Kate Shaw
Appearances
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And a contributing writer for New York Times Opinion. Enjoy.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
To talk about all of that, I wanted to bring in Jillian Metzger, a professor of law at Columbia Law School, who's been thinking very deeply for a long time about the presidency, the administrative state, and the Supreme Court's relationship to both. Jillian, welcome to the show. Thanks for having me. Okay, so to begin, I thought we could start with a proposition.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Well, there are really two questions here.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And just to make it clear, so maybe as a matter of statutory interpretation, before we get to the Constitution, Trump could demote Powell back to being a regular governor. But the text of the statute isn't unclear or ambiguous as to the 14-year term, right? Firing somebody... chair or not chair, would clearly violate the statute.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Okay, but so you said there's a statutory question, and what about the Constitution?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So in some ways, I think what is most striking about this conversation is that we are having it at all, right?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Fifteen years ago, the idea that the Supreme Court might deign to invalidate the structure of the Fed based on this, at best, I think, historically and structurally and texturally questionable theory about the necessity of presidential control over the whole executive branch is kind of mind-blowing, right? So maybe they would actually...
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
be sympathetic to a challenge of some sort to limits on the president's ability to designate a chair, even if they would say, well, the governors can't be fired just because the president decides by fiat he wants to do that. But in some ways, it just underscores the enormous power that this court has asserted for itself over what our government looks like.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So let's shift gears for a moment. And we have been talking around the Supreme Court, but I want to talk now more directly about the Supreme Court. And I want to do that by asking about the court's recent decision in Loperbright, which is a case that overruled the 40-year-old Chevron decision. Chevron basically said that a
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And there's been a lot of public attention paid to the way that eliminating the rule announced in Chevron will reduce the power of agencies like the FDA or the EPA. But Loperbright is a little bit more complicated than that. Maybe let me start by asking you, when it comes to power, government power, who are the big winners and who are the losers under Loperbright?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
President-elect Donald Trump will enter office in January 2025 with more power and with fewer constraints than any other president in modern U.S. history. Agree or disagree?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So you mentioned the uncertainty about the full kind of scope and meaning of Loper Bright. Is that, do you think, a result of just sloppy drafting on the part of Chief Justice Roberts, who wrote the opinion? Is it something maybe more nefarious? The court wants to sow chaos in the agencies and in the lower courts.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Is it just that the whole thing is a product of a less than fully developed vision of the Constitution, you know, the role of agencies in our constitutional order? Like, what explains the uncertainty you think that remains in the wake of Loeberbright?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So it seems to me that there are a couple of different ways to read the practical consequences of the court asserting this enormous new power for itself. And I take the point that the contours of that new power are actually very unclear as yet. But, you know, I guess I if it's possible to make some kind of predictive judgments at this point, is the result, you know, a weaker administrative state?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Is it an administrative state that is just run by, you know, a smaller and less well-equipped number of bureaucrats that is the members of the federal judiciary? And I guess, you know, do you have thoughts about how this decision interacts with presidential power.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
You talked a little bit about Congress, and I think it's clear that if courts are a big winner here, Congress, depending on how the opinion gets understood, might be a big loser because Congress has made many decisions about what kind of agencies to create, what kinds of powers to give them, what kinds of
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
procedures to tell them to follow and also pass substantive statutes that tell them to do things, identify endangered species, ensure workplace safety, right? Obviously, the list is infinitely long. So, court big winner, Congress big loser. Do we know yet, I guess, about agencies and what about the president?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So I agree that there are certain complexities and I do want to get into some of those. But it seems at the outset as though we do agree that the president's power has been expanded in recent years and recent decisions and that the immunity decision is really a critical piece of that story. Absolutely.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So we have been talking through a number of trends involving pretty radical transformation of legal rules. So we have an ascendant president with few checks, a disempowered or reconfigured administrative state, a hugely powerful Supreme Court sitting atop all of that. And I want to drill down a bit more on this Supreme Court, but first I would like to dip a bit into history.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So you have written about the parallels between this anti-administrative, anti-regulatory Supreme Court and the anti-administrative, anti-regulatory court of the 1930s. Can you tell us a little bit about the court of the 1930s?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So by 1937, the court has largely reconciled itself to the constitutionality writ large of things called administrative agencies and some version of an administrative state. But before that, in, you know, maybe 1935, the high watermark for Supreme Court hostility to the New Deal— I guess, how does that court and its radicalism compare to today's Supreme Court and its radicalism?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And so I think that actually one way to think about a number of recent Supreme Court opinions, maybe first and foremost the immunity opinion, is that they give the president both a sword, new powers, and a shield, new protections from any sort of meaningful accountability.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So I think that prose is woven throughout a lot of recent Roberts Court decisions, that the administrative state is in some sense an existential threat to liberty. And you have argued that this Supreme Court often fails to appreciate the ways that agencies, that the administrative state actually protects liberty. So can you say a little bit about that?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Yeah, but I do think that this court holds a very, very narrow conception of liberty. So you're referring to the kinds of positive liberty government might pursue, environmental protection, consumer welfare, racial justice, gender justice. And if this court does not imagine those as encompassed within its conception of liberty— And I think it doesn't.