Are presidents immune from criminal prosecution for actions they take in office?
That was just one question – and perhaps not even the most wide-ranging one – under consideration in the decisions released at the end of the Supreme Court’s latest term this summer. In this new episode, we sit down with Stetson Law Professor Louis Virelli to discuss how the court’s recent slate of decisions is reshaping the balance of powers. From gun rights to presidential immunity to fundamental workings of administrative law, the cases from this latest term are rewriting the textbooks.
Transcript:
Speaker 2 (00:03.054)
I'm going to be forced to have my students reckon with the idea that the Supreme Court has shifted the power over the administrative state to the court and over everything else to the president. We now have an extraordinarily more powerful president than we did before, arguably, unless you're trying to set policies that the court thinks are too aggressive, are too ambitious, and then the court will unwind those.
This is Real Cases, a legal podcast presented by the Stetson University College of Law. We'll sit down with Stetson Law faculty and students to examine today's critical cases and debates in environmental, international, elder, and business law, plus the role of social justice in these fields. Join us as we open the case file. Episode 29, major cases from the Supreme Court this summer. Today we're joined once again by Professor of Law, Louis J. Virelli.
A recipient of the Branton Excellence in Teaching Award and the Dickerson Brown Award for Excellence in Faculty Scholarship, Professor Virelli focuses on constitutional law, administrative law, and civil procedure in his teaching and research. He coaches one of Stetson's Moot Court teams, and he's faculty advisor to the Stetson chapter of the American Constitution Society, the Stetson Law Democrats, and the Federal Bar Association. He's published on the topic of Supreme Court recusal and the Constitution's separation of powers.
Speaker 1 (01:32.736)
So there were a number of big headline grabbing decisions that came out of the Supreme Court earlier this summer that we're going to review today. The biggest obviously being the decision about President Trump and presidential immunity. But I want to start by asking you about an arguably equally impactful case and one that particularly touches administrative law, one of the areas you specialize in. And that's Loperbright Enterprises v. Raimondo.
So the decision overturned the 1984 case Chevron v. National Resource Defense Council, one of the most widely cited cases in Supreme Court history. So I'd like to open it up by asking you to explain a little about what Chevron deference is for people listening who might not be familiar with it, and to talk about the effect this new case will have. I'm particularly interested to hear how it'll affect the teaching of administrative law, since I heard one lawyer say,
you know, that they almost can't imagine what an intro to admin law class would look like post-chevron.
I'd start by saying I spent the last few days helping my co-author rewrite that section of our textbook. Everything you said is right. We are all wondering what's to come and how we are to explain the current landscape to students because when the court makes a significant decision like this, and this is a significant decision, even if the consequences of it aren't as bold or as dramatic as people think they might be, it's a big deal. And it's a big deal because we don't know what's next. When the court...
the court speaks in sort of discrete chunks. So it told us what it doesn't like, but we don't know how this is going to play out going forward. So to go back to your original question, what is Chevron-Deferring? So something that people don't understand about administrative agencies and the key to the understanding of Chevron-Deferring is that administrative agencies are created by statutes. And so Congress enacts a law the way that we all learned about laws being enacted in schoolhouse rocks, right? In the seventies and eighties, people of my generation. Congress passes a law with both houses of Congress, the house and the Senate, and the president signs it.
Speaker 2 (03:33.282)
And that law creates an agency. There is no such thing as an agency that wasn't created by Congress. And that agency, because it's created by Congress, it is entirely at the mercy of the statute that created it. So Congress tells the agency what it is to do in that statute. So for example, the Clean Air Act tells the EPA to issue pollution standards to keep the air clean to a degree reasonable to keep us all safe, something like that, right? Something of that effect. That's a typical sort of approach that these statutes take.
That's unlike other laws that Congress passes, right? Congress generally isn't telling another entity to go do anything lawmaking, know, legal in a statute. They're usually telling them what they can and cannot do, period. Here, Congress is creating an agency and sending them forth into the world to do a job, whether it's create and administer the Medicare program or keep our air and water clean or help decide where to build roads and the Department of Transportation, cetera. So the agencies are creatures of statute.
Since about the 1940s, we have generally understood that agencies are better at understanding what their statute means than anyone else because they live with it. They are often subject matter experts, right? So the EPA has environmental scientists that work there that help understand these things. The FTC has economists that are experts in antitrust law or in competition as an economic. So agencies are experts. They are experienced in these statutes and these statutes are complicated.
and often broadly worded. Because when Congress wants to make the air clean, they don't know how to do that. They create an agency to do it, and they tell the agency, basically, go do it to best of your ability, more often than not. So since the 1940s, when courts have looked at those statutes and been asked what they mean, they've often deferred to the agency's understanding of that statute when it wasn't perfectly clear. And that's unusual in American law. Usually courts tell us what statutes mean. That's what courts' job are.
In 1803, the Supreme Court in Marbury v. Madison said, is emphatically the province and judicial department to say what the law is. But we always think of courts as interpreting the law. Administrative law has been different. It's been different for 80 years. Chevron, as you correctly said, came down in 1984. And when it was written, the general consensus was that it wasn't that big a deal. It was just sort of restating what's been going on since the 40s, when a statute that's telling an agency what to do isn't entirely clear.
Speaker 2 (06:00.792)
then the agency's understanding of that statute controls as long as it is reasonable. Put another way, the court asks the agency when the statute's vague or ambiguous, what do you think? And they give them the benefit of that. And that's been going on for 40 years.
In Loper-Brite, this past term, the court overruled the Chevron doctrine and said, no, we're going to tell you what the statute means all the time, except we're still going to give what the word they use is respect to an agency's understanding of the statute. We're still going to give the agency's interpretation respect. And that's hooked or tied to cases from the 1940s called Skidmore and Burst that started this whole train running that ultimately ended up in Chevron.
The court announces we're going go back to reading these statutes the way judges read all statutes de novo, as if the agency hasn't said anything. But we'll take the agency's feelings into account, because after all, they might know something we don't know. It's a very vague standard. It is still deferential. And it is possible that Skidmore and Hearst, the standards that have existed since the 40s, are enough to basically leave us in the same place, even if the court's not doing Chevron specifically.
It's also the court hadn't cited Chevron, I believe since 2016. So the Supreme Court wasn't doing Chevron anyway. Why would they do this? Well, the court's rationale was there is language in the Administrative Procedure Act that says it's a court's job to review whether an agency has violated the law. They say, well, we have a statutory obligation to do this. Now, the dissent in the same opinion said, well, you can read that Administrative Procedure Act standard, right? Administrative Procedure Act is the law that
generally controls how agencies work day to day. The dissent said, well, you could read that to include Chevron. You could say, we're reversing agencies that violate the law when their interpretation is unreasonable. There's reasonable minds can disagree about whether Chevron is allowed under the statute. But the majority of Loper-Bride said, the statute doesn't allow us to defer. We're not going to defer. And Justice Gorsuch in a concurrence said, and by the way, the Constitution doesn't let us defer either.
