<Music> Welcome to Party Politics, where we prepare you for your next political conversation.

I'm Jeronimo Cortina, a political science professor at the University of.

Houston, and I'm Brandon House, also a political science professor here at the University of Houston.

This week we get to use our degrees for real.

My friends, we're going to talk all about the Supreme Court and executive power.

Really what to expect for the court's current term.

We'll deviate a bit from talking about the politics of the moment.

Step back a little bit and think about what the court can do, what the court's decisions might mean, and kind of where we're likely to see executive power go in the next few years, because this really is critical to how the separation of power works.

And yeah, if it works well or not.

So the court's current term is going to hear a lot of cases that are going to have serious implications for how presidents govern today and tomorrow.

So things like economic emergencies and tariffs, things like independent agencies, things like the domestic use of force, birthright citizenship, a lot of things are on the table.

And how that contours occurs really will tell us a lot about the scope of the Trump era model for executive power.

It's been a long time coming, right?

Like the courts have long considered the notion of the unitary executive to kind of decide how much power the executive should have vis-a-vis the other branches of government.

And of course, all well, they're always checked by the other branches of government.

Right.

Sometimes is the case that that check is a little bit more like a slap on the wrist than it is like handcuffs.

So.

Right.

Big picture wise, what do you expect to see from the courts and what are the implications to the politics of the moment?

Well, I think that the court, the Supreme Court has, I guess, one of the biggest decisions historically, ever since the court decided that, hey, we're going to do judicial review.

We Mayberry versus Madison, right?

And judicial review means that the court is in charge of saying what is constitutional and what is not constitutional.

I know you're friends with both Marbury and Madison, so you have to pick your choices on exactly.

Take your sides.

So, right.

It's going to be extremely important because it's a decision and it's at play.

First of all balance of power right.

And division of power.

Yes.

Every single president since well, maybe not since Washington, but after Washington have been pushing for these, conception of give me more power because I'm in charge of executing stuff.

Yes.

And the problem is that the Constitution is very limited in terms of what can and cannot do the president.

So it is going to be and super important what the Supreme Court says, because he can just, put Congress in a position that he's going to be second fiddle instead of being equal.

Right.

And that is what is at stake.

It's a great point.

Yeah.

And honestly, this is a great way to frame this, because presidents for generations have tried to minimize the gap between their powers in the Constitution and what the public expects about as presidential power has grown, presidents have wanted more as the demands of the office have grown, they have wanted to find tools that let them to meet that moment.

And the courts have not always been willing to give them all of that.

So presidents push and push and push.

So it's not unsurprising to see presidents try to get more out of their executive efforts.

But it is no very new to see it happen all at once.

Right.

And this is happening for Trump.

And the curious thing here, or the I guess the irony of everything, right, is that the Trump administration is looking for more power, right?

While destroying the bureaucracy in charge of implementing the directives of the executive.

Interesting.

So he's like, you want more power, but you want to destroy the soldiers.

Oh, the right the bureaucracies.

Like I don't understand.

Yeah, you're kind of shooting yourself in the foot, literally.

But it's also the case that the executive office of the president is separate from the agencies.

And so it gives the president and the those closest to the president more flexibility to be able to accommodate things.

And like, we said, like how the court rules on these matters will have a significant effect on what powers the president has.

So Fayetteville rulings could give the president basically unprecedented control over economic policy.

The administrative state, domestic security, all labeled, all leveled over the criminal immunity, where the courts have already ruled, basically, that if the president acts in the context of their job, then they can do pretty much anything they want.

So this, again, is a kind of moment where we're seeing an opening.

Let's talk about some specific issues, because that might help to clarify what's happening.

Let's talk first about tariffs.

Right.

We said before this is the cause of and solution to every problem the US faces.

Right.

The president has been very vocal about using these and very, you know, very effective at trying to level these.

It's generated, you know, hundreds of millions of billions of dollars in terms of revenue.

But it may have to all be given back because the Supreme Court is going to have to make a decision about how this works.

