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1:07

Hi, I'm Dahlia Lithwick. Welcome

1:09

back to Amicus. This is

1:11

Slate's podcast about the courts

1:14

and the law and the

1:16

Supreme Court. There is just

1:19

so much that is deeply

1:21

legally and constitutionally dubious about

1:23

much of what we have

1:25

seen in the last six

1:27

weeks, but in particular about

1:30

the activities of Doge. I

1:32

have created the brand new

1:34

Department of Government Efficiency.

1:41

A group of very intelligent mostly

1:43

young people headed up by Elon.

1:45

Did no one elect to Elon

1:48

Musk that we don't have kings?

1:50

Those are constitutional claims. It

2:03

seemed that this was the week

2:05

in which all the losing was

2:08

going to start to catch up

2:10

with MagaWorld from tanking the economy

2:12

with ill-advised on-again off-again tariffs to

2:15

a speech before a joint session

2:17

of Congress that was knitted together

2:19

by lies. to a great big

2:22

loss at the Supreme Court on

2:24

a really cruel and reckless effort

2:26

by the Trump administration to shut

2:29

down payments on foreign relief efforts

2:31

that had already been carried out.

2:33

But none of that has stopped

2:36

Donald Trump and Elon Musk from

2:38

persisting in shutting down the many

2:40

parts of the government they just

2:43

don't like, firing workers, terrorizing veterans

2:45

and social security recipients, terrorizing the

2:47

folks. who rely on Medicaid. We

2:49

are, it seems, in a race

2:52

to the finish between careless chaos

2:54

agents and the courts. One of

2:56

the most vexing aspects of this

2:59

situation is that Doge, as it

3:01

has been dubbed, is a non-agency

3:03

headed up by Elon Musk, who

3:05

is not in fact in charge

3:07

of it. On Thursday, President Trump

3:09

apparently gathered his cabinet with Musk

3:12

also in attendance naturally to assure

3:14

them that Elon is just an

3:16

advisor and that they are in

3:18

charge of their own agencies, but

3:20

then again, he also said this.

3:22

So we're going to be watching

3:25

them and Elon and the group

3:27

are going to be watching them,

3:29

and if they can cut, it's

3:31

better, and if they don't cut,

3:33

then Elon will do the cutting.

3:35

For anybody who inhabits the world

3:38

of actual fact, that means that

3:40

the phantom head of a phantom

3:42

agency appears to have an immense

3:44

amount of power to wreck federal

3:46

government and terrorize staffers, while the

3:48

administration sends its lawyers into court

3:51

to say that Doge isn't really

3:53

doing that and that Musk is

3:55

really not in charge. This irreducible

3:57

lie spoke of fact. allowed over

3:59

and over again in courts is

4:01

crazy making on its own terms.

4:04

So when Donald Trump simply announces

4:06

that Musk is really in charge

4:08

to a joint session of Congress,

4:10

it just becomes madness. Our friend

4:12

Kate Shaw, one of the hosts

4:14

of our sister Supreme Court podcast

4:17

Strick Scrutiny, wrote a piece in

4:19

the New York Times that attempted

4:21

to nail all of this appointment's

4:23

clause putting to the wall this

4:25

week, and we are going to

4:27

talk to Kate in just a

4:30

minute about the constitutional putting nailing,

4:32

but before we even get to

4:34

her, I wanted to make one

4:36

brief announcement. On Amicus, we care

4:38

about bringing you critical reporting and

4:40

analysis about the extensive layoffs happening

4:43

throughout the federal government. We've been

4:45

bringing you the latest stories on

4:47

what it means for the workers

4:49

and departments who have been affected.

4:51

Our fellow slate podcasters, Mary Harris,

4:53

over at what next, and Anna

4:56

Sale on death, sex, and money,

4:58

have heard from these workers themselves.

5:00

And if you read our work

5:02

on slate.com, we've had some incredible

5:04

reporting from the inside of these

5:06

government purges. We know how critical

5:09

access to this type of journalism

5:11

is, so we're offering slate plus

5:13

memberships to any current or former

5:15

federal government employees who have been

5:17

affected by these layoffs for the

5:19

next six months. With your Slate

5:22

Plus membership you'll also receive unlimited

5:24

access to any and all coverage

5:26

about the latest news and culture

5:28

and advice columns, of course, across

5:30

slate.com and our podcasts. Head over

5:33

to slate.com/Fed Plus to learn more.

5:35

Okay, back to the Constitutional Putting

5:37

and Doge and to this week's

5:39

guest, the wonderful Kate Shaw. Kate

5:41

is a times opinion contributor, she's

5:43

a law professor at the University

5:46

of Pennsylvania, and we just needed

5:48

to ask her to help us

5:50

understand the great big musk-shaped mass

5:52

at the center of the Doge-shaped

5:54

mass that lies at the center

5:56

of the wrecking ball that is

5:59

is Trump 2

6:01

.0. Kate Shaw, it's

6:03

wonderful to have you back

6:05

on the show and tell me

6:07

if my introduction there was like

6:09

overheated but I think it's

6:11

not just gaslighting, it's kind

6:13

of like gaslighting and also

6:15

deliberately seeding a lie that

6:17

then is retreating from. It's

6:20

really hard to pin this

6:22

down. Well, thank you so

6:24

much for having me, Dahlia. It is always great to

6:26

try to work through this kind of putting

6:28

to the wall problem with you.

6:30

Yeah, I don't think you've overstated

6:32

kind of the magnitude of

6:34

the problem, this kind of black

6:36

hole that is Elon Musk that

6:38

sort of is sucking everything in

6:40

and yet is impossible to sort

6:42

of get your arms around. And

6:44

I do think that the disconnect

6:46

between the representations being made in

6:48

court, which you alluded to, which

6:50

are that essentially Musk is not

6:52

the administrator and maybe exercises no

6:54

real power at all. And what

6:56

we are hearing both on Twitter

6:58

from Musk and during the address

7:01

to Congress from the lips of

7:03

the actual elected president, which is

7:05

that Musk is in fact running

7:07

Doge, is crazy making. And I

7:09

think that in some ways it

7:11

does seem deliberate. I mean, you never

7:13

know how much intentionality to ascribe

7:15

to some of these chaotic moves by

7:17

Trump and his orbit, but

7:20

it does seem as though they

7:22

are relishing this saying one thing

7:24

in the courts of law and another

7:26

thing in the court of public opinion

7:28

and essentially daring the legal system to

7:30

call them on it. And I think

7:32

they actually may get tripped up and

7:34

get called on it because I do

7:37

think hope springs eternal and as you

7:39

mentioned, the courts do seem to be

7:41

a little bit kind of running thin

7:43

on patience for this kind of double

7:45

speak. So it does seem as though

7:47

there could be consequences in the offing,

7:49

although Trump has this amazing ability to

7:52

evade in the kind of 11th hour or any real consequences.

