John Malcolm and John Yoo continue their Teleforum series, joining us to discuss recent events including updates on the Michael Flynn case, the Supreme Court decision on DACA, recent unrest and free speech issues, and more.
John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law
This call is open to the public: please dial 888-752-3232 to access the call.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.
Dean Reuter: Welcome to The Federalist Society's practice group teleforum conference call as today, June 30, 2020, we discuss “Executive Power and More.” I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call. This call is also being recorded for use as a podcast and will be transcribed on our website.
We’re very pleased to welcome back and return to our series on executive power featuring John Malcolm and John Yoo. We’ll hear from them for about 30 minutes or so but, as always, looking to the audience for your questions, so have those in mind for when we get to that portion of the program.
John G. Malcom, of course, is the Vice President, Institute for Constitutional Government and Director of the Meese Center for Legal and Judicial Studies and Senior Legal Fellow at The Heritage Foundation. And Professor John C. Yoo is the Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law. With that, Professor Yoo, the floor is yours.
Prof. John Yoo: Thanks, Dean. Thanks to The Federalist Society for hosting yet another of the podcast teleforum calls that John Malcolm and I have the pleasure of doing on presidential power under the Trump years. We’re still trying to figure out the title for our presidential power rock band that Malcolm and I are going to be starting one of these days.
But it’s been a busy two weeks. It seems like forever, but our last teleforum call was just 13 days ago on June 17, and what a lot of things have happened, thanks to the Supreme Court, thanks to the lower courts.
So let’s go through some of these. The first big case was Department of Homeland Security versus my employer, the Regents of the University of California. And in that case, the Supreme Court blocked President Trump’s effort to end the DACA and DAPA programs. Listeners will remember that DACA -- at first in 2012, President Obama ordered the Department of Homeland Security to allow children who were brought into the United States illegally but who are now adults and going to school or in the armed forces or doing something equivalent to remain in the country; in other words, to defer the removal statutes. And then the much broader, actually, DAPA program allowed for parents whose children are here legally or whose children are here under DACA to stay.
And in the Supreme Court case, you had Chief Justice Roberts joining the four liberals on the Court, Justice Ginsburg, Breyer, Sotomayor, and Kagan, to block the Trump administration’s effort to stop the program, even though a lower court, the Fifth Circuit here, had held the program illegal. And the Supreme Court at that time, due to Justice Scalia’s untimely death, had refused to overturn it by a divided 4-4 court.
So John, what do you think this decision means for presidential power, for President Trump, and for what’s going on with immigration laws?
John Malcolm: Well, there’s a lot to say about that, including what it says about Chief Justice Roberts. We could talk about both DACA, and we could combine it, actually, I think, with what happened in the June Medical opinion in that regard. So the Fifth Circuit had not taken on DACA directly. It had taken on DAPA, which was the parallel program involving the parents of DACA recipients and an extension of DACA.
And what the Court said, although I don't think this was really the reason, is that, “Well, you didn’t make an adequate record below when you changed the rule. You were stuck with that record. You couldn’t supplement it, as the Trump administration did with later opinions by DHS Secretary Kirstjen Nielsen. You’re stuck with that record, and it was inadequate. And therefore, any decision that you made was arbitrary and capricious.”
I suppose the one — not much of a silver lining — silver lining was Roberts acknowledged, and he got four liberal justices to sign on with him, saying, “Well, if they’d made a better record, of course, the administration could have done away with the DACA program.” And that’s what they’ll have to go and do now.
They didn’t address any of what the dissenters had to say, which is to say, “Hey, the Attorney General had declared, based on the reasoning in the Fifth Circuit in the DAPA and DACA extension case, that this was illegal to begin with and that the President had no right to go beyond the nation’s immigration laws and decide to exempt certain violators of our nation’s immigration laws, not only to not deport them but to give them federal benefits and work authorizations. But we’re just going to totally set aside what the Attorney General had to say.”
And I found that strange. But I think what makes it not strange is that the lower courts have now, including now the Supreme Court, frustrated President Trump’s desire to do away with the DACA program for three years now. They’re going to clearly push this past the election.
And I think this is an example, and this is why I link it to June Medical, where John Roberts just has this barometer in which he says there are certain issues that are just very politically contentious — DACA, citizenship question on the census, Obamacare, abortion — and he will turn cartwheels to avoid having the Court weigh in on those issues, lest it attract criticism to himself or to the Court that bears his name, the Roberts Court.
And it is very frustrating, obviously. And a lot of times, Roberts will come out with an opinion that we like, as he did today in the Espinoza case. But I think when the issue becomes too hot for him, he looks to duck. And I think that’s what happened in the DACA case.
Prof. John Yoo: We’ll get into a big conversation about the meanderings of Chief Justice Roberts and what it means on the Court, what it means for the Trump administration’s effort to reshape the federal judiciary. I agree with many of your points.
Let me just return just quickly to the DACA/DAPA decision and what it means for presidential power. It’s a remarkable thing because if people recall, President Obama issued DACA and DAPA essentially as executive orders, as exercises of prosecutorial discretion. And the Obama administration had said, “Well, we have the discretion to decide how many cases to bring and what areas.” Everyone recognizes that as a matter of constitutional law.
The interesting question was, could a President actually say under prosecutorial discretion, “I just choose to enforce zero cases.”? And the Fifth Circuit had held that that should have gone through the Administrative Procedure Act, through notice and comment rulemaking, which, personally, to me, made no sense.
