On Constitution Day, Mark Chenoweth and John Vecchione dive into John’s new article in Cato’s Supreme Court Review, previewing the Supreme Court’s 2025 term. From the president’s power to fire agency officials, to looming fights over tariffs and federal spending, they explore the cases most likely to redefine separation of powers in the year ahead.

Mark Chenoweth: If you think that unwritten law doesn't affect you, think again. Whether you're a business owner, a professional, just a average citizen, you are unknowingly going to fall under vague and unofficial rules. And when bureaucrats act like lawmakers, they're really restricting your liberty without the consent of the governed. Welcome to Unwritten Law with Mark Chenoweth and John Vecchione. We're coming to you on Constitution Day. And for that reason, John, I thought maybe we should delve into an article that you have coming out today on Constitution Day in the Cato Supreme Court Review.

John Vecchione: That is true. And the article already has been seized by events.

Mark Chenoweth: I noticed that.

John Vecchione: So, I wrote about tariffs were coming up. And of course the Supreme Court by now has taken those.

Mark Chenoweth: John presciently predicted that the Supreme Court would take the tariffs case.

John Vecchione: Yes.

Mark Chenoweth: I can vouch for his draft.

John Vecchione: It was to the publisher before that happened. But I think –

Mark Chenoweth: I think they should publish with that in there, John, just to show how preachy you were.

John Vecchione: Well, the thing is, I'll be like John McLaughlin. And he only replayed the things he was right about.

Mark Chenoweth: That’s right. That’s right.

John Vecchione: He'd go, “Oh, I was right.” And then every time he was wrong, he would never replay those.

Mark Chenoweth: Or he would replay if Jack Drummond was wrong.

John Vecchione: Yeah, exactly, exactly.

Mark Chenoweth: Then he would replay that, right?

John Vecchione: But in any event, I think that there's three broad areas that the court is really going to have to look at. One is, “You're fired.” Who does the President get to fire? And there's sort of some buckets. Humphrey's Executor obviously is in their gun sights, really, and in our gun sights. And it's about the President's control, even of the multi-headed agencies. So, a lot of folks from the multi-headed agencies have brought cases that Humphrey's Executor’s still good law, and therefore they cannot be fired.

Mark Chenoweth: Right. Can I make one small point about that?

John Vecchione: Yeah.

Mark Chenoweth: Which is we've been trying to get a case up in front of the Supreme Court on this issue for a while. The Supreme Court wasn't interested, wasn't taking these cases. And now the President has forced their hand by firing some people. If they wanted to deal with this issue in a less fraught context, they had opportunities over the last five years to do so, and they didn't. So, all the folks who are saying, “Oh, emergency docket this, emergency docket that,” the Supreme Court brings some of this on itself. Now we've talked before how the district courts are also creating part of the problem. But the Supreme Court could have dealt with Humphrey's Executor any time before Trump got elected, and they just chose not to.

Mark Chenoweth: But the time is ripe.

John Vecchione: Right. It's very ripe, and people are bringing cases, and the Solicitor General obviously has brought them on the emergency docket. Because oftentimes an injunction is put in, which raises the issue of what's the remedy, right?

Mark Chenoweth: Right. And does it include reinstatement?

John Vecchione: Does it include reinstatement? I hope they'll talk about that. But I want to go over some of the buckets because I think there's really three that may be different. One is just multi-headed agencies. And that's the FTC, the CPSC, NLRB, all those, all the multi-headed agencies. We have a fixed term.

Mark Chenoweth: Right. Merit Systems Protection Board, I think someone was fired.

John Vecchione: Exactly. And so, the idea behind this was that they didn't want quick changes in these areas, and then plus they didn't want it to be as partisan as the regular agencies. But the constitutional structure really doesn't allow for that because the President is responsible for the laws being executed, so he has to have these guys in charge. So, I think Humphrey's Executor’s going to grow. And it doesn't matter about the multi-headed agency, unless – I will say what is out there. If all they do is make recommendations or do investigations and they don't have real executive power to either fine you or do something to you, it isn't really executive is how the courts put it. I just haven't done a deep enough dive to know which those might be.