Speaker 2 (08:11.138)
because we are courts, we say what the law is, agencies are not, they don't, Chevron has to go away. Why is this a big deal? On the one hand, like I said, it might not end up being a big deal because lower courts, the trial courts and the appellate courts, generally speaking, have been deferring since the 40s and are used to deferring to agencies because they understand that this stuff is complicated. And what does it mean to say we are regulating ozone pollution in a way
designed to protect public health and safety. Well, it means what the agency says it means. They know better than I do, district courts have. So they tend to defer. And they defer under Stigmore or Hearst, those cases from the 40s. And it doesn't matter whether Chevron's there or not. The downside is that this gives courts that are not inclined to defer to agencies freedom to ignore what agencies think and to substitute their own expertise for that of the agency.
On the one hand, that's what courts do. They read statutes. On the other, these statutes are not your typical statute. They are broadly worded on purpose. They are creating legal duties and obligations and power for the agencies. And it is Congress choosing to do that. So really, overruling Chevron is courts telling Congress, you're not allowed anymore to leave as much as you used to leave up to agency.
Agencies are not allowed to be as bold in their interpretations, and Congress has to be more specific, or we're going to this on our own, and we're going to decide what it means. What are the problems with that? Well, one major problem is national uniformity. So by deferring to an agency's interpretation, agencies are national entities. When an agency interprets a statute, it interprets it the same way everywhere in America.
courts are regional. Until you get to the Supreme Court, every federal court in America has a jurisdiction that is geographic. So the Fifth Circuit, which has become famous recently for being overturned by the Supreme Court so often, is in Texas and Louisiana. The Ninth Circuit is the whole west coast of the United States. The First Circuit is New England and Puerto Rico. If courts are not bound at all by what the agency thinks the statute means,
Speaker 2 (10:34.84)
then you are regularly going to have disagreements on the same statutory language among federal courts in different parts of the country. assure you, courts in Texas will not read these statutes the same way that courts in California or Massachusetts or Florida will. That split means that federal programs or federal rules about air pollution or how Medicare reimburses hospitals or, right,
loan supplements or subsidies for farmers could vary depending on where in America you are standing. And that's an unacceptable situation. It cannot be that the Medicare program is literally different in Houston and San Diego.
That either means the Supreme Court is going to have to take all of these cases, which it can't do, or the agency is going to have to make hard decisions about who it listens to. And agencies are going to have to say, and there's a doctrine called non-agresiveness that says, if an agency gets overturned in one circuit, it is allowed to sort of disregard that decision until the Supreme Court weighs in if it would disrupt the program team. So you're going to have this practical problem of
two courts of equal authority in different parts of the country saying exactly the opposite thing. That doesn't happen under Sherrill, or it shouldn't. That's one problem. The other problem is what are we going to do with agency flip-flops? So agencies change their mind. The Trump administration EPA was very different than the Obama and Biden administration EPA. They had different views about what pollution is, how power plants should work, et cetera. We have generally assumed
at least in Chevron and in reality longer than that, that agencies are allowed to do that. Chief Justice Rehnquist, who was certainly not a liberal justice, said that elections have consequences and agencies are allowed to change their minds. He said that in a dissent from the very important judicial review case called State Farm in early 1980s. If agencies are supposed to be accountable to the president and to Congress, if they're supposed to be
Speaker 2 (12:42.286)
on policymaking entities, which they are in most cases. Now, changing their mind comes at the cost of a court saying, no, no, no. You interpreted the statute. You're not allowed to change your mind. The statute means either what you said it means or what we said it means, but you can't just keep going back and forth. You can't change this policy position once you've taken a stance. That's really problematic because that means the last
interpretation before low for bright might be the one that sticks, even though agencies have been operating for decades as if new leadership could mean new policies. Understanding our obligations and making our choices under new leadership could change the way we govern because by electing a new president, that's what the American public signal they want us to do. When you elect a new president, you get a new EPA administrator, you get a new secretary of health and human services, you get a new secretary of commerce, et cetera.
So this flip-flop problem is going to be tricky. The court in Loper-Brite did say, we are not overturning any cases decided under Chevron. So we're not going to go back and relitigate the results in the cases that happened before Loper-Brite. That's good news, because that would be a real mess. But they didn't say that the interpretations in those cases will be applied in the next one, or that we will continue to defer
to an agency interpretation that was made before Loper-Brite when Chevron was still good law. So we don't know what the court's gonna do with new challenges, right? And a new challenge just means a new challenger. It doesn't mean the statute's changed. It doesn't mean anything legal has changed. It just means somebody new is angry. And in fact, the court decided a case called Corner Post this term that said the statute of limitations for challenging an agency action is six years from when you are injured by that action.
not six years from when the action was taken initially. But what that means now is when you add Loper Bright to Corner Post, and this is a lot of jargon, but I hope people are still following along. But when you add Loper Bright and Corner Post, it means that anybody who was injured by an agency, so a brand new company that wants to pollute in violation of an EPA regulation, even though that regulation has been in place for decades, 20 years, a new company
Speaker 2 (15:08.61)
has six years to challenge that regulation. If the original regulation was defended under Chevron, now the agency's got to go back and just hope that the court reading the statute on its own agrees with them. So we could end up with these statutes meaning different things for different people because of when they challenged the agency action and this corner post case gives people much more opportunity.
to challenge an agency action going forward. Prior to CornerPost, the understanding was once the agency issues a rule or takes a position, you got six years when they announced what they're going to do to challenge it. Now you have six years when you were hurt by it. And what happened in CornerPost is basically a new entity was formed, brand new company to challenge what the agency did because the other people harmed by it had waited too long.
We see this opportunity to the court created an opportunity to challenge more frequently and for longer periods of time and then lifted the protection of Chevron so that every interpretation of the statute now will start from scratch or could start from scratch. We're still waiting to see exactly how this plays out, but it's problematic because we don't know what to expect. I think the major sort of impact of this is going to be that agencies are scared to do anything.
So the message the court sent was, if you want to spend a lot of time and energy and money doing something significant, you run the risk of us of getting to court eight, 10, 20 years later. And the court's saying, no, I don't read it that way. You're not allowed to do it at all. you're not allowed to do it at all. So if I'm an agency administrator or I'm an agency lawyer under this new environment, even if I think my reading of the statute is the best one, even if I think I'm right.
It's just a question of what judge I run into. And they're not going to take my word for it at all. So now I have to make a decision about how I spend my money, what risks I'm willing to take as an agency, even if I think it's the best thing for the American people. Because an unsympathetic judge could overturn it without asking me for my rationale, or at least deferring to my expertise at all.
Speaker 1 (17:26.803)
Yeah, as you mentioned earlier, one of the responses to the overturning of Chevron has been that Congress simply needs to write laws more carefully and define federal agencies' roles and responsibilities more precisely. So I guess I'm curious to know if you think that's a realistic response. Do you think Congress is likely to rise to the challenge of writing these laws more specifically so they can't be challenged quite so easily?