So the question in front of the court, in this case, learning resources versus Trump is can the president use this one particular act that's the international economic, sorry, international Emergency Economic Act, to be able to essentially use the tariff power to figure out, you know, who's going to pay more for various goods.

The act itself has never been used for tariffs, right?

It doesn't mention tariffs in the law.

It only mentions basically sanctions, or other kind of issues, like embargoes that might be needed on an emergency security basis.

Right.

So then the president, in a clever way, is using this to be able to lower taxes.

So the courts has to decide if this is going to happen or not.

So let's talk about the implications and what's at stake legally for this particular matter.

So I mean, first of all, the the court has to decide if, there exist a unusual and extraordinary threat to the United States.

Yes, yes.

So if you want to is.

This a national.

Emergency?

Exactly.

Yeah.

So everything relies on is this an emergency?

Yes.

Or no?

Right.

No.

Yeah.

And one of the most interesting thing is, is that you have a plethora of very famous economies, former fed chairs, Nobel Peace, prize winners, etc., etc., etc.. This is like your Thanksgiving dinner.

Like people coming to your have turkey.

Imagine that.

Like, lots of wine.

Oh, yeah.

But the interesting thing here is that they're saying is the Trump administration has a conception of very bad or a mis conception of economic policy.

Right.

Because economic policy, trade types enter in these arena and you are expected to have deficits.

Yes.

Especially trade deficits with you, because what is a trade deficit is that you're purchasing more stuff from another country than selling your stuff.

It's an issue within globalization.

It's an issue of the type of, consumption that we do here.

Right.

Is what we have a trade deficit with China.

Yes.

Because we love Chinese.

You love their goods.

Yeah.

We know cheap stuff and we love to buy and we love I mean we love it.

Yeah.

Right.

So that is a fact.

And then obviously is I would say the second paragraph of this thing is about American manufacturing.

Right.

And what does that mean?

Yeah.

So the premise is interesting, right.

The way that it's being implemented is just, you know, going above and beyond Congress.

Once again, he's like, me.

Nope.

I'm going to see what do you do?

Yeah, I'm going to do this without you.

Yeah.

But the question here is the court, right.

And the question is, okay, the president is doing X right.

Okay.

Is it an emergency?

Well I don't know.

Right.

We're not going to get into that.

But yeah, if you Congress decides that it's not an emergency, you have the power to say to the president an emergency is one, two, three, and four.

You're not doing that.

You're abdicating.

That's your problem is not my problem.

If he wants to do it right.

Yeah.

And Congress loves pushing back on the president.

Oh, wait.

No, I'm sorry.

That's not.

They don't like pushing back on the president.

It's a Partizan thing obviously for this moment.

But it historically has been the case.

Two, that Congress has not been willing to check the president on a lot of matters, including on this one.

But we've never had a president who's used this law in this way before.

And I think to your point, we're seeing the Supreme Court really skeptical of this.

So they've had oral arguments on this before, and people like Justice Roberts have looked at this and said, well, wait a minute, isn't the power to tax essentially a tariff?

And if the power to tax is a tariff, then you're taxing people without having the capacity to do so.

That's what Congress is supposed to do, right?

You also have here people like Justice Gorsuch and Justice Barrett saying things like, this really looks like a one way transfer of power from the executive to or from Congress to the executive.

So it definitely creates this imbalance, which is not expected.

Right.

And that could create a problem.

But as the decision comes down, if they rule in favor of the president on this, it means that the president has another major economic tool at his or her disposal, and that could have profound implications to how the economies function.

It also, I think, like you said, has implications to what constitutes an emergency.

Right.

And who can define what an emergency is.

Now, Congress can push back and say, no, that's not an emergency.

But they haven't, and they rarely do.

So that just basically leaves an open space.

And presidents love open space because that gives them a chance to do and say more or less as they wish.

Without much check.

Let's talk about a different context in which this is happening.

And that's about the internet.

Federal agencies, especially independent agencies, there's a cluster of cases that are targeting this particular issue.

Trump versus slaughter of the FTC, of Trump versus Boyle, Trump versus Wilcox.