Mark Chenoweth: Yeah, there’s –

John Vecchione: But they're certainly not the FTC or any of those places, SEC, that's not true of them.

Mark Chenoweth: That's right. So, the Civil Rights Commission, something like that is what you have in mind.

John Vecchione: Right.

Mark Chenoweth: And there's a little bit of a controversy. Maybe we'll get into that on a different episode. We can go into that and examine that in more detail. But your thought would be if they don't exercise executive power, that's a different category.

John Vecchione: Yeah, if they can't pull the trigger on doing something to you.

Mark Chenoweth: Okay.

John Vecchione: If they make recommendations, I think the court would – I certainly think there's appetite there where they'd say, “That's what we meant by Humphrey's Executor and not this.”

Mark Chenoweth: Yeah, okay, I could see that.

John Vecchione: Right? There's appetite for that.

Mark Chenoweth: Yeah.

John Vecchione: Then the next one is the Federal Reserve Board, right?

Mark Chenoweth: Its own bucket.

John Vecchione: Yeah, so it's in its own bucket. And the joke I always like to make is that if John Roberts has his way and the issue of whether the Federal Reserve Board can be independent or not comes to him, he will find out that the Federal Reserve Board is a tax. And obviously that's a callback to the –

Mark Chenoweth: Obamacare.

John Vecchione: – Obamacare cases, right?

Mark Chenoweth: Yeah.

John Vecchione: But it's not as much as a joke now because they have put in there in a footnote in one of these firing cases that the, of course, the Federal Reserve is different because of the Bank of England and the first – no, I'm adding the gloss of the Bank of England. But they said the First Bank of the United States and the Second Bank of the United States. There's all this history of what it meant, right?

Mark Chenoweth: Right, right.

John Vecchione: So –

Mark Chenoweth: Why when I read that, John, in the opinion, did I – was I reading it in The Voice saying, “Pay no attention to the man behind the curtain.” That was my vibe from reading that.

John Vecchione: So, they're going to have to come to terms with that. And so, that one may be different. And I will say this, I know how the First Bank of the United States ended, and then the Second Bank. I have a decent historical view, but I really don't know how it fits into originalism, except all the founders were in a big fight. They were still alive when the First Bank of the United States came in. So, there's going to be a lot of contemporaneous writings about it, and I think we're going to see that. And it was obviously the big fight between the Hamiltonians and the Jeffersonians. So, I think you're going to see – there's going to be the Jefferson guys and the Hamilton guys on the Supreme Court. So, we will see about this. And I think the reason I brought up the Bank of England is because –

Mark Chenoweth: I would take either Jeffersonians or Hamiltonians on the Supreme Court over some of the people we've had in the last 200 years.

John Vecchione: So, Louis Capozzi actually brought this up to me. He's now the Solicitor General of Missouri, but I saw him before he was Solicitor General, he spoke on this topic. And I didn't know that the Bank of England was run by governors who served for the life of the king, right, or their own lives.

Mark Chenoweth: Right, right. Yeah. That might be a short term right now.

John Vecchione: So, in any event, that's an interesting one. I like to make bold predictions because what are people going to do to me, right? Lawyers don't like to do that, but I'm at the Supreme Court. I mean, I might as well say what I think. This one, I am tentative on. I don't know what they're going to say. And it might have to do with what the Federal Reserve is actually doing. If it's doing banking, it may be that that's not executive. But if it's punishing, maybe that's different.

Mark Chenoweth: Your life of the king, I know this is a little bit off point, but it brings up an interesting thing for me, which is what if the rule were, “Mr. President, you can fire anybody in the executive branch unless you appointed them, and then you're stuck with them for the duration of your term.” I mean, that's not the rule of anything I can think of.

John Vecchione: No.

Mark Chenoweth: But it is sort of an interesting rule. It's like, “Well, look, be careful on the appointments end, but once you got them, you got them.”