No, and for two reasons, right? No, for two reasons. One, they are not expert in understanding that they're not. So that's where administrative law comes from, right? If Congress could write the statute as specifically as this is both answers at once, no, because they don't have the expertise and they know that and they've intentionally created these agencies to answer questions that Congress cannot. They are delegating their authority, their lawmaking power in many ways.
to an expert experience agency. And sometimes experience is as important as expertise, right? If I've been in the healthcare industry for 30 years as an agency, if I have 70 years of administering program like Medicare, 60 or 70 years, I understand the pitfalls. I understand what each new choice I make could mean for the rest of the program. A newly elected Congress doesn't know that, that institutional knowledge isn't there. So it's both expertise and experience. Congress is intentionally,
sort of shifting that responsibility to agencies because it thinks it is better investing there. So that's a congressional judgment that the court is suggesting Congress shouldn't be making and is not allowed to make, which is a big separation of powers problem. The court telling Congress how to do its job. The second problem is that Congress can't do that because if it could, it would have just done it. In other words,
If Congress could be as specific as the court seems to suggest it would prefer, then Congress would simply just be regulating all of these areas itself. It doesn't have the time or energy, forget expertise, to do that. Some people might say, well, that's exactly the point. We have too much government. Fair enough. But your elected representatives have made the choice that this government is appropriate. They could undo it if they wanted to. They're not doing, they're not repealing
Speaker 2 (19:55.138)
the Clean Air Act. They're not repealing the Medicare Act. They're not even considering it. So they're making a choice that this is what American society needs or wants. Generally speaking, the American public relies on these programs pretty heavily, even if they think that big government is a bad idea. When you get down to the details of which government don't you like, it tends to be the one I don't need.
Medicare has become such a part of our lives that I don't think people even realize it's a government program all the time. Social security is the same, right? So if Congress were to try to be as specific as the court sometimes suggests they should, then the need for administrative law would go away. Or really, more to the point, administrative law would be impossible. Congress can't be that specific because they don't have the time and energy. They're also not oppression, right? They can't see the future.
So what criticism of the Clean Air Act is that it's from the 1970s, right? So it is describing, it is addressing a set of problems that are very old and that's fair. Congress has the authority to update and change that statute anytime it wants. And it has amended it over the years. So the fact that something's old doesn't mean it's decrepit. One way of looking at it is it's old and Congress is good with that because it hasn't taken the time or energy to change the statute, limit it, expand it, whatever. It's left it alone, right? Inaction.
once you have a statute in place doesn't necessarily mean indifference. It might mean we're comfortable with the current regime and the way it's working and we'll just deal with the EPA directly. We'll change their funding. We will tweak the statute to limit their power here and there if we want. But generally speaking, by not changing the statute, Congress is on board. So the court is making broad claims about what Congress should be doing, oftentimes without acknowledging that Congress is doing something. They passed the law in the first place.
They have an ongoing responsibility and an ongoing opportunity to be involved any time they want. And they are choosing not to. And the court seems to be telling them, we don't like your choice. And that's problematic. It's not explicit. The court doesn't say it that way. But what it's doing is it's taking power, is either taking power from Congress or being critical of the way Congress is doing its job, which is not the court's responsibility. The court's responsibility is to read the laws it's given.
Speaker 2 (22:18.542)
and tell us what it thinks they mean.
since you said that you were recently working on rewriting part of this textbook, what does teaching administrative law this fall, what does that look like for you and how is that going to be different from the way you've taught it before as a consequence of this case?
I think it becomes more about teaching students how courts interact with the rest of government than it does teaching them a specific rule about judicial review of agency actions. And normally, the case book and almost every case book in America would have those two cases from the 40s, Steadman and Hearst, which are deference cases, but more general and less of less specific in how those deference doctrines apply than Chevron.
then you would teach them Chevron, and then you would teach them all the cases that Chevron spawned, right? So details and exceptions and applications of Chevron. Now, it's still Skidmore and Hearst because they're all that's left. You still teach them Chevron because Chevron was such a big part of administrative law for 40 years that it appears in lots of places in other doctrines where the court is using Chevron to understand different parts of a need to have law. So you need to understand what Chevron is.
And then Loper-Bright. And then the current case that says Chevron is gone. And then we ask the question, what does everything we understood about Chevron look like now that Skidmore and Hearst are in charge? if we're going to replace the case we were all using with the older cases, what does that look like? What do we think the court's going to do next? And what problems do we see Loper-Bright creating? Some of the things I talked about were the national unity problem, unification problem.
Speaker 2 (24:01.238)
the flip-flopping problem? How do we deal with agencies who change their policy preferences based on an elected president? Things like that. The answer is, and this is not entirely unusual, because I teach constitutional law as well, but it happens. I don't know. What do you all think? Let's sort through some of the challenges here and argue about what's the best way for the court to react to these future problems when they come up. We do know that
More than a dozen cases within the week after Loper-Brite popped up in the lower courts challenging agency action differently than they did before, now that Chevron is gone. I'm certain the lawyers in those cases were just waiting to see what happened. So this is going to be a thing that people are going to be pushing the limits of. And it'll be interesting to see how the lower courts handle it and what the Supreme Court does, because they hear 75 cases a year total. They cannot resolve all these disputes in the lower courts about agency statutes.
Yeah.
Speaker 2 (24:58.85)
They cannot. So what's going to happen to lower courts and how is the court going to continue to be involved? How involved will the court continue to be going forward? So really, the teaching of this is going to be about changes in the law. And I'm going to spend a lot of time talking to my students about the role of courts. Should they have left well enough alone? Was the world so terrible under Chevron that creating all this uncertainty is worth it, especially when the court hadn't used Chevron in eight years anyway?
Mm-hmm.
Yeah, that was fascinating that you said that because I know that I looked up, supposedly Chevron has been cited something like 18,000 times.
It was the first or second most cited case in Supreme Court history next to Erie Rail or Butompton, which is a famous civil pursuit case.
Huh, wow. And so it's fascinating to know that the Supreme Court, however, has gone this many years without citing at all and thus seeming to indicate that for a while implicitly that it was sort of on its way out, at least.
Speaker 2 (25:48.73)
But the question is now what?
Speaker 2 (26:02.604)
And I can tell you another point that I will make to my class in teaching this that is not doctrine specific. It's not about the rules of how this works is to make sure they understand this is a power grab that is being for. So calling Chevron is not. It's not punishing the agencies as much as it's punishing Congress. Congress told the agency what to do if the court thinks what they said was clear, then Chevron says, just do that. Don't worry about the agency then. So clarity never.
empowered the agency. It always ended up being, statutory clarity equals whatever Congress said. All the court has done is said, the statute's unclear, instead of letting Congress and the agency sort it out, the two politically accountable branches, instead of letting them have this dialogue where Congress is in charge of the agency and the agency can take a position and Congress can fix it, we are going to step in.
We're going to override what everybody wanted and decide for ourselves what the statute means. And if Congress doesn't like it, they can react to us. They're allowed to do that, but that's a big move that consolidates a lot of power in the courts. At the expense of Congress, not just the agencies, but Congress. And remember, the agencies are responsive to the president, so the president loses here also. You have the Supreme Court sort of aggrandizing, is the word we use, power to the judicial branch.
