The Supreme Court and Executive Power

From the National Constitution Center in Philadelphia, this is We the People. I'm Tom Donnelly, lead scholar at this wonderful institution. The National Constitution Center is a non-partisan nonprofit, chartered by Congress to increase awareness and understanding of the Constitution among the American people. This week we convened at the Center for our annual Supreme Court Review. Together with our partners at Texas A&M University School of Law, we welcomed leading constitutional law commentators and scholars with differing perspectives for three panel discussions which focused on the courts work this year. You can watch all three panel discussions from the 2026 Supreme Court Review now on our website. In this episode we're sharing a discussion that explores the Supreme Court and executive power and how the court's recent decisions on tariffs, the presidential removal power, the National Guard, and immigration have shaped executive power today. I was joined by Ilya Somen, Professor of Law at the George Mason University Antonin Scalia Law School, Julian Metzger, Harlan Fiskstone, Professor of Constitutional Law at Columbia Law School, and Julian Mortensen, James G. Philip, Professor of Law at the University of Michigan School of Law. I think the best way to tee up this discussion would just to get, you know, as best we can, just really some initial, you know, fairly brief big picture thoughts about, you know, what you're thinking about when it comes to the Roberts Court and executive power coming out of the most recent term, maybe starting with you Ilya, and then we'll go down the road. I think my general take on what's been going on with executive power is that on the one hand, the Supreme Court has been consolidating the executive's power within the executive branch, as with most notably the SWATER case, and some others, though there's also the issue of how SWATER interacts with the Cook case, which I'm not sure I fully understand, but I'm sure we'll get to it later. On the other hand, the Supreme Court has been willing to constrain the executive's power in terms of its total scope. We see it in the tariff case, which I will talk about a greater length later than National Guard case, whose significance I think has been underestimated, and some other cases as well. So in terms of the distribution of executive power within the executive branch, the Supreme Court has shown itself willing to consolidate more of that within the hands of one person, the president. On the other hand, when we look at the president's powers, road of the Congress, and also road of the states and the like, the Supreme Court has, I think, often correctly, been willing to push back, including on very major issues, even the birthright citizenship case talked about in the previous panel, well, it's primarily individual rights case. There was also an aspect of whether the president could just change this by executive order. Turn out a majority to Supreme Court said that he could not. So I think it is very important that the Supreme Court was willing to constrain this total scope of executive power in these ways, even though I don't always fully agree with the reasoning, and even though there are other aspects of the Supreme Court's work this term that I don't fully agree with, and in particular, do you think one area where it didn't push back as much as it should have was with respect to the area of immigration, other than birthright citizenship, which I'm sure we may also get to later. Excellent. Thank you, William. Julian. Hi everybody. So I am going to give you basically very close to exactly the same assessment. We talk about executive power and the aggregate, but the Robert Court treats types of executive power differently. And one of the distinctions is between what you could say is more administrative power, the power to regulate the powers to achieve substantive policies in the world, and then the other is the president's power over the administrative state and over administrative government. On the first one, you've seen the Robert's Court, and this goes beyond this term. This includes prior terms as well, pulling back on some of the substantive scope, particularly the substantive scope to regulate with things like the major questions doctrine and some other doctrines that they've done. But when it comes to the president's power over the administrative state, and I mean here not just the slaughter case and the ability to remove certain officials at will, but also some cases that come up on the shadow talking about funding, some cases about that come up also about whether or not you can have reductions in force and personnel, just a whole bunch of ways that the president controls the administrative state. There they've been much more obliging with what President Trump has tried to do and certainly beyond this, you know, with slaughter as the culmination of a longer term project. So I think these are two different features of their jurisprudence. The question is, will they fit together well? And there, there's some tension between them. In part, because one of the main arguments that is given often for why you need presidential control over the minister's state is because the president is elected and it gives us electoral accountability. The president needs that control to implement the policies the president was elected on. Well, that's all finding good, but in the meantime, you're cutting away the president's ability to actually impose or advance those policies by cutting back on substantive authority. So it seems like there's some tension there. I think that tension is resolvable, but it's partially resolvable by looking at the kind of ideological commitments among both. And one of the themes that links those two is these are both pulling back on regulatory power and controlling the administrative state core ideas of the conservative legal movement. And I think that is the through line that animates the Robert's Corridor approach to executive power. Excellent. Thank you, Jillian. And last but not least, Julian, I'm