Are We in a Constitutional Crisis? The Supreme Court Year in Review

Now, President Trump could be about to amass even more power.

The Supreme Court is hearing arguments in a case that will decide whether the president can fire the heads of virtually all independent agencies.

This would be a major transfer of power from Congress to the White House.

And it's just the latest case testing the limits of presidential power.

From tariffs to birthright citizenship, our next guest believes the court is dismantling guardrails that have protected democratic rights for decades.

Kate Shaw is a professor of law at the University of Pennsylvania, and she's here now discussing all of this with Michel Martin.

Professor Kate Shaw, thank you so much for joining us.

Thank you so much for having me.

You're a constitutional scholar, you're a law professor.

Back in April, you wrote an opinion piece for the New York Times where you opened with, "For weeks, Americans have been debating "whether we're facing a constitutional crisis.

"My answer, for the record, is that we are."

And why did you say that?

- Well, I think for a couple of reasons.

I think we have and have had since January a president who is pushing the bounds of executive authority in ways we just haven't seen before.

And that in and of itself is not, to my mind, enough to constitute a real constitutional crisis.

But I think the crisis comes in in the failure to meaningfully push back on those outsized assertions of presidential power.

And I mean to push back both by Congress and by the Supreme Court.

So I think when you have the separation of powers as out of whack as we have had really for the last year, that is a genuine constitutional crisis and if anything I think it has gotten more serious since I wrote that op-ed back in April.

So let's fast forward to the present moment, starting with the big case in front of the justices this week, Trump v. Slaughter, which asks whether the president can fire the heads of independent federal agencies at will.

Now that's exactly the kind of question that engages a scholar like you, but that a lot of people kind of just living their lives might be thinking, "Well why is that such a big deal?

Why is that such a big deal?"

Well, so Congress and the President working together have passed laws creating agencies, right?

Agencies that often work in invisible ways but that impact all of our lives.

So they do things like regulate the safety of ordinary household products or the cribs that we put our kids in.

They issue regulations around things like air that we breathe and water that we drink.

They protect consumers, both their privacy and their right not to have companies engage in monopolistic behavior.

So there's just an enormous array of work that agencies do.

And some of the agencies that do that work, Congress has decided for over a century, should kind of operate with a degree of independence from the president and the political winds.

And that kind of agency is traditionally known as an independent agency.

And agencies, whatever their structure, do respond to the president.

The president has lots of ways to influence every agency in the government.

But the idea of these independent agencies is the president cannot just fire at will the people who sit at the heads of those agencies.

So that includes bodies like the Federal Reserve, the Federal Trade Commission, the Securities and Exchange Commission, a lot of regulatory bodies that there might be good reason to insulate from politics.

And for almost 100 years, the Supreme Court has said, the president can't just fire at will the heads of those kinds of bodies, including the Federal Trade Commission.

And the question of whether the Supreme Court will continue to adhere to that long standing rule that limits presidential power is the one before the court in the slaughter case, where the justices are being asked to overrule a 90 year old precedent that allows those agencies to exist with a degree of independence from the president.

So as briefly as you can, just remind us of the facts of this case.

Why?

How did it come before the court?

This is just a case where the president fired a Democratic commissioner on the Federal Trade Commission and didn't say he was firing her because she'd engaged in any kind of, you know, malfeasance or misconduct, just because he disagreed with the direction that she wanted to take the agency in, which was one that, in her own words, so slaughter the commissioner, has basically said the FTC should be aggressively regulating a lot of companies, including companies that are very close to the president.

The heads of some of the companies the FTC is currently suing were the ones flanking the president at his inauguration.

But that's kind of what independence means.

And I think it's pretty clear that President Trump did not want agencies like the FTC to exercise that degree of independence.

And so he fired this commissioner.

She filed a lawsuit basically saying my firing was unlawful.

And that's the question that the court is addressing.

You have written that granting the president at will removal power would be, quote, "a vast transfer of power from Congress to the president," even though, as you put it, the Constitution does not explicitly grant the president any such power.

We don't know how the court is going to rule here.

But just the commentary from their questions, the precedence that they've set so far, seems to be that they are very, at least the conservative super majority on the court, seems very ready to give the president sort of maximum discretion.

Why do you think they're so willing to do that?

And you're right.

We don't yet know how the justices will rule, but I would be willing to place a very large wager on the likely outcome in this case based on the tenor of the questions.

And that is that President Trump will win and this old precedent will be overruled.

But to your deeper question, why are they so enthusiastic about presidential authority and skeptical of restraints on that authority?

I mean, I think that a majority or a super majority of the court is under the sway of this unitary executive theory, this theory that's really a product of the 1980s and the Reagan administration that says the president has to have complete control over essentially everyone in the executive branch, including the heads of independent agencies, anyone who executes the law.

