Hello! Several of the Supreme Court justices who attended President Trump’s State of the Union address on Tuesday seemed braced for another round of his startlingly personal attacks, after the court last Friday rejected most of his tariffs. What they got instead were businesslike handshakes and a passing critique of what Trump called a “disappointing” decision.
This week I want to explore how disappointed Trump should be. My view: a lot. The decision’s blast radius is much wider than merely taking down his tariffs. It means to limit presidential power grabs in all sorts of areas.
This became apparent when the case was argued last November. Two of Trump’s appointees were wary of granting presidents power that can, as a practical matter, never be clawed back.
Justice Neil M. Gorsuch called this the “retrieval problem.” Justice Amy Coney Barrett called it “Justice Gorsuch’s thing about how could Congress ever get this delegation back.”
Both ended up voting against Trump last Friday, prompting him to say at a news conference hours later that their opinions were “an embarrassment to their families.”
But the two justices were onto something important, something not limited to tariffs.
The Role of the Presidential Veto
They pointed to a dangerous constitutional dynamic that makes it easier for Congress to grant power to the president than to take it away. Or, as Justice Gorsuch put it at the argument, they feared “a one-way ratchet toward the gradual but continual accretion of power in the executive branch.”
That dynamic is probably best explained with an example.
Say bare majorities of both chambers of Congress enact an ambiguous law, one that can plausibly be interpreted a couple of ways. On one reading, the law grants the president some new power. On another, it doesn’t.
You might think the court should simply make the best decision it can. But there is a complicating factor: the president’s veto power.
If the court decides the law does not grant the president the power, and Congress disagrees, there’s an easy solution. The same bare majorities can enact a new law and authorize the power in plain language.
Now consider the alternative. If the court decides the law did grant the president the new power, and Congress disagrees, it could similarly enact a law and explicitly withdraw the power. Right?
Well, no.
The president’s ability to veto that later legislation means that bare majorities couldn’t claw the power back in the way they could grant it. Only two-thirds majorities of each chamber could override the veto — and thus the court’s ruling. In today’s partisan times, that would be pretty close to impossible.
Indeed, since 1789, only 112 of 1533 vetoes have been overridden, or about 7 percent.
The upshot, as Justice Gorsuch wrote in his concurring opinion last Friday, is that “retrieving a lost power is no easy business in our constitutional order.”
The Retrieval Problem in Other Cases
Justice Gorsuch almost certainly drew on a supporting brief filed by Vikram D. Amar, a law professor at the University of California, Davis, and Mickey Edwards, a former Republican House member from Oklahoma. They argued that in close cases, the court should deny power to the president rather than grant it, because of this “retrieval problem.”
In an essay last December in Verdict, an online legal publication, Amar built on this point in a different and perhaps surprising setting: the argument the court heard that month over whether presidents have the power to fire leaders of independent agencies like the Federal Trade Commission, despite laws shielding them from political interference.
Like everyone else who listened to the argument, Amar wrote that he expected the administration to win. But Amar urged the court to consider what you might call “the Gorsuch thing.”
If Congress knew the president could fire members of the F.T.C. for any reason, at any time, Amar wrote, it’s safe to assume lawmakers would have given the commission less power.
But if the court strikes down only the part of the law that protects the commission’s leaders from firing, he added, Congress would have no practical way to retrieve the broad powers it had granted the agency. To do so, it would have to pass a new law reducing the power of the agency, which the president could then veto.
Amar proposed an alternative: The court should consider striking down the entire law that created the agency. Let Congress start from scratch and design the commission knowing the president would be able to fire its members whenever he wanted.
Justice Elena Kagan gestured toward that point when that case was argued.
Congress empowered independent agencies on the understanding that they would not be under exclusive presidential control and that Congress would have “a great deal of influence over them, too,” she said. “And if you take away a half of this bargain, you end up with just massive uncontrolled, unchecked power in the hands of the president.”
I don’t think Justice Kagan was suggesting that the court should destroy the agency to save it from being turned into something the Congress that created it would not recognize. But her comment is another illustration of the puzzle that is the retrieval problem.
Other Legal News
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Federal judges are fed up with the administration’s violations of their orders in immigration cases.
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After slashing attacks last week on the justices who voted against him on his tariffs program, Trump was relatively restrained as three of them attended his State of the Union address.