7:54

But I do think that you set the problem up

7:56

well. Yeah, no, he's the president

7:58

who is himself made of pudding. It's... It's kind

8:00

of beautiful. I wonder if we can

8:02

start with you just coming in as

8:05

a Conlaw professor and sketching out for

8:07

listeners who aren't lawyers, just like Article

8:09

II 101. As you say in your

8:11

piece in the Times, the Constitution is

8:13

silent on removals of officers. The court

8:16

has had some stuff to say about

8:18

it, but the court is actually pretty

8:20

specific on appointments. And before we even

8:22

get into sort of the contours of

8:25

those powers, I just wonder if you

8:27

can explain, like at the most theoretical

8:29

level, Kate, why the focus is on

8:31

appointments and not removals. I think it's

8:34

good to take the two together because

8:36

For sure, Trump has been on this

8:38

firing rampage since taking office. He has

8:40

removed dozens of officials who have explicit

8:42

statutory protections against being fired for no

8:45

reason. So look, like everybody agrees that

8:47

the president has the ability to replace

8:49

like the cabinet and those kinds of

8:51

top advisors and of course Biden's people

8:54

were gone by January 20th. So Trump

8:56

could put his people in there and

8:58

the next layer down and the next

9:00

layer down in most places. But there

9:03

are also these dozens of officials in

9:05

government who are not supposed to be,

9:07

and by kind of custom and practice,

9:09

and sometimes by law, are not removed

9:11

by one president to be replaced by

9:14

the next, and Trump has just run

9:16

roughshod over those limitations, banking on his

9:18

likelihood of being ultimately vindicated by the

9:20

Supreme Court, which has been very skeptical

9:23

of those kinds of statutory restrictions on

9:25

the president's ability to fire. But as

9:27

you said, Delhi, the whole edifice of

9:29

this kind of idea that the Supreme

9:31

Court is... increasingly committed to, which is

9:34

that the president has like plenary authority

9:36

to fire anybody in the executive branch,

9:38

at least at the high levels, is

9:40

without any real textual basis in the

9:43

Constitution. In terms of how to get

9:45

rid of high-level officials, the Constitution sets

9:47

forth an impeachment process, but it doesn't

9:49

say anything about the president's ability to

9:52

fire. So it was actually kind of

9:54

an issue of real debate at the

9:56

found. kind of how you would get

9:58

rid of an officer of the United

10:00

States, and it was pretty quickly decided

10:03

that despite the silence of the Constitution,

10:05

there had to be some process for

10:07

the president removing these high-level officials, but

10:09

whether Congress could regulate that process or

10:12

not was actually a source of real

10:14

debate, and it was actually the subject

10:16

of the first presidential impeachment of Andrew

10:18

Johnson, who fired a war secretary without

10:21

getting the Senate to agree, but sorry,

10:23

that's sort of a digression. But the

10:25

point is there have been... kind of

10:27

debates throughout about how broad the scope

10:29

of the president's a textual removal power

10:32

is. But that's just essentially one side

10:34

of the personnel coin. The other side

10:36

is this appointments piece. And I think

10:38

it is actually rich that the Supreme

10:41

Court in this president seems so deeply

10:43

committed to the president's power to remove

10:45

officials, which is nowhere mentioned in the

10:47

Constitution, but that the president seems not

10:50

to have much care for what the

10:52

Constitution explicitly says about appointments of officers

10:54

of the United States, because actually that

10:56

is much more detailed in the Constitution.

10:58

So Article II basically says that for

11:01

officers of the United States, the president

11:03

appoints subject to Senate confirmation. The advice

11:05

and consent of the Senate is the

11:07

Constitution's language. And then the Constitution goes

11:10

on to say, but for inferior officers.

11:12

Congress can give the appointment power either

11:14

to the president alone or to the

11:16

heads of departments like the defense department

11:18

or to the courts of law. So

11:21

putting the courts of law piece to

11:23

the side, basically what that has been

11:25

understood to mean is that for what

11:27

we call principal officers who are the

11:30

highest level officials in the government like

11:32

the cabinet secretaries. president has to appoint,

11:34

Senate has to confirm. That's the only

11:36

way to get into those positions under

11:39

the Constitution. But for important but less

11:41

important officials, if Congress wants to, it

11:43

can pass a statute saying we're going

11:45

to take the Senate out of the

11:47

equation, just the president or just a

11:50

cabinet secretary or a principal officer can

11:52

appoint these officials. So sorry that gets

11:54

a little bit technical, but I think

11:56

it's an important point that the Constitution,

11:59

which is really quiet on a lot

12:01

of topics, says a lot about how

12:03

officers of the United States are. to

12:05

be appointed. And there's a question, well,

12:08

so who is an officer of the

12:10

United States? And the Supreme Court has

12:12

actually weighed in on that a lot.

12:14

It basically says people who exercise significant

12:16

authority on behalf of the United States

12:19

are officers. And that's not the same

12:21

thing as employees. Not everybody who works

12:23

for the federal government is an officer

12:25

of the United States. But the high-level

12:28

people who make policy and exercise real

12:30

power are, and there are only really

12:32

two ways to get those people into

12:34

office. President nominates, Senate confirms, or if

12:36

Congress acts, president or head of department,

12:39

or if the courts of law, can

12:41

appoint. And it certainly doesn't seem as

12:43

though any of that has happened, with

12:45

Elon Musk who was wielding immense power.

12:48

So walk me through, if you would.

12:50

It sure looks like Musk meets the

12:52

definition. You just lobbed at us of

12:54

what a principal officer is, right? Under

12:57

the rubric, you just laid out. And

12:59

yet they are saying he is a

13:01

special employee, he's just an advisor. Like,

13:03

what is the best constitutional argument that

13:05

is being offered if there is one

13:08

in the courts? that Elon Musk, despite

13:10

what he does and brags about doing

13:12

and what Trump brags about him doing,

13:14

that he is in fact not an

13:17

officer. So they're saying a couple of

13:19

things. One is he is simply... advising

13:21

the president. He's not directing anybody to

13:23

do anything. And just like there are

13:26

White House officials who advise the president

13:28

who don't go before the Senate for

13:30

confirmation, Musk is essentially doing the same

13:32

thing. And I think here, just to

13:34

the kind of point you were making

13:37

at the outset, it's a little bit

13:39

like the kind of who are you

13:41

going to believe this representation or your

13:43

lying eyes. We both know from the

13:46

things that Musk is saying and directing

13:48

publicly and that Trump is saying about

13:50

Musk that he is doing far more

13:52

than just advisingizing. enormous directive authority vis-a-vis,

13:55

it seems, the cabinet and officials throughout

13:57

the executive branch, and that's consistent with

13:59

the kind of power we understand, officers.

14:01

and not kind of these mere advisors

14:03

to wield. And I mean, to be

14:06

clear, the Supreme Court has taken a

14:08

look at a bunch of different

14:10

positions where, you know,

14:13

individuals inside the federal

14:15

government are wielding different

14:17

kinds of authority, and

14:20

there have been questions

14:22

about whether they are

14:24

wielding too much authority

14:27

than Musk quite obviously is.

14:29

are in fact officers of

14:31

the United States. So examples

14:33

include administrative law judges at

14:35

the Securities and Exchange Commission that

14:37

built on an earlier case involving judges

14:39

of the special tax court, a more

14:42

recent case involving administrative patent judges at

14:44

the Patent and Trademark Office. All of

14:46

these officers of the United States and

14:48

the Patent Judge case. possibly principal officers

14:51

because their decisions weren't subject to meaningful

14:53

review by somebody above them. So again,

14:55

these are actors in various parts of

14:58

the federal government that wield some authority,

15:00

but I think it's laughable to suggest

15:02

that they wield more authority than Musk

15:05

clearly is. And yet I think that

15:07

this sort of double speak about what Musk

15:09

is doing, you are seeing in court, I

15:11

think does kind of muddy the waters, right?

15:13

So it's not statutory authority that is set

15:15

forth that he is acting pursuant to. So

15:17

that is sort of one. counter argument that

15:20

the Department of Justice is making. Well,

15:22

he's just an advisor, he's not building

15:24

statutory authority, he's just in as maybe

15:27

a special government employee who's going

15:29

to serve for a limited duration because,

15:31

you know, the Supreme Court has referenced

15:33

kind of a continuous exercise of power

15:35

as an attribute that officers of the

15:37

United States possess. but continuous doesn't need

15:39

to be permanent or indefinite. The court

15:41

has also made that clear. So there

15:43

are efforts to kind of poke holes

15:45

in this characterization of what Musk is

15:47

doing, but I think there remains this

15:49

kind of information sort of black box,

15:51

and I think that makes it difficult,

15:53

both for the multiple plaintiffs who have

15:55

brought these challenges to the permissibility of

15:57

Musk's occupying this position and exercise.