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I guess it's not surprising that it's deeply hostile to agencies' pursuit of those kinds of projects. Because I don't think it's a random list of agencies that the court has demonstrated its hostility towards. It seems to be the agencies, in particular in the kind of consumer protection and consumer welfare space, where it seems very, very skeptical of agency authority.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So one of the most important decisions that I think operates as both sword and shield is the court's immunity ruling from earlier this year, Trump versus United States, in which the Supreme Court handed Donald Trump sweeping new immunity from criminal prosecution for virtually any official acts taken as precedent.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And the court somewhat gets the cases served up to it. But the hostility is not consistent across all of the different kinds of tasks that government performs.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So you do view all of these moves, we've been talking about them in somewhat disparate ways, as part of an ideologically unified project.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
We hear the phrase the administrative state a lot. And I think a lot of the time it's used almost as a pejorative, right? Like by people who don't like the administrative state. It sounds maybe kind of ominous, maybe like it's not part of the government. It's like some other thing. So I want to give you a chance to offer a corrective. How do you understand what the administrative state is?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Who is the kind of standard bearer for this war on the administrative state on the current court in your view?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I mean, he's not an originalist. And he doesn't have as developed a theory of the liberty that is fundamentally threatened by the administrative state as, say, Justice Gorsuch does. He just seems really hostile, to my mind at least, to some of the more kind of redistributive projects that government engages in that we were just talking about. Is that fair? I think that's fair.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So what did you think was the most significant consequence or implication of that ruling?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
As much as this court seems to endorse the project of reducing, refashioning, reconstituting the administrative state, are there nevertheless areas where you can envision this court acting as a check on some of the second Trump administration's more ambitious designs?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
That Empowerment Control Act theory is one of the many things floated in a recent op-ed in The Wall Street Journal by Elon Musk and Vivek Ramaswamy under the guise of what they are calling this Department of Government Efficiency or DOGE. Does it drive you as crazy as it drives me to hear people refer to this as an actual department?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And even if the president can't do it unilaterally anyway, Congress has to create departments. Congress creates departments. And maybe, sure, if they wanted to, if the next Congress wants to create a Department of Government Efficiency, I guess we will have to call it that. But unless and until that happens, I refuse to.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Right. Yes. Okay. So the so-called doge or the entity, you know, calling itself doge, we can decide what to refer to it as. But what about other suggestions that Musk and Ramaswamy have floated regarding, you know, large-scale reshaping of employment in the executive branch? So...
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
There have been references to things like mass layoffs and departmental reorganizations, though I will note that actually the Wall Street Journal op-ed that I mentioned seems to sort of back away from some of that, focusing instead on things like early retirement incentives, which clearly the executive branch can decide to offer.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
But do you want to just talk in general terms about whether some of the rhetoric that is the most expansive about fundamentally overhauling government employment is even plausible under existing law?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
What about this idea that Trump floated during the first administration and has suggested that he will pursue again in the second Trump administration, which is seeking to end birthright citizenship?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think that's such an important kind of callback to the first part of our conversation. So I think we have this tendency to say, Trump says he's going to end birthright citizenship. Will the Supreme Court let him? And I don't think that's an unimportant question.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And I hope and actually do kind of trust that even this Supreme Court would say, no, of course, the president can't unilaterally end birthright citizenship if he wants to pursue a constitutional amendment. Article 5 does allow the amending of the Constitution. He could push for that. That is the only way to end birthright citizenship. But a lot can happen before you get there, right?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And a lot does happen inside the executive branch. The president has lawyers in the White House. The Department of Justice has lawyers in the Office of Legal Counsel and the entire Department of Justice. And those lawyers swear an oath to uphold the Constitution just like every federal official does. And there are certain constitutional questions that are hard or close.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And I don't think birthright citizenship is one of them. And so Whatever new powers, whatever new sword and shield the Supreme Court has given the president, none of those erase the obligations of executive branch lawyers to the Constitution. I think that's a really important point. I agree. I think that's actually a good place to end it.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
As always, what are three books or articles you would recommend for our audience?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Karen is my colleague at Penn, and it is a beautiful article. Even if you don't think you enjoy reading law review articles or you would enjoy reading law review articles, maybe try this one. It might be an exception. Jillian Musker, thank you so much. Thank you for having me. This episode of The Ezra Klein Show was produced by Elias Isquith.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Fact-checking by Michelle Harris with Mary Marge Locker. Mixing by Isaac Jones with Afim Shapiro and Amin Sahota. Our supervising editor is Claire Gordon. The show's production team also includes Roland Hu, Kristen Lynn, and Jack McCordick. Original music by Pat McCusker. Audience strategy by Christina Samulowski and Shannon Busta.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
From New York Times Opinion, this is The Ezra Klein Show.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
The executive producer of New York Times Opinion Audio is Annie Rose Strasser.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Just to underscore the first thing that you mentioned about the opinion, I continue to be kind of gobsmacked by the breadth of some of the rhetoric about things like the exclusive authority of the president over the investigative and prosecutorial functions of the Justice Department and its officials. Since essentially time immemorial, to my mind at least,
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
