Jul 6, 2022 - Podcasts

The Supreme Court’s battle with the executive branch

The Supreme Court wrapped up its term last month with a blockbuster case - the reversal of Roe v Wade. That decision overshadowed several others this term that point to conservative justices' next target - the executive branch.

  • Plus: how a mass shooting occurred in Illinois and Highland Park, despite the city and state having some of the strictest gun law in the country.
  • And: gas prices are declining.

Guests: Axios' Sam Baker and Justin Kaufmann

Credits: Axios Today is produced by Niala Boodhoo, Sara Kehaulani Goo, Alexandra Botti, Nuria Marquez Martinez, Lydia McMullen-Laird and Alex Sugiura. Music is composed by Evan Viola. You can reach us at [email protected]. You can text questions, comments and story ideas to Niala as a text or voice memo to 202-918-4893.

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NIALA BOODHOO: Good morning! Welcome to Axios Today!

It’s already Wednesday, it’s July 6th. I’m Niala Boodhoo.

Here’s what you need to know today: how a mass shooting occurred despite some of the country’s strictest gun laws. Plus, gas prices are declining.

But first, the Supreme Court’s battle with the executive branch is today’s One Big Thing.

The Supreme Court wrapped up its term last month with blockbuster case, the reversal of Roe v Wade. That decision overshadowed several others that point to conservative justices next target, the executive branch. As Axios’ Sam Baker writes, battles over the federal government's power will define many of the rulings in the Supreme Court's future. And Sam joins us now with more. Hey Sam, so first, I think it's civics 101 that our system of government, executive, judicial and legislative are supposed to share power. So what exactly do you mean when you say the Supreme Court, the judicial branch, is targeting other branches of government and in particular, the executive branch?

SAM BAKER: So civics 101 is a great way to think about it because when Congress passes a law, a whole lot of the time what that loss says is such and so agency over in the executive branch needs to go do this, that, or the other. The EPA OSHA, the FDA, whatever it is, when Congress wants something done, it's the executive branch that carries that out.

All of those instances of discretion that the executive branch they have to exercise, all of that is in some form or fashion, potentially, at least likely to be rolled back by the Supreme Court.

NIALA: And we did see this, this term where did we see federal agencies curtailed by the Supreme Court?

SAM: We actually saw it a lot. Maybe the one that's freshest in people's minds with the EPA, had thought about issuing some particularly aggressive climate regulations on power plants. The Supreme Court said, no, the EPA can't do that. Earlier on the term a couple months ago, I know it feels like forever now, but the CDC had imposed an eviction moratorium because of COVID. The Supreme Court looked in that and said, the CDC does not have the power to do that. Then OSHA had tried to apply a vaccine mandate in workplaces. The Supreme court looked at that and said, no, OSHA can't do that.

NIALA: So Sam, I'm sure it strikes everyone that these federal agencies are headed by political appointees of the Biden administration. That is being contradicted by conservative justices, republican members of the Supreme Court. What is the constitutional basis for why they say they're doing this apart from politics.

SAM: It all comes down to what is this or that agency's legal authority. How much are they allowed to do? There's sort of three relevant buckets of law and legal thinking here. The first that gets used all the time is what's called Chevron deference. When an underlying law is a little bit vague, the courts kind of defer to the agency that is tasked with carrying out that law thinking well, they're sort of the experts here. There is an appetite among some conservative justices, like Clarence Thomas to just get rid of that. Doesn't necessarily seem like the whole court is there, but they also are not really using it a lot. They're not doing the deferring. Next up is what's called the major questions doctrine. Where the, the court says, look, yeah, Congress gives sort of general authority to some of these agencies. They have to be able to exercise some discretion when to use it.But if you're gonna do something really huge, like an eviction moratorium, for example, the authorization has to be pretty explicit.

The third one is called the non-delegation doctrine. That is sort of the most extreme. And what that one says is if the constitution gives authority to Congress, Congress can't pass a law that gives that authority over to the executive branch. They couldn't say, “well, you know, in our exercise of that power, we want again, the FDA to do this, or OSHA do that. There do seem to be at least three of the conservative justices who want to bring that back. In 10 years, 20 years, I think what we will undoubtedly see from this court is maybe it happens in fits and starts, but ultimately the power of the federal government will be greatly constrained.

