencies or, like, diplomatic, recognition or, like, the stuff that, like, you can pull up, you know, the constitution and read. That stuff is all going to be the broadest level of immunity. Right?
Jack Sanker:Mhmm. It's it's this other this other level here that we're sort of, we don't really know exactly what to do with. And what's, you know, what's interesting, and I and I've seen people kind of bickering about this online, is, you know, if the president if you're the president and you are genuinely of the belief that, an act of, you know, incredible, like, fraud and deception has occurred, and an election was stolen. You know? Mhmm.
Jack Sanker:And all the things that people said happened in 2020 happened, and you believe that. Right? What what what are now the limits of your quote, unquote official capacity, right, as the president? Like, if you believe that, then you can probably justify doing a whole bunch of stuff. You know?
Danessa Watkins:Well, and the crazy part, Jack, is that you don't even need men's right. Yeah. Doesn't come into it.
Jack Sanker:Sure. Yeah. Right.
Danessa Watkins:You know? So the prosecutor can't even probe into what was his intent or the court can't even consider that. It's just as a duty to ensure fairer election procedures. Okay. So what actions can he take within that?
Danessa Watkins:Well, I
Jack Sanker:mean right. That's that's the thing. That's that's the rub here because if if if it can just be the fig leaf of, you know, anything that I can call an an official act, because I can find the the pretext of one thing or another to to, you know, to put over it.
Danessa Watkins:Mhmm.
Jack Sanker:Then that's gonna justify everything. Right? And I Mhmm. Would like to think that the court understands that and and also that the circuit court will understand that, you know, on remand, but, I mean, we'll see.
Danessa Watkins:Yeah. It's I mean, when and when we go back to, you know, on remand, there's gonna be I I think that it's gonna be a couple months, you know, that they're gonna have to do more investigating. I'm sure there's gonna be more briefing. It just seems like especially I mean, the indictment itself is already 45 pages long. There's a lot of information in there.
Danessa Watkins:The fact that there's not enough for a judge to make a decision on, you know, whether the president acted within his the scope of his authority and functions. I mean, it almost seems like the court now needs to presume that all of the actions he took were immune, so it's actually on the prosecutor to show that allowing this criminal trial to go forward will not, I guess, improperly intrude on the authority and the functions of the executive branch. Mhmm. That's that kinda seems like that's that's the, the bar that has to be passed.
Jack Sanker:Right. It's the, whether the prosecution could demonstrate there's no dangers of intrusion on the authority. Yeah.
Danessa Watkins:Right. Right. Which I mean, I I don't know. I I guess I don't understand how he's gonna do that, but, we'll see.
Jack Sanker:So there there's some again, there's a really interesting, you know, kind of looking at the fallout from this. It it like, the the famous, like, Saturday night massacre that, Nixon was, you know, maligned for and everything during the the fallout from Watergate. You know, that is an example of, Nixon basically, threatening to to fire a bunch of folks or or firing people who don't wanna play ball and do things the way he wants to do things. That, at least according to this opinion, would be, would be legal. And I think at the time, I don't think there were ever was a ruling on it, but I think at the time what was legal because that's the the president's ability to, via article 2, to fire to hire and fire folks within the executive agencies.
Jack Sanker:You know, he the he or she has, you know, absolute authority to do so, you know, for for for whatever reason. There's no, like, for cause requirement in that scenario. So when Trump, for example, is, like, threatening to fire people from the DOJ who, you know, don't want to investigate, election fraud or whatever, if I looking at the opinion, it looks like that would be absolute immunity in that scenario. Right?
Danessa Watkins:Yeah. Absolutely. So there actually was a a finding that in Nixon. So it was Nixon versus Fitzgerald. He was Yes.
Danessa Watkins:Fitzgerald was a an Air Force employee, and I think soon after Nixon took office, he fired him, saying that it was, you know, restructuring or reorganization. But Fitzgerald said it was actually because of testimony he gave before congress that Nixon didn't like. So he did bring a civil lawsuit against him, and the court found that the president had absolute immunity, because, like you said, that was within, you know, the core of the executive's authority.
Jack Sanker:Like, even if they're and I I I didn't read it. So but even if the finding was that Nixon was fired this individual because he testified before congress, that's still protected. Like, that's the extent of immunity that they get.
Danessa Watkins:Right.
Jack Sanker:Yeah.
Danessa Watkins:Be because the court said if you start looking into the reasoning behind things, well, then all's if you allow that inquiry, and this is where there's a difference between immunity and a defense. So if you are gonna allow a defense, that means that the court will consider, alright, what was Nixon really thinking at the time? But the court said, no. We're not even getting to that. We don't care what he was thinking.
Danessa Watkins:We don't care what his motives were. He had absolute authority to hire and fire. He is immune from any civil litigation as a result of his exercise of those those privileges.
Jack Sanker:Right.
Danessa Watkins:So that's that is now, the court is applying that absolute to, criminal claims when the president is acting, within his exclusive authority, and it has to be exclusive under the constitution. So, like I said, there are, you know, there's a lot of overlap where, the president shares, certain powers with Congress. Those it's presumptive immunity. It can be overcome. So those cases can be brought, and, there will still be, I'm sure, you know, motions to dismiss, but they're at least not gonna get kicked out in the first instance.