15:59

this power and frankly for the

16:02

judges trying to make sense of

16:04

sort of what the legal framework

16:06

says about whether this is okay

16:08

in that we just don't have

16:10

a great sense of what and

16:12

where and how Musk and Doge

16:14

are really operating. Kate you make

16:16

the point in your piece that

16:18

no less a constitutional wizard than

16:20

Judge Aileen Cannon. recently has weighed

16:23

into this debate in all the

16:25

wrong ways, but I think just

16:27

amplifying your point that it's not

16:29

just the Supreme Court that has

16:31

been sort of increasingly capacious in

16:33

its definition of who is a

16:35

principal officer, but we've got a

16:37

district court judge batting away the

16:39

check Smith prosecution on the same

16:41

exact analytical lines. Absolutely. So we

16:43

had the Marilago classified documents case

16:46

was thrown out by, right, Trump

16:48

favorite, possible Supreme Court shortlister, Judge

16:50

Cannon, who dismissed the classified documents

16:52

case primarily on the basis that

16:54

Special Counsel Jack Smith was an

16:56

officer of the United States who

16:58

had not been appointed consistent with

17:00

the appointments clause. So this is

17:02

not some fringe theory. This is

17:04

actually pretty straightforward. officers of the

17:07

United States have to be appointed

17:09

consistent with the appointments clause. Now,

17:11

I think Cannon was totally wrong

17:13

in that she said, you know,

17:15

whether he's an inferior officer, he's,

17:17

you know, if he's a principal

17:19

officer, he clearly hasn't been appointed

17:21

by the president and confirmed by

17:23

the Senate. But even if he's

17:25

an inferior officer, his appointment was

17:27

unlawful because there isn't a statute

17:30

that gives the attorney general the

17:32

power to appoint him as an

17:34

inferior officer and there very was

17:36

a statute that gave Merrick Arlen

17:38

the power to appoint Jack Smith

17:40

to serve as this special counsel

17:42

as he did. So to be

17:44

clear the application of this principle

17:46

I think was totally wrong. But

17:48

the first half of the analysis

17:51

in that opinion or at least

17:53

the first part of the discussion

17:55

which essentially took as a given

17:57

that officers of the United States

17:59

have to be consistent with the

18:01

Constitution was totally right. And in

18:03

some ways, just how casually Judge

18:05

Cannon acknowledges this kind of baseline

18:07

requirement that if you're going to

18:09

wield power on behalf of the

18:11

United States, you have to do it

18:14

consistent with the Appointments Clause, was actually

18:16

totally right. And I think just underscores

18:18

how uncontroversial the position is that. officers

18:21

have to be appointed constitutionally, and also

18:23

makes clear that, you know, the examples

18:25

that I gave of Supreme Court opinions,

18:27

they involve these kind of, you know,

18:30

adjudicatory officials, and that is just how

18:32

the recent cases have come up, but

18:34

it is by no means just those

18:37

kinds of officials where courts have found

18:39

that the power there wielding just isn't

18:41

consistent with the Constitution because they haven't

18:44

been constitutionally appointed, and I very much

18:46

think the logic of those cases applies

18:48

to Musk. Let's pause to hear

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and 365 day returns. Let's

21:32

return to my conversation with

21:34

Kate Shaw about the pudding

21:36

that is Elon Musk. Just

21:38

to further expand, contract, I

21:40

don't know the physics of

21:42

it, the black hole, then

21:44

you've got all these little

21:46

baby doge brows running around

21:48

with or without security clearances,

21:50

with or without titles, with

21:52

or without explicit authority that

21:54

are in fact doing the

21:56

hacking into private data. and

21:58

you know analyzing who stays

22:00

and who goes and it

22:02

seems to me that that

22:04

is also a piece of

22:06

this sort of ambiguous authority

22:09

where they are all just

22:11

simply walking into agencies putting

22:13

you know curtains up around

22:15

conference rooms and going and

22:17

the sort of sprawl of

22:19

this you know if the

22:21

original sin here is that

22:23

Elon Musk is or is not an

22:25

officer, these subordinates are or are not

22:27

answerable to somebody who has no authority,

22:29

yeah? Let me answer that question in

22:31

two ways. One, I think that there

22:33

is this sort of kind of deep

22:35

structural point that the appointments clause is

22:37

not just the set of technical requirements,

22:39

but it is this important structural safeguard

22:41

in the Constitution. The Supreme Court has said

22:44

as much. which just makes clear that the

22:46

people who wield power in government are doing

22:48

it in a way where there's a clear,

22:51

you know, kind of chain of accountability that

22:53

goes up to the president and the people

22:55

who are wielding power on behalf of the

22:57

president are clearly appointed in a way that

23:00

is transparent, that at least in theory involve

23:02

the kind of, you know, sort of public

23:04

check of Senate confirmation in the case of

23:06

the most powerful officers. So that is essentially

23:09

the underlying theory, I think of the clause.

23:11

And I think that it also extends,

23:13

right not just to the of Musk,

23:15

but to the people who are also

23:18

exercising power under him and at

23:20

his directives, the kind of

23:22

obscuring of who and what he is,

23:24

I think very much extends to

23:26

the people acting kind of at

23:28

his behest. But I also think

23:30

that the appointments clause is one

23:32

piece of the kind of illegality

23:34

puzzle. I mean, I think that that's

23:37

in some ways part of the problem.

23:39

There is just so much that is

23:41

deeply legally and constitutionally dubious about much

23:43

of what we've seen in the last

23:46

six weeks, but in particular about the

23:48

activities of Doge. I don't want to

23:50

suggest that the appointments clause is the

23:52

only problem and that somehow a court

23:54

understanding or accepting that the power wielded

23:57

by Musk isn't consistent with the appointments

23:59

clause necessarily resolves. everything, right? So maybe

24:01

just to say a little word

24:03

about kind of Doge generally, I

24:05

actually think the initial executive order

24:07

that establishes what it calls a

24:09

temporary organization that is Doge, which,

24:12

you know, I can't say this

24:14

enough and I know you say

24:16

this to Dahlia, you know, it's

24:18

not actually a department which has

24:20

a real meaning, which is not

24:22

something created by the president via

24:24

executive order, but so-called Doge or

24:26

however we want to refer to

24:28

refer to study and advise is

24:30

not in itself legally dubious, right?

24:32

So if that's all that Doge

24:34

was doing was to kind of

24:36

give a new name and a

24:38

slightly new mandate to this US

24:40

digital service, which was a predecessor

24:42

entity actually created in the late

24:45

Obama administration, that actually standing alone

24:47

is totally fine. But it is

24:49

what is actually being done under

24:51

the rubric of Doge that I

24:53

think it's right runs into just

24:55

a welter of legal problems in

24:57

addition to maybe this kind of

24:59

or problem, which is the appointments

25:01

clause is being flagrantly violated. But

25:03

there are problems that are statutory,

25:05

that several of the lawsuits that

25:07

have been filed are seeking documents.

25:09

It's not totally clear the Freedom

25:11

of Information Act should encompass all

25:13

of the materials generated by Doge

25:15

if it resides in the Office

25:18

of Management and Budget, which is

25:20

I think where it's supposed to

25:22

be, and that is definitely an

25:24

entity that is subject to FOIA.

25:26

But it's not clear because again,

25:28

there's just like Heisenbergi in principle,

25:30

which is that you sort of

25:32

as soon as you can see

25:34

Doge, it then moves somewhere else.

25:36

So it's not totally clear what

25:38

resides, but there are information kind

25:40

of disclosure, I think, problems with

25:42

Doge, potentially not producing its documents,

25:44

where I pursuant to FOIA requests.

25:46

Musk and the rest of the

25:48

employees who are part of Doge.