And it's not without any cost. It's a cost to the legislative and executive branches. And that's worth noting because they are co-equal branches. And the court orchestrated a shift here that I'm going to make sure my students at least see. They're entitled to like it. They're entitled to feel anyway they want about the demise of Chevron. It doesn't matter to me. But I do want them to see that that dynamic, that's why I said the role of courts is going to be sort of focused. That dynamic is enormous. And it's not the only place in administrative law where the court is doing this, doing that in multiple arenas.
Would like to talk a little bit about some of those other arenas in which that's?
Speaker 2 (28:04.686)
I'll try to be brief because they're even more complicated. the court in 2002 in a case called West Virginia VEPA, 1901, 2002 in West Virginia VEPA, said that in a case where the agency did something major, called the major questions doctrine, where the agency made a major decision, one that was economically, politically, or socially significant, and the court didn't find that. It just said, if the agency does something, it's a big deal.
We're going to assume Congress didn't want them to do it unless Congress specifically said they could in the statute. On the one hand, that's quite appealing intuitively, right? It's like, well, we don't want a rogue agency. The problem is the court admitted in the opinion that the statute it was reading, which was the clean area, could be read reasonably to allow the agency to do what it did. But it said, we're going to limit the way we read the statute when we think the issue is a major one.
and make Congress convince us that that's what they wanted the agency to do. opposed to just saying, well, Congress wrote a statute that permits this. The agency made a big choice. They made it under a president that's accountable to the public. If Congress wants to fix it, they can. But this is something, this is a big decision by an agency that Congress didn't tell them they couldn't do and in fact may have told them they could do. Instead you have the court saying, no, no, no, you need to convince us with a clear statement.
that the agency was allowed to make an important major decision. That is an extraordinary shift of power to the courts to limit agencies from making big swings policy-wise. And it's at the expense of Congress, because the court admitted in West Virginia BPA that the statute could, the text in the statute could include what the agency did. The court just said, but it's so big a deal, we're going to assume it didn't.
And it gives.
Speaker 2 (30:00.366)
I'm not trivializing what they said. That's what they said. And when students read that, they don't see it originally for the power grab that it is. But when I sort of point that out to them, they sort of have this aha moment, like, I get it. Now the court is in charge of deciding how big a swing an agency can take, even if Congress gave them the statutory authority to do it. They just didn't do it clearly enough to make the court comfortable with the idea that this is going to happen. That happened a couple of years ago.
Then you have the overturning of Chevron. And then this term, the court did something else in a case called SEC v. Jarkese, where it said agencies cannot issue civil penalties for violations of their own rules. They can't monetarily penalize someone for insider trading, for example, without going to an Article III, a federal court to do so. Congress tells lots of agencies, you can act like a court in certain circumstances. You can enforce your own laws.
in your own courts, and I'm using air quotes here, because we think it's more efficient, you're more expert, you understand the program, it's a good idea. Typically, those cases would go to a federal court which has a life tenure judge with salary protections, an independent judge, that's what makes them independent. Agency courts do not include judges who are entirely independent, they work for the agency. So there's always been sort of this push and pull about when agencies can
adjudicate can act like courts on their own. The court in Jarkisi said the SEC cannot penalize somebody for violating their own rules for insider trading or for fraud on the securities markets because that is a action that is like common law fraud, is like traditional fraud. And those cases are entitled to a jury trial under the seventh amendment in federal court.
There's lot of moving parts. But the important thing about the court's opinion is that it overlooked or literally ignored overlooked. It makes it sound like I'm making the judgment. Literally ignored several significant decisions by the Supreme Court of its own decisions, allowing for agency adjudications like the one that took place in Drakhizi and just basically went back to a case from over a century ago to say, yeah, suits that look like
Speaker 2 (32:29.71)
Claims that look like common law lawsuits, like traditional lawsuits in courts, have to go to court, including punishments, monetary punishments for violating our own rules. So they basically told the SEC, can't do this. Congress said you can, we say you can. Are they allowed to do that? Yes. Is it going to significantly change the way the agencies enforce their laws? Absolutely.
Is it possible the court only uses this decision narrowly with respect to the SEC? Yes. Is it likely? Not the way they worded their opinion. And what's particularly striking about the opinion is they ignored the most important case in this area in the last 50 years, a case called CFTC v. Short from 1986 that had a complicated balancing test for when agencies are allowed to act like courts. And the court didn't even, the majority in Jarkese didn't even cite it.
or I didn't mention it. They started from over a century ago and they said, well, this case says if you have a common law claim, the claim that used to go to court, it still has to. And the dissent, which was very long and impassioned, said, effectively, what? What happened to this 50 years of jurisprudence where we've been more careful than that? We've been more specific. We've been more nuanced about how we decide when agencies are allowed to act like courts and when.
You have to go to an actual federal court with an independent judge to hear your claims. So Jarkisi represents, and I think this is the takeaway for the listeners, Jarkisi represents a real threat to the way agencies enforce their rules. Is it a problem to go to federal court? Absolutely not. There's no reason a federal judge can't decide if I committed insider trading or I committed securities fraud. No reason. Is there a practical problem? Absolutely. Federal courts simply can't handle all those cases.
What's going to happen? think what the majority in Jarkese thinks is going to happen is you're going to have fewer enforcement actions for securities fraud. The SEC is not going be able to bring as many because they're going to be more expensive and take longer. The courts aren't going to be able to hear as many or it's going to take so much longer, they're not going to be worth it. And you're just going to have overall less enforcement. This court has indicated it prefers. But the listeners can decide for themselves, do we want more securities fraud?
Speaker 2 (34:54.264)
cases broad or less. We want more penalties for violating pollution standards or less. can, reasonable minds can disagree whether we want more or less of that. But this decision forces the agency's hand and says, no, no, no. In this category of cases where you're punishing somebody with a monetary fine, you're pretty much gonna have to go to federal court then. A court system that's already overloaded is not expert in these programs and is going to
make it much harder, simply logistically, to bring these actions. And that's going under the radar because it's more complicated. And I hope my description was at least, you know, quasi accessible for people listening to it. But it is something the administrative law community is looking very closely at. And it's also going to be a major change the way we teach administrative law.
Yeah, no, that's fascinating. And I can see why that has gone under the radar because it definitely doesn't have the same. I mean, even Chevron deference for the vast majority of the population doesn't really have a hook, but that even less so. So yeah, it's not the kind of thing that grabs a headline.
And the hard thing about administrative law is always the same, right? Is that people don't know where agencies come from or who's controlling them. We describe them as if they are these free roaming government things. in fact, they're created by Congress, they're controlled by Congress, they're funded by Congress, and at least legally, and day to day, their operations are controlled by the president who chooses all of their heads, all of the agency heads, at least most of them, right? They're cabinet members. And with a phone call can change the way that agency behaves.
But when we read the court descriptions about them and we read sort of press accounts of them, we often think of them as if they're just out and about doing this work and don't answer to anybody. And actually they answer to lots of entities. Forget the courts, lots of entities that are elected by us, even though we don't elect them directly. The president and Congress have a lot of control over agencies. That point is sort of lost. So I think it's important for people to understand while they're reading these court decisions.