Danessa Watkins:Yeah. There are there's gonna be, you know, some discovery on those. But, yeah, putting, I don't know, absolute immunity on without I guess, the the scary part for me is is that I understand why within the, you know, the Nixon firing. I understand why the court explains, you know, we're not gonna look into what was what was his intent, but it gets a little scarier when you're dealing with criminal actions. Yeah.
Jack Sanker:Yeah. Right. I mean, I I understand that too. I think I think what the court is saying is that the whether civil or criminal prosecution of either could be politically motivated. Therefore, it would impinge on the rights of, you know, and and of the executive and, like, civil or criminal, like, you know, being sued for money damages, it can be worse depending on what they are than being prosecuted for a low level felony or misdemeanor.
Jack Sanker:Mhmm. So, you know, I I I I get that to some extent.
Danessa Watkins:So going back to the opinion for a minute, and this is going to justice Amy Cohen Barrett's concurrence in part. Well, the part where she differed, is that and here's, actually, she gives a really good analogy to explain why she differs on this, so I'll explain. Actually, I'll probably quote that verbatim. But it's essentially that the majority ruled that once a president's conduct is deemed absolutely immune or even if if the prosecutor is not able to overcome that hurdle. So, essentially, anytime there's a finding of immunity, whatever act is deemed immune cannot serve as evidence in in a criminal prosecution against the the president for actions that maybe he took beyond his executive privilege.
Danessa Watkins:To put a finer point on it, justice Barrett gives this example. So consider a federal bribery statute that would forbid any public official to seek or accept a thing of value for or because of an official act. The constitution, of course, does not authorize a president to seek or accept bribes, so the government may prosecute him if he does so. Yet excluding from trial, any mention of the official acts connected to the bribe would hamstring the prosecution. So to make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo standing alone could not be a basis for the president's criminal liability.
Danessa Watkins:And her, I mean, her objections to that is is pretty obvious. You know, the court is concerned about allowing evidence of official acts for which the president cannot be criminally liable for, to be heard by the jury because it could prejudice the jury. But we have rules of evidence to handle that. So, you know, a a trial court can explain this is why you can consider this evidence and you can't consider it for this purpose. You know, there's just ways to to deal with those things.
Danessa Watkins:It happens every day in criminal court.
Jack Sanker:Yeah. I mean, right. What's interesting is, we do we do handle those every day, and then a lot of people anyone who tries cases will say, okay. Well, those instructions are worthless. You know, once the jury's heard it, they've heard it.
Jack Sanker:And there's you know, to some extent, that's true, but that's what we do for everyone else. So, like, why why why are we making a new rule that's, only applicable in this case?
Danessa Watkins:Well and think about it in in terms of this case. You know, they found certain acts that he took are absolutely immune, so his discussions with the attorney general. Now let's say also his discussions with, vice president Pence. He ends up getting immunity for those. So how are you going to explain the series of events leading up to maybe a charge that's allowed to go through, like him directing the crowd to storm the Capitol because Pence wouldn't, you know, do the recount or or send the the ballots back.
Danessa Watkins:Like, how do you even get to that point without explaining everything, you know, leading up to that? You can't give those facts to the jury. It just, I don't know. It it seems like the that really is hamstringing the ability to to bring any criminal action if it's, you know, based on other criminal acts that that the president's immune from. Mhmm.
Danessa Watkins:So I thought that was a that was an interesting descent, and and I thought she brought up a a good point there. Now and I don't want to belabor this too much, but the descent is kind of amazing. I mean, Justice Sotomayor does not hold any punches. I I think, Jack, you and I had talked about this before. Just the way that she wrote this, I mean, she is citing Dobbs to Right.
Danessa Watkins:Get get back at the majority. She says this official acts immunity has, quote, no firm grounding in constitutional text, history, or precedent, end quote, quoting to the Dobbs majority opinion. Because it is true. I mean, this this issue has never been before the court. So it's not like they can ground themselves in anything, yet they're attempting to.
Danessa Watkins:The majority makes selective sites to history. Hamilton made clear, however, that the president would be distinct from the King of England and would be held personally responsible as opposed to untouchable. So, essentially, the majority is relying on Hamilton yet completely ignoring that he he made clear we're gonna hold our presidents accountable.
Jack Sanker:Mhmm. I as an aside on Amy Cummingbird's ruling and or discussion of admissibility and all that stuff. Quick aside, I I do have to point out, never a trial judge. I she was never a trial judge, and I and in fact, I I don't believe that she has any trial experience. Although, if I'm wrong about that, we'll edit something in here.
Jack Sanker:But she was on the,
Danessa Watkins:so Right?
Jack Sanker:Yeah. It's 3 years in the court of appeals and then, right to the supreme court. So, you know, this whole what's admissible, what isn't thing is a is a bit that is a a bigger can of worms than I think this opinion even gives credence to because it it there's not admissible, then there's not admissible for certain purposes, like, to what you mentioned. And and just I don't know. The way that it's kind of written out of this opinion, is only the way that someone would write it if they did not have a lot of trial experience.
Jack Sanker:Put it that way.
Danessa Watkins:That's an interesting point. Yep. True. Yeah. 2 other interesting points raised by justice Sotomayor.