And that means he can fire at will essentially any high level official in the executive branch.

We don't yet know whether that reasoning will extend to civil servants in the federal government, but it well could.

And to my mind, it's a theory that is inconsistent with the text of the Constitution, which doesn't give the president the power to fire anyone.

And it's inconsistent with history.

You know, there's a lot of kind of cross currents in our history.

But I think it's pretty clear that at the very least, the framers disagreed about certain aspects of presidential power.

There was no strong consensus.

The president should be able to fire at will everyone in the executive branch.

And I think the better meaning of the history is that the framers would have wanted Congress to be able to place some constraints on the president's authority in the way these laws do.

I wonder whether we would be justified in just calling this rank partisanship.

Yeah.

I mean, is it that is it I mean, are we overthinking this?

Because could it be that they just the person who appointed them is in power and they are doing what he wants?

I mean, is that.

Is that wrong?

Is that is that beyond the realm of reason?

No, I mean, that is the Occam's razor sort of simplest and maybe correct explanation is you have a Republican president and 6 Republican appointees on the court likely to further augment his authority.

And I think it is telling that in a couple of cases, this same conservative supermajority curtailed the power of President Biden to do things like implement COVID mitigation measures and relieve significant quantities of student debt.

The Supreme Court ruled against Biden in both of those cases.

Also a major case involving the EPA's effort to regulate greenhouse gas emissions.

And the Supreme Court ruled against Biden in both of those cases.

Also a major case involving the EPA's effort to regulate greenhouse gas emissions.

Also a major case involving the EPA's effort to regulate greenhouse gas emissions.

Also a major case involving the EPA's effort to regulate greenhouse gas emissions.

Also a major case involving the EPA's effort to regulate greenhouse gas emissions.

Also a major case involving the EPA's effort to regulate greenhouse gas emissions.

Also a major case involving the EPA's effort to regulate greenhouse gas emissions.

That it's not clear that they would not find some way to rule differently if we're looking at a Democratic president.

And I think it is incredibly corrosive to public faith and confidence in the Supreme Court and its kind of perceived legitimacy for the public to see the court ruling again and again against Democratic presidents, but expansively in favor of this Republican president.

Although I should say there may be cases, including the birthright citizenship case, potentially including the tariff case, where it is at least possible that the president, that President Trump will lose in front of the Supreme Court.

Well, tell us more about the birthright citizenship case and tell us why you think that's possible.

It's possible that the Trump administration might not prevail as it has in so many other cases before this court.

Yeah, so this is one of the first acts that President Trump took when he was inaugurated for the second time as president, which was to issue an executive order purporting to end birthright citizenship.

The principle that individuals born on U.S.

shores are citizens full stop, regardless of the citizenship status of their parents.

This principle traces back very clearly to the first sentence of the 14th Amendment, which confirmed citizenship on newly freed, formerly enslaved persons and also all persons born in the United States on its shores.

Congress has passed multiple statutes reaffirming the principle of birthright citizenship.

The Supreme Court has confirmed that the text means what it says.

And yet, in the face of all of that settled consensus, the Trump administration issued an executive order basically saying we are unilaterally ending birthright citizenship.

And I think that what I just said about how clear the consensus across all the branches of government and essentially across 150 years has been that this is a constitutional principle the president cannot undo, I think that all of that will make it very, very difficult for the Supreme Court to uphold this executive order.

Every lower court to have looked at the executive order has found it clearly unconstitutional.

The Supreme Court encountered a case last spring involving not the constitutionality of this executive order, but essentially the power of courts to issue what are known as nationwide injunctions, so rulings that bind even non-parties to the case.

The Supreme Court basically said lower courts don't have that power.

But another case that kind of gets around some of the procedural kind of limitations the court announced in that case is now back before the court.

It will be argued in the spring, and the court can't avoid answering the substantive question of whether this executive order is lawful.

And I just don't see a very significant likelihood that the court will uphold it.

In another opinion piece published in The Times this week, you wrote that the court is "overturning the 20th century."

And when you look across cases about presidential power, voting rights, immigration, agency authority, civil rights remedies, and the court's own procedures, do you think that they see it that way?

I think they believe they are restoring correct legal understandings.

I think that in some ways we are still in this kind of backlash court.

So the conservative legal movement's birth in the Reagan administration in the 1980s was largely a reaction to the Warren court from the 1950s and 1960s, which broadly construed the Constitution's guarantees, the equal protection of the laws, the right to liberty and the right not to be deprived of liberty without due process of law.

These are these core provisions of the 14th Amendment that the Warren court really expansively interpreted.

And I think the conservative legal movement very self-consciously wanted to roll back both some of those specific decisions, but also the method of constitutional interpretation that those decisions reflected.

And so I think this is still part of that larger project of kind of fundamentally changing the way we understand the Constitution and a lot of its provisions.