25:51

are subject to the ordinary federal

25:53

conflict of interest laws and a

25:55

degree of financial disclosure obligations, and

25:57

it's hard to see how Musk

25:59

could be complying. with the conflict

26:01

of interest laws, which prohibit individual

26:03

subject to the conflict of interest

26:05

laws from participating in particular matters

26:07

they have personal financial stakes in,

26:09

and ordinarily an ethics official will

26:11

review. the potential conflicts that an

26:13

individual, even like Musk, even if

26:15

he is a special government employee

26:17

or SGE, which is what the

26:19

White House has said, those SGEs

26:21

are subject to most of the

26:24

conflict of interest laws that a

26:26

federal employee is subject to, so

26:28

he would not be able to

26:30

participate in any decision he had a

26:32

personal stake in, and given the breadth

26:34

of his holdings and government contracting activity,

26:36

it's very hard to see how at

26:38

least the spirit of those requirements could

26:41

be complied with. So there are

26:43

ethics. there are disclosure, and then there

26:45

it seems sort of what you might

26:47

refer to as just sort of ultra-virus

26:49

like without legal authority, activities that Doge

26:52

employees appear to be engaging in, or

26:54

directing employees and federal agencies from Treasury

26:56

to the Department of Education to, you

26:58

know, CFPB, USAID, etc, etc, etc, etc,

27:01

to grant them access to sensitive databases

27:03

and to allow them to make kind

27:05

of programmatic decisions that they frankly don't

27:07

have any statutory authority to make. So

27:09

I think that the appointments clause is

27:12

sort of maybe I don't know whether

27:14

to call it the tip of the

27:16

iceberg or sort of the kind of

27:18

foundational sort of fundamental flaw to the

27:20

whole edifice, so you choose your metaphor,

27:22

but I don't think by any means

27:24

that the appointments clause is the only

27:26

legal problem here. It's funny, you're describing

27:28

it in terms of physics and I

27:30

am also, like I keep leaning back

27:32

into Schrodinger's doze, you know, it's alive

27:34

and it's not alive. And every time

27:36

a judge tries to sort of peer

27:38

into the box to figure out what's

27:40

going on, she gets a different story.

27:42

And you make the point, Kate, and

27:45

I think this is the nut of

27:47

the problem that, you know, last week,

27:49

after being pressed, impressed, impressed on this

27:52

in the courts and by reporters, the

27:54

White House, you know, filed a declaration

27:56

saying that Musk is, quote, quote, a

27:59

senior advisor. to Trump and they're

28:01

very clear, right? They in a

28:03

court say that he offers no

28:05

actual or formal authority to make

28:07

government decisions himself. He has no

28:09

formal responsibilities. He's not running Doge.

28:11

They're very clear. He's not an

28:13

employee. He's not an administrator. He's

28:15

just an employee of the White

28:17

House, right? Like that is, they

28:19

have put that into evidence. That

28:21

is the claim. box of the

28:23

law, as you say, Donald Trump

28:26

is announcing to a joint session

28:28

of Congress that Musk is the

28:30

boss of Doj and he's making

28:32

all these decisions. And then we

28:34

have Musk beating earlier this week

28:36

with, you know, all sorts of

28:38

members of Congress who are Republicans

28:40

and giving out his phone number,

28:42

saying, you know, if you don't

28:44

like a decision, go ahead and

28:46

give me a call. And I

28:48

guess I just have this question,

28:50

which is, and I know it's

28:52

a really hard question, but How

28:54

much is a judge supposed to

28:56

take judicial notice of the fact

28:59

that there is a split screen

29:01

going on here and that what

29:03

they are being informed inside the

29:05

box is simply not possible to

29:07

reconcile with what is happening in

29:09

fact out in the world? I

29:11

think it is very hard for

29:13

judges to know how to proceed.

29:15

And so I've written a couple

29:17

of academic pieces about earlier presentations

29:19

of this question, what judges should

29:21

make of kind of presidential statements

29:23

that happen more informally, but might

29:25

bear on pending litigation. And my

29:27

general view is actually courts should

29:29

not be too eager to kind

29:31

of seize on these sorts of

29:34

casual utterances made by presidents and

29:36

essentially try to bind presidents or

29:38

administrations to those representations. Normally. you

29:40

know, the legal position of the

29:42

executive branch is provided to courts

29:44

by lawyers at the Department of

29:46

Justice, and if there's some tension

29:48

between the two, actually the Department

29:50

of Justice representation is ordinarily the

29:52

one that courts should credit. So

29:54

this came up in the early

29:56

doc. litigation which was you know

29:58

President Obama basically said you know

30:00

in a speech in Chicago extemporaneously

30:02

is responding to hecklers who are

30:04

accusing him of doing too much

30:07

deportation and he says hang on

30:09

it you're not paying attention to

30:11

something which is that I just

30:13

took action to change the law

30:15

by creating this DAPA program which

30:17

was a deferred action for parents

30:19

of Americans right a successor to

30:21

the DACA program. And a district

30:23

judge in Texas, no surprise, basically

30:25

seized on this as an admission,

30:27

basically, that this was a legal

30:29

change that the president had been

30:31

without authority to make and used

30:33

that as a key basis on

30:35

which to invalidate the DAPA program.

30:37

And that, I thought, was misguided.

30:40

The president was speaking, again, colloquially

30:42

and not scripted and offered a

30:44

defense of his own actions that

30:46

was not in the form of

30:48

a kind of formal legal description

30:50

of in fact what he was

30:52

doing. But in the article where

30:54

I talk about this, I also

30:56

suggest that where a president is

30:58

making statements that are in these

31:00

highly formalized and vetted contexts like

31:02

the State of the Union or

31:04

a joint address to Congress, that's

31:06

a statement of the legal policy

31:08

and position of the administration that

31:10

courts are absolutely justified in putting

31:13

stock in for purposes of kind

31:15

of ascertaining the lawfulness or meaning

31:17

of some executive branch action. So

31:19

I think it's important that it

31:21

was in that formal address to

31:23

Congress that Trump most recently said,

31:25

Musk is the administrator of Doge.