John Vecchione: Particularly under current management.

Mark Chenoweth: Yeah, yeah.

John Vecchione: So, then the last one I'll just mention before we move on is a very interesting case that I have always wondered how this works, particularly when we were doing our SIGI stuff. And that is, he fired the Librarian of Congress. And I don't think she had ever done anything wrong except – so the Librarian of Congress is the Librarian of Congress. And should the executive even be appointing that? And it's run by Congress otherwise. It's very interesting.

Mark Chenoweth: It's like the Architect of the Capitol.

John Vecchione: The architect of the Capitol.

Mark Chenoweth: There's a few of these positions that are really, I think, congressional legislative branch positions.

John Vecchione: Correct. So, there's going to be a different gloss on that, I think. And they may come up with some interesting arguments. So, that one may also come up. And there are these buckets of who you can fire, and whether they're an executive, where the executive has to run. It's going to be interesting.

Mark Chenoweth: So, are you saying JD Vance has to fire that person –

John Vecchione: Yeah, exactly.

Mark Chenoweth: – in his role as President of the Senate?

John Vecchione: He’ll come in. “I'm in charge.” So –

Mark Chenoweth: President Hague.

John Vecchione: Yeah, exactly. So, anyway that's the firing group. And I think that we're going to see a lot on executive.

Mark Chenoweth: What about the rifts from the Department of Education? You talked about that a little bit too.

John Vecchione: Okay, so that this is – yes, I do. And this is an interesting one. Here he's allowed to fire people from the Department of Education. All the lower courts say that yes, he can fire people.

Mark Chenoweth: And the Supreme Court upheld or revoked the stay or something to allow it, keep going forward. Right.

John Vecchione: Yeah, yeah. But the theory behind the revocation was that the firings were so vast and so numerous that it had ended the Department of Education's ability to do things Congress was requiring of it. So, the theory was that the executive was – just like we say that if you couldn't do things by law or constitute, you can't do them by other means. The argument was that the President was doing by the firings what he wasn't allowed to do without congressional authorization. And the Supreme Court said, “I'm going to let that percolate.” But the –

Mark Chenoweth: Sort of hollowing out the department?

John Vecchione: Yes, exactly. And they said so, right? They said, “We want to end this department, and we don't want it just doing its job.” I mean, the one good thing is you've always got a statement. They're not subtle. So, that gave that theory legs. I don't know if it –

Mark Chenoweth: My mom used to talk about people putting the B in subtle. Yeah, I think there's some of that going on.

John Vecchione: So, I don't know what's going to happen there. I did think it was an interesting theory, however. But then you look at the numbers, and the numbers of firings are like five percent or so. I mean, it's significant, but it's not like – there's nobody in it. It's not like you walk around the halls and there's nobody there, so...

Mark Chenoweth: Well, plus they took some of the big responsibilities and transferred them elsewhere. So if SBA is going to be running the student loan portfolio, or I forget, if HHS, I think, is running some other piece of it, it's not like those functions aren't being done.

John Vecchione: Yeah, and that is the other thing the court's going to – the way the executive arranges these tasks is probably not going to be something they're going to try and micromanage.

Mark Chenoweth: So, what other predictions did you presage in your article, John?

John Vecchione: Okay. Well, I brought up tariffs, right? So, tariffs is going to be there. And tariffs –

Mark Chenoweth: You went out on a limb.

John Vecchione: Yes, exactly. I did. But I made this – I was pretty sure that he wasn't going to win on tariffs. I mean, the administration was not going to win on tariffs anywhere. And sure enough, he lost three courts but two cases.

Mark Chenoweth: Everywhere so far.

John Vecchione: So, you got learning resources out of the DC District Court that was in the DC circuit. And Aikn Gump, Pratik Shah, they did a very smart thing, and they petitioned for cert, an expedited decision on cert in the summertime before –

Mark Chenoweth: Right, a couple months ago.