You're getting the hint here.

Lots of Sue, Trump versus cook, which is a question about the Federal Reserve.

Basically the question is whether or not the president can fire people without cause at these independent agencies.

And the independent agencies are basically agencies that are governed both by Congress and by the president.

That is, they both have input in terms of who staffs these in particular.

For the Federal Reserve.

This has financial implications because they're the ones who set monetary policy.

The president has argued he can fire Fed Governor Lisa Cook over an issue of her mortgage, that she committed mortgage fraud.

Apparently, she only made a couple hundred dollars on this.

But it may not matter because like fraud is fraud.

So it could be that they basically use this as leverage to get rid of her.

And the implications are pretty profound, because not only is an independent agency which has implications to all the other agencies, but also it has serious concerns and connections to the US economy and whether the president is able to kind of change these, definitely has a lot of kind of impact in terms of the way that the country's economy functions.

So there's two things here, that go, 30,000ft above ground.

Yes.

The first one is regarding the FTC, right.

And the FTC, the federal Telecommunications, Commission basically regulates, media, that kind of stuff.

Right.

So that has very important implications in terms of the role of a free press in a democracy.

Once you start messing with that is very complicated.

And when you're.

Concerned about free press, I'm concerned about the bottom line.

Like, what about my taxes?

Hirono?

We're going to, we're going there.

Right?

So that's that's it.

The first, part of this equation.

Right?

The second issue is when you mess with the Federal Reserve markets, international markets do not.

And I put that in, in bold.

Underlined.

Yes.

On highway 25.

Right.

They do not like that.

Yes.

And that creates a whole process that has a significant heat in the economy.

So when markets perceive that is not quote unquote the free market, whatever that means, right?

They take a step back and say, no way I'm going to put my money in a place where there is no independence from the people that are trying to make monetary policy and economic policy from the political powers.

And they take a step back.

And we have seen it in many, many, many countries, which the US is not going to be, a rarity in that case.

Yeah.

It's great.

So when you put those two together.

Yeah.

Freedom of the press.

And then mess in economic policy is bad juju.

Yeah.

Makes a real complication.

And I think that's a great point that basically the president here is abandoning the idea of having real economic data drive this.

Right.

That's what the independence of the fed is supposed to do.

Instead it's about campaign promises or as the boys or boys would say, vibes.

Right?

Like, like they're going to change this based upon kind of whatever they see as the most expedient thing.

And that has real implications every time this has happened, there's been pushback and economic turmoil.

So it risks this instability.

It really doesn't I think, bode well for the US economic scene.

So definitely there are big implications to this beyond just kind of who can staff what and where.

But also, yeah, to the economy and the First Amendment and beyond.

Let's talk about a different issue that also has become something of a concern.

And that's about the domestic use of force.

Essentially, President Trump has activated the National Guard and sent them to places where they were not wanted, at least in terms of the governors of those states.

So Portland, Oregon, that's currently being litigated, to Illinois, Chicago.

The question here is whether the president can federalize state National Guard units and then deploy them without consent.

Obviously, this has become a major issue in terms of how the president is perceive and how law enforcement is perceived and the state of affairs with respect to how security functions.

What do you make of this kind of case and what might happen in terms of the implications?

Well, I mean, it's well, first of all is, is the the way that it's been doing.

Right, because, the federal government, in case the president can fail like the National Guard most of the times, as a petition or there is a national emergency, a very clear procedures in terms of what?

Right.

But he has control of the DC, National Guard.

So through the National Guard is we are using the other state guards through the DC where he has command.

So that's, you know, a legal, complication that the courts have to resolve.

But in terms of the other, the real implications on the ground, had to do with how we perceive the military in terms of the role in the nation.

Right.

The military patrolling the streets.

It's a bad, very strong visual.

Yes, in the sense that you see that in failed democracies.

Right.

In addition to that, what we have heard in various reports on NPR and so on and so forth is that the National Guard and the military are not trained to do, police work.

It's completely different training.

Yes.

Right.