31:27

That's not a casual utterance. He's

31:29

not saying this on the White

31:31

House lawn as he's walking to

31:33

the helicopter. He has considered and

31:35

scripted and announced, and there's been,

31:37

whatever, 30 seconds of applause, and

31:39

Musk is doing a weird bow,

31:41

and you know, this was a

31:43

moment that was not an unconsidered

31:46

moment. So in that context... I

31:48

think it's totally appropriate and actually

31:50

important for courts not to blind

31:52

themselves to these facts in the

31:54

world. And I think certainly these

31:56

judges need to put to the

31:58

Department of Justice lawyers before. them

32:00

the question of how to

32:02

reconcile either declarations or representations

32:05

made about the actual, you know,

32:07

kind of power center behind Doge

32:09

and, you know, what Trump is

32:11

saying publicly and in this very

32:13

formal setting. So I think I guess

32:15

that's a long answer, but I think it

32:17

really does depend on what and where. Like

32:20

I'm not sure that unsourced descriptions of kind

32:22

of like White House conversations or even what's

32:24

happening inside agencies. how if at all that

32:27

should bear on what a court does as

32:29

it's trying to get to the bottom of

32:31

the kind of power that Mosk is actually

32:33

wielding, that sort of stuff I think actually

32:36

court should be a little bit hesitant to

32:38

put too much dog in. But this kind

32:40

of statement I think is absolutely appropriate and

32:43

again I think important for courts not to

32:45

blind themselves to a statement that is in

32:47

such, both so public and is in

32:49

such obvious conflict with the representations

32:51

previously made to courts. It's funny,

32:53

Kate, you're at that like synapse

32:56

in my brain that always goes

32:58

whenever there is a conversation that

33:00

begins with. But Trump said, because

33:03

I remember like early, early conversations

33:05

with you in the first Trump

33:08

era, trying to sort of do

33:10

the decision tree of how much

33:12

of these statements, these performative legal

33:15

statements, you know, have legal force,

33:17

and it's really helpful to hear

33:20

that, you know, Not every tweet

33:22

does have legal force and

33:24

judges can't run around interrogating

33:26

every internal memo at every

33:28

agency But that there are

33:30

some performative legal acts by

33:33

the president that do have

33:35

some legal force at least

33:37

for purposes of this narrow,

33:39

as you say, appointments clause

33:41

infrastructure. I do think we

33:43

have to talk for a

33:45

minute about Amy Gleason, because

33:47

the administration announced again under

33:50

pressure that Doge has an

33:52

acting head. And her name

33:54

is Amy Gleason, and she's some

33:56

low-profile Trump official who worked on

33:58

health care technology. I gather she

34:01

was in Mexico last week when

34:03

it was announced that she's the

34:05

boss of Doge. Again, I sort

34:07

of find myself wanting to know

34:09

how much any judge is supposed

34:11

to be digging into whether Amy

34:13

Gleason is just kind of a

34:15

weird cardboard cutout and what indicia

34:17

they would need to have to

34:19

find out. that she is in

34:21

fact the acting head of Doge

34:23

who is diligently working away telling

34:25

Elon Musk what to do. Right,

34:27

I mean, it's such a preposterous

34:29

image, right? So she's like handing

34:31

down directives and Musk is sort

34:33

of dutifully carrying them out. Like

34:35

obviously that is not happening. I

34:37

mean, I would imagine the judges

34:39

would be interested in actually, you

34:42

know, hearing from her, at least

34:44

potentially. I think it's right, she's

34:46

a official at Doe, she was

34:48

previously, you know, in actually, I

34:50

think, the first Trump, and at

34:52

some point in the Biden administration,

34:54

so she's got real government service

34:56

chops, but it was not a

34:58

name that I think anyone was

35:00

expecting. I think the White House

35:02

press secretary initially announced that she

35:04

in fact was the acting administrator,

35:06

How much kind of probing should

35:08

these courts do? I do think

35:10

there is a long-standing reluctance, often

35:12

justified, on the part of federal

35:14

courts, of probing too deeply into

35:16

the internal workings of the executive

35:18

branch. If there are representations made

35:20

about what is happening inside the

35:23

executive branch, it's usually a pretty

35:25

high bar that's going to move

35:27

a federal judge to require... Again,

35:29

this sort of institutional black box

35:31

to be sort of yanked open

35:33

so that a judge can actually

35:35

probe what exactly is happening inside

35:37

the executive branch. I think judges

35:39

think that's, you know, often a

35:41

little bit delicate from a separation

35:43

of powers perspective for us to

35:45

be inquiring too deeply into exactly,

35:47

you know, what is happening inside

35:49

federal agencies. But sometimes these kind

35:51

of high bars are cleared. So,

35:53

you know, one example of this

35:55

is in the litigation over the

35:57

addition of a citizenship question. to

35:59

the 2020 census or the effort

36:01

by the first Trump administration to

36:04

add that question to the census,

36:06

ultimately there was so much bad

36:08

faith in the way the Trump

36:10

administration was explaining to the district

36:12

court here in New York. Why it

36:14

wanted to add this question to

36:16

the 2020 census that the district

36:18

judge allowed some depositions of high-level

36:20

officials in the Commerce Department to

36:22

go forward now? You'll remember this

36:24

Dahlia, the Supreme Court interceded and

36:26

actually stopped the deposition of the

36:29

Commerce Secretary Wilbur Ross. kind of

36:31

on the grounds that that very

36:33

high bar of actually requiring a

36:35

cabinet secretary to sit for a

36:37

deposition hadn't been cleared, but allowed

36:39

additional discovery into what exactly was

36:41

happening inside commerce and allowed depositions

36:43

of other high-level officials. So I say

36:45

all this as an illustration of the fact

36:48

that this ordinary reluctance to probe. can be

36:50

overcome. And the kind of, what

36:52

courts sometimes talk about, particularly in

36:54

administrative law cases, is the presumption

36:56

of regularity, right? Like we just

36:58

presume that regular order obtains inside

37:00

the executive branch, and courts can

37:02

essentially take at face value the

37:04

representations about what and why is going on

37:06

inside government and are not supposed to constantly

37:09

be saying, like, show us your books,

37:11

like tell us everything. But that presumption

37:13

of regularity can be rebutted, and I

37:15

do think that is going to be

37:17

an important dynamic. going forward as the

37:19

litigation around the appointments clause and a

37:21

bunch of other kind of legal questions

37:24

proceeds, how kind of willing to find this

37:26

presumption of regularity rebutted and thus

37:28

to kind of justify probing a

37:30

little bit more deeply inside the executive

37:32

branch, judges are going to be. And

37:34

I think that this is a

37:36

presumption that is a rebuttable presumption, at

37:39

least so far the things we've

37:41

been talking about. give I think a

37:43

pretty good indication that judges should

37:45

not view themselves as disabled by this

37:48

presumption from kind of probing.

37:50

Can you just quickly give us a

37:52

lay of the land of the cases?

37:54

You just mentioned there's a couple of

37:57

cases that are bubbling away that raise

37:59

the sort of centrally. important appointments clause

38:01

question. There's one happening in Maryland, there's

38:03

one in DC, another one was just

38:06

filed on Wednesday, and I wonder if

38:08

you can just sketch out for us

38:10

how these are playing out in the

38:12

lower courts and who the plaintiffs are

38:15

and the kinds of claims they're making.

38:17

So I think there are three now,

38:19

so there's a case in Maryland as

38:21

you mentioned, this is a group of

38:24

both current and former federal employees and

38:26

contractors who have been personally and adversely

38:28

affected by the activities of Doge, which

38:30

they argue are traceable to this unconstitutional

38:33

appointment of Elon Musk. And so there

38:35

was a hearing a week and change

38:37

ago about, you know, kind of these

38:40

questions of structure and activities of Doge

38:42

and... this was before we had I

38:44

think gotten the Gleason announcement. So there

38:46

were lots of questions about who is

38:49

running Doge, what Musk's role is, and

38:51

some kind of skepticism. No initial ruling

38:53

on the merits of this request, you

38:55

know, and the request specifically was at

38:58

least in the short term to bar

39:00

Doge affiliated employees from getting access to

39:02

records. This is USAID. Some of the

39:04

other cases focus on other agencies, but

39:07

there was a decent amount of skepticism

39:09

about just what we've been talking about,

39:11

I think, the disconnect between the way

39:13

the lawyers were describing Dojan Musk and,

39:16

you know, what the press and sort

39:18

of the public discourse seem to suggest.

39:20

But again, no immediate ruling in that

39:23

case. There's a second case in DC,

39:25

this one rather than individual employees that's

39:27

been brought by a number of states.

39:29

And there actually was an initial ruling

39:32

denying preliminary relief to those plaintiffs, but

39:34

Some of the statements made by the

39:36

judge during that initial hearing did suggest

39:38

that, you know, it seemed that Musk

39:41

had rapidly taken steps to fundamentally reshape

39:43

the executive branch, that he lacked an

39:45

obvious source of legal authority, that the

39:47

things being described were exactly the sorts

39:50

of executive abuses in here. I'm quoting

39:52

the judge that the appointments clause seeks

39:54

to address. So at least as to

39:57

those two cases, which are now a

39:59

couple of weeks old. there seemed to

40:01

be at least real concerns on the

40:03

part of the district judges about the

40:06

legal picture being painted by these allegations.

40:08

And as you mentioned, a third such

40:10

suit just dropped on Wednesday. This one

40:12

was brought by a number of advocacy

40:15

groups represented by the campaign legal center.

40:17

And if I can just quote your

40:19

colleague Mark Stern, quoted the opening paragraph

40:21

of this brief on Blue Sky, and

40:24

it really is kind of a banger

40:26

of an opening, so I think if

40:28

I can just read a sentence or

40:30

two. And then a couple of sentences

40:33

and then the paragraph ends, but he

40:35

and his so-called Department of Government efficiency

40:37

are lawlessly an unconstitutionally wielding sweeping power

40:40

across the executive branch. And then they

40:42

go on, the complaint is like 100

40:44

plus pages, but to describe these actions

40:46

as being without legal authority and in

40:49

violation of the appointments clause and inconsistent

40:51

with the separation of powers. So these

40:53

are all kind of different groups of

40:55

plaintiffs alleging different kinds of injuries, making

40:58

the same kinds of sort of sort

41:00

of high level structural constitutional constitutional claims.

41:02

And, you know, if you think, well,

41:04

is there a disconnect between these plaintiffs

41:07

saying there's a structural constitutional problem, the

41:09

Supreme Court has generally been totally willing

41:11

to say if you were impacted by

41:13

something the federal government does, and the

41:16

agency or entity inside the federal government

41:18

was unconstitutionally constituted or appointed, you have

41:20

a stake and you can actually get

41:23

relief. So the head of the CFPB.