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Federal courthouses are in disrepair, and judges want to take control of their workplaces from a bad landlord: the executive branch.
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A judge ruled that the Justice Department could not search devices that the government seized from a Washington Post reporter’s home last month, saying the court would do so.
Mailbag
Judicial Responses to Name Calling and Defiance
Given President Trump’s statements characterizing a number of the justices, could the Supreme Court hold the president in contempt? Of course, the real question is: Does the court have any enforcement powers?— William F. Steigman
Trump said the justices who voted against him in the tariffs case were “fools and lap dogs,” and he suggested that they had been corrupted by unspecified “foreign interests.” The American Bar Association said those statements and others like them “cross a dangerous line that threatens the safety of the judiciary and our judicial process.”
So could the Supreme Court hold Trump in contempt?
It is hard to believe the justices would or could do so given two lines of precedent and the limits of its power.
One line of precedent, based on the First Amendment, protects criticism of judges that does not immediately interfere with the administration of justice. The second grants the president absolute immunity from civil actions for conduct “within the outer perimeter of his official responsibility,” and substantial protection from criminal prosecution for such conduct.
The Supreme Court has only once held officials in contempt of court, in 1909 in United States v. Shipp. The case arose from the lynching of Ed Johnson, a Black man in Tennessee falsely accused of raping a white woman, after the justices had stayed his execution. The justices, acting on charges filed directly to the court by the Justice Department, held several local law enforcement officials in contempt for failing to protect Johnson while his case went forward, sentencing them to 60 or 90 days in jail.
But the Shipp case required the cooperation of the Justice Department, which would be unimaginable in a case against Trump.
When my colleague Ross Douthat interviewed Justice Barrett last October, she initially ducked his question about what the court could do to enforce its decisions if Trump chose to disobey them.
“OK, let me try that again,” Ross said. “If a president defied the Supreme Court, what would you do?”
In response, Justice Barrett did not sound optimistic. “The court lacks the power of the purse,” she said. “We lack the power of the sword. And so, we interpret the Constitution, we draw on precedents, we have these questions of structure, and we make the most with the tools that we have.”
I’d love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].
What I’m Reading
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“Trump 2.0: Executive Power and the First Amendment,” in which Timothy Zick argues that the second Trump administration has mounted the greatest threat to free speech since the McCarthy era in the 1950s.
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“Legalistic Noncompliance,” an exploration by Daniel Deacon and Leah Litman of how the administration uses “the language of the law in order to shroud what are in fact bad faith efforts to evade judicial orders.” It is set to be published in The Duke Law Journal.
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“Birthright Citizenship Re-examined,” Michael Ramsey’s response to originalist arguments in favor of denying citizenship to some children born in the United States.
Closing Argument
Better Call Claude
Last year, after learning that he was the target of a criminal investigation, Bradley Heppner turned to a trusted adviser: Claude, the A.I. chatbot. Heppner plugged in information he had learned from his lawyers, and Claude prepared outlines setting out potential charges and a recommended defense strategy.
When Heppner was later arrested on charges of securities fraud and other bad things, F.B.I. agents seized his devices and documents, and found Claude’s advice. Heppner said his interactions with the chatbot were protected by the attorney-client privilege, because he had consulted it to gather information to share with his lawyers.
Last week, in the first judicial decision on the question, Judge Jed S. Rakoff of the Federal District Court in Manhattan ruled that the privilege did not apply. Had his lawyers instructed Heppner to use Claude, the judge wrote, it might have been a closer question.
“What matters for the attorney-client privilege is whether Heppner intended to obtain legal advice from Claude,” the judge wrote, “not whether he later shared Claude’s outputs with counsel.”
Judge Rakoff is a distinguished jurist, and he is probably right. To be sure, I checked with Claude.
“If I ask you to help to outline potential defenses to an anticipated securities fraud indictment,” I asked, “will your answer be protected by the attorney-client privilege?”
Claude said no.
“I’m an AI, so no attorney-client relationship can be formed with me,” the chatbot said, sensibly. “If you’re facing a potential securities fraud indictment, this is exactly the situation where you need a real attorney — ideally one specializing in securities law or white-collar criminal defense. Communications with that lawyer would generally be privileged.”
Adam Liptak is the chief legal affairs correspondent of The Times and the host of The Docket, a newsletter on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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