Speaker 2 (36:59.982)
Yeah.
So like to move on to two of the big headline gun cases that were recently decided. First was United States versus Rahimi and the other, Harlem versus Cargill. So I know Rahimi came, I think, as a bit of a surprise to some people because it was an eight to one decision to prohibit domestic violence offenders from possessing guns. And I know that there was an expectation that it was going to fall along a more
partisan line, but it ended up being eight to one against a certain form of gun possession. And in the process also, it's my understanding that it created a certain degree of ambiguity about the new history and tradition standard for originalist interpretation that the courts conservative majority put forward in New York State Rifle and Pistol Association versus Bruin.
So I'm curious to ask you a little bit about your thoughts about the decision and about first off, how the decision came about, and then also what complications it's going to introduce in terms of this particular kind of originalist interpretation, at least with regards to the Second Amendment.
Good, and you described it very, very well. Bruin was the case about sort of ordinary gun ownership in the war. And the court said, unlike any other constitutional rights, we are going to read the Second Amendment based on what we did in 1791 and maybe 1868 when the second members applied to the states. We're going to ask, if Congress tries to regulate guns, is this the kind of regulation that would have worked
Speaker 2 (38:46.542)
or been adopted in 1791 or 1868. It's the only area of constitutional rights where a strictly historical analog test exists. It is a new standard. Bruin is only a few years old. It was authored by Justice Thomas, and I raised that because he was the one in 1891. And the minute it came down, the general consensus among common law folks was that I am one of them.
This doesn't make any sense. That's entirely un-portable. And I think what you're seeing in that Brahimi case is two things, right? One, it's an acknowledgement by everybody but Justice Thomas that the standard doesn't work. We talk about why. And two, it's sort of this common sense idea that, of course, we're not going to let somebody with a domestic violence restraining order have a gun. I mean, if we are allowed to regulate guns at all,
And the Second Amendment does not tell us we cannot regulate guns at all. There's not a single amendment. None of the Bill of Rights, not one provision tells us in absolute terms, you may not do something ever. That's just not how constitutional rights work. There's always sort of a series of questions and answers about why are you doing this? Could you do it more carefully? Is there a way to step on people's rights less and still achieve this important outcome? We do that in every other area.
But Justice Thomas's Bruin decision basically set fire to the way we do most constitutional rights analysis and said, no, all we are looking at is, there an historical analog? That is also appealing to people who are new to this because it sounds great. Well, yeah. What did they do in 1791? Right. I maybe that's a bad idea because they only had muskets. Right. So lots of people could think the historical analog is really terrible. But at least on its face, it may seem to some people like it's easy.
and straightforward, and it prevents judges from inserting their own preferences. They're just doing an historical analysis. What we learned in Bruin and what we learned in the case before that, Heller, and what we learned in all of these cases is that history is not that simple. There is not a single answer for what happened in 1791 with respect to gun regulation. And in fact, there were 13 states, and they all did something slightly different. And what does it mean to be analogous when you are regulating an automatic weapon
Speaker 2 (41:10.092)
versus a musket? Are there different reasons for regulating an automatic weapon versus a musket? Absolutely. It takes near half a minute to load and shoot a musket. You could shoot, I don't know how many dozens or hundreds of rounds one could shoot in 30 seconds under modern technology. It is simply not the same world. And I think what you saw in Rahimi is the court saying, under any common sense reading of a right to bear arms, someone who is acknowledged by the courts to be dangerous.
dangerous enough to keep them physically away from someone, should not be armed if the law of that state says you can't be armed. So remember, this is the law of the federal government or of the state. This is about a statute that says, a law that's been passed by elected people that says we would rather not have domestic violence abusers, domestic violence violators, armed in our jurisdiction.
And the question was, are you allowed to make that decision as an elected official? And the court said yes, because of course you are. And that's why it was 8-1. What was most interesting for those of us who do this for a living was that the eight justices in Marahini were generally critical of the Bruin standard. But as you said, they were critical of the history and tradition standard. And they started to soften it. So Chief Justice Roberts says, well, it's not a direct analog, because it can't be, right? It's something similar. So we're asking.
is the spirit of the regulation that's happening in 2024, similar to the spirit of the regulation from 1791 or 1868. And in this case, the idea of regulating guns by keeping them out of the hands of people we already have good reason to believe are dangerous is a spirit that apparently existed earlier in American history, least the court was comfortable saying it would. Now, Justice Thomas says, no, can't find it, it's not there.
What you're seeing is both of the problems I raised. Two groups of justice, in this case, eight to one, but oftentimes it's split more down the middle, disagreeing about what history says and relying on papers filed with the court from actual historians. If the court has a test that depends on somebody else answering the question for them, you wonder if it's a good legal test. And the answer is no, it's not. If I need a historian to answer my legal question, then either
Speaker 2 (43:35.712)
all my lawyers have to be trained historians, right? Or I've got the wrong test. Then you have the problem of the court manipulating history. So in the first Second Amendment case that preceded brewing, District Columbia v. Heller, 80 % of the historians who chined in disagreed with Justice Scalia's historical analysis and said, you're wrong. And he said, anyway, history supports the right to bear arms.
for self-defense by owning a gun in my own home. 80 % of the historians who chimed in said that's not what the Second Amendment manual was drafted. It was about militias that had nothing to do with this. And Justice Scalia said, historically, I'm right. And he had a couple of historical arguments. But the overwhelming majority of the industry disagreed with him. That problem happens in every case involving relying that heavily on history. It happened when Dobs, who drove a road road bewayed.
The overwhelming majority of historians disagreed with Justice Alito's historical account of abortion regulations. That doesn't mean that Dobbs is correct or not correct, right? We can agree about the outcome or disagree about it. But history is not a set of stereo instructions. History is art and science. And what we see in Rahimi is the court sort of acknowledging that a rigid historical test is not workable. They're softening their position.
And in the meantime, they're not willing to abandon what I think most people think is a common sense outcome. If you have a court issued restraining order saying you are too dangerous to be near someone, it is OK for the lawmakers in your jurisdiction to say you have also forfeited your right to be armed while that restraining order is in place. And that's really why you see AIDS, think, because it was a relatively easy case on the practical outcome.
What I thought was most interesting again is the point you raised that that history and tradition test might be softening a bit because the version in Bruin was just impossible and unique. There's no reason the Second Amendment should be different than the others, but somehow the court has started going.
Speaker 1 (45:49.918)
my understanding is that the issue has been complicated by the fact that the justices didn't say, okay, we have to admit that Bruin wasn't quite right, that they didn't admit that there was a problem with Bruin so much as they said that Bruin has been misapplied and therefore we're here to straighten out how people interpret Bruin. Is that the case?
Yeah, the analogy to a record, to a needle dragging across a record doesn't work anymore in 2024, but that's the sound that was trying not to make. They were trying not to make it sound like they're abandoning something they did just a few years ago. Many of the one, many of the eight signed on to Bruin because it involved sort of a less obvious gun ownership situation, right? The people suing in Bruin were not adjudicated dangerous in advance.