John Vecchione: Yeah, before anything had happened. And when it went up to the DC Circuit, then the Federal Circuit got ahead of everybody and had an argument and then had a decision, and they struck down the tariffs. And the difference in those cases is that basically learning resources says that there's, IEEPA is so not a tariff statute that there's no jurisdiction. It's in the district courts. CIT says we have jurisdiction because that the –

Mark Chenoweth: Reasons.

John Vecchione: Yeah, reasons. Well, the tariff schedule gets moved, right, exactly. But –

John Vecchione: No question. Then the Federal Circuit came out with a 7-4 decision, and I was shocked that the government got four votes on this, but they did. And so, what happens? The Federal Circuit said to remand it to the district court. And I speculated that since they still can do their deals and the administration can still collect tariffs if it went back to the district court with no stay, that they would drag it out. They did not. And I always tell young lawyers that if you want to get to the Supreme Court, the main thing you have to do is make sure you write your signature correctly. You need a big blue marker pen, and you have to write it very legibly.

And you write your signature. And then underneath it you put Solicitor General of the United States.

Mark Chenoweth: That increases your chances of cert grant?

John Vecchione: It increases your chances because –

Mark Chenoweth: Unless you’re not really the Solicitor General. Then it probably destroys your chances.

John Vecchione: Well, exactly. And it might get your bar removed. But if you can pull it off, it's like that old joke. It's an old joke about what's the best pickup line in the world? Well, it's very simple, but it's very, very hard to execute. You have to walk up and say, “Hello, I'm Tom Brady.” But anyway, it's that kind of thing.

Mark Chenoweth: Right, right.

John Vecchione: Anyway, so I do think that because the Solicitor General said why it's very important. And then the respondent, in this case Learning Resources, they put in what was called a response of acquiescence, right? So –

Mark Chenoweth: They didn't call it a bio? Response of acquiescence.

John Vecchione: It was acquiescence. They acquiesced.

Mark Chenoweth: Was it still an orange brief?

John Vecchione: No, I don't know. I just saw it online.

Mark Chenoweth: Yeah, okay.

John Vecchione: So anyway, but it said it was for acquiescence. And basically, I'll do it –

Mark Chenoweth: Is that puce? I don’t know what color acquiescence is.

John Vecchione: I'll do it in the cousin Vinny voice. “Everything those guys said is not true. But I want it too, so do what they're asking.” So, they all want to get up there.

Mark Chenoweth: These two youths want oral argument.

John Vecchione: Exactly, exactly. So, the Supreme Court then consolidated the cases, expedited briefing, said, “We're all going to argue this thing in November.” So, it's on the fast track, and they're going to decide whether or not these IEEPA tariff’s in. Jonathan Adler wrote a very good article for The Wall Street Journal on why the government might win, even though he doesn't really believe they should, but he is a lawyer, right? So he –

Mark Chenoweth: It's plausible.

John Vecchione: Yeah. Right? And others, Chad Squitieri, who's also a Catholic, he thinks they should win, and he wrote about that. Maybe I'm too deep in the weeds on this, but I think this should be a 9-0 decision.

Mark Chenoweth: I think if it's going to go against the President, it would be wonderful if it were a 9-0 decision just because I think that would send a clear message that, Mr. President, this isn't ideological.

John Vecchione: Correct. If I were John Robert, if I could get 9-0, I'd get 9-0 and have Alito write it, right? Because the administration can't go around saying it's all a bunch of squishes who don't understand it.

Mark Chenoweth: Yeah, yeah.

John Vecchione: But I think that –

Mark Chenoweth: The worst outcome here from a constitutional perspective would be a 5-4 decision with, say, the three liberals and Roberts and Kavanaugh for the President, something like that.

John Vecchione: Yes.

Mark Chenoweth: And then have a really strong originalist, textualist 4 votes from the others. That would not be good.

John Vecchione: Correct. And the reason that might happen and the reason – is that A – here's the theory. I'll just say what it is, that Kagan particularly plays the long game and is for executive power, right? And Kavanaugh and Roberts all worked for the White House as well. They have a national security – and Kavanaugh has actually written major questions, doctrine, doesn't apply to foreign policy, right? And they're arguing to beat the ban, this is foreign policy. I don't think it is. I think it's tariff policy. I think it's not clear in the Constitution, but he's said that.