Danessa Watkins:And not that this is conclusive, but as a litigator, this was intriguing to me. She quoted Trump's own lawyers, during his 2nd impeachment trial, and the statements that they made to senators, let's see, saying that Trump Trump's conduct related to January 6th, if, essentially, if the senators decline to impeach him, it would not leave him, quote, in any way above the law, end quote. The lawyers insisted that a former president, quote, is like any other citizen and can be tried in a court of law, end quote. Quote, no former office holder is immune. If my colleagues on this side of the chamber actually think that president Trump committed a criminal offense after he is out of office, you go and arrest him, end quote.
Danessa Watkins:So, I mean, these lawyers' statements, are definitely right here because, obviously, now they're, you know, backing off from all of that, and he's not being treated like any other citizen or at least, you know, that's that's what his attorneys are arguing now. But just, yeah, from a litigator standpoint, that's always interesting to see that because Mhmm. There are times in a case where you argue one thing, and then maybe later on, it's doesn't serve you so well or comes back to bite you. Mhmm. But the transcript is forever.
Danessa Watkins:So, another interesting thing she brought up was the Watergate tapes. So Yeah. So she says after the Watergate tapes revealed president Nixon's misuse of official power to obstruct the FBI's investigation of the Watergate burglary, president Ford pardoned Nixon. So both Ford's pardon and Nixon's acceptance of the pardon necessarily rested on the understanding that the former president faced potential criminal liability, or else, you know, why would they have done that, which I thought was an interesting point too. So even though we can't even though we don't have any lawsuits that we can point to, we can point to the actions of, you know, different players throughout history to show that it was always the understanding that a president could be held criminally liable.
Danessa Watkins:That's the argument she's trying to make.
Jack Sanker:Yeah. I mean, it you know, there is some you know, when we say, like, unprecedented that unprecedented, that's a word that gets thrown out a lot. I mean, this is like a new a new thing and is not you know, we don't have experience dealing with this. And, I mean, the issue is so when you're deciding from the justice's perspectives, deciding this case, it it's like you're deciding this case itself, and then you are trying to decide every other case that could come after it and making sure that the way that you decided this one is not going to, you know, blow up in your face, you know, 10, 20, or a 100 years from now. Right?
Danessa Watkins:Mhmm.
Jack Sanker:Mhmm. So, you know, it is it is tough to be in this position. I and I and I understand there's slippery slope argument, which kind of underlies all of this, which is if the president doesn't have absolute immunity on certain things and the president is gonna be, like, gun shy to act. And, you know, this goes back to what I was saying earlier. What if there what if there actually was a scenario where some massive election fraud happened?
Jack Sanker:And, like, let's let's, you know, assume for a moment that all of those horrible things that people that, you know, whatever. Like, what if that actually happened? Right? What if it really happened? Then the the president should be justified and I would say ought to be able to I don't know.
Jack Sanker:Whatever you do in that scenario. Like, do you deploy the National Guard? Like, do you you know what I mean? Like, what do you do? Right?
Jack Sanker:And so I I I, you know, I get that. I I do I do like that ability preserving that ability for the president to act without fear of, like, retribution down the road. That seems to be the, like, the slippery slope that that the, all of the concurring justices are, you know, are are worried about here. And and I do think it's, like, worthwhile to to keep that in mind even though, like, maybe you don't we don't like the outcome here, or, you know, if you don't like the outcome here or whatever. I I just, I I think that we're gonna be right back where we started pretty soon getting into this official acts question.
Jack Sanker:And I and especially the lack of kind of guidance on that. And, you know, I I don't know what the how the court's gonna handle that in particular.
Danessa Watkins:Yeah. That that part too is is gonna be difficult, and, you know, the the court didn't really provide too much guidance. It it, like, justice Roberts tried to, I guess, explain how certain acts that Trump took should have a presumption of immunity. Like, so he kinda provided that framework, but then didn't totally explain definitely, I don't think gave any guidance to the prosecutor about how to overcome it.
Jack Sanker:Yeah. There's, like, a rebuttable presumption that can be overcome, but, like, I'd I if I at least when I skimmed it, didn't see exactly how. Right. Without without really getting into the, the kind of mens rea aspect of this, which I don't think they're allowed to.
Danessa Watkins:Well, yeah. Especially when you can't get into that, then you're
Jack Sanker:Like, it right. Because everything I mean, that's what Nixon said. Well, if the president did it, it's not illegal.
Danessa Watkins:You know? That's Right. That's Yeah.
Jack Sanker:It's a and it's
Danessa Watkins:like same idea. Yeah.
Jack Sanker:Yeah. I mean, hey. Nixon, vindicated.
Danessa Watkins:He's Yes.
Jack Sanker:He's yeah. Bring him back.
Danessa Watkins:That's it. Well, go ahead.
Jack Sanker:Yeah. No. So I just I I I understand that idea, and I do understand. I remember, like, the Bill Clinton case, which was like it was just like a big a huge portion of my con law class for whatever reason in law school was on the the, the Clinton case. And and we these these three different buckets, the, official acts, the kind of gray area in between, and then the strictly private acts and all that stuff is I mean, this isn't out of the blue.
Jack Sanker:You know, this is this is the standard has existed before and was applied to Bill Clinton, in the nineties and everything else. You know? But, right, if it's very interesting because I do think that if a case like this were to have happened in the nineties or or before, I think that the court and I can't remember which case it was. It's really bothering me now. But they drew a distinction between, like, campaign acts and, like, official acts as president.
