David French: Hello, Emily! This is our first conversation about the state of American law — the first in what I hope will be a long, informative (and maybe even a little bit fun) series.
Let’s kick off with the big picture.
I don’t want to be the kind of person who declares every Supreme Court term (much less every election) to be the “most important of our lifetimes,” but doesn’t this term feel particularly important?
And it’s not necessarily because of the classic culture war issues, such as abortion, free speech or L.G.B.T.Q. rights, but rather because of the cases that will help decide fundamental questions about our constitutional order. We’ll find out how much power President Trump has to continue to transform the presidency in his own authoritarian image.
Or is that too alarmist?
Emily Bazelon: Hi, David! I’m so glad to have this chance to think things through with you. At another moment, we’d spend most of our time disagreeing, I think, about many of the culture war issues you’d mention. But, no, I don’t think you’re being too alarmist. I wish I did!
For the magazine, I just surveyed 50 people in the D.C. legal establishment — former top officials in the Justice Department and the White House Counsel’s Office and retired judges. Frankly, I heard a lot of freaking out about how much of a threat they think Trump’s second presidency is to the rule of law. With near unanimity, even though they were evenly divided between Republicans and Democrats, they think he is remaking government and effectively daring the courts to stop him. And every single one of them agrees that he is using the legal system to punish his perceived enemies and reward his allies.
So far, the Supreme Court has done little to stop him. Very little. Precious little.
David: Can I share the executive power case that alarms me the most? It’s called Trump v. Slaughter, and the first question is whether the court will overrule a 1935 case called Humphrey’s Executor, which upheld limits on the president’s ability to fire a member of the Federal Trade Commission. The question of the president’s authority over independent agencies or commissions is important (most conservatives, me included, believe Humphrey’s Executor was wrongly decided and that the president should be able to fire the heads of agencies that operate in the executive branch), but there is a second question in that case, and the answer could have enormous implications.
The court has asked the parties to brief and argue “whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.” The implications here are staggering. Could a president really just sweep through the Civil Service, firing everyone at will, and then sit back and wait to be sued for damages? All while he runs wild with something that looks a lot like the old spoils system of the 19th century?
Emily: Here’s an argument that Humphrey’s Executor was rightly decided. When Congress established some of the federal agencies we’re talking about (including the Federal Trade Commission in 1914 and the Federal Communications Commission in 1934 and then added more later, like a national health department in 1953 and the Federal Election Commission in 1974), it intended for the agencies’ leaders to have some independence from the executive branch. Congress said the president had to have cause to fire an agency head, meaning that he or she was corrupt or a bum or whatever.
That’s how the federal government has functioned for more than 90 years, since the Supreme Court said yes to that structure in Humphrey’s Executor. It’s a basic part of the architecture. Would Congress have delegated all this authority to the agencies without the assurance that the president couldn’t replace their heads to serve his personal or political interests?
To move on to your excellent point about the second question in the case, I agree, it’s breathtaking. How is this supposed to work if the whole Civil Service can be canned by any president at any time? Oh, wait, we are finding out what that looks like in real time, with 150,000 federal employees losing their jobs so far, and Trump threatening many more layoffs given the current government shutdown. If the government ranks get refilled in every new administration, a ton of institutional knowledge and skill walks out the door. And who will want these jobs? The honor of a lifetime of civil service helps draw people, many of whom would make more money in the private sector.
David: Give a president total firing power and combine it with his pre-existing pardon power over federal crimes, and you’d allow the federal government to be run as a criminal enterprise.
That’s not the only risk this term. The tariff cases are important in at least two different directions. First, there’s the core question: Did Congress delegate its tariff power to the president in the International Emergency Economic Powers Act? In other words, can the president really enact tax increases on the American people without any new act of Congress?
I’m also wondering how much deference the court will give the president when he invokes his power over foreign policy and international diplomacy. Is that a jurisprudence-free zone, where the court abdicates any oversight?
You see the theme here. Who, really, has the power to check a president?
Emily: Yes, that’s the huge question the country faces, right? So let’s bring in Congress. For sure, Congress has the power to check Trump or any president. Congress can withhold funding. It can hold hearings with subpoenas for members of the executive branch. It can use its collective authority in many ways. We have seen almost none of that from this Republican-controlled Senate and House. You and I started with the courts because we’re both law nerds (hope you don’t mind; I mean it as a term of endearment). But, actually, we let Congress get away with slinking out of the role the founders gave it if we don’t drag it in here. Congress, where is your institutional and constitutional, as opposed to partisan, loyalty?