41:25

for example, right, this is a challenge

41:27

in which the Supreme Court invalidated the

41:29

restrictions on kind of summary firing that

41:32

had initially attached to the head of

41:34

the Consumer Financial Protection Bureau. And the

41:36

way the case came up was, you

41:38

know, a law firm that was being

41:41

investigated for unlawful practices vis-à-vis consumers, you

41:43

know, was subject to a subpoena, and

41:45

one of the defenses it raised was,

41:47

well, The head of the CFPB has

41:50

this unconstitutional protection against being summarily fired

41:52

by the president, and the Supreme Court

41:54

agreed with that. So I bring up

41:56

that example just. say that these plaintiffs

41:59

are alleging that they are being directly

42:01

affected by the things that Musk and

42:03

Doge are doing and that there is

42:06

a constitutional infirmity at the core of

42:08

what they are doing and how they

42:10

are constituted. And I do think that

42:12

the Supreme Court cases suggest that they

42:15

do have a right to go to

42:17

court and have a court address the

42:19

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44:01

we are back with Professor Kate Shaw.

44:03

What is the relief at the end

44:05

of the day here? I mean, Nancy

44:08

Gertner was on the show a few

44:10

weeks ago and very optimisticly said, in

44:12

the manner of Judge Gertner, officers of

44:15

the court at the Justice Department are

44:17

not going to be comfortable sailing into

44:19

a federal district court and just lying.

44:22

And yet, you know, in that same...

44:24

Colloquy, you raised, you know, with Judge

44:26

Huang in Maryland, you literally have him

44:29

trying to pin down. Joshua Gardner, the

44:31

Justice Department attorney, and asking him, you

44:33

know, as you said, he's like, this

44:35

is really very suspicious what you're saying.

44:38

He's trying to pin him down on,

44:40

you know, Elon Musk is tweeting that,

44:42

you know, they're going to send USAID

44:45

quote into the wood chipper and we

44:47

have the judge saying, sending something through

44:49

the wood chipper is not. usually reorganization,

44:52

right? And we have, you know, Gardner

44:54

saying, like, I don't even know what

44:56

that means. And then we have the

44:59

judge coming back and saying, like, who

45:01

served before Amy Gleason as the Doge

45:03

administrator? The judge says, this seems like

45:06

a noble fact. And we have Gardner

45:08

saying, oh, you know, I asked, I

45:10

didn't get an answer. And then when

45:13

the judge presses Gardner further, we have

45:15

Gardner complaining that the office of the

45:17

Justice Department that defends the administration that

45:20

defends the administration. court has been like

45:22

downsized and so they can't keep up

45:24

with all the lawsuit like it's unbelievable

45:27

the level of sort of willful misdirection

45:29

willful not pursuing the truth and I

45:31

guess I just keep finding myself saying

45:34

like is a judge gonna hold someone

45:36

in contempt is anybody on the hook

45:38

for failing to ask the questions that

45:41

the judge is asking. I'm just not

45:43

entirely sure where the relief lies here.

45:45

Yeah, I mean, maybe I'll say one

45:48

thing about the lawyers and then also

45:50

just like the kind of the relief

45:52

question. Yeah, I mean, I have to

45:55

say, I, my heart really goes out

45:57

to the DOJ lawyers who are in

45:59

a truly impossible position. I have no

46:02

idea what is going on inside the

46:04

Department of Justice or their conversations with

46:06

folks in the White House about the

46:09

Doge cases or any of the other

46:11

cases, but I am sure they are

46:13

getting non-anspers, spin, conflicting answers, and so

46:16

they can't really tell that to the

46:18

judge, but they also need to give

46:20

answers. So I don't know. what the

46:22

actual facts on the ground are, I

46:25

think is probably the most candid response.

46:27

So I guess I don't think that

46:29

the line lawyers are the ones who

46:32

should be on the hook if judges

46:34

are going to be, you know, actually

46:36

considering things like contempt, but I think

46:39

supervisors at the Department of Justice, the

46:41

ones actually making the high-level calls, actually

46:43

should be called into court if in

46:46

fact the lawyers, again, most of them

46:48

who've been there for a long time

46:50

and have decided to do their best

46:53

in... truly impossible circumstances. I'm not sure

46:55

they are the ones that the court

46:57

should be focusing their eye or on,

47:00

but I do think that something has

47:02

to give, and you simply cannot allow

47:04

this kind of non-information to be the

47:07

kind of final answer to the reasonable

47:09

questions that the judges are asking in

47:11

these lawsuits, raising serious constitutional. claims. And

47:14

in terms of like the specific relief

47:16

sought like in some of the cases,

47:18

you know, what actually are these plaintiffs

47:21

asking for? Let me just address the

47:23

third of the cases, the most recent

47:25

of the appointments clause cases. They're essentially

47:28

just looking for a declaration from the

47:30

judge or at least in part just

47:32

looking for a declaration from the judge

47:35

that these Musk, Doge, Gleason, this whole

47:37

cabal, does not have the legal authority

47:39

to do many of the things that

47:42

they are doing. Auditing executive branch departments

47:44

and agencies. terminating or canceling federal grants

47:46

and contracts, directing the termination of actual

47:49

employees or the contraction of the size

47:51

of the federal workforce. So the many,

47:53

many things, right, the exercises of legal

47:56

authority that Doge is engaging in, that

47:58

is according to these plaintiffs. without

48:00

legal authority, they are asking the

48:02

court to declare that they cannot

48:04

do. So I do think they

48:06

have an actually fairly specific ask,

48:09

and I think that in relatively

48:11

short order we're going to get

48:13

some merits rulings in one or

48:15

more of these cases. Kate, I have

48:17

to run down this one media

48:19

question with you, because it

48:21

seems not trivial to me that

48:23

there is just a gaping press

48:26

fail that is happening as well.

48:28

not everywhere, but certainly happening that

48:30

we just keep having the media

48:32

describing Doge as a real agency

48:35

and describing Musk as the real

48:37

head of this real agency and

48:39

forgetting to put in parens not

48:41

a thing, not a thing. And

48:44

I wonder if part of what

48:46

is kind of creating this weird

48:48

split screen. in the courts is

48:50

this weird split screen in the

48:53

sort of media and then

48:55

public consumption of what's going

48:57

on that makes it seem

48:59

as though these really serious

49:01

important court cases you've just

49:03

described for us are sort

49:05

of like tilting at windmills

49:07

as opposed to like a

49:09

statement of actual facts. Yeah,

49:11

I think you're right that there is.

49:14

an effort by some, I think you for

49:16

sure are doing it, to remind at every

49:18

turn that this is not a department, that

49:20

every time we say it, you know, like

49:22

I don't know what the opposite of a

49:25

fairy getting its wings is, but like that

49:27

there is something actually destructive in the world

49:29

that happens each time we credit this

49:31

claim. I mean, Trump could write an

49:34

executive order that literally says... that Elon

49:36

Musk is the co-president, he can write

49:38

an executive order that says that. He

49:40

has absolutely no authority to name anyone

49:42

the co-president. The Constitution doesn't permit the

49:45

creation of a co-president. And I think

49:47

it would be deeply problematic for everyone

49:49

to then parrot that title when describing

49:51

Elon Musk, co-president, Elon Musk, said X.

49:54

He wouldn't be the co-president even if

49:56

Trump wrote an executive order so anointing

49:58

him. And I think you're right. not so

50:00

different from him writing an executive

50:02

order purporting to create a department.

50:04

It's less facially ludicrous, but it's

50:06

also lawless. And so I think

50:09

it is important. And some press

50:11

outlets for sure are continuing to

50:13

use the descriptor so-called or entity

50:15

known as, and it's unwieldy, and

50:17

maybe it's just an efficiency thing

50:19

a lot of the time that

50:21

is why we don't see that

50:23

appended every time Doge appears. But

50:25

I think there is a deep

50:27

point there that you are... kind

50:30

of even if totally inadvertently complicit

50:32

in normalizing this if you refer

50:34

to Doge without the qualifier each

50:36

time in the same way you

50:38

would be if you referred with

50:40

a straight face to co-president Moscow.