John Malcolm: It’s remarkable.
Prof. John Yoo: Yeah, just remarkable. But the amazing thing about the Supreme Court’s decision now is that, yeah, you have to go through a different process to unmake an exercise of prosecutorial discretion. So there are two implications of this. First, one is if the Court is forcing the President to do something that the President believes is unconstitutional, that’s one remarkable thing. President Trump, the Trump administration can say, “Look, we think the Fifth Circuit was right,” or “We think that President Obama has inappropriately exercised prosecutorial discretion, giving him an effective veto over any congressional act by just saying, ‘Well, I’ll sign a bill, and then I just won’t enforce the statute.’”
Nobody here thinks the immigration law is unconstitutional. That’s usually been the only ground, I think, that presidents have been able to claim the right to just refuse to enforce the statute. So here -- think about this. The President, President Trump comes into office. He campaigned on the view that DACA and DAPA were illegal. And the Supreme Court is saying, “No, you are required to enforce an unconstitutional statute.” I think that’s quite a break with presidential power would have. This runs quite contrary to the ideas about the executive power put forth by people like Washington, Jefferson, Jackson, and Lincoln. And so I think built into this is an implicit claim of judicial supremacy.
And the second thing, the other way it harms presidential power is that it strangely changes how presidents reverse things. And actually, each branch reverses itself, usually by doing the exact same process. So if you’re Congress, you pass a statute, you want to get rid of it, you pass a new statute. You’re the Supreme Court, you want to overrule previous opinion, you probably give a new opinion. But here, it’s strangely the President issues and order just exercising prosecutorial discretion. You would have thought the following President could just immediately reverse that because it’s just prosecutorial discretion. But instead, the Court, I think, as you said, John, mystifying that it would hold to reverse an earlier President, you have to go thorough notice and comment rulemaking.
So think about the -- and I threw this out in some op-ed pieces in National Review. I said think the implication. Why doesn’t President Trump now just say, “I’m cutting everybody’s taxes 50 percent. I’m ordering the IRS not to enforce the tax laws beyond a 50 percent payment. And I’ll even give you a permit. I’ll give you a -- just like Obama did, I’ll issue a program that gives you a certificate that you don’t have to pay.” According the Court, it would take two years for Biden to undo this.
Or what if President Trump created a new national carry permit for handguns, saying, “I think these federal firearm laws are unconstitutional and violate the Second Amendment. I think state laws that try to interfere with that are unconstitutional too. I’m giving anybody who wants one a positive right, a benefit called a handgun permit.” Again, it would take, according the Court, a year or two for the following administration to undo that. That just seems to run counter to the separation of powers.
John Malcolm: You certainly just pleased all of the Second Amendment supporters who are listening to this teleforum.
But don’t -- that’s absolutely correct.
Prof. John Yoo: Luckily, they’re muted. We can’t hear them shooting off their [inaudible 11:42].
John Malcolm: Yeah, wait until they’re unmuted.
So I think that’s absolutely correct. The amazing thing, of course, is that President Obama tried for years to get Congress to change the law to create DACA. And at one point early in his administration, he said, “Well, I can’t just willy-nilly go and ignore the immigration laws.” And then he proudly announced that he was going to do all of this with his phone and his pen. And you would think that what one President does with his phone and his pen, another President can undo with his phone and his pen, but clearly not. And if President Trump loses the election in November, there will be a whole flurry, I expect, of executive orders or prosecutorial memos trying to tie the hands of President Biden.
Dean Reuter: John and John, this is Dean. I’m always reluctant to interject during these calls, but I wonder under the Supreme Court’s analysis if President Obama wanted to reverse himself, would he be unable to have done that?
Prof. John Yoo: Yeah, that’s an excellent point. Or what if President Biden comes in and he just wants to restore DACA and DAPA? What does he do? Does he reverse Trump? Can he just do nothing and let DACA/DAPA go into effect? It’s a great point. I think that shows the irrationality of this. You can start a program one way, but to undo it, you have to go through the onerous APA. It just doesn’t make any sense.
John Malcolm: To not even address the issue about whether DACA was illegal in the first place or unlawful program in the first place is shocking to me. And Roberts just didn’t touch it. He just didn’t touch it.
Prof. John Yoo: I’m glad that Dean had a question. I thought Dean was going to start shooting off his Sig Sauer there or his Glock.
Dean Reuter: You know, I try one in each hand.
John Malcolm: That’s what I thought I heard.
Prof. John Yoo: Let’s go to the second topic, another big decision just out yesterday. But no one paid any attention to it because as you pointed out, John, it came out the same day as the abortion case in Russo. This is a case of Seila Law. And it’s a case where the Supreme Court, this time by 5-4, again, Chief Justice Roberts writing, but this time with the four conservatives, Justices Thomas, Alito, Kavanaugh, and Gorsuch, struck down the head of the CFPB.
Remember, the CFPB is the Consumer Finance Protection Board which had an unusual structure. Rather than a multi-member board of the kind we’re familiar with like the FTC or the FCC where there’s a partisanship balance requirement and staggered terms, this was a body which was headed by one person who was given for-cause removal protection plus, according to the word given, quite broad powers to both enforce existing consumer finance laws, to issue regulations, and to conduct administrative adjudications, and was not funded by Congress. It drew its funding from the Federal Reserve.
