Our latest installment of The UnPopulist Live took place yesterday, June 30, when senior editor Andy Craig sat down with Boston University law professor Jed Shugerman, a renowned legal scholar who is a leading critic of the Unitary Executive Theory, to discuss the Supreme Court’s back-to-back rulings on presidential removal power and birthright citizenship.
Included in today’s post is the full video and transcript of the conversation, lightly edited for flow and clarity. We hope you enjoy.
Andy Craig: Welcome, everyone, to The UnPopulist live stream. We have a couple of bombshell, emergency breaking news developments from the Supreme Court, here in the last two days of issuing opinions for this term.
Yesterday [June 29], we had the—not so great—ruling in Trump v. Slaughter and that concerned the president’s ability to basically fire anybody in the federal government he wants and Congress can’t stop him. That overturned 90 years of precedent, and a lot longer practice. So you can guess what I think about that one.
And then today, we had a bit more positive news with—though there are still some troubling signs—the Trump v. Barbara decision about birthright citizenship, where they struck down Trump’s executive order trying to say he could strip citizenship from children of people whose parents were in the country illegally, or weren’t permanent residents. Six to three, the justices said the president can’t do that. It was 5-4, though, on whether Congress could hypothetically do it. And we’ll dig into all that.
I am very glad to have the perfect, timely guest to join us today: Jed Shugerman at Boston University is one of the most interesting and thoughtful experts worth following on legal history in the United States. He has the distinction that he was cited both yesterday [June 29] by Justice Sotomayor in her dissent in Slaughter, and today [June 30] by Justice Jackson in her concurrence in Barbara.
So Jed, thanks for joining us. I’ve got to ask, I imagine a concurrence feels a lot better than a dissent?
Jed Shugerman: Honestly, it does. And it also, gosh, in a decision that turned out to be 5-4, to be cited in a concurrence. I mean, I didn’t see that coming.
Craig: Well, it was hard work, and you and Evan Bernick, also a friend of The UnPopulist, filed a brief. We’ll set Slaughter aside for now, and I’ll come back to it in a minute. Let’s start with the good news first.
Both of these cases, but I think particularly this one … a lot of law interacts with history, and sometimes lawyers and judges aren’t always the best historians. So that can be a tension. But this case in particular really hung a lot on the history: of what was the English common law rule, what was the antebellum practice, what did the framers of the 14th Amendment have in mind?
“The Roberts opinion in Slaughter is an embarrassment.” — Jed Shugerman
So before we get into why the other guys had it wrong, what were the key issues here and what did you bring with your research and your briefs?
Shugerman: Just starting with birthright, because it turns out it’s kind of interesting how these methods matter—how much history matters, and how much the justices read. That’s a through-line throughout these last couple of days. I’ll focus on the particular question that I was worried about, because I saw this coming for a few years.
What I was worried about was this kind of living originalism argument—and what I mean by “living originalism” is sort of a blend. With the framers—whether it’s 1787, or the framers of the 14th Amendment, the drafters and the ratifiers after the Civil War— the question is what they intended. And then what’s “living” is how much things change, and how much you have to update it.
I had seen this argument—and I knew it was wrong—in the first Trump administration. The argument about birthright citizenship was: that was then, this is now. Back at the time of Reconstruction, they were focused on ending and overturning Dred Scott and guaranteeing citizenship for ex-slaves. But the argument goes that they didn’t have any restrictions on immigration back then. There wasn’t any such thing as illegal immigration. Those framers didn’t address this question, and they couldn’t have imagined something like birth tourism.
And I knew that was wrong. Why? Because I have a PhD in history along with a law degree, and I had to read a lot of things about American history. One thing I knew was that anti-Chinese discrimination, or anti-Chinese restrictions, didn’t just pop out of the blue. The argument these people make is that the first restriction on immigration at the federal level was 1882, the Chinese Exclusion Act. I knew that was wrong. First of all, I knew that there was illegal trafficking of Africans. So doesn’t that count as a restriction—a federal restriction?
Craig: … Antebellum, before the Civil War, when the international slave trade was banned.
Shugerman: Exactly. So it did exist. And even if slavery is over, you still have, first of all, the background and the common law about Roma, people that are often pejoratively called “gypsies.” The English had restrictions against Roma migrants. And in the West, California had started restricting Chinese immigration. They used the racist or pejorative term “coolie”—because it stood in for the assumption that Chinese were only working in the United States and were sending their money back, and they would go back to China. These are examples, in the 19th century, that the drafters of the 14th Amendment knew about. It was salient to them that there were restrictions against certain kinds of migrants. And there were a lot of temporary migrants, mass temporary migrants, in California.