50:42

I cannot believe I just sort

50:44

of said that and willed it

50:46

out into the world, but I

50:48

don't think it's so different. Let

50:51

the record reflect that Kachah did

50:53

not have a straight face when

50:55

she said a straight face. I

50:57

don't know if this matters for

50:59

legal purposes and maybe we just

51:01

sort of put it in the

51:03

mountain of things that judges cannot

51:05

take judicial notice of, but certainly

51:07

as a legal matter, not irrelevant

51:09

that on Wednesday night we get

51:12

the news that, you know, senior

51:14

Republican leaderships, members of Congress, all

51:16

met. with Elon Musk, not the

51:18

co-president, she says with a straight

51:20

face, and discussed all his cuts

51:22

and then chatted about better communication

51:24

and he gave them his cell

51:26

number, ha ha ha, everybody laughed,

51:28

so that they could I guess

51:30

make special pleadings one-on-one about anything

51:33

else they wanted, and then an

51:35

announcement, maybe we're going to do

51:37

this instead of doing all this

51:39

through impoundments, we're going to do

51:41

it. through a rescission package, you

51:43

know, let's try to find a

51:45

way to make it look a

51:47

little more legal. Again, I guess

51:49

this just, you know, file it

51:51

under stuff that the non-head of

51:54

non-dodge probably shouldn't be doing, is

51:56

this something that in any way

51:58

change? the landscape for all of

52:00

the judges who are trying to

52:02

think through who's really the boss

52:04

of the non-agency called Doge, or

52:06

it's just another one of those

52:08

things that you and I can

52:10

be horrified at, but it's how

52:12

this is going down. The reporting

52:15

alone is probably not enough as

52:17

atmospherically problematic as it is, and

52:19

it might penetrate chambers in that

52:21

way. I'm not sure it's something

52:23

that will or really should make

52:25

its way into a written opinion,

52:27

but it certainly could be the

52:29

basis if the plaintiffs want to

52:31

add reference to those kinds of

52:33

reports, particularly if they have more

52:35

direct knowledge than just the kind

52:38

of the things that they've read

52:40

in the paper, I don't think

52:42

there's anything that disables judges from

52:44

inquiring further into it, but absolutely

52:46

it's a horrifying vision, the idea

52:48

that Rather than kind of the

52:50

regular order in which government decisions

52:52

about things like spending are made,

52:54

there'll be the summary eliminations of

52:56

swaths of federal expenditures and then

52:59

these kind of one-off sort of

53:01

appeals by co-partisan, probably exclusively or

53:03

primarily Republican senators and members of

53:05

Congress, to get unfrozen various funding

53:07

streams for things that they need

53:09

in their own districts. It's just

53:11

like a horrifying. picture of the

53:13

basis kind of patronage politics and

53:15

spending and that is basically where

53:17

we are but I'm just not

53:20

sure that there's a way that

53:22

judges will directly give effect of

53:24

that kind of reporting but I

53:26

do think it's the kind of

53:28

thing that could make its way

53:30

into legal argument and potentially opinion

53:32

by leading to additional affidavits kind

53:34

of questions and answers between lawyers

53:36

and judges and in some ways

53:38

there's a kind of a deeper

53:41

point here which is that Look,

53:43

I don't know if judges are

53:45

ultimately going to find ways to

53:47

avoid siding with these plaintiffs in

53:49

the appointments clause arguments and in

53:51

some of the other arguments, but,

53:53

and you and I think Judge

53:55

Gertner talked about this as well,

53:57

there just is an enormously valuable

53:59

inference. forcing function of this litigation.

54:02

However, it's ultimately decided. We

54:04

still know way too little about

54:06

Doge, but we know a lot more

54:08

than we did before these lawsuits were

54:10

filed, and I think we're going to

54:12

continue to learn more. And, you know,

54:15

whatever this Gleason appointment means,

54:17

I think it's the result of

54:19

lawsuits actually raising questions about what

54:21

exactly Musk is doing and what

54:24

exactly his position is. And again,

54:26

what the ultimate... impact or benefit

54:28

of that appointment is, I don't know, but

54:30

I do think that some of these suits

54:32

will prevail, lots of them, I mean in

54:34

general not the appointments ones, but lots of

54:37

them won't, but I don't think that's the

54:39

ultimate measure of success. There is a lot

54:41

of good that litigation can do, whatever the

54:43

sort of bottom line conclusion courts

54:45

ultimately reach looks like. Kate, I wonder if

54:47

we can end on the very lofty first

54:49

principles you started with, you opened your New

54:52

York... Times Peace with the

54:54

image of just people holding

54:56

up signs outside the Tesla

54:58

dealerships around the country and

55:00

the signs say Quote no one

55:03

elected Elon Musk and your

55:05

point is exactly the point

55:07

you just made which is

55:09

The citizenship knows in their

55:11

bones even though they may

55:13

not know you know the

55:15

the difference between a principal

55:17

officer and a lesser appointment

55:19

they know in their bones

55:21

that there is, as you write

55:23

so eloquently in the piece,

55:25

a constitutional principle that quotes

55:27

sovereignty flows from the people

55:29

and that only officials selected

55:31

through constitutional methods get to

55:33

wield power in our name.

55:35

And I think that you

55:37

see those signs as a

55:40

sort of avatar of people

55:42

really understanding that intuitively, even

55:44

if they haven't followed the

55:46

line of cases. And I just

55:48

want to really unpack before

55:50

we go this claim from

55:52

Donald Trump and his supporters

55:54

that the entire democratic will

55:56

at this moment vests in

55:58

the president alone. who won

56:00

by a tiny margin, to

56:02

be clear, although he keeps

56:05

saying it was by vast

56:07

margins, and that that power

56:09

can get revested. That imperial

56:11

boundless power can be revested

56:13

in Elon Musk because in

56:16

their telling, the government is

56:18

run by unelected bureaucrats anyway,

56:20

so why not just vest

56:22

power in my unelected bureaucrat?

56:25

And I think that Americans...