just proud of myself for not answering when you said Jillian. That will happen at least once. So I would co-sign, I think, essentially everything that Ilya and Jillian have said about the larger big picture moving parts of how to think about this term and also this term in longer arc. I liked also what Sarah said in the last panel about not thinking about this term is simply a term sitting alone, but rather as a term, as all terms are, and perhaps the last couple of terms more so than many, that are part of a story or a longer arc of time, a decade, two decades. And on my sort of big picture, summary thoughts about executive power in particular, I'd flag what I think of as a really profound and persistent debate between two very different schools of thought about how constitutional separation of power should be addressed. On one hand, there is a perspective that takes executive judicial and legislative powers as silos, as mutually exclusive, and as something to be guarded, watched over and decided upon by the Supreme Court. On the other side of this sort of large sort of almost set of Gillian, and now I can say Gillian, this dialectical clash from two different ways of seeing separation of powers and thinking about the separation of powers is a vision of the separation of powers in which what counts as executive power, what counts as legislative power, and what counts as judicial power are contextual, respond to current circumstances, and can be reframed often so that a thing which is executive power in some dimensions is also legislative power and other dimensions. And in particular, on the second vision, a vision of the separation of powers in which, not Congress, but the legislative process is the entity that is advantage privileged and given, if not final, certainly a very weighty saying deciding how to allocate the way our government works. In a constitution that requires the president to take care that the laws be faithfully executed, and which gives Congress not only the enumerated powers with specificity, but also the necessary and proper clause for organizing government in ways that Congress sees fit. And so on one hand, you have a vision of the separation of powers that if you were to speak pejoratively as wooden, if you were not to speak pejoratively, certainly as siloed and formalistic. On the other hand, you have a vision of the separation of powers that is pragmatic, responsive to evolving circumstances, and this is important, that privileges the legislative process and the law, which must go through bicameralism and presentment, in resolving or at least putting a very strong thumb on the scale of what kind of settlements ought to count as constitutional under the Constitution's separation of powers analysis. I'd say also that it's clear that for the foreseeable future, Epson's significant change in the Court's membership, the party, so to speak, of the formalist siloed wouldn't approach the separation of powers, has not just one of the Supreme Court, but is in completely firm control and unlikely to be dislodged, as I said, unless there's changes in the Supreme Court. And I want to say they earned that. The movement that they represent, the school of thought that they represent, is a sustained, focused effort over decades to think about, articulate and explore the implications of, a way of thinking about the separation of powers. I feel about this turn, although I disagree with it, the same way that I feel about the challenge that was eventually successful to row versus Wade. These are movements that build up ideas, sell them, circulate them, build them, push them within the political parties, a thing that matters investing capital on. And from that perspective, I don't see the change, and it's been radical change, as on its face illegitimate, and I do think that people who are of the second school ought to think about prioritizing the political process, broadly speaking, as a way to start building, pushing, and consolidating around an alternative vision. I hope we keep a lot of these big picture thoughts in our mind for the rest of this discussion, where I'd like to really now drill down into a few of the big cases from this term on executive power, maybe some of you may have Starting with you, Ilja, if you could begin with tariffs and learning resources versus Trump, T that up for us, and then I'd love to bring Julian and Julian into that conversation. - So there was 170 pages of opinions generated by the Supreme Court in the learning resources case, second only to the birthright citizenship case in terms of the number of pages, but I'm gonna try to distill it down to the basic issue at stake here, which was can the president have the power to impose any tariffs he wants on any goods from any nation for as long as he wants, and any amount that he wants, as much as he pleases, and the Supreme Court in the six to three decision, basically said that the answer was no. So now, drill down a little bit into the details, but I have to admit, I'm not a completely objective observer of this case because I was involved in mitigating it from beginning to end, the case actually originated in a blog post that I wrote when Trump first announced the tariffs under the International Emergency Economic Powers Act of 1977, which doesn't even mention the word tariffs, and which had never been used to impose tariffs before in the previous 50 years, and into my blog post I said, somebody should challenge these tariffs under the major questions doctrine and under non-delegation, and also perhaps because this thing doesn't even allow for any tariffs at all, because it doesn't mention those words. My thought was like somebody else who did the actual work of bringing the case, and I would get to sit back and enjoy it, and maybe I would besturbed myself to write an ambiguous brief at some point, but through a complex series of events, ended up helping to mitigate it together with the Liberty Justice Center of Public Interest Waffirm, who invited me to join the case, and then together with other people as well. We won in the lower