And then you can create tensions also with local police forces, sheriff's departments, National Guard, so on and so forth.

Right.

So it only takes one mistake.

One mistake by one side or the other.

Yeah.

In which this thing can become a situation that is not controllable anymore.

Yeah.

And the kind of lights, this powder keg.

Yeah.

Which creates of course this long term, long lasting impression about the use of military force.

And it creates all kinds of different ramifications that I think, that aren't considered at this moment, but that the court may allow if it rules in a particular direction.

The other issue, I think, too, is that you've got this blurring of the line between kind of civil, government and civil powers and military powers, which is been very bright for a long time, and which now may be less bright.

So depending on how the court handles this, it could be that it kind of merges these things together again in a way that makes the president more powerful and gives them more authority to be able to act on these matters.

But again, is once again, this issue of yes, we have the commander in chief is a civilian.

Right.

And that's kind of been, forever.

And he has a reason, right.

But still, it's, very complicated to start messing with the institution.

Institutionalization.

Yeah.

All of the military and embedded them.

Yeah.

Without a very clear separation in the political world.

Right.

And we have seen in many countries, when the military gets embedded in these political game interests, it's very, extremely, extremely dangerous.

The question is obviously, if the military is willing to play that, that, that, that game.

Yeah.

And so far I think that there is tension.

But also so far there has also been a complete clean up, of military leaders, we the current administration.

Yeah.

But again, it's one of these issues that the Posse Comitatus Act is extremely clear.

He's like the military, right?

Internally.

No way.

Right.

Period.

So we'll see.

That's right.

And another issue is about birthright citizenship.

Yep.

The question here is, of course, on the substance of it, whether or not, you know, this is legitimate, whether it's constitutional, it can be overturned because it's already set in the Constitution.

But the question here is whether or not this president can overturn it by executive order now.

So far, what's happened is that basically the administrative nature of the courts have disallowed a practice where you had like a district court get the case and say, okay, we're going to make a nationwide injunction all right?

So no one can, you know, have a sort of blanket junction across the country.

Now, that's one procedural matter that has impacts, actually, because then you can kind of continue the process of implementing that policy without having the delay of the courts basically waiting to see what they might ultimately decide.

So they haven't decided on the merits of it yet.

But in Trump versus Casa, they will decide on the merits.

They could decide on the merits of birthright citizenship generally, but they could also decide on whether or not presidents can do this through executive order.

I'm guessing that the likelihood of them saying that presidents can undo a constitutional matter by executive order is pretty low.

Yeah.

But the prospect of maybe shaping and changing what birthright citizenship means could be something the court considers.

But, look, the U.S.

is one of the few countries in the world that have, birthright citizenship.

Interesting.

Most of that birthright citizenship happens in America, the continent, Mexico and most of South America also have that in Europe.

This is going to be a combination, right?

Either or it's going to be be, a blood like use and genius rather than use solely.

Okay.

Yeah.

Wow.

There you.

Go.

My is a deep dive.

But I mean, it's it's very powerful.

Especially here in the US because of our foundational ethos and foundational myth.

In a good way.

Right.

This is a country that is based on the pursuit of freedom, liberty, pursuit of happiness, etc., etc.

in the sense that everyone is welcome and you're welcome to be part of the American dream.

So that is very deep, right?

So when do you limit that?

You're going against the very own fabric and nature of what is America and what is United States.

Right.

So limit in our notion of what it means to be an American.

It's a great.

Point.

Yeah.

And there's no doubt that this is part of what the court's thinking about in this context.

But politics also plays a role in all of this.

So I wanted to ask you about how the politics of this might come about.

There's a lot of talk about the court being conservative, several Trump appointees.

And yeah, this could have an impact in terms of what the decisions look like.

So far.

The court actually has been pretty willing to lean in the direction that Donald Trump prefers, including through what they call a shadow docket, a shadow doc.

It's basically like an emergency setting so that, like, they can expedite this case without having like a full review.

And on the shadow docket, they're giving Trump a lot of what he wants.

So 20 of these have happened for the administration in the past.