And so the Supreme Court, interestingly, struck the structure down, and it’s not clear exactly why. The reasoning, I think a lot of conservatives would say, was good in that it reinforced the decision by Chief Justice Taft in Myers, the dissent by Justice Scalia in Morrison that the President must have the constitutional power to remove principal officers of the Executive Branch and, by implication, most people who are in the Executive Branch who are involved with the execution and enforcement of federal law.
The Court said that the Special Counsel law in Morrison was not a principal officer and was still subject to direction, and that things like the FTC and the FCC, they’re just -- the Court’s explanation about why those aren’t subject to presidential removal wasn’t exactly persuasive.
But the Court also pretty much said, “We’re going to read that as an exception from the long practice of presidential removal. And so if you structure something -- if the CFPB, for example, maybe had been structured as a multi-member board, maybe we might have allowed it to fall withing this what’s called the Humphrey’s Executor exception. But in general, all Executive Branch officers have to be subject to presidential control and removal.”
Quite, actually, a striking case in favor of the presidency. This term, this plus DACA, plus later this week we’ll have the Trump tax return cases, this might be one of the most consequential terms for presidential power at the Supreme Court in decades, if ever. So John, what do you think about the CFPB case?
John Malcolm: Well, I would have liked it if they had gone further and just overruled Humphrey’s Executor and gone back to Myers. The whole thing about not only independent counsels but independent commissions is a strange -- they’re just a strange beast. And a lot of what they do, of course, involves enforcement of Executive Branch policies.
So the President, for instance, has called for the FCC to reexamine Section 230 of the Communications Decency Act. And you have people going, “Oh, the FCC doesn’t have to do anything because they’re an independent commission.” Now, mind you, if those commissioners want to get reappointed, they might listen to what the President has to say anyway.
But it is very strange. And of course, one of the real problems -- the good thing about it is that people can be independent from political influence, but the really bad thing about it is that they are politically unaccountable to anybody, yet they exercise a tremendous amount of power.
So I think that this was a positive step in the right direction towards reestablishing political accountability for people who make major decisions that have a dramatic impact not only on our tax dollars but on other policies. As you pointed out, the Consumer Finance Protection Bureau has other problems with how it gets its money. It’s maybe the only agency — there might be another one — that is completely independent of the congressional appropriations process.
I remember at one point when the former director, Richard Cordray, was testifying before a committee in the House of Representatives. And somebody said something like, “How are you getting your money, and how are you spending your money?” And his response essentially was, “What business is it of yours? I’m not getting my money from you, and I’m totally unaccountable to you.” That problem still remains.
So I was happy to see the opinion because anything that strengthens separation of powers -- I may like or not like how the separate branches, particularly the Executive, exercise that power, but I do believe in accountability. You can throw the rascals out if you elected them. You can’t do that with respect to these commissioners.
It didn’t go quite far enough. I would have loved for them to have overruled Humphrey’s Executor, or on the issue about whether or not the removal provision was severable from the rest of the act creating the CFPB -- severability is always -- it’s just a crapshoot. You’re trying to throw yourself into the minds of Congress to say if we had taken out this provision, what would Congress have done? Sometimes Congress will add a provision to the law that says that each one of these subparagraphs are severable. Okay, well, then you know what Congress would have said. But a lot of times, that is not the case.
So I was happy with the opinion. No disrespect to my friend Paul Clement who argued on the other side at the invitation of the Court, but I wish they had gone further.
Prof. John Yoo: Yeah, I do too. You could have seen this as a possible case, although this would, as you were mentioning before with Justice Roberts, Chief Justice Roberts would not have been -- his nature to reach broadly.
But I would have also agreed that Humphrey’s Executor is a blight, I think, on the original understanding of the separation of powers and the presidency in particular. And it doesn’t make sense. If you go back and read Humphrey’s Executor, it talks about the reason you have a body like this that can be given for-cause protection is because the body exercises quasi-executive, quasi-judicial, quasi-legislative functions, which just doesn’t make any sense, it seems to me now.
And in fact, if you read Morrison closely, Morrison rejects that idea and instead -- or you could have said, “Oh, the special counsel is quasi-this, quasi-that,” but instead, the Court said even in Morrison upholding the special counsel law that the special counsel doesn’t get for-cause protection because it’s exercising sort of fourth branch of government powers but that it’s an inferior officer whose for-cause protections still don’t interfere with the ability of the Attorney General and the President to directly control him or her; in that case, her.
So Humphrey’s Executor could be on a limited lifespan, although it’s hard to see someone like Chief Justice Roberts holding the independent agencies unconstitutional, although this plus the PCAOB case, plus he’s generally been pretty good on the separation of powers before President Trump became President. You could see the Court steadily heading in that direction. But again, I think this decision is a big victory for the Trump administration.
So let’s turn to a third case, and that is really in John’s bailiwick here, who’s all over the Flynn case and the machinations of the D.C. Circuit and -- I’m sorry, the Justice Department and Judge Sullivan. So we saw the D.C. Circuit took the remarkable step in the last week of issuing a writ of mandamus to Judge Sullivan telling him, “Your fun and games are over. Dismiss the case. Allow the Justice Department to drop the charges against General Flynn.”