Jack Sanker:And, you know, in acts campaign acts on on are not you know, if you're acting as as a person who's running for the United States and you're acting your capacity as a camp as a a candidate for president, like, you know, what you don't have, same privileges and immunities as you do if you're acting as the president. So, you know, you're giving a rally for yourself to be reelected. It's different rules apply in that scenario than if you're giving the state of the union. It seems like here, they're they're kind of bulldozing that distinction as well, because or at least they're not they're avoiding it, because I you know, it's the there's, like, proponents of kind of what happened, around some of these things around, like, January 6th and whatever will say that they, that that this was an and, you know, these acts were official and that they were, you know, like, Trump trying to protect the election or whatever you wanna call it. I think you'd also look at it and say he was acting as a candidate, though.
Jack Sanker:He was saying, like, I I I should have won. I actually did want win. Like, I'm go I'm continuing my campaign. For those of you who support me, you should show up and and, you know, do this rally or whatever. And I I haven't seen any discussion of that either, which is I don't know.
Jack Sanker:It it it seems to me to blur the line more between candidate and the actual office of the executive, and I would have liked to have seen, the justice spend some time on that.
Danessa Watkins:Yeah. And, actually, I just pulled up the opinion again because I do remember reading something about that, but it they didn't cite to that case. It doesn't look like, the the government, though, did argue that his conduct didn't qualify as official conduct but as campaign conduct.
Jack Sanker:Yeah. Yeah. Yeah.
Danessa Watkins:So that's so they did try to draw that distinction. They don't cite a case for it. But but that brings up another issue of okay. So he was a sitting president. So his so because at the time he was running I mean, I think the government is trying to make that just like let's not just give him, a, you know, immunity because he was a sitting president.
Danessa Watkins:He was an incumbent is what I'm trying to say, as opposed to, you know, how his his campaign conduct should not be treated differently than somebody who is not an incumbent.
Jack Sanker:Yeah.
Danessa Watkins:Like, we should, yeah, actually look at what we're again, but then it goes to intent. I was gonna say, what were the purpose of his actions? But,
Jack Sanker:Yeah. I mean, actually, here's the here's the part I was thinking
Danessa Watkins:of here, and I'll I'll read it from the opinions on page 26.
Jack Sanker:This is, quote, government disagreed contending that this alleged conduct does not qualify as official conduct, that is is campaign conduct. And then it says, on Trump's view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity of the proper administration of federal elections. And, after that, the word campaign does not appear in the opinion, so I don't think the court addresses that.
Danessa Watkins:No. No. It doesn't. It definitely skirts over it.
Jack Sanker:So I guess that's for the circuit court to decide.
Danessa Watkins:It seems that way. Yeah. I'm really interested to see how this plays out. I I do not, envy who is it? District Court Judge Tanya Chutkin?
Danessa Watkins:Yep. So she is the one, that will be presiding over this. So just to be clear of how this all wrapped up, so certain certain charges were kicked out. The other ones are being remanded back down to the district court level. The judge is going to have to, I'm sure, have the parties submit more briefing or hearing or something to that effect because now, effectively, this judge is the gatekeeper.
Danessa Watkins:Right. So this ruling definitely makes clear that in the first instance, the judge needs to decide whether immunity applies or it doesn't. Yeah. The, like, the the court doesn't want that issue to go to the jury. The court doesn't wanna delay that issue for appeal.
Danessa Watkins:When it comes to the president, it all those issues need to be decided up front. Mhmm. Is it? So it doesn't seem likely that this case will go if if any of these charges are found to to be able to move forward, that immunity will not apply. It doesn't seem like trial will happen before our election.
Danessa Watkins:I think there's probably gonna be a couple months of investigation and hearings on this issue, and then it looks like the judge had already told Trump's legal team that she would give them approximately 90 days to prepare for trial. I just think that time is gonna get eaten up pretty quickly. So
Jack Sanker:Yeah. And I saw, already the the, and the other, you know, Trump cases and stuff, which we don't need to get into, but their their lawyers are already seizing this opinion and and using it. I wanna say it was the, I wanna say it was the
Danessa Watkins:Well, the New York one that we covered, his where he was just, convicted of the 34 counts. Yeah. So this this sentencing was supposed to be, I think, July 15th or right around right around mid July, and they just pushed it back to September to, I guess, allow for arguments to be made, you know, regarding this ruling that just came out. I though and I haven't looked into this history, so this is totally off the cuff. But Mhmm.
Danessa Watkins:My understanding was all of those charges or convictions were regarding Trump's activity before he was elected president. So I'm not sure how this opinion will affect that because this has to do with, obviously, the execution of powers under the, you know, under the executive branch.
Jack Sanker:Also, I don't know that this opinion is retroactive. It's another thing.
Danessa Watkins:Oh, yeah. Sure. That too.
Jack Sanker:It's conviction in state court. I don't know that, you know, an opinion 2 months later from supreme court gets to undo it or not.
Danessa Watkins:Mhmm.
Jack Sanker:But the, like, the federal, like, documents case, like the Mar a Lago, bankers boxes in the bathroom case, you know, that I think that's an a a pretty obvious, application of this. You know, it'll say he took the documents for official purposes. Yep. Yeah. You know you know, like, that's or whatever.
Jack Sanker:Sure. Right?
Danessa Watkins:For sure.