courts, and eventually got to the Supreme Court, which also decided in our favor. So our case was actually the VOS selections case, which went into lower courts, but it was combined with the learning resources case for procedural reasons. As a technical matter, our case was actually the one that won, because theirs got dismissed for procedural reasons. They went to the wrong court, but given the naming conventions, they got to have their name on the case, and our clients lost out on that aspect of it. But what's more important than that is the issues in the case, and six justices in a majority, the three liberal justices, and three conservative chief justice Roberts, justice Barrett and justice Gorsuch. They agreed on the simple notion that this statute, which it would have never been used to impose tariffs before and doesn't mention the word, it just doesn't authorize tariffs at all, but three justices in a majority, the three conservatives also emphasize the issue of major questions. The major question doctrine says that, when the executive claims a vast sweeping power, that has been delegated to it by Congress, it has to be clear on the face of the statute. It can't just be inferred from vague language or the like. And here, this is probably the biggest major question that any of us had ever seen. It would have imposed something like $1.7 trillion in new taxes on American consumers over a period of 10 years. It would have given United States the highest tariff schedule since the smooth, holly tariff of the Great Depression, which severely exacerbated that depression, and it would have done massive damage to US and world economies. So if this is not a major question, I honestly do not know what is, and those three justices weighed out in somewhat more detail than I have just done. Why it's a major question and why it fits in with previous policies that were considered to be major questions. And I think that was correct. Justice Gorsuch in his concurring opinion also emphasizes the non-delegation doctrine, which the rest of the justice does not reach. This is the idea that there is a we, some limit, to Congress's ability to delegate legislative powers, the executive. Here, I think there's no doubt this is a congressional power. It's enumerated right there in Article 1 of the Constitution, which weighs out the list of legislative powers. And exactly what is too much non-delegation, that is, or too much delegation, that is a disputable question. But if there's any limit whatsoever, declaim power to impose any tariffs you want at any time for any reason, without limit, that has to be a breach of non-delegation. If anything is sending Justice Gorsuch, was right about that. There are lengthy dissenting opinions, one by Justice Kavanaugh, joined by Justice Salito, and one by Justice Thomas. The Kavanaugh opinion argues essentially that the statute, even though it doesn't mention tariffs, nonetheless, still allows for them, because it says there is a power to regulate importation, so the power tariffs have regulatory effects. If you impose a tariff that reduces the amount of imports of that particular type, so I think the obvious problem with that is that the fact that something has regulatory effects does not mean that it is a regulation as opposed to a tariff for a tax. Otherwise, every time Congress authorizes the president or an administrative agency to regulate something, that would be a power to impose taxes as well. And otherwise, there would be no need for separate powers to regulate foreign commerce and powers to tax it, which are specifically separately enumerated in the Constitution. Then they also argue that the major questions and non-delegation doctrines don't apply or don't apply would much force, because this is a so-called foreign affairs power. I think this is problematic as well, because the Constitution doesn't distinguish between domestic and foreign powers. It distinguishes between legislative and executive powers, and this one is clearly legislative. Moreover, this is a massive tax on Americans, and therefore it's not purely foreign affairs. And there are various other problems with that distinction as well that I can talk about a length later if you really want to hear about it. Finally, there is a complex dissenting opinion by Justice Thomas, where he basically would greatly narrow the scope of non-delegation and major questions in ways no other justice and no other previous precedent of the court would do. I can get into the suitor. For now, it merely say that when Justice Thomas goes off on his own and nobody else joins him, sometimes he has really brilliant profound insights. I think of that as the good Thomas. And sometimes he goes off in a really bad direction, which doesn't make much sense. That's the bad Thomas. And I think here we have bad Justice Thomas at work. And this is one of reasons why nobody else was willing to join him in this particular reasoning. We all have our good days and bad days, even Supreme Court justices. And that's what happened here. So in terms of the broader significance of this case, some people like Sarah is going to previous panel and says this is a massive historically important case. I don't know for sure. And I'm in some ways the wrong person to ask because I'm not completely objective about it to put it mildly. We will see over time how important it actually is. But I will merely note that I think there is a broader significance in the Supreme Court showed its willingness to constrain grants of terror authority to the president. And especially to say that there should not be some kind of unlimited or virtually unlimited grant. All of the four opinions by the majority justices emphasized that point in various ways. This I think will have implications for future attempts to claim terror powers by presidents. And it might have implications elsewhere as well. If nothing else, this helped lower all of our prices that we pay for all sorts of goods. And therefore, it had a massive potential effect on the day we well being of Americans. Much more can be said, including the emergency