You may remember, listeners, General Flynn was the first National Security Advisor under Donald Trump. The way things are going, he may be one of the longer-lived security advisors under President Trump.
President Trump is used to -- likes to change the people in this job quicker than most other positions, and that’s saying something. But you may recall Flynn was -- the Obama administration intercepted Flynn discussing sanctions with the Russian ambassador during the transition. They went to question him about it. The FBI went to question him about it.
According to -- well, it’s hard to say according to whom because we still haven’t seen a record, the 302, of the actual questioning. But according to the FBI, Flynn lied. President Trump later fired Flynn because he allegedly lied to Vice President Pence about whether he’d actually discussed sanctions with the Russian ambassador. Later, after an investigation by a U.S. Attorney, I think, from Missouri --
John Malcolm: -- Yeah, Jeff Jensen.
Prof. John Malcolm: Yeah. The Attorney General decided that the charges against Flynn were never properly -- the investigation was never properly started, and so Flynn’s guilty plea should be ignored and the charges should be dropped. But then, as we remember, District Judge Emmet Sullivan decided to exercise his power under the federal rules of criminal procedure over whether to allow the Justice Department to drop the charges. And he appointed an amicus, a former Assistant U.S. Attorney and federal district judge, now retired, to argue against the Justice Department dropping the charges. That’s what the writ of mandamus on appeal to the D.C. Circuit was sought, and that’s what we saw last week.
John, what do you -- just describing all the ins and outs has now made me tired and exhausted.
But John, what do you think of this decision by the D.C. Circuit? Again, what does it mean for presidential power, too, in addition to what does it mean in terms of the end, if any, of this Flynn saga?
John Malcolm: Well, so I think it’s the end of the saga for General Flynn. I’ll add a proviso in a second. And yeah, he was pretty short lived. I think he outlived Anthony Scaramucci, but not by much.
Prof. John Yoo: I forgot about that guy. “The Mooch.”
John Malcolm: And John Gleeson basically auditioned for the role of being appointed amicus in an op-ed that he cowrote in The Washington Post a couple of days before Judge Sullivan appointed him, saying that DOJ were a bunch of crooks who were doing Trump’s bidding.
I think General Flynn’s saga is over. My only hesitation is that one of the -- it was a divided opinion. Judge Rao wrote the majority opinion for the D.C. Circuit, and Judge Wilkins wrote a dissent. And I suppose that the D.C. Circuit could poll its members and decide to hear the case en banc. There are a majority of Democratic appointed judges on the D.C. Circuit.
But the major point of Judge Rao’s majority opinion was that Judge Sullivan had really run against -- there were several precedents that he arguably violated, including the Supreme Court’s recent opinion in Sineneng-Smith by even appointing an amicus to raise issues that the parties themselves had not raised.
But setting aside Sineneng-Smith, the opinion largely relied on the Supreme Court’s opinion in the Rinaldi case and the D.C. Circuit’s opinion in an opinion a couple of years ago, Fokker Services, about the scope of Rule 48 in which once a case has been indicted, the government has to seek leave of a court to dismiss the charges. But both Rinaldi and Fokker Services had said that really the reason to do that is to protect a defendant from being harassed by the government which will, say, dismiss the charges and then refile the charges, and if things go south, dismiss the charges.
So they want to prevent prejudice to a defendant, and then other than that, a judge really should not be second-guessing charging and dismissal decisions. That’s separation of powers. It’s left up to the Executive Branch, whether the judge likes it or not. And Fokker Services, this D.C. Circuit opinion, that was written by now Chief Judge Sri Srinivasan. So I don’t think the D.C. Circuit is going to take the case en banc, but we’ll wait to see about that.
In the meantime, Judge Sullivan had scheduled a sentencing hearing for July 16. He’s now canceled that. It’s unclear whether he is going to write -- whether he’s just going to dismiss the charges or whether he is going to write a blistering order saying why he thinks this is a terrible thing, and then at the end of the day, dismissing the charges, or whether he’s going to have another hearing and state in open court why he thinks that this is a terrible thing.
But unless the D.C. Circuit intervenes, he has not been reassigned. And that was one thing that General Flynn’s attorney, Sidney Powell, asked for was to get the case reassigned to another judge. That did not happen, so Judge Sullivan will have the opportunity to vent if he wants to. But his marching orders at the moment are clear. He has to dismiss the charges.
And in terms of presidential power, it will, one, strengthen the hand of the Justice Department, an Executive Branch agency, in terms of making clear the charging and dismissal decisions absent extraordinary circumstances which don’t exist here is within the power of the Justice Department.
And also, depending to some degree on your political perspective, it may -- I don't know whether this strengthens presidential power, but will go towards unravelling what happened in the waning days of the Obama administration when they were deciding to interview General Flynn, even though FBI line agents had decided to close the case, why they were busy unmasking General Flynn, all of these top Obama Executive Branch officials, after the election and before Inauguration Day, they were busily unmasking conversations involving General Flynn, and why they were having all of these meetings in the White House in early January with President Obama and Vice President Biden and what was going on there.
So if you view this as a spiderweb, perhaps that spiderweb is getting a little more untangled. But of course, you still have to hear what John Durham has to say about all of that.