56:27

intuitively understand the glitch here, but

56:29

I would just love for you

56:31

to again sort of returning to

56:33

this like basic idea. that the

56:36

story being told you can kind

56:38

of dress it up as unitary

56:40

executive, you can dress it up,

56:42

you know, as sovereign immunity. There's

56:44

lots of ways to talk about

56:46

this, but the notion that the

56:49

Constitution appoints the president an emperor,

56:51

and then he sort of puts

56:53

in place lesser. emperors is a

56:55

story they're very eager to tell

56:57

and as you say an enormous

57:00

amount of the pushback is that

57:02

even if you only watch schoolhouse

57:04

rock one time in the 70s

57:06

you kind of know that's not

57:08

true. Yeah I totally agree with

57:11

all that the entire edifice of

57:13

this sort of unitary executive theory

57:15

is a wildly ahistorical kind of

57:17

enterprise. It was never the notion

57:19

that the entirety of kind of

57:21

representation would be reflected by the

57:24

president. Congress is the key representative

57:26

body, not the president, but the

57:28

Supreme Court without really citing constitutional

57:30

text and in I think real

57:32

conflict with most kind of historical

57:34

accounts, suggests that the president, because the

57:37

president is the only official elected, I

57:39

mean with the vice president, by the

57:41

whole country, is the most democratically accountable

57:44

official. And the Supreme Court in all

57:46

these cases is literally just citing itself

57:48

in other such cases. And then like

57:51

Justice Scalia in dissent in the Morrison

57:53

versus Olson case, like that's essentially what

57:55

this whole thing is built on. But

57:58

it's become this kind of monster that

58:00

has largely displaced. a correct understanding, I

58:02

think, of Congress's authority. And right now,

58:05

like, you know, the idea that Congress

58:07

actually would have any real authority to

58:09

wield seems kind of laughable, but we're

58:11

talking about broad constitutional allocations of authority

58:14

and principles. And so I think it's

58:16

deeply misguided. And I think you're right

58:18

that people do get that. This, you

58:21

know, the anti-monarchy, the anti-concentration of power

58:23

in particular in one person principle is

58:25

sort of in our constitutional DNA. So

58:28

I was teaching. FDR has this Constitution

58:30

Day speech in 1937, and there's this

58:32

one really famous line in it, which

58:35

is that the Constitution is not a

58:37

lawyer's contract but a layman's document, that

58:39

like it has these principles in it

58:42

that are supposed to be accessible and

58:44

intelligible to everybody whether or not you

58:46

went to law school, and you don't

58:49

need to know what Article II says

58:51

about appointment, including the legislative and the

58:53

judicial power, and also handing it off

58:55

to somebody who was not chosen by

58:58

the people and wasn't even appointed via

59:00

one of the systems that we've been

59:02

talking about that the Constitution creates. So,

59:05

you know, I don't want to sound

59:07

like a constitutional fetishist here, but I

59:09

think that the kind of mobilization is

59:12

hugely important whether or not we're talking

59:14

about the Constitution. But I do think

59:16

that no one elected Elon elected Elon

59:19

Musk that we don't have kings. Those

59:21

are constitutional claims, and the Constitution... is

59:23

far from infallible, but does actually have

59:26

principles in it that are worth fighting

59:28

for, and that excessive concentrations of power

59:30

are fundamentally hostile to liberty, that's one

59:32

of the principles that's woven throughout it,

59:35

and I actually think the court's unitary

59:37

executive cases are in fatal conflict with

59:39

that principle, and I think that people

59:42

understand that. And so I do think

59:44

that's kind of the sort of vain

59:46

that these appointments clause cases... are touching.

59:49

And so I do think there's like

59:51

kind of a real constitutional truth at

59:53

the core of them and that you

59:56

kind of do see in the sort

59:58

of waking of the sleeping giant I

1:00:00

think of the American public who do

1:00:03

seem to be really starting to chafe

1:00:05

against these. just boundless assertions of executive

1:00:07

power, and I hope we see more

1:00:10

of it. Kate, I love that as

1:00:12

a place to land this particular plane,

1:00:14

because I think it really is the

1:00:16

case that we slightly fell back into

1:00:19

the measma this week of like maybe

1:00:21

Amy Coney Barrett's going to save us,

1:00:23

which is, you know, predictable and in

1:00:26

some sense, inevitable when you get a

1:00:28

big... court order in the first case

1:00:30

about Trump's power. But I love what

1:00:33

you're saying, which is, you know, who's

1:00:35

going to save us is us, and

1:00:37

it's going to be by relying on.

1:00:40

As you're saying, constitutional DNA that we

1:00:42

haven't been great at fighting for, Professor

1:00:44

Kate Shaw is one of the hosts

1:00:47

of the wonderful podcast, Strict Scrutiny, her

1:00:49

piece in the New York Times about

1:00:51

the appointments clause is must reading this

1:00:54

week and we'll put it in our

1:00:56

show notes. She is a Times opinion

1:00:58

contributor, she's a law professor at the

1:01:00

University of Pennsylvania, and more often than

1:01:03

not when I find myself just swirling

1:01:05

down the drain of not knowing what

1:01:07

it all means. a voice that I

1:01:10

rely on. Kate, thank you so very,

1:01:12

very much for your work and your

1:01:14

time and for reminding us where kind

1:01:17

of the locus of constitutionalism needs to

1:01:19

be. Thank you so much for having

1:01:21

me, Dahlia. It is always wonderful to

1:01:24

talk to you. One more thing before

1:01:26

we go. I want to recommend a

1:01:28

couple of companion episodes to this one

1:01:31

from our insanely talented slate. podcast friends

1:01:33

and colleagues, if you want to hear

1:01:35

more stories from people who have a

1:01:38

front row seat to the ransacking of

1:01:40

the federal government, at the hands of

1:01:42

Elon Musk's dodgy doge stirs, check out

1:01:44

Death Sex and Money's episode from earlier

1:01:47

this week, from uncertainty to chaos, your

1:01:49

stories about the new Trump term, and

1:01:51

check out what next episode, the true

1:01:54

cost of slashing the government, search your

1:01:56

favorite podcast app to listen. That's

1:02:00

all for this episode. Thank you

1:02:02

so much for listening in. Thank

1:02:05

you so very much for your

1:02:07

letters and your questions. You can

1:02:09

keep in touch at amicusatplate.com or

1:02:12

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facebook.com/amicus podcast. We really love hearing

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from you. In today's bonus episode

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of amicus plus, Mark Joseph Stern

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and I are sidling up. to

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the bar in the rumpest room

1:02:26

of doom to discuss an interesting

1:02:29

judicial gender divide when it comes

1:02:31

to water pollution and sewage, another

1:02:33

big court order attempting to unfreeze

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promise government funds, this time it's

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FEMA, and the unhinged letter sent

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by your favorite lawless officer of

1:02:43

the law and mine, Eagle Ed

1:02:45

Martin, the interim acting U.S. Attorney

1:02:48

in the District of Columbia, to

1:02:50

the Dean of Georgetown Law School.

1:02:52

I hope you're sitting down. That

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bonus episode is available for you

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Plus. Sarah

1:03:23

Burningham is Amicus's senior producer. Our

1:03:26

producer is Patrick Fort, Hillary Frey

1:03:28

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1:03:30

executive editor, and Ben Richmond is

1:03:32

our senior director of operations. We'll

1:03:35

be back with another episode of

1:03:37

Amicus next week. Before I started

1:03:39

working on this show, everything I

1:03:41

knew about Watergate came from the

1:03:44

movie All the President's Men. Do

1:03:46

you remember how it ends? Woodward

1:03:48

and Bernstein are sitting with their

1:03:51

typewriters placking away. And then there's

1:03:53

this rapid montage of newspaper stories

1:03:55

about campaign aids and White House

1:03:57

officials getting convicted of crimes, about

1:04:00

audio tapes coming out that proved

1:04:02

Nixon's involvement in the cover-up. The

1:04:04

last story we see is Nixon

1:04:06

resigns. It takes a little over

1:04:09

a minute in the movie. In

1:04:11

real life, it took about two

1:04:13

years. Five men were arrested early

1:04:15

Saturday while trying to install eavesdropping

1:04:18

equipment. It's known as the Watergate

1:04:20

incident. What was it like to

1:04:22

experience those two years in real

1:04:25

time? What were people thinking and

1:04:27

feeling as the break-in at Democratic

1:04:29

Party headquarters went from a weird

1:04:31

little caper to a constitutional crisis

1:04:34

that brought down the president? The

1:04:36

downfall of Richard Nixon was stranger,

1:04:38

wilder, and more exciting than you

1:04:40

can imagine. Over the course of

1:04:43

eight episodes, this show is going

1:04:45

to capture what it was like

1:04:47

to live through the greatest political

1:04:49

scandal of the 20th century. With

1:04:52

today's headlines once again full of

1:04:54

corruption, collusion and dirty tricks, It's

1:04:56

time for another look at the

1:04:59

gate that started it all. Subscribe

1:05:01

to Slowburn now, wherever you get

1:05:03

your podcasts. Hi, I'm Josh Levine.

1:05:05

My podcast, The Queen, tells the

1:05:08

story of Linda Taylor. She was

1:05:10

a con artist, a kidnapper, and

1:05:12

maybe even a murderer. She was

1:05:14

also given the title, The Welfare

1:05:17

Queen, and her story was used

1:05:19

by Ronald Reagan to justify slashing

1:05:21

aid to the poor. Now, It's

1:05:23

time to hear her real story.

1:05:26

Over the course of four episodes,

1:05:28

you'll find out what was done

1:05:30

to Linda Taylor, what she did

1:05:33

to others, and what was done

1:05:35

in her name. The great lesson

1:05:37

of this, for me, is that

1:05:39

people will come to their own

1:05:42

conclusions based on what their prejudices

1:05:44

are. Subscribe to the Queen on

1:05:46

Apple podcasts or wherever you're listening

1:05:48

right now.