powers aspects of this case, which are not actually addressed by the Supreme Court, but could be important later. And also about its broader implications for the rule of law, but for now, stop. And we can turn the mic over to the other panelists. Yeah, no. Thank you, Ilia. And I'd love to bring Jillian and then Julie and Ian. With this terrorist case, we have a check on a major initiative of the Trump administration as Ilia teaches us. The majority opinion is, it's cross-ideological. You have some conservative justices, some more progressive justices in the majority. And if you look at the majority versus dissent, you see divisions within the work and conservative justices three in the majority, three dissenting, maybe starting with you, Jillian. I'd love your thoughts. Any general takeaways you have on terrorists, but how we should think about how significant this case is, specifically, and just as a broader signal, anything else you think it could teach us about. The Roberts course is a whole and executive power. Sure. So it is a central initiative of the Trump administration that the court stopped. So it's significant in that term. In terms of how much it signals about the court's willingness to stand up to Trump, I think honestly, it's hard to gather that much from one case. It's a big issue. But looking at the court as a whole, the question-- I think we see that the court did resist the Trump administration on some aspects that were core to Trump's initiatives, but that there's a lot that they've actually been willing to do. to allow go forward in maybe somewhat less visible ways. What I find interesting about this case doctrinally is we're seeing some divisions over the major questions doctrine that I think could be quite significant and one of them has to do with how clear is clear. So the major questions doctrine requires this kind of clear authorization when exactly what counts as a major question, by the way, is a little bit of a matter of debate, but when you've got something that might be, so this big grab of power, big political economic significance, unprecedented transformative features to it. And so the doctrin sense, you need clear authorization from Congress in order for an agency to act in that context. But you see the dissenting justice is finding clear authorization without it being expressed in the text. And by the way, not only not expressed, but what is it, 99 combinations of words that Kagan says. And one of them that's not there is tariffs, which is pretty significant. And so I thought the fact that they were willing to find it to be clearly authorized might be approached to take for this case and not for others. But it signals a more fluidity about what counts as clear. And you have Justice Barrett also signaling that she might be more willing to find clear authorization than Justice Gorsuch's. Justice Gorsuch has had his sole concurrence. And he is the one who has always been most eager to develop non-delegation limits. And I think we saw again that he doesn't have the other justices on board for that, wherever they come down on major questions. So Jillian tees up major questions doctrine, which again is this idea that if it's a really big important issue that Congress has to speak clearly in order for the executive branch to make policy on that dimension and also some issues of non-delegation, maybe turning to you, Julian, you know, any additional thoughts here about the significance overall of this terrorist decision and you know what we can learn from it. I mean, you can tell at least a couple of different stories for how the key votes in the majority came out to where they are. Tariffs are, I think, most economists agree a pretty terrible idea, certainly use the way that the administration used them in the two major categories that were addressed. And with very, very significant, very, very bad economic consequences and it's reductive, but it's not always wrong to be reductive. We've got a really significant really bad policy that's going to raise the chances that the Supreme Court will shift at least at the margins and that there's room to play with in the formal categories where it comes out. So that's one story. I don't know that I think that's the only story. Another story is coming back to Jillian's observations in particular, a story about this statute, the International Economic Emergency Powers Act being in some ways the granddaddy of all emergency power statutes and like the archetype of the thing that the formalists on the Supreme Court. Or at least some of the formalists on the Supreme Court are most concerned about, which is a blank check to the president to kind of do things that he or she thinks are useful, important and necessary. And I will admit that when the case was filed, I just thought that I just going to come to a good place, I thought that Ilya was like Don Quixote tilting at windmills. I just like the IEPA, the International Economic Emergency Powers Act, you sort of think about it in the national security spaces like it less the president do anything if the right kind of emergency is declared and there's a plausible exterior facing aspect to it. It is a remarkably comprehensive statute with a very significant exception that Jillian has pointed out the word tariffs. And the more I read of Ilya's argument, the more I read of some of the court court opinions, I kind of came around to thinking I think that the court got this one right and I sort of started off thinking that the administration likely had the better of the argument. So I ended up persuaded by Ilya's argument by the majority's argument and as to how and why and what was motivating it's harder to tell with any certainty. But certainly it didn't hurt in relation to the challenge that the policy was really big and I think most of the people who are big players in Washington think really stupid. Excellent. Our big achievement in the case was persuading Julian. Yes. I don't like delegations. I know. That's why it's a big achievement. Coming back to you, Julian, we talked about tariffs here. We'll put the second