Prof. John Yoo: Well done, John. That was an amazing recitation of everything going on. I’d just add one quick thing before turning to our last topic, and then turning it over to Dean for questions and answers because we’re just about at the halfway mark for our hour, is that the D.C. Circuit opinion by Judge Rao was, I think, quite, again, strong defense of presidential power. Here, the executive control over prosecution, the same power that the Court undermined in the first case we discussed, the Board of Regents of the University of California case.
Here, Judge Rao, I think, properly said a federal judge cannot in a way overstep into the executive’s power over prosecution, not just because it’s a violation of presidential power, but it’s also a violation of the limits on the judicial power. There’s quite a good decision and a good reminder of the line that divides the Executive and Judicial Branches.
But for our last topic, let’s return to that line about the executive and the judiciary because much of the talk, I think, in Washington and the national newspapers and media outlets is, and maybe this should be the title for our podcast, is what the hell is going on with Chief Justice Roberts?
It could be a multi-year podcast. He has, I think, really surprised a lot of people watching the Court. You’ve seen religious conservatives in particular extremely upset over yesterday’s decision that you mentioned, the Russo case or June Medical case, if you want to call it that, that struck down Louisiana’s abortion regulation requiring doctors to have admitting privileges at local hospitals. Same identical statute, really, to a case from four years ago, Whole Woman’s Health, where Chief Justice Roberts was in the dissent and said such laws were -- he voted to say such laws were constitutional. He was, again, wrote the majority opinion in the DACA/DAPA case, and he was a sixth vote in the titles to the case Bostock, extending federal employment discrimination protections to gays and the transgender.
At the same time, he has decided the majority opinion, he was the fifth vote to strike down the CFPB, and he was the fifth vote in today’s case, as you mentioned, John, that struck down restrictions on --
John Malcolm: -- The Blaine Amendment.
Prof. John Yoo: Yeah. It was essentially all Blaine amendments, I think, are now unconstitutional.
John Malcolm: Right.
Prof. John Yoo: But restrictions on using state funds for voucher programs at charter schools or religious schools.
And does this mean that conservatives who supported President Trump have had their ambitions frustrated? You remember all the things President Trump did to promise that he would appoint strong conservatives to the bench, which he has, in fact, followed through on. And I think if I remember the polling, 25 percent or more of Republicans who voted for Trump four years ago voted because one of the top issues was control of the judiciary.
Has that plank of the Trump agenda fallen apart, and does President Trump have John Roberts to thank for that? And what does that mean in terms of appointing judges, should President Trump win a second term versus -- or what does it mean if President Biden wins the second term? So John, take all those issues and answer them.
John Malcolm: Yeah, that’s a lot to take on. So Chief Justice Roberts has certainly shown an ability to overturn precedent. In Citizens United v. FEC and Janus case and Knick v. Township of Scott, those were all 5-4 decisions. He joined the majority and overruled longstanding precedents. I think that’s sort of what I mentioned before. I think if it is a topic that he considers too politically sensitive, and if you think it is going to attract too much criticism or throw too much of a spotlight on the Roberts Court, he blinks.
So his concurring in the judgement opinion in June Medical, I thought was pretty remarkable. He basically goes through and said, “I know I was a dissenter four years ago in Whole Woman’s Health v. Hellerstedt, and I thought I was right then. I thought that opinion was wrong, and I think this opinion is wrong too. But it’s not wrong enough that I’m going to overlook stare decisis.” Other than the people who liked the result four years ago in Whole Woman’s Health, there was no real reliance interests. And even though he said, “Look, it may be a nearly identically worded law, but the situation on the ground in Louisiana might be totally different from the situation on the ground in Texas. I acknowledge that. But nonetheless, I’m going to overlook all of that and strike down the law.”
It’s disappointing not only to conservatives but also, of course, to realize that it’s only a four year old opinion, and Congress can’t correct what the Supreme Court has to say about the Constitution. Only the Supreme Court can overturn what the Supreme Court says about the Constitution.
Certainly, if anybody was thinking that the Roberts Court is a conservative Court as opposed to a Court that will sometimes reach results that conservatives like, I do not think it is a conservative Court. It is just too closely divided. But certainly, if John Roberts in a case involving abortion is not prepared to look at a four year old precedent, I sincerely doubt that he would be prepared to look at a nearly 50 year old precedent, Roe v. Wade. But that’s a big question no one knows.
It makes a huge difference who appoints justices. A 5-4 majority, particularly if Chief Justice Roberts is sitting right in the middle, a place he used to occupy along with Anthony Kennedy, it’s not going to be reliable for conservatives who want to see conservative victories on the Court. And the next President will certainly get at least one if not two picks. And the President’s going to revise his list by September. I think that’s important.
The Democratic nominee or prospective nominee, Joe Biden, hasn’t put out his own list, but just take a look at the lists being pushed upon him by groups like Demand Justice and you will see a definite difference in the philosophy of the people who would be appointed by the next President.
In terms of whether the President has delivered on his promise, I think he has, notwithstanding the very disappointing decision by Justice Gorsuch in the Bostock case. It was not a constitutional case. It was one of statutory interpretation. And I just think that he engaged in bad textualism for all of the reasons pointed out by the dissenters. But I’m not giving up on Justice Gorsuch by any stretch of the imagination.
And I would note that even justices who moral conservatives love will occasionally cross over and join with their liberal colleagues. Justice Scalia joined the Stevens opinion in the flag burning case, and he was the author of Employment Division v. Smith. Even Justice Thomas a couple of terms ago crossed over for a 5-4 majority with his liberal colleagues on the license plate case, “Choose Life,” whether that was somehow state speech and Louisiana could prevent a “Choose Life” license plate. So with a slim majority and independent people, you are periodically going to get opinions that are going to disappoint you.