Jack Sanker:And which is also you know, it'll be very interesting because, he can only be acting in his official capacity of president if he is still the actual president and which would require the Supreme Court to rule on whether or not he was president in February, March, and April of 20 and and really the year after.
Danessa Watkins:Oh, interesting.
Jack Sanker:So the supreme court's gonna have to decide whether he won the election or not is what it what it boils down to. So I don't know. I they'll probably kick that one. They probably they probably
Danessa Watkins:won't kick. Yeah.
Jack Sanker:Yeah. Okay. Interesting.
Danessa Watkins:Okay. I just because I I just think that the her writing is is impressive, and I it is doomsday, but, Justice Sotomayor, I think she just, you know, takes the gravity of the majority's decision, to heart in a way that it is chilling and it is scary, but it's you know, she sees the potential for for what this this ruling could do. So I just wanted to quote this this last part of her dissent. The president of the United States is the most powerful person in the country and possibly the world. When he uses his official powers in any way under the majority's reasoning, he will now be insulated from criminal prosecution.
Danessa Watkins:Orders the Navy Seal Team 6 to assassinate a political rival, immune. Organizes a military coup to hold on to power, immune. Takes a bribe in exchange for a pardon? Immune. Immune.
Danessa Watkins:Immune. Let the president violate the law. Let him exploit the trappings of his office for personal gain. Let him use his official power for for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be.
Danessa Watkins:That is the majority's messaging today. Never in the history of our republic has a president had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide by will not provide a backstop. With fear for our democracy, I dissent.
Jack Sanker:Yeah. That that jumped out to me because, like, I remember very vividly, the, I think justified, objections to a specific event during the Obama administration, which was an Obama president Obama, authorized a drone strike on a US citizen, who was designated as an enemy combatant.
Danessa Watkins:Mhmm.
Jack Sanker:And there was a whole a whole it was a whole ordeal. It was a whole political, cycle of whether the president could do that. I don't remember the guy's name, unfortunately. But it was American citizen who I think was with or was affiliated with the Taliban and and president Obama, authorized a drone strike, which killed him. And that was like there was a time where, there were a lot of people that were saying, well, this is a criminal act.
Jack Sanker:This is outside the scope of, you know, what the president can do. And I know it doesn't help to, like, both sides or, like, you know, to call someone a hypocrite. Everyone's a hypocrite. Don't get me wrong. But, like, I remember that very vividly where there was, like, opposition to that.
Jack Sanker:Like, this this person is a US citizen. Therefore, they're entitled to due process rights. Therefore, you know, summary execution
Danessa Watkins:via drone is illegal, and therefore, Obama, you
Jack Sanker:know, should be, via drone is illegal, and therefore, Obama, you know, should be charged or whatever. Well, I mean, this would retroactively clear him that, you know, discharging the powers of the presidency to, you know, order a strike on a on a the enemy combatant or whatever. He's, like, probably in a fit a quote, unquote, official act. You know? So there's not gonna be civil or criminal liability for that anytime soon, Barack.
Jack Sanker:You you know, not not that anybody was worried. But I guess my point is, like, this however you, like, however you slice it, like, the way that we understood, immunity as evidenced by even people that wanted to, like, go after the last Democratic president, you know, before Joe Biden. Like, there it has expanded. You know? Yeah.
Jack Sanker:No one, not even I don't think Barack Obama and his proponents were saying, I'm immune from this. There was other justifications for it.
Danessa Watkins:Yeah.
Jack Sanker:You know, the the but no one was saying, you can't come after me for this. I'm president. I'm immune from criminal acts committed in this official capacity. So, you know, that's the this is an expansion of that rule. People will just say it's a clarification and that this rule has already existed.
Jack Sanker:Maybe that's the case, but it certainly has never been pushed up to the limit like this where we've had someone draw a line, and now we have that line. And I think that the line is a little further than we all probably expected. And,
Danessa Watkins:Yeah.
Jack Sanker:You know? And that's just it it is what it is. I I understand.
Danessa Watkins:Well, I think it goes back to sorry to cut you off. Do I catch your thought? I I think this court has just as we've seen, decision after decision after decision is really honing in on separation of powers. And I think it would have been, I don't know, potentially easy or, you know, splitting the baby to say that, yes, the, the president's actions taken in his official capacity, you know, pursuant to his authority are presumptively immune, period, and leave it at that. Yes.
Danessa Watkins:But they separated that first part based on, the separation of powers, saying there are certain powers that are exclusive to the executive branch. The founders never intended for congress to have any oversight in that, never intended for the judiciary to be able to make any rulings based on that. So that is
Jack Sanker:Don't even don't even get me started
Danessa Watkins:on this issue. But that is but that is, you know, what they're saying that if it is exclusive to the executive branch, period. That's it. He's immune.
Jack Sanker:Right. Yeah. I mean, you know, we'll get there one of these days. I'm gonna, my I'm a try to convert you to, to being Marbury pilled, or I supreme court does not have the right of judicial review. That is the biggest, separation of powers, seize seizing of powers by the judicial branch in our history, but, you know, that's a separate issue.
Danessa Watkins:Yep. Gosh. Another fun one. Yeah. Fun's scary.
Danessa Watkins:I say fun loosely. Fun in that. We just spent 45 minutes discussing it. But, Yeah. There's definitely more to be seen, though.