issue, big issue here on the table which was the idea of the president's removal power. And the Robert's Court here decides two big cases, Trump be slaughter, Trump be cook. Maybe try best you can to place those interlocking issues on the table and then I'd love to bring Jillian and Ilya in to talk about the significance of these two cases. So super quickly, I don't know if it's possible to do it. Yes, it's quickly as I can. This, the slaughter case with the cook, addendum sort of marks the culmination of the major project of A major project of the sort of formalist separation of powers, movements, efforts when it comes to presidential administration and the ability of Congress to structure the American administrative state and ways that it sees appropriate. In the following way, the case, the major case, the case that is most significant in terms of what it does to the doctrine. The slaughter case involves an effort, successful effort by President Trump to remove a member of the board of the Federal Trade Commission. She's protected by a four cause standard. And four cause standard is the federal bank. She's protected by a classic no-quotes four cause standard in which essentially you shouldn't be able to under this standard is traditionally been interpreted, remove somebody who's protected by such a protection from office for merely policy reasons. And suffice it to say that the case that resolved this question in the new deal opened a very wide space for Congress and determining how to structure new agencies, new regulatory mechanisms to in the mix and match grab bag of ways to structure the government to include four cause protections, including people at the top of agencies. That gave rise to a category that doesn't have constitutional significance, but has very significant statutory and DC administrative law significance between administrative, pardon me, executive agencies, so-called independent agencies. And for many in the formalist school of thought about the separation of powers, the idea of the headless fourth branch of government that is the independent agency and independent agencies was anathema and slaughter sort of is the kudagross for any vestige of hope or expectation with one important caveat that there would still be room for tenure protections at the top level of any independent agency. The theory basically is that the president has the executive power under the constitution, if somebody else certainly at a high enough level has ways in which they can exercise authority over the execution of statutes without the president being able to say I don't agree that do that differently. Then the president doesn't have all of the executive power and that violates the formalist separation of powers. The dissents respond to the majority's argument from this sort of broad theoretical perspective is that that has been one school of thought going back very, very early indeed one of the earliest issues that Congress took up, but there's been a completely different school of thought that has accepted entrenched and created tenure protections at all levels of the executive branch. Going back literally to the founding, this is a disputed issue. There's dozens of statutes over time that have created these kind of tenure protections and how do we end up the Justice Sotomayor says in dissent, how do we end up prioritizing a beautiful theory of executive power over, I mean essentially 200 not 250 more than 200 years of experience and the actual liquidation of the constitution and in the actual operation of the administrative state. The proof is that the big picture resolution in cook pardon me in slaughter the FTC case cook says notwithstanding that because of special features of the bank, the federal bank which are never actually explained that is not subject to the holding of slaughter meaning that the federal bank reserves is the one entity in the federal government it appears that can now be headed by somebody or by several somebody's who have four cause tenure protection. I think that most folks would agree that the court's explanation of why the slaughter logic doesn't apply to the federal bank reserve situation is under baked that best there is a recitation of a long series of statutes in which independence was viewed as important for the bank. I mean, Kagan last time in Sotomayor this time in dissent in the slaughter line of cases has a pretty long line of instances in which congress has made that kind of determination with respect to other agency that aren't banks. I don't think many people would defend the internal reasoning of the cook federal bank reserves exception on its face as a distinction from the overarching principle of slaughter but again man the Fed is really really important and there's going to be lots of really unhappy people. And really really bad consequences for the country if we don't have the sort of at least a semi independent federal bank reserves or so the wise people think and that I think is as much as anything else an explanation for how the court comes out in cook and I have more thoughts on that including Edmund Burke quote if Jonathan Adler wants to hear it but that's the story of the case. And so with Slotter, we get this broad presidential removal power of members of the executive branch. And as you say, Julian, with Cook, we get some insulation, some independence for the Fed. Maybe turn it to you, Julian, how much does a case-like Slotter sort of transform doctrine in this area and how governance is actually going to work in the executive branch moving forward? Yeah, I think Slotter really is quite significant. It was predicted, but that shouldn't undermine our sense that it is transformative. There are dozens of independent agencies. This obviously will affect their leadership and how they operate. To be fair, Trump has already fired a lot of their leaders. So we're seeing this in real time that it affects how they operate. One of the things that a couple of points about Slotter that strike me on this, going back to something Julian said before about the two different approaches to separation