So, they could cobble together the strong young national security executive power folks, which tend to be the progressives and then the institutional – and by institutionalists, I mean guys who worked for the President when they were young. And those guys are Roberts and Kavanaugh.

Mark Chenoweth: And Kagan you mentioned.

John Vecchione: And Kagan. So, that's the theory, but I think that what's really giving me confidence is the government.

Mark Chenoweth: And by the way, we saw that alignment in Murthy.

John Vecchione: Yes, correct.

Mark Chenoweth: It would be a similar kind of outcome if that happened.

John Vecchione: Correct. But what really gives me confidence in all this is the government because the government will not tell them what a limiting principle is in IEEPA. If you watched Shumate, he argued before the Federal Circuit. They were begging him, “Tell me what it is.” “Well, it's Congress doing this, and it's the fact that he has to declare an emergency and check these boxes on the emergency.” But of course the emergency is anything he says. That's not a limiting principle.

Mark Chenoweth: Well, also, what's the limiting principle on saying regulate means tax? Because I don't think you can get five votes at the Supreme Court to say that the word regulate in a statute means tax. Because if they were to decide that, boy, how big is the can of worms that that opens, John?

John Vecchione: And I say in the article that if they put down a precedent that when Congress uses the words “regulate,” in certain circumstances it includes the subset of taxation. They are leaving Chekhov's gun on the mantle for any President to grab and start shooting anytime. And it would be disastrous. And the thing is, this is why I just don't think they're going to do it. Because there's no appetite for that and leaving a precedent around like that. I can't think of –

Mark Chenoweth: It's reckless.

John Vecchione: It's reckless. And say there's not a lot of appetite for recklessness in the Supreme Court.

Mark Chenoweth: Right. So, if Jonathan Adler were arguing this case for the government, they might have a better chance. But given the argument they made in the Federal Circuit, if they're going to repeat that, you don't like their chances.

John Vecchione: That is correct.

Mark Chenoweth: Yeah. Okay. So, what other prediction, what other areas did you get into here? There's seven areas. We're not going to have time to get into all of them, which means that you all need to go read the article that John wrote in Supreme Court Review when it comes out on Constitution Day, which is September 17th for those who don't know.

John Vecchione: All right, and the other one –

Mark Chenoweth: Also known, by the way, John, as the day after my 25th wedding anniversary.

John Vecchione: Wow.

Mark Chenoweth: So, happy anniversary Laura. It's been a great 25 years. Very excited about that. That's what I'm going to be celebrating this month.

John Vecchione: That certainly is worth celebrating. And then of course that was the end of separation of powers, right? Anyway, I think that –

Mark Chenoweth: John, like all happy marriages, we have a rule in our house that I get to make all the big decisions. Laura gets to make all the little decisions. And Laura gets to decide which decisions are the big decisions and which ones are the little decisions.

John Vecchione: That’s good.

Mark Chenoweth: So, it's worked out very well.

John Vecchione: I hadn't heard that version of it. That’s good. Well, I think for our purposes, for administrative law, the thing that's most on point is a chapter I call Money, Money, Money, the spending clause and budgeting.

Mark Chenoweth: Are you dropping a footnote to ABBA at that point of the article.

John Vecchione: I think it was different. Yeah, I did. But I'm not sure if they're going to be in there because Cato doesn't like footnoting songs.

Mark Chenoweth: Oh, okay. How interesting.

John Vecchione: So I had Born in the USA. I had a couple of them.

Mark Chenoweth: Yeah, oh yeah. Okay. You had one from The Clash, I think, in there too, or something or the Kinks, the Kinks.