They were just citizens carrying guns around New York, often to shooting ranges and plans. It was much more sympathetic case. Now when you have an unsympathetic case, like someone adjudicated to be dangerous and has a restraining order out against them, now you see eight of them saying, this is okay for sure. And Bruin says it isn't, then you misread Bruin. Of course Bruin allows this because they don't, like you said, want to look like they're making 100 million to return. And I think they do want to make the Second Amendment special, at least
five or six of them of the current court wants the Second Amendment to be very powerful, more powerful in some cases than the others. Just not when it involves someone who's a domestic violence offender.
So the other case that I wanted to ask you about, Garland versus Cargill. So that was a decision that was decided along more expectedly. Partisan lines, it was six to three, and it was to overturn an ATF rule from 2017 prohibiting bump stocks, which are these things that allow semi-automatic weapons to, I mean, yeah, semi-automatic weapons to function essentially as automatic weapons. It was,
Speaker 1 (47:54.286)
The ATF gave the ruling, I think, shortly after the shooting that occurred in Las Vegas, where I forget just how many, over 60 people I have it here in my notes, over 60 people were killed. But I wanted to ask you a little bit about your thoughts about that. And in particular also, and correct me if I'm wrong about this, but it seemed to me like Chevron almost seems like it's a little bit relevant here, because from the count that I heard of the case,
It sounded as though some of the reasoning in the case hinged upon the court's interpretation of exactly how you define an automatic weapon and whether or not these bump stocks effectively allow this thing to become an automatic weapon or what. So guess I'm kind of curious to hear your response.
That's exactly right. we don't know what Loper-Brite, we don't know what the demise of Chevron through Loper-Brite is going to do to this issue going forward. But what the ATF wanted to do was prohibit bump stocks and it needs a statute to allow it to do that. Back to our original conversation, our administrative law. Unlike Loper-Brite, which was about how courts are involved in the decision, right? Here you just have the court saying the statute doesn't allow it.
and they go into a very detailed analysis of whether you actually pull the trigger every time you fire around with using a bump stock or whether you just press the trigger once and it becomes truly automatic. They sort of parse out the meaning of all these individual words. And with the sense edge, you're reading them in a vacuum and you need to read them together and to read them together, then of course they can do this. It's just a traditional fight among judges about what a statute means, but they are suspiciously silent about deference.
And under Chevron, at least if we take Chevron seriously, they should have deferred to the agency's interpretation of an ambiguous statute. The majority could just as easily say it wasn't ambiguous, we're just telling you what it means. Right? So this sort of evidences the fact that the Supreme Court wasn't doing a lot of Chevron anyway. But this is just sort of a really detailed sort of in the weeds fight about what specific statutory language means. And the fix is going to be a congressional fix.
Speaker 2 (50:11.87)
or a change in the regulation, the regulatory language, to fit within the statute of interpretation the court gave. So this is going to be a back and forth between Congress, the agency, and the courts about trying to make all of the language fit together better. But it's an example of what we can expect more of without Chevrolet. And that is that courts are going to parse out these statutes that have history and require experience.
and could involve agency expertise on their own and might care very much about whether I, how many times I have to sort of exercise the muscles in my fingers to pull a trigger or whether I'm actually pulling the trigger or not, right? The bump stock actually, as I understand it, creates a sort of a spring action where the trigger just keeps banging up against your fumbor. you're not, whether or not you're depressing it depends on whether or not you think I need to move my finger really quickly or I need, or the trigger is.
is being activated multiple times, whether or not I move my finger. There's details at that level. And we see the challenge with not having a deferential standard. So I think that case is best talked about as evidence of what happens in a non-deferential environment. Or it's not deferring to the agency. They're going to start from scratch. And now you have a court that is, I think it's fair to say, revealed itself as a pro
gun rights court, pro-second amendment court. Ruin is a very harsh second amendment decision that prohibits a lot of gun regulation. You have a court that's already taken that position, reading a statute on its own and telling the American people in Congress what it means when a equally reasonable reading could have gone the other way. The court's entitled to make a choice, but it's making a choice and implicitly claiming that it's the best possible reading.
And think it's very hard to be persuasive about that. It is one sensible reading perhaps, one reasonable reading. But this is what happens when you have judges starting to scrap.
Speaker 1 (52:21.696)
So shifting gears, I'd like to ask you about two cases involving the former president. So the first, Trump v. Anderson, was a unanimous decision overturning the Colorado Supreme Court's decision to prevent Trump from appearing on the ballot on the grounds that the 14th Amendment bars him from seeking federal office because he engaged in insurrection. However, the case seemed especially fraught since, had Colorado's decision been upheld,
It seems like it would open the door to many more attempts to prevent national candidates from appearing on state ballots. So, yeah, so I'm curious to hear your thoughts.
As usual, think your take on it is really good and right. I mean, think the courts unanimous in part, wanted to send a single message that it wasn't going to muck up the presidential election, or it wasn't going to allow the presidential election to be on to be complicated. the problem is that section three of the 14th Amendment says, if you're an insurrectionist, you can't be on the ballot. If you aided or abetted, effectively an insurrection. There's lots of evidence, including
comments by Senator Mitch McConnell right after January 6th, the President Trump did that. Colorado determined the President Trump did that. And they said, you can't be on our ballot because you engage in insurrection, right? Just like we were Southerners during the Civil War, right? As of 1868, that's where Section 3 comes from. It's designed to prevent basically folks who took up arms against the United States from being officers of the United States.
So Colorado made this decision and the court said, states can't make it only the federal government can decide if you're an insurrectionist and therefore not on the ballot. Now that has some appeal, right? The reasons you get it. Colorado is one state of 50, You see it has an electoral vote, so we'll call it 51. It would be problematic if individual states started making decisions about who is and is not on the ballot. Of course, they already do that, right? Ohio almost didn't include at the time candidate Biden.
Speaker 2 (54:27.832)
President Biden because of timing issues around the Democratic National Convention. States have rules about whether you're allowed to be on their ballot. You need certain number of signatures, right? We already, we run our presidential elections through the states. So the fact that individual states do different things is not unusual anymore. Is this particularly problematic? Yes, because it involves a fact-specific sort of maybe more subjective determination about whether you're eligible. Number of signatures is pretty easy.
to establish and pretty objective, whether or not you're an insurrectionist is harder. So it is, there are dangers with having states do this. And the court is right to point them in. I would suggest, however, that this has been an amendment since 1868. And nobody has ever tried to use it despite states having very strong feelings about certain candidates. I am certain that since 1868, lots of states have felt that they would rather not
have certain candidates on the ballot. And nobody has tried this before. Was it because they didn't have the courage? No. It's because they didn't have any reasons. So I do think it is dangerous to refuse to accept any circumstances as novel or unique. So the argument is always, it's a slippery slope. you do this with President Trump, you're going to do it with President Biden. Well, you're not, because there's no argument in the world.
that President Biden is in insurrections. No president has ever done anything like what President Trump did on January 6th. I've been telling my students that in terms of dereliction of duty, is the worst thing a president has done in American history to foment and then stand by while a mob of people, you just encouraged, forcibly interrupted a constitutionally mandated session of Congress. That is an insurrection.