there has been a complex and nuanced and subtle set of dynamics and relationships between the I think is something presidents of both parties have engaged in in good faith. And this opinion just seems to wipe all of that away and say all of the power resides in the president. He can direct investigation and prosecution full stop, or at least he can't be prosecuted for any of that.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
There might be some distance between the proposition that he can do whatever he wants and he can do whatever he wants and not be prosecuted for it, right? I think that those two might not be exactly the same.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Oblivious or hostile to the project of maintenance of that separation. Yeah, I honestly don't know which it is. But I do think, you know, you mentioned the focus on the president. And that, I think, is one important question about the sweep of this opinion, how focused it is on just the president personally and how much it will have ripple effects personally.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
involving underlings of the president, right? So on its face, this opinion just talks about the immunity of the president, right? It doesn't say anything about shielding the president's top deputies from potential criminal prosecution. So I guess, is that also how you read this opinion as limited to the president by its terms and on its logic?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Or can you imagine the Supreme Court deciding to expand the immunity it announces in this opinion to encompass top advisors, say?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
of government. It's like, no, he's not. There are two million people in a branch of government. He is enormously important. And I don't think either of us wants to discount presidential power. I actually really do think a powerful presidency is a part of our constitutional tradition, at least now, maybe not from its inception.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
But the idea that he is a branch of government, which is it just seems like you said, is it is it oblivious or is it hostile to the reality of what the executive branch really looks like?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
In recent years, the Supreme Court has handed down a string of decisions that have fundamentally changed the federal government. Court decisions have hamstrung the capacity of administrative agencies, and they have shored up the power of both the president and the court itself.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So, but even if down the road you can imagine this line of thinking resulting in such an expansion, as we sit here, I think it would be rash if I were advising the future president's underlings to assume that they're necessarily going to enjoy the same scope of immunity that the court announces as to the president personally.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think it's such an important point. And there were so many examples from the first Trump term of the possibility of criminal exposure actually operating as this kind of important tool that Trump advisers use to resist some of Trump's most extreme threats. directives or instincts on the grounds of potential future criminal liability, right?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Like, think about former White House counsel Don McGahn, who told investigators that he resisted Trump's entreaties to get him to direct special counsel Robert Mueller's firing on the grounds, according to McGahn himself, that if Trump removed Mueller or interfered with the investigation... that action would be used to accuse the president of obstruction of justice.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
It is very hard after the immunity decision to see how a future White House counsel makes those same arguments to a president determined to push or transgress the boundaries of the law.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So that's a really good segue to the next topic I wanted to turn to. And that is to kind of take this question of presidential control and control over personnel and firing specifically to talk about the FBI director. OK, so last week, FBI Director Christopher Wray said that he would resign at the end of the Biden administration.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
These decisions mean that Donald Trump will be entering office at a time when presidential power has arguably never been stronger or more unchecked. At the same time, Trump has promised to radically transform the federal government. Now, I don't want to make the mistake of ascribing too much coherence to Donald Trump's vision of the federal government or of governance more broadly.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Trump had made it very clear during his campaign that he wanted Wray gone. But there was some question about whether he would and maybe whether he could fire Wray outright. The FBI director is one of a few presidential appointees whose position is designed to be held for a term of years, in his case, 10 years. So these are not people who just serve at the pleasure of the president.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
They're actually meant to be in their position for a set period. Now, there's nothing in the statute that says the president has to provide a good reason before firing the FBI director. But the 10-year term, the legislative history, and consistent practice make clear that one of the goals in creating this 10-year term was to insulate the FBI director from the president.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So, OK, the question of Wray getting fired is now moot, but the question remains as to other officials, members of what we think of as independent agencies like the Federal Trade Commission or the Federal Reserve, who both by tradition and by law have more independence from the president than, say, the secretary of defense or another member of the cabinet.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So, Jillian, can you start by talking about what the older Supreme Court cases have to say about that?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Okay, so we have, through these cases and some others, a pretty well-settled understanding that, at least as to some positions, Congress can decide that there are reasons to give officials a degree of independence from the president, and one way of doing that is to place limits on the president's ability to fire those officials.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And then, around 15 years ago, the Roberts Court begins to really cut back on that reasoning. Tell me about those cases.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
But it is worth taking a hard look at the way the court has reshaped the tools at his disposal and what that could mean for how the federal government might work and what it might be able to do going forward.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So as you're describing the reasoning in those cases, what do you make of the reasoning?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So let's make the question concrete in the context of the Federal Reserve. So the Federal Reserve's members have statutory protections against presidential removal except for cause. During his first term, Trump apparently considered trying to demote or even to fire Fed Chair Jerome Powell, but he never did.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And Biden renominated Powell to another four-year term as chair, and that term isn't up until 2026. So in a recent interview on NBC, Trump suggested he wouldn't try to remove Powell, but he's changed his mind before. So if he did, and if Powell did not just engage in this kind of anticipatory compliance the way it seems that Wray is doing, would the law permit that?