And I think that has certainly we've seen that with respect to voting rights, which the court has really curtailed in the Shelby County case involving Section 5 of the Voting Rights Act.

And likely in the case Louisiana v. Calais, the court will decide likely very soon regarding the last big remaining pillar of the Voting Rights Act.

The court has allowed partisan gerrymandering, which didn't overturn a precedent, but certainly inaugurated an era in which partisan gerrymandering is happening without any kind of limitation under federal law.

Disempowering agencies while empowering the president.

I mean, these are fundamental changes to the way we live and the kind of government that we live under.

The court has asserted a great deal of power for itself.

It has really limited many of the actions that Congress has taken, including things like passing the Voting Rights Act and repassing it with close to unanimous support in Congress, signed into law, authorized and reauthorized by Democratic and Republican presidents alike.

And yet the court has unilaterally decided that the Voting Rights Act essentially went too far and is inconsistent with the proper understanding of the Constitution.

And so I do think that they if you put together the pieces, I think that there is a very strong case.

They are fundamentally overhauling much of kind of settled law and governance.

I'm not sure they would totally disagree with that, although I think they have pursued it in these kind of discrete domains.

Part of your original point here is this is an incredible aggregation of power toward the president, but also away from Congress.

So where is Congress in all this?

Who is standing up for the institutional imperatives, as outlined in the Constitution, the way we all learned it in middle school?

Three branches.

A huge part of the problem and the kind of constitutional crisis that we started off talking about is that Congress has been either asleep at the wheel or affirmatively pleased with what it has seen in terms of executive authority in the last year.

And I do think it's quite shocking because regardless of the fact that Congress is controlled by the president's co-partisans, right, they're Republican-controlled, both houses of Congress, the institutional prerogatives of Congress, you would think would matter at least to a degree to the extent that standing up against the president's ability to do things like completely ignore congressional decisions about funding.

and yet we have seen essentially none of that.

Now I do think that there has been a little bit of a shift in some of these targeted killings and congressional responses, including responses by some of the members of the President's party, suggesting that perhaps Congress is again finding the will to assert its institutional prerogatives and demand explanations for, you know, process-less executions of individuals on the President's say-so, that these are individuals engaged in drug smuggling.

Perhaps that is a bridge too far for even a Congress that is largely supportive of this President's policy agenda, and I'm sure the fact that the President's approval ratings are lower than they have been is, you know, emboldening Congress to push back.

But I guess my hope is that this Congress bestirring itself to act in the context of these strikes on fishing boats might portend Congress pushing back in other, more meaningful ways.

I mean, some of the damage, honestly, I don't think can be undone.

The President having asserted the power to ignore spending decisions and to unilaterally do things like dismantle agencies Congress by law created, like the Department of Education, like USAID, you can't really reconstruct an agency the President has dismantled.

But I don't think it's too late for Congress to take back some of its authority.

And it's just critically important that whoever is in control of Congress, that Congress do that in a way we just haven't seen in the last year.

You know, there was some talk earlier that the Chief Justice, John Roberts, was concerned about the reputation of the court, the court being seen as legitimate.

Do you think that really is a concern?

And if it is a concern, if the court is not seen as a legitimate judicial body, but rather rather, as some do see it as the sort of an extension of the partisan, partisan interests of the party in power, what then?

What difference does it make?

Well, so to the extent that the court, when it is properly functioning, is an important check on overreach by the president and by Congress, by other actors, by states and localities as well.

It's enormously problematic for the public to lose faith and confidence in the judgments of the Supreme Court, in the independence and impartiality of the Supreme Court, because the court's legitimacy and perceived legitimacy is really the only reason that government actors, private individuals, other branches of government listen to the court, heed its rulings.

And sometimes it's really important that the court's rulings be heeded.

Right.

It is obviously handed down in other eras, enormously important decisions, doing things like concluding that segregated public education is unconstitutional under the 14th Amendment.

And that separate but equal is a principle that cannot be reconciled with the equal protection of the laws.

So to take one example, obviously Brown v. Board of Education, it was critically important that the country accept the court's ruling.

There was a lot of resistance.

The president at the time actually used the federal military to enforce the court's edict that school desegregation was mandatory and that Brown v. Board of Education was the law of the land.

So it's not impossible to imagine, again, a court that does side with civil rights, equality, liberty.

And it's just really important that even when it does that, that it have the institutional capital to actually command respect for its judgments against those who would want to resist it.

And so I think those are the reasons that getting back to a court that actually serves its function, which is protecting rights and facilitating democracy and largely otherwise kind of stays out of the way of democracy.

That is critically important, I think, to a healthy system of separated powers.

But I think what we have right now is something very, very far from that.

Professor Kate Shaw, thank you so much for talking with us.