of powers. And you really see in Slotter this very formalist idea of presidential authority and executive judicial legislative. But you also see the court taking a very insistent form of exclusive presidential authority. Where the president has authority, it is the president's authority. Congress can't touch it. And you contrast this with an approach that says presidential legislative authority are actually often concurrent. Congress has, as Julian mentioned, the power to create offices, the power to structure the government. The president has the president's powers under article two in terms of supervising. These are concurrent authorities. And therefore, we have to come up with a test that sort of acknowledges the powers of both branches. And instead, you have the court really focusing and there's a line in Slotter where the chief says, basically, if it is an executive power, it is therefore something Congress can't make. That is, this exclusive power idea is really how this court approaches presidential and executive authority. And I think it's quite significantly different from how we did in the past and from how the constitution sets it up. And I think it will be very significant. One further thought on significance is the language of Slotter is very broad and broader than it needed to be. At issue, as you pointed out, was leadership of the FTC. They are principal officers. You could have limited the decision to principal officers. Gorsuch refers to principal officers in his concurrent. The chief did not. The chief said instead, the president needs to be able to remove it while his subordinates. Well, who are his subordinates? If you talk about the subordinates being anyone exercising executive power, well, that's not just principal officers. That's also inferior officers and that's the civil service. That is where the battle ground is. The Trump administration has a very strong agenda of trying to get rid of civil service protections and career protections. And that is not just limited to independent agencies. These are the employees across the federal government. And Slotter leaves open the possibility, and certainly the logic of this unitary executive theory would suggest that the president might have to have the power to fire all them. There are certainly ways you can distinguish among inferior officers and employees and principal officers. There's precedent. You can distinguish. The point is the court didn't do that in Slotter. And the fact that it didn't do it in Slotter means that we know what kinds of litigation there's going to be coming. There is already cases involving challenges where people who had career cause protection against removal were fired and are challenging that. So we're going to see this issue come up. And what would really, really, really be transformative is if the Robert's Court were to hold that. In fact, it's not just the principal officers who can't have removal protection, but it's all the way down. That would really be a big, very big deal. And the Ilya thoughts about Slotter and Cook? Yeah, so I have one internal thought about the logic of these two cases. And a double brief broader thoughts about how these cases relate to other things. The internal thought is that at least do not get how swatter can be reconciled would cook. And therefore, it is not clear to me sort of what will be the approach to other agencies in the future. There are a number of ways this can be-- you can try to reconcile this. You can try to say as the Supreme Court setting cook, well, there's a long tradition of the Fed being independent or of the predecessors of the Fed going back to the first national bank of the US being independent. But of course, if it's just a matter of tradition, there's a tradition of other independent agencies being to some extent at least independent for over 100 years. Another possibility is that the Fed wasn't really exercising executive power. At least not with respect to its power to issue currency, that that's not really an executive power. But if you go doubt route, you can make similar arguments for a lot of other agencies as well. Moreover, as just as coercioning quite correctly points out in his concurring opinion, a lot of seemingly independent agencies exercise a sort of mix of powers. They do adjudication, for example, as well as issuing regulations and enforcing them. So if there's an agency that exercises some powers that may be seen as non-executive, then maybe it's more like the Fed. So I think the interrelationship between these two cases is still at the very least somewhat unclear. And by the way, I do not accept the argument, which, as well, is just a matter of which one has a corporate interest behind it and which one does not, because if you look at a lot of regulatory issues, including those involving the FTC, there are actually corporate interests on both sides of it. Some corporations want more regulations, somewhat less. And of course, where one administration of one party can use it to have less regulation, the other can use it into future to have more. There's a broader issue here, though, maybe two of them. One is as just as Gorsuch points out in his concurring opinion, if the executive has largely unconstrained power to remove subordinates and impose its will on them, that makes it all the more important to constrain executive power through major questions and non-delegation and make sure the executive isn't grabbing too much power overall. Another is a broader issue. I think there's a kind of possible selective originalism here in that a lot of the regulatory power that is wielded by these agencies is power over issues that were never supposed to be within the scope of federal authority to begin with. For example, drug prohibition. It once took a constitutional amendment to impose nationwide alcohol prohibition. We later forced, we repealed that amendment. Drug prohibition should be no different. And I can say many similar things about a vast sweep of other federal powers. If we have agencies, they're wielding powers. They're not supposed to be part of the