Danessa Watkins:I mean, this is how this plays out will, you know, will become more clear over the next couple months. But,
Jack Sanker:I mean, I think what we're gonna get out of this, one way or the other, is we will get a set of rules, by which because we didn't know. We we did not know expressly what the rules were when it came came to either suing or prosecuting presidents for for certain things they did while in office. Like, we had some idea from the Clinton cases in the nineties, and we had some idea from, you know, Nixon in the seventies. But this will this this will result in a number of new rules on how that works, and then every president going forward will, you know, will have those rules and the benefit of those when making decisions one way or the other. And that's either gonna help or hurt us long term.
Jack Sanker:I would say that and, you know, it's just that that's just that's the trade off here. And, we'll we'll have to see. That's you know, I I think kind of the veiled threat of maybe getting prosecuted for criminal acts while in office, like, even if it wasn't clearly articulated, probably kept some presidents sometime along the last 250 years in line. You know? They would like, this idea of, oh, boy.
Jack Sanker:I I wanna do this, but I I worry that I might get thrown in jail after I'm done here. So I better not. I'm willing to bet that that's happened more than once to a sitting president where they've been like, okay. Never mind. And now that's kind of off.
Jack Sanker:And maybe that's off the table now. So, like, you know, maybe we're gonna get some crazy decision making from the executive. You know? I don't know.
Danessa Watkins:But Right. Well or even just the understanding that you're gonna leave office at some point, and, you know, your opposing party may be the one filling your spot. So, you know, don't I don't know. Don't take action that's could come back at you someday, sort of thing. You know, that probably kept people in line too.
Jack Sanker:So I'm gonna be covering actually the denial of a petition for certiorari to the Supreme Court, which is in itself not really newsworthy and not usually wouldn't be something that we cover, but this one jumped out because it's in an area of law that I practice and kinda specialize in, which is, OSHA. And, so it was on my radar for that reasons, but, also, it's kinda speaks broadly to more of the constitutional issues that we're seeing regarding, the administrative state delegation of powers from congress to to executive agencies and so on. So this is the, Allstate's refractory contractors versus Julie Su. Julie Su is the acting secretary of labor, then the de facto head of OSHA right now. And the petitioners here were an Ohio based contractor.
Jack Sanker:They're challenging the constitutional authority of OSHA, which is kinda similar to what we've seen discussed in the recent, rulings on Chevron deference and even some cases going back to 2019, which we'll talk about here. This specific court, does seem to have the administrative state in their sites and and and looks to be taking on these types of cases. So this is kind of something to keep your eye on here, and I think this case is an interesting illustration of that. So 7 of the justices here declined to grant certiorari. Justice Gorsuch and justice Thomas dissented, and justice Thomas actually drafted a dissenting opinion short.
Jack Sanker:It's only 3 pages, but it is worth noting. And justice Thomas points out that the occupational hate and health and safety act was, granted legislative power to promulgate rules to enforce, any rules that it, quote, deems reasonably necessary or appropriate to OSHA. And what he's gearing up for and what the general complaint from the conservative justices is that congress cannot delegate rulemaking authority to an executive agency. The rulemaking authority, legislative authority of United States government is vested entirely with congress, etcetera, etcetera. He doesn't initially take that outright hard line and say that congress cannot delegate this kind of authority, but but he ends up pretty close to it in effect.
Jack Sanker:And I'll I'll quote from his short opinion here. Quote, under our precedents, a delegation of authority is constitutional so long as relevant statute set out an intelligible principle to guide the agency's exercise of authority. The Court of Appeals of the 6th Circuit upheld the delegation of authority to the Occupational Safety and Health Administration under this intelligible principle test over, and this was a dissent, that occurred in the 6th circuit, overjudged Nalbanian's dissent. And justice Thomas continues here, quote, I continue to adhere to my view that the intelligible principle test does not adequately reinforce the constitution's allocation of legislative power. And here he actually cites to a Gorsuch dissent in the Gundy versus United States case from 2019.
Jack Sanker:And in that case, Gorsuch says, the intelligible principle test has no basis in the original meaning of the constitution in history or even in our precedents. Thomas continues here, quote, this case exemplifies the problem. Congress purported to empower an administrative agency to impose whatever workplace safety standards it deems appropriate. That power extends to virtually every business in the United States. This agency claims authority to regulate everything from a lawnmower's design to the level of contact between trainers and whales at SeaWorld, unquote.
Jack Sanker:So he later goes on to say that OSHA might be the broadest delegation of power to administrative agency found in the US code, and he kind of, ends here with, a quote again, quote, if this far reaching grant of authority does not impermissibly confer legislative power on an agency, it's hard to imagine what would. It would be no less objectionable if Congress gave the Internal Revenue Service authority to impose any tax on on a particular person that it deems appropriate, and I doubt any jurors would sustain such a delegation, unquote. Now the reason I'm talking about this, and this is it's become a bit of a theme on the show, is this, reexamination of the Supreme Court's tendency to delve into this kind of historical analysis of, you know, basing their decisions on, well, this is our history. This is our tradition. This is how the US has always done things based on, you know, what I think is the justice sitting here today.
Jack Sanker:And therefore, I'm gonna decide it the law in accordance with those that history and tradition. I have voiced objection to that and how that happens in in the way in which the Supreme Court kind of does that analysis before in a couple of episodes here in the show, and I'm kind of going back to the well on that today. If only because I just again, I don't think that this is correct technically or factually. As an aside, the first executive agency that was established in US history was actually as early as 17/89, of course, and this is the state department. That's an executive agency, but it's only executing executive powers.