The fact that Colorado saw it that way to me is a sign of the rule of law working. And the reason it's not a problem going forward is that no other president has ever done that. And I would hope no other president considers doing it. Now that said, does the Supreme Court want to be involved in that fight? No. That's why they were unanimous. What did they actually say? Well, they said states can't enforce section three of the 14th Amendment on their own, period.
Speaker 2 (56:55.372)
That still leaves two other choices for who can decide if you're eligible to be on the ballot for being in alleged insurrections, Congress or federal courts. So for example, imagine if Colorado, state of Colorado brought a lawsuit in federal court in Colorado saying, president Trump should not be on the ballot. You federal judge interpret section three of the 14th amendment and tell us whether we're right. Colorado didn't do that. They went to their state courts.
But if they had gone to federal court, the federal courts don't answer to the voters in Colorado. Those folks are appointed for life. They are financially independent. Same thing we talked about with Chevron and local drug. Federal judges interpret the Constitution all the time without any more information other than what the Constitution says.
Could you just go to federal court and say, he's an insurrectionist, take him off the ballot? Well, I would argue the common sense says, yes, we do it all the time. We do it in gerrymandering cases, we do it all the time. The Supreme Court not only said the state can't do it itself, it said a federal court can't do it either. It said the only entity that has the power to tell someone they are an insurrectionist is Congress by enacting a statute defining what an insurrectionist is.
That is never going to happen. And that's sort of a separate issue with the court. And it certainly hasn't happened yet. But several of the justices in Trump v. Anderson disagreed with that part of beholding. So they agreed with the result that Colorado can't do it itself. But Justice Barrett, for example, didn't like the idea. And Justice Barrett is part of a six justice coalition that we generally think of as conservative. And Trump appointee, Justice Barrett said,
This is going too far. Why are we not allowing federal courts to do this? Right. We don't need to say anything at all about that. Why don't we just say states can't do it on their own? Here was Colorado can't do it. Why do we take it? Take federal courts off the table? Also, it's overkill. Mm Which is generally something we don't want courts doing. We don't want them deciding issues that they don't have to resolve the case, but they did. One way of understanding that is they did it, so this wouldn't come up anymore.
Speaker 2 (59:14.014)
So that you wouldn't have a federal judge in Nevada or Arizona or Pennsylvania taking President Trump off the ballot or being an insurrectionist because without a statute, now you're not allowed. But it is significant, the court, do that, to say section three requires a statute. When it doesn't require, when it doesn't do that, to say the equal protection clause of section one, where it says states are required to treat people equally under the law, the court has never said,
only if Congress says so. They said the equal protection clause in the Constitution on its own is good enough for federal courts to enforce. So if the state of Georgia tries to reinstitute Jim Crow, a federal judge will immediately strike it down under the language of the 14th Amendment without waiting for Congress to say anything. Not true under the part of the 14th Amendment that prohibits insurrectionists from being on the ballot. We need a statute. No statute is forthcoming.
that section three is basically no more after the Supreme Court's opinion. And that's problematic. And there was not unanimity about that at all.
That seemed interesting also from the standpoint of balance of power too, given what you were saying earlier about the court taking more power to itself. is an instance of it seeming to very much wave that power away and say, don't put us on the hook for making this decision.
That's right. It wants an out for this one. I understand. I am sympathetic. The flip side of that, of course, is, you took the job. It is very important job with lots of perks, sometimes more perks than it should, depending on which justice is accepting a flight from Italy. But this is your job, and why is this constitutional provision different than all the others?
Speaker 2 (01:01:07.106)
very most often willing to enforce based on the language of the constitutional law. And I think the answer is because the court wants nothing to do with this. And I understand that. And it might be better for the country if this doesn't come up anymore. The problem is it is true. It is factually true that we had a president behave in a way that no other president has and is significantly problematic for the future of democracy.
You could, there might be some editorializing in there, but I don't think much. The reason we've never heard this before is because we never had occasion to. It is not possible for Colorado in good faith to use this against any other president going forward. So sometimes I think it's important for the law just to acknowledge that what has happened is different and treat it that well. court did not do that and section three is not coming back in time soon.
So in light of what you were saying just now about the uniqueness of January 6th and of President Trump's actions on that day, I'd like to ask you about the finally Trump versus the United States. And I guess the way that I would like to start out asking about that is, you know, I've heard some commenters say that the justices really had to walk a tightrope in this decision.
between reacting to President Trump's actions in particular and being forced into this situation where they had to create guidelines about criminal prosecution for presidential actions more broadly, right? Which is an area that the courts have, my understanding is, have almost never really weighed in on before. was a case, Nixon versus Fitzgerald, in which they weighed in on the topic of presidential immunity from
civil liability for actions taken during an office, during the president was in office, but never for criminal liability. And so guess I'm curious to ask you about one, do you think that's the case that they were kind of trying to walk this tightrope and how successfully you think they did it? I'd like to know, you know, open it up to your thoughts about this.
Speaker 2 (01:03:20.002)
I think tightrope was too kind. think it was more like that normal sized corridor. There was more space for them to operate in. It was, of course, difficult, right? It's a novel question. We've never been in a situation where a president has been charged with a crime for something he did while in office. And this goes back to my earlier point. Why? Because no president has ever behaved this way. The crimes the president is charged with,
certainly look based on the charges brought as if they were in fact committed and are in fact, crimes. Calling the Georgia Secretary of State and asking him to find 11,000 votes is a crime, whether you're president of the United States or not. So this is a different situation. To call it a slippery slope, and you didn't do that, right? But sort of the argument that what's gonna happen next is a fair question, but I think it shouldn't swallow the reality that this is a
This is uncharted territory because presidents generally don't behave this way. They don't take confidential documents and then hide them when someone asks them back. They don't call the secretary of state and ask them to find votes. They don't encourage a mob to stop Congress from engaging in its constitutionally mandated duty. They don't do that. So they haven't done it. So the question then is, what do you do? Well, the balance is,
The president should not be prosecuted for judgment calls made as president as a general rule. And that's right, right? So when a president decides whether to drop a bomb on another country, is it possible that they do that in a way that is not within their legal power? For example, if they needed congressional authorization and they chose to drop a bomb on an alleged terror cell in another country.
problematic, but clearly operating as commander in chief in a way that is reflective of the responsibilities of the job, national security, public safety, whatever, foreign relations. Could a president order the FBI to kill a political rival? Of course not. That is not part of their political responsibilities as the president. If that political rival were a suspected terrorist who's going to blow up a building, then yes, of course they could. Right? That's an official act.