federal government to authority generally, then why is it that we should require it at just one person gets to wield all that power as opposed to a kind race being able to divide it up. And I think that's an issue also not well-addressed in these cases. And so there we have tariffs. We have presidential removal. Now, I'll turn to Jillian here. And maybe as we get to the closing minutes here of our discussion, think a bit about the interim slash emergency slash shadow docket, whatever we want to call it. You know, maybe talk a little bit about the importance of that docket here for the second Trump administration. National guard case, Trump the Illinois, is sort of the highest profile one. But if you want to tee that up and anything else you want to explore in that. Sure, happy to. Yeah, so the emergency docket slash interim slash shadow docket comes by a mini name. And for our purposes here, what we're really talking about are applications overwhelmingly by the federal government for stays of injunctions, preliminary injunctions often that have been issued against Trump administration and issued it by lower courts. And the Trump administration has made an extremely large number of such applications. And they have been granted at a very high rate. So there have been 28 applications. The federal government has succeeded in part or whole in 21 of them and lost in seven for a success rate of 75% that's very high. These involve a number of different kinds of issues. I've mentioned some, but there've been a lot of issues about funding, grant cancellations, personnel, moves. There were some immigration cases as well. Cook was actually a case that was on the emergency docket. So sometimes usually these aren't fully briefed or argued, sometimes the court will put them down for argument. Sometimes they will grant a stay, but then take cert before judgment in the case. These, the cases in this area tend to be very contentious in part because you don't get a lengthy reasoned opinion at all. You get very short analysis. Sometimes you don't get-- often there is no explanation. It makes it very hard for lower courts to figure out how do you read what it is that the Supreme Court is doing. They've been contentious, number of them, and at least 10 were divided six three along the traditional ideological grounds of this court and the dissenters and the liberal justice has been complaining quite forcefully about these decisions. So overall, this is an area in which the government has been winning and winning big is one thing I want to make clear. That said, there's one important case, the National Guard case, where the government lost. And this is a really great show. rises from President Trump's efforts to federalize the National Guard to over the objections of the state governors where those National Guards were, to use them to protect immigration officials and be involved in sort of protecting immigration enforcement. And Trump invoked authority under a statute that says basically if there is a rebellion or an insurrection or when the President's in terms of the regular forces are not able to execute the laws. And the issue that had happened, that had been the focus of this case in the lower courts and in some other cases involving challenges in National Guard was really whether or not with the grounds, factual grounds, any supportable basis on which to conclude that the law enforcement, ordinary law enforcement, couldn't be worked enough to protect immigration officials that they could perform their function. And a number of judges concluded on very lengthy sort of assessments of the factual evidence, including famously in Portland, a Trump-to-judge. That in fact, there just wasn't the evidence to support this determination. This is the kind of typical area to talk about, IEPa being an area of broad presidential power. This is a kind of presidential determination that ordinarily course defer to extremely and so the fact that so many judges said there's not evidence there and this is pretext that the National Guard was often brought out to blue cities and blue states is really significant. But it gets to the Supreme Court and the Supreme Court holds that the term regular forces is not referring to ordinary law enforcement but is referring to the military and that if you want to be able to show that the military aren't unable to execute the laws, then what you need to show is that there's some kind of statutory or constitutional authority for the military to be involved in domestic law enforcement at all because under the Posse Comatatas Act there needs to be expressed authorization to the military to do that. And they said the Trump administration had an identify any such authority and that the president's traditional protective power didn't apply here because this wasn't, didn't count as executing the laws as that power had been understood. The vote was six to three. This is again, not unlike the explanation, it's very short. Remarkably short for such a dramatic kind of a potential pullback on presidential power. And you had Justice Kavanaugh not willing to go quite as far as the majority did so you concurred but he also said I would give the chance more for the, I wouldn't go as far in terms of determining what you have to show in order to bring out and federalize the National Guard. And then you had three justices who were dissenting, Alito, Thomas and Corsuch. And this is a very, potentially very significant decision. It's sort of as interesting in that one of the things it leaves open is the possibility that the president might invoke the insurrection act, which would be very dramatic move. The insurrection act is one of these statutes that is too broadly worded and authorizes the president to call out the military and national guard in terms of addressing certain kinds of conditions, domestic violence, insurrection, rebellion. But then the key question would be is there a factual basis to conclude that those conditions exist? What is the standard of review? Part of what the court was doing by deciding the cases on the grounds that it did