NIALA: Sam Baker is our resident Supreme Court expert. Thanks Sam.

SAM: Thanks Niala.

NIALA: In a moment - how the Highland Park shooting shows the patchwork nature of gun laws across the midwest.

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NIALA: Welcome back to Axios Today, I’m Niala Boodhoo. Officials have charged the suspected Highland Park shooter with seven counts of first-degree murder, the first of many expected charges. The shooting at the Fourth of July parade happened in a state with some of the strictest gun laws in the country. And the city of Highland Park has an assault weapon ban in a case that went all the way to the Supreme Court. So the fact that a mass shooting happened there is an example of how patchwork legislation can create loopholes across city and state lines, especially in the Midwest. Axios Chicago's Justin Kaufmann is here to explain. Hi Justin.

JUSTIN KAUFMANN: Good morning.

NIALA: Gun control advocates want laws like ones in Highland Park, Justin, you and I were actually working together in Chicago in 2013 when the city's law to ban assault weapons went to the Supreme Court. Can you explain Justin exactly what those laws are in Highland Park and in Illinois?

JUSTIN: Yeah. In Highland park, uh, Mayor Nancy Rotering, who's still the mayor today. In 2013, she enacted an assault weapons ban. The ban was actually challenged by a resident of Highland Park and the NRA, the NRA supported the resident. But the Supreme court in 2015 did not hear the case. So it still stands as an assault weapon ban in Illinois. And Illinois has the eighth strictest gun laws in the country. Of course probably the most strict and restrictive in the Midwest. In Illinois, what we have is we have, you know, red flag laws, we have background checks, you have to have a firearm identification card. There's a big process to legally obtain a firearm in the state of Illinois. That's not shared with our neighboring states. This is a point of contention for the city of Chicago who argue that the gun violence problem is exacerbated by those other state's softer gun laws.

NIALA: While all the details aren't clear yet, do we know if the shooter was legally able to obtain the AR-15 style rifle that was used?

JUSTIN: Yeah. And, actually it's five guns. He obtained legally five guns. He didn't have anything on his background, which is a point of contention right now. You know, the Highland Park police had a press conference yesterday. And in that press conference, they talked about having a house visit to the suspect in 2019, essentially, confiscating weapons after he threatened to kill family members, the weapons were knives. But the question is when he went to purchase these firearms a year later, why it wasn't on the record? Why that confiscation of those knives didn't prohibit him from getting guns. That's going to be worked out in the next couple days. But all of that comes back to the idea that these guns and the gun, the rifle, the semi-automatic, the AR-15 style rifle that they're describing that was used in the parade shooting was obtained legally by this man.

NIALA: So what are politicians in Illinois now saying?

JUSTIN: Yeah, there's a lot going on right now. The mayor of Highland Park wants a national ban on assault weapons. In the state of Illinois, you've got gun reform advocates who they're pushing lawmakers to use next week's special session to strengthen gun laws, even further. The governor here called that special session, uh, for reproductive rights after all the overturning of Roe v Wade. So they want to also throw guns on the table to strengthen some of these gun measures and gun laws. Right now there's in the concealed carry law in Illinois, the state prohibits municipalities from enacting new assault weapon bans.

They've grandfathered in the old ones, the Highland park and Chicago and others, but you can't have a new automatic weapons ban in the state. The gun reform advocates are, are looking at that and they wanna change that. So there's a lot that could happen in the spring session, but the governor's been moot on on whether or not that's going to be on the table when they get together next week.

NIALA: Justin Kaufmann is a reporter for Axios Chicago. Thanks Justin.

JUSTIN: Thanks Niala.

NIALA: And a little bit of good news before we go today. Gas prices are finally starting to fall. The national average dropped to $4.80/gallon yesterday. That’s a decrease of 8 cents over the past week. And prices at the pump tend to follow the price of wholesale gasoline, which has dropped 15% since the first week of June. That means customers might see a price decrease of about 30 cents per gallon in the coming weeks. But experts at AAA warn this relief might be short lived as we head into July, peak of summer driving season.

That’s all we’ve got for you today! You can reach our team at podcasts at axios dot com, you can reach out to me on twitter or you can text me, at (202) 918-4893.

I’m Niala Boodhoo - thanks for listening - stay safe and we’ll see you back here tomorrow morning.

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