Jack Sanker:It's held by the executive branch. It's not exactly what we're talking about, but it goes to show that the administrative state as it were, was contemplated and immediately put into effect the moment that the constitution was ratified. Right? I'm really gonna just nitpick here on Thomas's quotation of the Gorsuch opinion, which is to the effect that there's no history of upholding this kind of delegation of congressional power to the executive branch because, frankly, yes, there is. And, of course, it's even when you read his opinion that Thomas is relying on here, he acknowledges as much.
Jack Sanker:So So the question I'm kinda discussing here is just whether there is a history and tradition, in our country or in our supreme court president, of this type of delegation from congress to the executive for rulemaking purposes. And I just think that justice Thomas is wrong when he says that there isn't. The biggest example and the kind of earliest example that I could find with the little bit of research I was able to do here is the JW Hampton Junior and Company case, versus the United States. This is from 1928, and this is where the the quote, unquote, intelligible principle test comes from. Here's the portion of that opinion which really underlies a lot of what administrative law, as we understand it today is.
Jack Sanker:Quote, congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates, and this is a tax case, by the way. The fix such rates is directed to conform to such legislative action is not forbidden not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, this this gets into taxing and tariffs and things like that. It may authorize the chief executive to carry out this purpose with the advisory assistance of a tariff commission appointed under congressional authority. So that's the JW Hampton case 1928.
Jack Sanker:And in that case, the Supreme Court is express expressly saying congress can delegate rulemaking and enforcement authority to an executive agency so long as they're an intelligible principle, to which that rulemaking body is going to act under. That's in accordance with this congressional authority. Right? Since then, that case has been cited up and down, through all the federal circuits and, of course, the Supreme Court to justify empowering congressional agencies and executive agencies rather with carrying out acts of congress and making rules themselves that will be enforced by themselves. So think of, like, the EBA.
Jack Sanker:OSHA is a great example, things like that. In this opinion, by the way, since we're going to be since we're kinda talking about, you know, history and tradition here, it's worth noting that this opinion from 1928 was authored by justice, Taft. He's in, like, William Howard Taft who was the 27th president, and who was kind of famous in his day for actually pushing back against the expansion of executive power, and back against specifically Teddy Roosevelt, who was kind of all about the expansion of executive power in his time, before he ultimately got stabbed in the back by Teddy Roosevelt in the election of 1912. Teddy Roosevelt kinda Ross Perot Taft, and he ran as a third party candidate and handed the election to Woodrow Wilson. But I digress.
Jack Sanker:The point is here that Thomas and Gortje say this stuff is all outside of our history and tradition, yet there's an example of a particularly anti expansionist justice in Taft, someone who actually served as president, authoring an opinion which says, sure. Congress can delegate some power to the executive in certain circumstances so long as there is intelligible principle that Congress sets out, in the delegation of rulemaking and enforcement power. So it's I I Gorsuch explains this away, and and he kind of does so in a throwaway paragraph and a dissent in the Gandhi case from 2019, and we don't really need to get into that. He just basically says, no. No.
Jack Sanker:No. The JW Hampton case doesn't say what we all think it does. It it says something different, etcetera. No citation to authority for on Gorsuch's part. No really getting into, the specifics of that delegation or whether it had happened before or whether there is indeed a history of this happening in our congressional, record or not, things like that.
Jack Sanker:He just kinda just says, you know, hey. We think this says this, but it didn't. And now the Gandhi opinion from 2019 is being used to bolster what Thomas is saying in his dissent on this, denial of certiorari, all of which is the 2 conservative justices saying, look. This we don't we don't have a congressional history of doing this. We don't have, Supreme Court jurisprudence of holding this up, and and we we shouldn't be doing it this way because we never have really in the past.
Jack Sanker:And that's just, you know, frankly not true.
Danessa Watkins:So if I can interject for a minute. Yeah. And this is maybe just me being too practical about this this issue. But, I mean, we have agencies for a variety of different areas. I mean, OSHA is just one.
Danessa Watkins:I think you mentioned the EPA. I don't know. Others don't come to mind off the top of my head, but there are a bunch of different agencies that, we have always allowed to, regulate, I guess, kind of internally because they are, you know, quote, unquote, the experts in whatever area that may be. So I'm just curious what is the alternative to that? Is it is the expectation that congress is going to now take a look at what these guidelines are and make their own revisions that will become effective immediately?
Danessa Watkins:Are they gonna wipe the whole thing clear and start fresh? I mean, I just don't maybe because in our lifetime, it's just always been so obvious that, yes, of course, you're gonna let these agencies who understand the issues. You know? Like, so what is the alternative?
Jack Sanker:Well, it depends on kinda where we go politically. Right? But there there is a bill that's actually pending.
Danessa Watkins:I don't know if
Jack Sanker:it's ever been introduced or anything, but it's the REINS act, rei rei n s. The idea behind that as far as I understand it is that these executive, agencies can go about recommending, rules, that fall under their normal, like, purview. Like, the EPA can go ahead and recommend, you know, what acceptable lead levels are or something like that, but they'll all have to then be, codified in the law by congress. Right? So it it basically says the agencies can no longer issue their own rules that would have the force of law.