was avoiding this whole question of how do they review factual determinations by the president? Excellent. And we have just a few moments left here. I'd love to hear any closing thoughts either on the National Guard, interim emergency channels, I could have more broadly hear from Julian and then Ilya. So first, you, Julian? On the National Guard case, one consistent line of criticism of what the courts did, what the Supreme Court did in that case was, and you see it in lots of instances where there's high profile, high stakes, national security questions, that the courts have no business interfering with the president's exercise of either emergency powers or military authority. In an age of ascended or ascended originalism, I think it's really important to recognize how at odds that is with the practice of the first, second, Congress and of George Washington's practice in office. The whiskey rebellion was a cataclysmic challenge for the federal government. Pretty much the entire Ohio Valley was a flame, an army of 8,000 people marching through Pittsburgh. The challenge to the capacity of the federal government, to govern, to be a government, to be the new union of the United States was directly at issue. There was a statute. That statute permitted Washington to call out the militia under certain defined circumstances. Procedural prerequisites, he complied with them. This is the crucial part. He had to show, he had to find and then show, that combinations too powerful to be resisted or something like that were preventing the execution of the laws of the United States. He had to get a certification to that effect from a Supreme Court justice or a lower court justice. Not only did he do that, when the lower court, no, actually, Supreme Court justice sitting in the trial court, told him the evidence wasn't good enough that he needed to bring back more detail and have it certified in a way that was appropriate for a court of law. He went, got the certifications about Western Pennsylvania being a flame, came back and then got the certification. There was not a whisper of a question of a doubt that that was an appropriate role for a court to be playing. And it's very reminiscent of the lead at the Washington administration was not just prepared but eager to give to the Supreme Court and the neutrality proclamation seeking its guidance on a range of important foreign policy issues before it acted. And so it's really, really important to recognize the a-historicity of claiming that courts don't have a role in supervising and checking the president, including in areas involving the use of military force and emergency authorities, although of course the tradition has been to be deferential in the face of at least marginally plausible factual claims undergrading the legal assertions of the administration. Excellent. And final word to you, William? So I would just say that in the National Guard case and in the IEPA tariff case and in some others, what do I need? The court got those right. They avoid in each of those cases the issue of reviewing the president's factual determinations or whether they're really was a sufficient emergency to justify the use of these extraordinary emergency powers. But sooner or later I think issues like this will come before the court. And I would argue that when you have a power that's only supposed to be exercised in the event of an extraordinary emergency, like an insurrection or a combination to prevent the execution of the laws like with the National Guard statute or with IEPA, there must be an unusual and extraordinary threat to American national security or to the economy or foreign policy or in the IEA. Anemies' acquitigation is going on, there have to be an invasion or it's a querid war or a quote unquote predatory encourage and on U.S. territory. In each of these cases, I think court should be able to review those because if they cannot, if we just have to take the president's word for it, then an extraordinary emergency power to can only be used in extreme circumstances becomes a blank check that the president can use any time he wants, which is a menace to the rule of law, to civil liberties and to the original structure of separation of powers. When you get absurdities like what happened in the IEA, before the 5th Circuit a few months ago, where one of the judges asked the administration, "Would we have to defer if the president said that the British invasion of rock stars is the kind of invasion that justifies the IEA and the Justice Department," lawyer had to say, "Yes, it does. You would have to defer in that case." And when you're saying absurdities like that, that's assigned that the position of deference on these kinds of issues has gone badly, wrang, and should be rejected. Excellent. Alia, Jillian, Julian, thank you so much. This program was streamed live from Philadelphia on July 7th, 2026. It is presented in partnership with the Center on the Structural Constitution at Texas A&M University School of Law. This episode was produced and mixed by Bill Pollock. He was recorded by Greg Shekler and David Stotz with production support from Scott Bomboy and Charles Somme. Research was provided by Anna Salvatore, Grace Sullivan, and Tristan Worsham. Please recommend we the people to friends, colleagues, or anyone, anywhere who's eager for a weekly dose of constitutional education and debate. The celebration of America's 250th anniversary, we published The Promise of America, Reflections on Our Enduring Ideals. The book is an inspirational collection of essays exploring the founding principles that continue to shape American democracy from the nation's leading constitutional scholars. If you would like to purchase a copy of The Promise of America, visit www.constitutioncenter.org/promiseofamerica. And as always, remember that the National Constitution Center is a private, non-partisan, nonprofit, and we rely on your generosity, passion, and engagement for all of our programming, including this podcast. Please consider donating today at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Tom Donnelly.