Prof. John Yoo: Well, I think we’ve run a little long over time, so I’ll waive the remainder of my time. And I’ll turn it back to Dean so we get at least 20, 25 minutes of questions. Dean, take it away.
Dean Reuter: Very good. Thank you, gentlemen. Let’s go to area code 301. Go right ahead, caller.
Michael Rossman: Hi, Dean. This is Michael Rossman with the Center for Individual Rights. I have a question for John and John about Seila Law. What exactly does the judgement in this case do? So the Court says removal provisions that are limited to inefficiency, neglect, or malfeasance is unconstitutional, and the specific civil investigation demand is quashed. But the Court can’t take a pen and sort of cross those words out of the statute.
And they have really -- I don't think they have anybody to enjoin. It’s not like an abortion law where there’s an unconstitutional abortion law and you enjoin the executive who is about to enforce the abortion law against the doctor or against a person. You can’t enjoin the President to fire someone. You can’t say, well, now you have to fire them at will. The President may not want to. And so it seems to me this structural problem really can’t be fixed, short of Congress passing another law. So tell me why I’m wrong.
John Malcolm: John, do you want to -- I’m happy to --
Prof. John Yoo: Why don’t you go ahead first?
John Malcolm: Sure.
Prof. John Yoo: Go ahead.
John Malcolm: So the reason why I think you’re wrong on that — Michael, it’s always great to hear from you, by the way — is there are laws on the books. They have not changed the wording. They have not been repealed by Congress, or in some cases, state legislature. They’re just unenforceable because they’ve been declared unconstitutional. So you are absolutely correct, of course. You can’t force a President to fire the head of the CFPB. He may not want to fire the head of the CFPB. The head of the CFPB now is someone who President Trump chose.
But what this does is it gives the President to fire the head of the CFPB if he chooses to do so. So if there becomes a President Biden comes in and decides, “I don’t like the current head of the CFPB,” President Biden could just say, “You’re gone,” and won’t have to point to any malfeasance, whatever the standards were that were struck down yesterday.
Michael Rossman: Let me give you a counter example, John.
John Malcolm: Sure.
Michael Rossman: Suppose Joe Biden comes in and says, “You know, I think the Supreme Court was wrong in Seila Law, and I’m not going to fire Ms. Kraninger because I don’t think she’s engaged in inefficiency, neglect, or malfeasance.”
John Malcolm: It’s his prerogative.
Michael Rossman: Can someone who receives another civil investigation demand make the same argument that Seila Law made in this case?
John Malcolm: No, because the problem that was made was a structural problem with how this person got appointed or removed. That structural problem has now been remedied. The President may decide not to take advantage of his expanded power to remove somebody in the same way that I might take advantage or not take advantage of a tax exemption that is available to me. I have the ability to do that if I want to, but I don’t have to. The President can decide, “I’m good with her,” or “I think the Supreme Court made a mistake, and I’m going to stand on my principles and uphold this and hope that my successor will do the same.” But the structural problem has been removed.
There are other structural problems which I also mentioned which may get litigated. They have been litigated and may continue to get litigated about how the CFPB gets its funds, but that structural impediment has been removed in the same way that when they had the recess appointment problem under the Obama administration. The name of the case is escaping me for the moment. Once the structural impediment was resolved and the positions that had been taken were still within a timeframe that they could be ratified without that structural impediment, and life goes on.
Michael Rossman: But then the ratification fixes the problem. I don’t understand how the President can fix this problem.
John Malcolm: The President -- I’m not understanding your question. The President didn’t -- the Supreme Court has fixed the problem. The Supreme Court has now said whatever the statute says, we’re not going to sever this provision. We’re not going to do away with the CFPB. But we are going to say --
Michael Rossman: -- Did they rewrite the statute? They rewrote it?
John Malcolm: They have effectively rewritten the statute to eliminate the for-cause requirement before the --
Michael Rossman: -- I guess that’s my question. Can they do that? Can they rewrite a statue, or do they only have the power to declare what the law is?
Prof. John Yoo: Let me jump in on that, Michael.
Michael Rossman: Please.
Prof. John Yoo: Because I think you could be quite critical of the Court here for being activist in a way by, yeah, effectively rewriting a statute. And you could say severability -- and this came up in -- there’s a long discussion of this in the Obamacare case back in 2012 where Roberts was accused again of exercising excessive judicial power rewriting a statute because what Roberts has done in both cases is he wants to say something might be unconstitutional, but he really wants to limit the consequences of it.
And so you’re right. I would say, I think if you’re a private party, you would sit there and go why isn’t everything that Cordray and then Mulvaney and now Kraninger, why isn’t everything they’ve all done illegal? That would be the standard remedy. And then why is fixing the appointment process -- the removal provision prospectively somehow legalize all the things that were done?
And so that’s what I was wondering too, actually, is even if you buy the severability argument, which as a matter of constitutional law, I don't think judges have that power, but the Court allows itself to do that. What happens to all the regulations that were issued under these unconstitutional CFPB directors, all the fines people paid? It seems to me at the very least open enforcement actions and open rulemakings all have to be restarted under a properly appointed CFPB director.