Jack Sanker:It has to be run through congress, which, you know, means that these agencies, whether you like them or not, their rulemaking authority, I mean, goes away and gets subject to the kind of political willy nilly that happens in our, you know, modern congress, I think, which is to say that none of the rules ever get passed.
Danessa Watkins:Well, I was just gonna I was thinking that too. I mean, part of this is almost like I mean, what we call judicial economy. So I don't know if you wanna put congressional economy. Like, they can't handle everything. You know?
Danessa Watkins:So some things need to be delegated. So this I mean, I could see that I'm just getting bogged down in a full session with just one of the agencies, you know, new proposals.
Jack Sanker:Exactly. That's, I think, the point, by the way, from proponents of that type of legislation is, like, they they don't want new rules. And and that's a kind
Danessa Watkins:of a
Jack Sanker:libertarian, you know, political way of looking at things. And, you know, what and I'm not making a merit judgment on that one way or the other, but I I think, ultimately, like, if you point out correctly, this is gonna make it hard for any of these new rules to go into effect. I think opponents of that type of legislation would say good. You know? Mhmm.
Jack Sanker:Mhmm. So, so yeah. And the Supreme Court for all that we've talked about, how they're supposed to be nonpolitical and everything else. What they're saying here is effectively or at least what Thomas is implying, here is that, yeah, we can't delegate that type of broad rulemaking authority to an executive agency, violates the delegation of powers and all that stuff, whether you like it or not. But what what really bothers me is is Gorsuch saying, like, well, when we never have before.
Jack Sanker:So this is this is all new. You know, we haven't been doing this. And it's like I mean, here's an example. It's 96 years old that it that was able to find pretty quickly. And and insofar as the Supreme Court we've talked about this on previous episodes.
Jack Sanker:They they like to kind of clothe these decisions and sticking with, you know, the legal and, political history of the United States. This is to me another example of them kind of, either making something up or just doing bad historical scholarship, in that regard. And, you know, the result is they get to kinda claim to be apolitical by saying, no. No. No.
Jack Sanker:We're just looking at what our history is here when when making a pretty heavily politically charged decision. And some examples of, like, some things that I think that the Supreme Court, you know, ought to get into, especially if they're gonna talk about this, which neither Gorsuch did. Obviously, Thomas didn't. Not that he would do it in this dissent, but, still, you know, you would expect to see this somewhere is, like,
Danessa Watkins:off top
Jack Sanker:of my head, some things I would wanna know. You know, when was the 1st congressional delegation of rulemaking authority to an executive agency? Like, when was that what date did that first happen? Because, like I said, I found an example of an opinion on that happening from 1928. Does it go back much further?
Jack Sanker:Because now it seems like you would call that a tradition, right, if we're over a 100 years. You know, when was the first executive agency established anyways? I think I mentioned before that was the state department, in 1789 or 1788. And then, you know, are there other examples of congress delegating rulemaking authority to different executive branches that go back even further? Like, off the top of my head there, I'm thinking about, you know actually, Danessa, do you wanna guess what what period in American history I'm I'm thinking of?
Danessa Watkins:Shoot. What is it that you're obsessed with? It's a it'll be the the, the
Jack Sanker:Reconstruction era.
Danessa Watkins:Yes. Yes.
Jack Sanker:But the Freedmen's Bureau. This was, the Freedmen's Bureau. I mean, congress delegate all sorts of power to the Freedmen's Bureau, and this was I mean, I don't even I don't know if this is the earliest example, but I can tell you that, there there's that would be part of the, quote, unquote, history and tradition, of how we do things in this country, that seems to just be ignored whenever it's convenient, for the supreme court to do so. And and that's just that's a bugaboo of mine that I'm gonna talk about as often as I can, I think? It releases often as, you know, the audience doesn't get bored with it.
Danessa Watkins:Mhmm.
Jack Sanker:But for now, I'm gonna keep beating this drum on the level of historical analysis that's coming out of the Supreme Court, which I think is usually pretty bad, and that it shouldn't be guiding these decisions, to begin with. One of the reasons that we're covering, you know, the denial of tertiary, is in the wake of the recent decision on the Chevron Chevron, deference and the court really throwing that out. It's guided by similar principles. It's this idea that the administrative delegation powers between the executive and congressional branches are, have gone too far, etcetera, etcetera. And we're not gonna dive into that that decision here on the episode today.
Jack Sanker:We might get into it later. But if you're listening to this podcast and you're interested in this type of news, undoubtedly, you've seen the headlines about the Chevron decision. So we wanted to just kind of pick up where those would have left off and and give you an maybe a preview of where this is going, which is, you know, 2 of the 9, justices already expressing, at least some intent to maybe get rid of OSHA or get rid of OSHA's, rule making and, enforcement capacity. So this is, this is how decisions like that, you know, could affect your sort of day to day.
Danessa Watkins:Alright. Well, the supreme court is now on summer recess until it says let's see. 1st Monday in October. So you'll have a little reprieve listeners on us talking about supreme court cases. But this has been interesting.
Danessa Watkins:Thank you, Jack, for for hearing me out on this very complex ruling. And, that's all we have for this week. Remember to like us, follow us wherever you get your podcasts, Apple, Spotify, YouTube, and we'll have a new show coming out in 2 weeks. Thanks for listening.
Jack Sanker:Thanks, everyone.