I had seen this coming, and I had written something up about this, and then when Trump gets reelected, I see that I actually have to write this up. I write an article last; first, I start posting blogs. I start backing up, I start looking back at the books I had read for my PhD, and then updating with … by the way this you have to just keep updating yourself because history changes all the time, right? So I wrote this article, and I co-wrote this amicus brief, and lo and behold, Kavanaugh, in a surprising concurrence-slash-dissent as he calls it, makes this argument that I had been worried about. It turns out that Justice Jackson had to contradict and refute this point that the framers of the 14th Amendment never thought about migrants, temporary immigrants. She cites my article twice and cites the brief that I co-filed.
“For Kavanaugh, it was more important to announce to the world that he's the main character, and that heaven forbid he would go along with the majority. He needed to bend over backwards, exaggerate, and defy legal norms to claim that he dissented, because it was more important to him that his audience understood—or would believe—that he would dissent from birthright citizenship.” — Jed Shugerman
Did it swing any votes? I honestly don’t think so, but it is important for posterity that these opinions refute it, that Jackson refuted this historically false claim for the basis of questioning the 14th Amendment’s guarantee of birthright citizenship.
Craig: At one point she quotes the congressional debates, where—and this happened multiple times—somebody raised the objection, “well, what about the gypsies invading Pennsylvania?” And the senator shot back: “the only invasion of Pennsylvania I remember was at Gettysburg” … which is a pretty sick 1860s burn.
Shugerman: And those debates were part of … I mean, I didn’t come up with that, right? There are conservative originalists who have been publishing that material. I want to shout out Mike Ramsey, a conservative originalist, who wrote an article that laid out this originalist case, and he had that exchange. It was a senator from California arguing back to a senator from Pennsylvania on that question, and that’s great historical context. It tells you that they were actively debating the kinds of migrant workers, and temporary migrants, and people who were coming into the country despite restrictions. This was what they knew. And repeatedly they had to also clarify … it’s not just they said, “well, this will apply to that narrow situation”; they just said, “no, let’s be clear we are affirming the common law background rule of birthright citizenship, and it’s a general rule.” And what’s crazy, Andy, is there were only five votes out of nine that took that seriously.
Craig: That was … you know, obviously we got the right result. But I think that was worse and closer than what the median expectations were. I heard a lot of talk of, “oh, maybe it’ll be 7-2, maybe 6-3 on that point.”
Shugerman: I didn’t hear a lot of 6-3, even.
Craig: But it was within one vote. There were four votes on the Supreme Court to overturn a settled bedrock constitutional right that was not seriously in question by anybody whatsoever five or 10 years ago.
Shugerman: Yeah, and can I say a little bit more about that? People listened to the oral argument. They followed it, and they understood the arguments. Lawyers and non-lawyers read about the oral argument. Journalists who are not lawyers, as well as the most expert lawyers who follow all the ins and outs, all came to the same conclusion based on listening to the arguments. It seemed like it was going to be, just as you said, 7-2. It was reasonable for people to say 9-0. Even if some of the justices thought there were some limits on birthright citizenship for temporary or unlawful residents, the executive order went so much broader. You could say, “well, there are some limits,” but that’s why it was reasonable to expect 9-0.
So what were the justices listening to? They weren’t listening to oral arguments. If everyone else heard it and it was clear that it would be 7-2, and yet it turned out to be 5-4, how is that possible?
Here, I just have to point out: Kavanaugh didn’t actually dissent. He bent over backwards to label his concurrence a dissent. Let me break this down, because I think it’s actually important to understand just how stunning Kavanaugh’s instincts are, and who he thinks his audience is.
When you’re a 1L law student—Andy, I think this is going to be obvious to you, but I want to make sure it’s obvious to everybody—what you have to do is figure out what the holding is, what the rationale is, what rationale goes with the holding, and what’s dicta. The holding is simply who wins. And in this case, the holding is clear: Trump’s executive order is invalid.
Now, five justices found that the 14th Amendment made the executive order invalid. So they all held that way. Kavanaugh also would hold that the executive order was invalid. He just shared some but not all of the reasons. He shared the reasons that the statute made the executive order invalid.
A good 1L law student—I’m not exaggerating—a B+ law student can tell you what the holding is and whether someone would concur or dissent from that result. I’m not going to claim that Kavanaugh is not as smart as a B+ 1L law student. What I’m going to tell you is that I think Kavanaugh has something else going on.
For Kavanaugh, it was more important to announce to the world that he’s the main character, and that heaven forbid he would go along with the majority. He needed to bend over backwards, exaggerate, and defy legal norms to claim that he dissented, because it was more important to him that his audience understood—or would believe—that he would dissent from birthright citizenship.
What does that tell you? It tells you that Kavanaugh cares more about the anti-birthright-citizenship movement, which is part of MAGA, and he identifies with MAGA.
Craig: He’s watching the polls …
Shugerman: You know, I wish that’s what it was. If he were watching the polls, he’d know that Trump’s approval rating is not exactly the thing you want to latch onto.
Craig: Yeah, but maybe he’s going to run in the Republican primary for president in a couple years? [laughs]
Shugerman: I’m not saying that either.
Craig: No, I know what you’re getting at.