John Vecchione: The Kinks, correct. That was for the transgender thing. I did Lola. Yeah. All right, here we go. So, here's what's going on. The President is trying to get hold of the budget, and he's done certain things that are absolutely constitutional. He went and got 9 billion rescission, right? And he used the Rescission Act, and he said, “All this spending is bad. I'm going to go to Congress, and Congress, I want you to rescind that 9 billion.” That they did. Some of that was the USAID stuff, right? That was all controversial.

Mark Chenoweth: Yeah, USAID, right?

Mark Chenoweth: Well, then they ought to take Powell because that's back from the Nixon Administration to our SEC Gag Rule case.

John Vecchione: No question, no question. So, the first one is the civil service McMann v. Doe, all right? So, there is a termination of civil service in that, but really he cut off spending to recipients of grants and spending programs. Some of it was for DEI; some of it was for other stuff. And there's a number of these cases now percolating up through the courts. And the Supreme Court had them on the emergency docket and said, “No, he can do that.” But it seems to me that the reason for that is that he may have to spend the money, but when and how is not always clear from Congress. And so, they don't want to stop.

And these are tens of billions of dollars. This is not small change. But the one that hasn't been stopped so far as I could tell was Royce Lamberth on Voice of America. And there he said you had to spend that money. Now, first of all, it's a smaller amount, but second of all, there seemed to be clear congressional direction. And that one hadn't been –

Mark Chenoweth: How do you pronounce that Widacuswara View Lake? Widacuswara?

John Vecchione: Sure, we'll take that.

Mark Chenoweth: Okay, something like that.

John Vecchione: Yeah, exactly. I'm not going to try it.

Mark Chenoweth: Okay.

John Vecchione: But –

Mark Chenoweth: Your Japanese isn't any better than mine?

John Vecchione: Exactly.

Mark Chenoweth: I don't know that that's Japanese. It could be Polish. I'm not sure. Widacuswara View Lake.

John Vecchione: So, Department of Education v. California, which is cutting off grants for DEI. There's a lot of them out there. And the court stopped the injunctions quite a bit. And they didn't like the district court injunctions about this. But in their doing that, I didn't see a lot of appetite to let the President just stop spending however he likes. It's more like, “Oh, we're allowed to do our priorities type stuff.” And so –

Mark Chenoweth: And I think they might – well, it'd be interesting. So, he has used the Rescission Act. I can see the court going both ways. I could see them saying, “Let's encourage more of this use of the Rescission Act and get Congress back involved in these decisions.” Or I could see them saying, “Well, we don't want to uphold these stays and everything too quickly because then the President's tied up in court instead of having the opportunity to go back to Congress and work this through the rescission.” Because some of what he's done with USAID is a good example. He's sort of bloodied up the agency, given it a bad reputation in public, then gone to Congress and said, “Hey, back me up on this.” And that’s –

John Vecchione: It’s true. And move some of it to the State Department.

Mark Chenoweth: Yeah, yeah.

John Vecchione: So, I think those cases are going to be interesting. I can't predict how they come out, though.

Mark Chenoweth: But that's what you're supposed to do in the article, John.

John Vecchione: I know. No, I'm supposed to say what they're going to take.

Mark Chenoweth: Oh, oh, okay. All right.

John Vecchione: I was supposed to say what we expect to see them talk about.

Mark Chenoweth: Gotcha. Well, you're two for two on that so far.

John Vecchione: Exactly. So, I do think that the spending clause will be interesting because they don't take a lot of spending clause cases because the Presidents usually don't cut too much or do too much of this stuff.

Mark Chenoweth: Right.

John Vecchione: So –

Mark Chenoweth: And we at NCLA do not endorse the concept of there being a spending clause just to get that out there. But I know what you're talking about.

And then there's going to be other things where Congress has put in spending cap. I mean, I am not sure that the directions of Congress on spending prioritize this, that, or the other thing. So, he may have –

Mark Chenoweth: How granular can it be?

John Vecchione: Correct.

Mark Chenoweth: Yeah.

John Vecchione: So, I think those cases are going to be interesting, and I don't predict how they're going to come out.

[End of Audio]

Duration: 27 minutes