OK, back to the courts. Tell me what you think of this: Judges all over the country are struggling with a hard and in many ways untested premise. How do courts respond when the president and his deputies act in bad faith — when they dissemble about why the administration is taking unprecedented aggressive actions after ripping out all the internal checks (goodbye, properly functioning Office of Legal Counsel, which used to flyspeck every executive order)?
Judges are used to giving the president deference — in effect, the benefit of the doubt. But that becomes a big problem when the president says there’s an emergency over and over again, to justify tariffs, and the deployment of troops to American cities, and, oh, now we’re at war with “narcoterrorists” — except we’re blowing them up without proving anything about them when they’re on boats without enough fuel to reach our shores.
The courts have to conduct factual inquiries into the president’s justifications. We are seeing that from the lower courts. Judge Karin Immergut, whom Trump appointed, is offering a great example on the deployment in Portland, Ore. Deference “is not equivalent to ignoring the facts on the ground,” she wrote in blocking Trump from sending the National Guard to Oregon. “The president’s determination was simply untethered to the facts.”
So far I see so little appetite for this kind of analysis from the conservative majority on the Supreme Court. My question for you is — why not? Have these justices really drunk the administration’s unitary executive theory Kool-Aid? Are they saving their powder for a big case this term that will actually set the administration on its heels? Are they afraid of a confrontation they think they’ll lose because Trump would defy their order, and he’s the one with an army, not them, and has already shown his willingness to deploy it, including in the city where they work?
David: I’m glad you used the phrase “untested premise.” Courts are so used to presuming good faith on the part of the executive branch that there’s even a legal doctrine called the “presumption of regularity” — a rebuttable presumption that executive branch officials have “properly discharged their official duties.”
These doctrines developed over time because presidents of both parties largely maintained and respected the rule of law and proper levels of independence for federal prosecutors. I don’t think that the Supreme Court has drunk the administration’s unitary executive Kool-Aid so much as it’s struggling to fit a rogue administration into pre-existing legal theories and categories.
Most conservative justices have long held the view that the Constitution grants presidents a very high degree of control over the executive branch, but the court has not clearly defined the limits of that control. One thing is already clear, though: If Congress continues to abandon its constitutional role, the courts can’t fully fill that void, even if they consistently rule against the president. They don’t have the jurisdiction, nor the enforcement power. As you say, they’re not the branch with the Army, nor are they the branch with the power to impeach and remove the president.
OK, I’ve monopolized the question-asking so far. Sorry! What’s on your mind?
Emily: Well, fitting this administration into pre-existing theories does risk real and debilitating blindness to what’s happening on the justices’ watch. I’m a big believer in other institutions not warping themselves in response to Trump by overreacting. But I feel like the Supreme Court is in danger of cowering in the corner, next to Congress, rather than safeguarding our system of separation of powers among coequal branches.
On to my questions, sorry for the rat-a-tat, this is surely too many at once. I want to know what you thought of the arguments in the case the Supreme Court heard on Tuesday about Colorado’s ban on conversion therapy to change a minor’s sexual orientation or gender identity — in other words, to try making them not gay or trans. Also, will the college student who sued over Idaho’s ban on trans women playing college sports be allowed to drop her case, as she is trying to do at this late date, after the Supreme Court agreed to hear it? There’s also a suit from a trans girl challenging a West Virginia law that barred her from playing sports in middle school. Those are the big L.G.B.T.Q. cases coming up on the docket.
David: I think it’s almost certain that Colorado will lose its conversion therapy case and that states will be permitted to reserve women’s sports to biological females. While it’s absolutely undeniable that different forms of conversion therapy have done terrible harm to some L.G.B.T.Q. kids, the Colorado statute was remarkably broadly written. (And I should mention that the Christian counselor who brought the lawsuit in the case is represented by the Alliance Defending Freedom, where I used to work.)
Colorado’s definition of conversion therapy included banning “efforts to change behaviors or gender expressions.” When applied to talk therapy, you’re talking about restricting, for example, a therapist helping a Christian or Muslim kid align his behavior with his own moral values. And if you grant a state the ability to ban a particular kind of talk therapy, then what’s to stop a state from doing the reverse: banning therapy that’s affirming of L.G.B.T.Q. kids?
Regarding sports, I sincerely doubt the court will allow the trans plaintiff to moot the case by dropping it, and the court will almost certainly find that it is acceptable for a state to restrict athletic participation by sex. The existence of separate men’s and women’s leagues is rooted in various innate sex differences; it’s not rooted in discrimination on the basis of gender identity.