But I don’t think the law is clear. In fact, there’s a good -- anybody out there who wants to write a law review article, I think this would be a great law review article about what does this mean because there is this doctrine called the ex officio officer doctrine, and then the Court has -- there’s another case called Plow (sp) which talks about open versus final judgements.
So as an originalist or someone who thinks committed to the separation of powers, I would think the CFPB has been unconstitutionally constituted this whole time, and therefore everything it had done in the past cannot be legal. But I’m sure that’s not Chief Justice Roberts’s view, given his desire to issue broad constitutional declarations with as little practical impact as possible.
John Malcolm: Well, and you make a good point about for pending matters, they may very well be able to raise this issue. But it’s the same kind of thing if you have criminal conviction and you appeal and don’t raise a particular issue, and then the Supreme Court comes out with an opinion giving you some new constitutional right or acknowledging or discovering, whatever word you want to use, a constitutional right. If it’s a pending appeal, you get to take advantage of that. If you have -- if your appeals are done, you’re out of luck. Same kind of principle. But certainly with respect to pending matters before the CFBP that raise, at the very least, that issue, they have a live issue.
Dean Reuter: Well, we’ve got about twelve minutes left, two questions pending. Let’s check in with our next caller. Go ahead, caller.
Caller 2: Real good, very interesting discussion. I have two questions. One, did the abortion case yesterday involving the Louisiana statute, it did not overturn the Texas decision. And yet, the Texas law is virtually identical to the Louisiana law. And I’m wondering, did Justice Roberts just not want to deal with the issue of stare decisis and they just ignored the similarity of the two laws? That’s my first question.
The second question is kind of a counterfactual. The Flynn District Court judge -- I’m intrigued by the Watergate potential that he had before him to mimic John Sirica. I remember because I was starting working in D.C. in those days when Sirica took a sentencing opportunity involving McCord and expanded it into an investigation of the Watergate crimes, and became famous for it. I think the judge missed a golden opportunity. Your thoughts about both those I’d appreciate.
John Malcolm: Well, I’m a little confused about your first question because in Whole Woman’s Health v. Hellerstedt, the Texas statute was struck down. It was the change in the Court from Justice Kennedy to Justice Kavanaugh, and when they granted cert, there was a thought that they might have a different result. Chief Justice Roberts wrote in his opinion -- concurring opinion was all about stare decisis because he was going, “I thought that the Texas statute was fine and shouldn’t have been struck down four years ago, and I still think that. But this law is sufficiently similar, and this is not an egregious example where we should ignore stare decisis.” I think he’s wrong about that, but that’s what he did there.
And then I’m not quite sure I understood your second question. I mean, Judge Sullivan, I think, certainly was looking to make a splash. Wherever that splash was going to lead in terms of General Flynn’s sentencing and where that might lead to, who knows. But now, he’ll say what he’s going to say, dismiss the charges, and it’ll be up to the electorate to decide whether they like what Bill Barr and President -- what Bill Barr did and the President who appointed him, but General Flynn ought to be in the clear.
Prof. John Yoo: Let me just make a brief comment on the stare decisis opinion by Chief Justice Roberts yesterday because it’s a strange stare decisis opinion. And then it’s an interesting question whether Chief Justice Roberts even believes in stare decisis. And several of the -- at least one of the dissents, I think Chief -- sorry, that was wishful thinking. I think Justice Thomas’s dissent pointed out Roberts has voted several times to throw out precedent. Just in the last year or two he’s thrown out one on the Takings Clause, and then of course he voted the majority of Janus. Where does this newfound appreciation of precedent come from?
Then the second point is if you read Roberts’s opinion, he actually in the logic would throw out Whole Woman’s Health too because the plurality opinion yesterday said that Whole Woman’s Health struck down this Texas and now Louisiana statute because the benefits to, I guess, public health from the abortion restriction outweighed the cost to women trying to have -- for women’s access to an abortion.
John Malcolm: The other way around. It was that the burden on women outweighed any benefit to public --
Prof. John Yoo: Right.
John Malcolm: Right.
Prof. John Yoo: And so Roberts’s concurrence actually says, “I reject that part of Whole Woman’s Health. I just think we should ask is something an undue burden on access,” and there is no cost-benefit balancing. So it’s weird. Even in an opinion that claimed to be following stare decisis, the threw out everything in Whole Woman’s Health other than the outcome.
John Malcolm: Yeah, that was very strange. So he sort of said, “Well, I know that there was this talk about weighing costs and benefits, and that clearly goes beyond Planned Parenthood v. Casey.” But at the end of the day, really what they did was they just looked and saw whether it was an undue burden. And it was very strange.
Dean Reuter: Two questions pending. Got about ten minutes -- eight minutes, guys. Okay, next caller, go right ahead.
Caller 3: Thank you. Gentlemen, thank you again for your time during this continued crisis. My question is given the recent slew of decisions, is what’s going on less about issues like executive power or other legal issues and more about the Court aggressively asserting independence of the Court basically in more about trying to prove, in Chief Justice Roberts’s words, that the Supreme Court is nothing more than an umpire calling balls and strikes. Thank you.
John Malcolm: Do you want to go first, John?