Speaker 2 (01:05:42.936)
So the debate has always been, where does the president's official responsibility sort of not excuse criminal conduct? And it was always going to be that official acts versus not official acts were gonna be sort of the line. What the court did in the immunity case, Trump in US, that has upset a lot of people and I think is hard to justify, is they have made the definition of official acts so broad that it becomes almost impossible
to prosecute a president for any crime they would commit, including something like targeting their political rival for the following week. They said clearly, so for example, with respect to January 6th, conversations the president had with the attorney general of United States about interfering with the vote certification on January 6th are an official, make his actions official. Because he spoke with a cabinet member,
and the cabinet member is a officer of United States and the president and the attorney general often talk in their official capacity. So any conversation with the attorney general basically makes it official. That is a huge problem now because all you need now is to get the attorney general on board with your criminal activity and you are immune from prosecution. Nixon would have been immune from everything he did because he ran everything by his attorney general. He wasn't prosecuted because he was on.
But had he been possibly under this standard, he would have been absolutely new. So simply involving your cabinet now seems to make something an official act, regardless of what you're involving them in. Remember that the vote certification doesn't require the president at all. It doesn't involve the president at all. It might involve the vice president. But most legal aspects think only on ministerial capacity. But either way, the court is now saying, if you're talking to a cabinet member about
something that involves you as a candidate, but not the president. The fact that you're talking to a cabinet member while president makes what you did official in process.
Speaker 2 (01:07:44.77)
They also said that if you're talking to other state officials or private parties, but you're doing it sort of with an eye towards law enforcement. So if president Trump claims that he was investigating election fraud by trying to get people to stop the vote certification or to certify another slate of electors, a competing slate of electors to go to BC and complicate them safe in the state of Arizona. Well, he has the power to...
or
Speaker 2 (01:08:12.172)
make sure the laws are faithfully executed. That's part of the president's job under Article II of the Constitution. If there's a law enforcement explanation, that's probably in a profile. There's a presumption that it's official. And anybody who thinks it's not, it's gonna have to overcome sort of a thumb on the scales that says that's probably official, it's probably not. Well, now the president is immune for calling party leaders in Arizona and saying, find another group of people to go to DC and challenge the election for me, even though I know that the election wasn't fraudulent.
there's tons of evidence that he knew it wasn't fraudulent, he just wanted it. That's now likely a mean.
On top of it, the court said, you can't even use evidence of conversations the president had in his official capacity as motive. Yeah, yeah. So now you could argue that calling the Georgia Secretary of State to find votes has no presidential connections at all, right? There's nothing official about that. Georgia Secretary of State doesn't work for him. No president ever needs as the president to talk to the Secretary of State of Georgia, right? It just doesn't have to have to happen. So, OK, that's not official.
Of course, he invited a senator and he may or may not have talked to his attorney general about it. So he might be able to protect himself. But we can't even use the conversations he had with his attorney general saying, I'm going go try to fix this as evidence of why he's talking to somebody. In other words, we can't use conversations he had as motive for why something might not be official. I were to tell the general public, here's two scenarios.
The president calls Georgia's Secretary of State asking him to find votes because he has real evidence that that number of votes were fraudulently made by ballots level. And he says, I need you to look into these 11,800 votes because I've got really good intelligence and evidence here that they're fraudulent. Versus, I need you to go find 11,800 votes because I want to win.
Speaker 2 (01:10:17.73)
And I don't think there's anything wrong with the election. just want to find them.
Evidence of why that phone call was made is no longer admissible, is no longer allowed to be used to demonstrate motive and therefore to demonstrate whether something was actually official or not. So the president's going to say, I called for law enforcement reasons. I wanted to make sure the election was only up and up. And we're no longer, after Trump v. US, allowed to use that evidence of motive, why he made the phone call, to tell us whether something's official or not.
effectively immunizes the president from almost everything they would do because motive does matter. If I told the American public we're trying to decide if something's official, I think they would instinctively ask, well, why did he do it? He did it for his own reasons that had nothing to do with the public interest, and it's not official. If he did it to protect America by bombing Libya, for example, then that's an official act. He might've been wrong. Might've been a bad idea. It might not have even been allowed under the law, but he did it.
on behalf of the American people. didn't benefit personally. So, okay, I could see how immunity works there because you don't want the president every time they make any decisions to be worried about being criminally prosecuted. That's a big deal. But if I told you the only reason the president bombed Argentina was because he hated somebody, he had an old college roommate he hates in Argentina and he wanted to destroy his office in the middle of the night and ruin his business. You would say, that's not a presidential act. That's a crime. You shouldn't be allowed to do that.
Well, now he's immune because we're not allowed to ask why he did it, just what he did using the armed forces to engage in overseas activity as part of the president's job as commander in chief under Trump for US he's immune. So that motive piece is extraordinarily important and totally unnecessary to establish immunity centers. It's another example of the court going farther than it needed to really slamming the door.
Speaker 2 (01:12:13.748)
I don't know what is unofficial anymore while you're president. And I think it's even harder to prove. So if President Trump says, I shot somebody in middle of Fifth Avenue, if he says, I thought they were a terrorist, all of a sudden now he's immune. Even if we could prove he didn't, because he wrote in his diary, this person is not dangerous. I just want them dead.
But that's not admissible.
That admissible commotives not relevant, right? So the court really protected the president above and beyond. And I'm not sure why, and they didn't need to do that for fear of just blowing up in their face later. The official act, unofficial act standard was what everybody expected would be justified. And I think anything that is exclusively tied to your reelection is not part of your official conduct as president. I think most people would understand that and say, of course it's Right?
Trump wanted to win whether he was president or not. The fact that he was president doesn't mean he's allowed to break election laws to win. But now it doesn't. We're gonna see how the courts apply the standard. But I think reading the opinion, it's very hard to find much daylight for prosecuting the president for interfering with the election.
It also seems to lead to these weird inconsistencies in whether and how rule-bound the president's actions are at any time in any sphere. I heard someone say, to put it provocatively, heard someone say that this case means that President Biden can't forgive student loan debt, but he could call in an airstrike on the debt collectors.
Speaker 1 (01:13:55.918)
insofar as that that would be an exercise of his core function as president.
Right. And I think there's a little hyperbole in there. I think that's the point. The president has been protected from criminal liability for almost everything they do while president, or at least it's very easy for them to claim immunity now. And in the meantime, they're not allowed to pursue policy choices they were elected to pursue if the court doesn't think they're the right ones. And that's where the administrative law and criminal law cases sort of overlap.
And to extent that I sound cynical, that is not the way I started all of this. But when I teach this, and I'm teaching it starting in a couple of weeks, I'm going to be forced to have my students reckon with the idea that the Supreme Court has shifted the power over the administrative state to the court and over everything else to the president. We now have an extraordinarily more powerful president than we did before, arguably, and less
You're trying to set policies that the court thinks are too aggressive, are too ambitious. And then the court will unwind those. So you're right, there's some irony there. You have some irony.
Well, Professor Virelli, thank you so much for being here today.
Speaker 2 (01:15:14.338)
Thank you for having me. This was fun.
This has been Real Cases. Thank you for listening. Check back for more episodes about an array of legal topics presented by the Stetson University College of Law. Learn more at stetson.edu.
Topics: Real Cases Podcast