Since 2025, only three went against Trump.

That mean.

And seven of them had no written explanation.

So this includes things like mass deportation as allowable, mass parole revocation, allowable mass firings allowable.

There are a lot of things here that basically give the president a serious capacity to be able to operate without having to have the court finally rule on it, right?

Just a fraction of the court or through this emergency.

Right.

So I'm asking, I guess, the question about whether or not you think the politics of how the court sees the world will interfere and or affect the way that the decisions get made?

Well, I mean, some of those rules are, technical rulings, right?

Yes.

And these technical rulings means that let's allow the whole thing to played out.

And see what happens in a lower courts.

Right.

Yeah.

So these technical rules have not actually, given us the decision of the Supreme Court on the merits of the case.

Sometimes the kind of temporary holding.

Yeah.

Until you figure it out.

So, you know, it's like, kicking the can.

Yeah.

You know, it's like, oh, here you go.

Like, just push it.

Yeah, yeah.

We'll get to that tomorrow.

Yeah.

So the Supreme Court justices among the smartest people in the world are just procrastinators like the rest of us.

Exactly.

Perfect.

They're just saying.

I feel good now about not getting you the paper.

Yeah.

I'm like, oh, well, maybe.

Oh, well, yeah, I'll call you tomorrow so we can have lunch.

Just circle back after the circle back.

But so that's that's one issue, right.

Because these in my mind these are, yes victories, but we still have, the second half.

We still have to make decisions.

Yeah, exactly.

And so that's a question.

What do you think's going to happen?

The lots of ways they can take this.

My guess, like I said, is that they'll probably lean into a unitary presidency theory, right, where they'll give additional powers to the president in a couple of different ways.

Not every single way.

My guess is they'll probably trim the emergency power.

They'll probably limit what they can offer in terms of what presidents can say with respect to economic questions.

But maybe leave in a provision that, like on foreign policy matters, presidents have more purview.

That's something historically that's been true in that jurisprudence.

So I do think, though, that we'll see a stronger executive out of this no matter what.

And that certainly has got implications, like we said, for the economy, for the management of government and for the balance of power.

Right.

But I mean, also the court has because most of these things, Com you know, for example, the International Emergency Economic Powers Act from 1977.

Yes, yes.

The, immigrant or aliens, Sedition Act is 1879 or something like that.

Yeah, yeah.

So that's like a year after you're born.

So it's a long time ago.

Yeah.

Like very long time ago.

So the question is, you know, what is pursuing the Supreme Court?

I think that also the Supreme Court, especially justice, Chief Justice Roberts is extremely worried about what's going to do to our constitutional design.

Right.

Number one.

And number two, if, some of, the justices are, interpret the Constitution in a very literal way.

Yeah.

If they do these literal interpretation.

Right.

The power of the executive is extremely limited.

So true.

You cannot push it beyond that because that's what the Constitution says.

Yeah.

And remember we have the 10th amendment.

And any power that is not granted by the Constitution is left to the states.

Yes.

And to the people.

Yes.

So it's going to be very interesting how they continue that round.

No, I say well the Constitution didn't allow abortion therefore it's illegal.

Okay fine.

Yeah.

Let's see if they're not going to flip or not flip.

Right.

Because of that interpretation.

Right.

No, you're exactly right.

And the implications to the legitimacy of the court are very real.

Oh yeah.

We already see a serious split over the politics of this, right?

Republicans and Democrats going in different directions on this.

If the the court is not seen to be an efficient agent on this, or if they're seen to be a Partizan agent, then it does create a problem for implementation, which is really all the courts have.

Right?

Well, and let me throw one last thing before we say bye bye is judicial review.

Yeah.

Is not on the Constitution.

Oh yeah.

So whatever the Supreme Court says the Trump administration can say who told you you can do that?

If they lose, then they just run against the court, which again has very serious implications.

We're not quite there yet.

But no, you're peeking over the wall to see it.

And that's something that we are going to continue peeking above the wall in the next programs.

I'm Karen Cortina.

And I'm reading writing House.

The party keeps up next week.