Prof. John Yoo: If you don’t mind, John, yes. So I had a little piece on Fox News last night about this. What is Chief Justice Roberts doing? I think as the caller suggests, these decisions are all over the map. They don’t seem consistent in terms of judicial philosophy. Certainly, if John Roberts was thought to be conservative, he’s certainly not been consistently conservative now and for several years, I’d say. So what is he doing?
So I think the best good faith explanation is that Chief Justice Roberts is trying to lower the profile of the Court so that it doesn’t become an issue in partisan politics. This is the explanation that was given back in 2012 when he provided a fifth vote to uphold Obamacare during an election year. There were journalistic accounts that said that Roberts had initially voted to strike down Obamacare on all grounds and that he flipped his vote after he saw the political attacks that were coming from the White House and the Democratic Senate -- I’m sorry, I don’t know if it was Democrat, but from Democratic senators.
And you could say if you think Chief Justice Roberts is acting in good faith here, he’s doing the same thing. But I think it’s, as you say, it’s just maybe that the question is broader. It’s also an assertion of power by the Court in the sense that what it’s doing here -- you’ll notice, all these decisions, the outcome just happens to be in the middle of where American public polling puts things. It tends to be very popular. So the Title VII case Bostock, the DACA case, these are important -- and the abortion case too yesterday. These are all very controversial social issues, but the Court’s outcome seems to find itself basically in the middle of public polling. So there’s almost no chance it’s going to get overruled.
So it has the effect, I think, of expanding judicial power, so I think inevitably puts the Court in the middle of politics nevertheless, perhaps even more so because now people are going to look at the Court as the place to set policy on issues like gay rights, abortion, and immigration.
John Malcolm: I agree with all of that. The Court obviously has a tremendous amount of power in deciding which cases it decides to take and in terms of how it decides these decisions. I think that putting your finger to the political winds is the exact opposite of calling balls and strikes. And as John just said, this attempt to remove the Court from a political thicket by doing precisely that, putting your finger to the political winds, I think makes the Court more political than ever.
And it gives great impact to things that used to be referred to as the Greenhouse Effect. If Linda Greenhouse of The New York Times was going to write something bad about you, that had an influence on you. And I think that’s unfortunately at play here.
Dean Reuter: Time for a final question.
Tricia Paoletta: Thank you, gentlemen. It’s Tricia Paoletta from Harris, Wiltshire & Grannis. I was hoping you could briefly address the executive order on preventing online censorship. I know FedSoc has done some programs on that, but that was, of course, before the DACA Supreme Court case. And there was a lot of talk about how it was violative, the executive order, of the First Amendment. But when you read it, it’s actually pretty narrowly tailored on the Section 230 revised interpretation. You can read it and think in some ways it oversteps the President’s role. Some of those revisions perhaps should be statutory. But in any event, post DACA, I’d like to know your thoughts on it. Thank you.
John Malcolm: Well, that’s a little bit like Monty Python, “And now for something completely different.” It’s a very, very different topic, Section 230 of the Communications Decency Act, obviously very controversial and enacted at a time when the internet was in its incipiency. It was Myspace. There was certainly no Google and Facebook and Twitter and all of that.
And do think that there is something to the President saying, “Look, we need to get a clarification about what it means to be acting in good faith in terms of removing offensive material or whether or not you cross the line when you add things like fact checking from being a mere intermediary of content posted by your users to becoming a publisher in your own right.” The President may have political motivations for doing what it is he’s doing in the same way that Facebook and Twitter may very well have political motivations for doing content moderation the way that they do it. And so we will see how this all plays out.
I would point out that the civil immunity that internet platforms get, it’s not a constitutional right. It is a benefit that was conferred by Congress, and if Congress thinks that the reasons no longer suffice or are no longer necessary, or that power, that privilege has been abused in some way, it’s their right to reconsider it. And to the degree to which we are asking the FCC to put more flesh on the bones in terms of interpreting the language in the statue itself, that’s certainly the President’s prerogative.
Prof. John Yoo: I don’t have a lot more to add. I didn’t think the executive order could -- and I think as you suggested in the question, I think the President’s executive order could really change much because it is still Congress that is, as John points out, gave the immunity to these websites too. And I guess you could say the executive order is more of a presidential declaration of intent to explore whether websites really deserve this kind of publisher/distributor status and not speaker status in patrolling the content on their websites.
But you could -- I don't know. I guess the question was whether the DACA/DAPA opinion could intersect in some way with what’s going on with the Communications Decency Act and the issues about whether websites are legally liable to lawsuits about what’s said on them, whether they’re speakers or not. I guess you could say maybe the Executive Branch could create some kind of permit that would give -- that would shield them from federal law enforcement because that’s essentially what DACA and DAPA do.
But here, already the congressional statute gives a broad immunity, and it’s really, I take it, the Executive Branch wants to narrow it. So it’s actually the reverse of DACA and DAPA. And there, I don’t -- it’s almost as if you would say we will prosecute people. And I don’t think the DACA/DAPA opinion really contemplates something like that right now.
Dean Reuter: Well, I think we’re going to have to leave it right there. I want to thank both John Yoo and John Malcolm for your time today. As always in this continuing series, we’ll have you back again soon as events warrant. I want to thank the audience as well for dialing in, for your thoughtful questions. A reminder to our audience to check your website and your email for notice of upcoming teleforum conference calls. I have insider information that that next call begins in about a half an hour. But until that next call, we are adjourned. Thank you very much, everyone.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.