Emily: Here is one problem with striking down Colorado’s ban on conversion therapy. The plaintiff, a Christian counselor, says the ban violates her First Amendment rights because the treatment she provides takes the form of speech. And yes, sure, it’s called “talk therapy.” But it’s still a form of treatment. You don’t pay your therapist to say whatever she wants. You pay her to provide treatment based on the standard of care, which Colorado tried to reinforce with this law.
And in that sense, it’s like the treatments for transgender minors that the court allowed Tennessee to ban last summer. At issue then, in the Skrmetti case, was Tennessee’s barring health care providers from offering one treatment — puberty blockers and hormone therapies — to minors who want to transition. Why say no to Colorado and yes to Tennessee? The court will probably answer “because of the First Amendment.” But is the underlying reason that the conservative justices disapprove of puberty blockers and hormone treatments but not conversion therapy?
There’s also a line-drawing problem, I think. Lots of professions operate through speech and expression — lawyers and architects and accountants, for example. Are state regulations for them now subject to free-speech challenges and the higher level of judicial scrutiny that brings? Laws should protect patients’ expectations of competent care, and as you say, conversion therapy is harmful.
David: Now we’re getting into some of our disagreements! Regarding Colorado, there is a substantial difference between conversation and medication (much less surgery). Issues surrounding sex, sexuality and gender identity are fraught with values-laden questions that deeply implicate morality and religion. For the state to enter into the conversation and essentially block off one avenue of therapy in favor of the state-approved viewpoint is to bring the state into the middle of making these moral and religious decisions for both the kids and their parents.
The regulation of talking professions (including lawyers) has always raised First Amendment concerns. Putting speech regulation under the rubric of licensing doesn’t mean that the speech is any less constitutionally protected. But that also doesn’t mean that individual providers are unaccountable. Abusive practitioners are subject to malpractice suits, for example, but the First Amendment should at the very least mean that expansive prophylactic speech restrictions should be subject to strict judicial scrutiny.
Emily, we’ve covered some very heavy stuff: the fate of the Constitution’s separation of powers, the conflict between religious freedom and L.G.B.T.Q. rights, equality in sports. Can we close on a lighter note? What’s the best lawyer-themed show that you’ve watched in the last year?
Emily: LOL, yes, we can. But first, and forgive me, because I should just graciously let you have the last word, but I have to say I’m still unpersuaded by one answer from the court for treatment-as-speech and the opposite one for treatment-as-meds on the basis of the counselor’s freedom of speech claim. I hear you on morality and religion. So then bring a suit based on freedom of religion for your counseling practice. It’s telling to me that the counselor who is suing doesn’t even clearly say she is doing conversion therapy and that Colorado has not so far actually enforced its ban.
A lawyer-themed show. Let’s see. You know what? I often don’t like shows with lawyers that much. Maybe that’s because I watched a lot of “L.A. Law” in the 1980s and can’t move on from it. But I think I also can’t get over the realism bump. So then every episode of, say, “Suits” ends with me turning to my husband with a boring rant about how that would never happen in court, not ever. I mean, come on.
You know what show I have loved lately? “Somebody, Somewhere.” Set in Manhattan, Kan. Band of misfits with a genius for both comedy and pathos. In some episodes, almost nothing happens, which feels like the perfect antidote to this moment. Low stakes!
How about you?
David: I started with the first legal word, so it’s only fair that you get the last. I’ve got the cure for your American legal drama blues — British crime shows! I have no idea whether they’re getting the law right, so I can just sit back and enjoy the ride. I liked the latter seasons of “Broadchurch” more than some folks for that reason. It was enjoyable watching the barristers do their thing (and it made me want a powdered wig).
Emily: OK, I promise to watch “Broadchurch” before we meet next. Do you promise to go see “One Battle After Another” so we can talk about that? Of course, no one will care what we the law nerds think. Nor should they. But that movie is still in my head, so any excuse to revisit it, I will take.
David: Oh, I definitely intend to watch “One Battle After Another.” I’ve heard great things. And just to be clear, I do take “law nerd” as a compliment (along with “‘Star Wars’ nerd,” “‘Lord of the Rings’ nerd,” and “basketball nerd”).
Thank you, Emily, this has been a real pleasure!
Emily: Yes, it has. Which is saying a lot for thinking about the law right now.
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Emily Bazelon is a staff writer at The New York Times Magazine. @emilybazelon • Facebook
David French is an Opinion columnist, writing about law, culture, religion and armed conflict. He is a veteran of Operation Iraqi Freedom and a former constitutional litigator. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.” You can follow him on Threads (@davidfrenchjag).
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