Shugerman: Kavanaugh sees his legitimacy. He’s written off 40% of the country. But he wants some base to understand that he’s on their side. And he needs to signal that with the “dissent’—even though he didn’t actually dissent. Gorsuch did something similar. Gorsuch also seemed to think that. I can’t make heads or tails of Gorsuch because I don’t understand Gorsuch’s opinion and Gorsuch also signed on to Thomas’ dissent. And I don’t know how you can do both.
Craig: Speaking of Thomas’s dissent—and this kind of gets into the living originalism, intersection-of-law-and-history point—he had a moment where I almost gasped when I saw it. It was a say-the-quiet-part-out-loud moment. He recounts what the executive order does, and then he says, “the president’s initiative produced a groundswell of new originalist scholarship.” That was the part you’re not supposed to say—to admit nobody was saying this until, all of a sudden, certain persons whose names we don’t all need to recount.
“Kavanaugh sees his legitimacy. He's written off 40% of the country. But he wants some base to understand that he's on their side. And he needs to signal that with the 'dissent.' Even though he didn't actually dissent.” — Jed Shugerman
And this is something you, Anthony Michael Kreis, Evan Bernick, and several others have been doing yeoman’s work getting out there and rebutting, with a really in-depth, detailed rebuttal of it. But it was a bunch of shoddy law-office history-on-demand.
Shugerman: I called it “Ctrl-F around and find out.”
The reason it’s that it was clear: a couple of scholars said, “we found new research, and just wait, we’re ready to publish something.” This was in the days and weeks after the Trump executive order, and they were sort of teasing it. And then, finally, lo and behold—I was shocked—it popped up in the New York Times as a guest opinion. And it was laughable. It was so obvious that what these scholars had done was take a term, a word, and build a theory around it. I don’t want to get into all the details, but that word was “allegiance.” And they had their own theory …
Craig: … We just have to briefly note: “allegiance” is a word that’s not even actually in the text.
Shugerman: No, of course not. That’s right. And to Roberts’ credit, in his opinion he explains what allegiance really was in the common law. If you’re a citizen, you owe allegiance to the sovereign, and you are owed legal protection from the sovereign. But you don’t get citizenship on the basis of whether you have sole allegiance or not.
So the point is, it was so clear that they had Ctrl-F’d. They had searched for that word and taken the sentences out of context to manufacture this argument from their preconceived theory. And all you had to do was read the paragraph before—a full paragraph above it, below it. This is how research works. You can’t just cherry-pick a sentence.
So if that’s what they were doing, it was clear to me that they didn’t have the goods. They were starting with the theory, and they were cherry-picking, basically, to support the administration. And frankly, it’s sad, and it’s frankly shocking, that they were able to more or less persuade four justices that there was something to what they found.
Craig: Obviously history matters a lot for originalism, but even just more broadly, we have a legal system that’s built on precedents. Sometimes you do have to get a holistic view of, “well, I don’t know what this means. What did they think when they wrote and ratified it?” And that’s a legitimate enterprise. It can be very necessary sometimes. If you’re reviewing the vast corpus of sources and materials that are available on this … I can’t even imagine how many old archives you’ve looked through, straining to read half-legible handwriting from 200 years ago and that sort of thing.
Shugerman: Literally, yeah.
Craig: And all they’re trying to get is two or three or four sentences for a soundbite that can give it a gloss, of a pastiche of, “well, look, I did history.”
Shugerman: Yeah, that’s right.
Craig: And that was what this did. I think it rubbed a lot of people really wrong, not just in that they were wrong, but frankly, this is an unethical thing to do. I know that can be a charged accusation, but it was veering up to that.
Shugerman: I could talk for a long time about that. I also just want to say there’s an extra duty here. Law professors have a different duty than other kinds of scholars, because we know going in that anytime we write something, a case may be pending. If we’re writing legal scholarship, we know that our work could be cited in some future case for a proposition. And it’s even more dangerous when we’re writing for litigation that’s already happening, if we’re trying to put a thumb on the scale for one side or the other. We always have this duty, because we never know what case might come up.
So we have a duty to the court. To file an amicus brief doesn’t mean being a friend to the administration. It doesn’t mean being a friend to your citation count. It doesn’t mean being a friend to your salary because you get paid more when you get cited more. It means being a friend to the court. There’s a duty of faithful scholarship. And judges have a duty to faithfully execute their offices and faithfully judge.
So let me talk about that for a little bit, because of the unitary executive cases. These last two days are really sad, really two sad days for the court. Even with the court ruling in favor of birthright citizenship, it’s shocking that it was 5-4. But yesterday [Monday] was shocking, too. I don’t think people were surprised that Humphrey’s Executor got overturned.
Craig: It was one of the most telegraphed in advance rulings they’ve had in a long time.
Shugerman: But it wasn’t clear whether it would be broad or narrow. And frankly, I had to read the opinion three times to figure out how broad it was. And I still don’t really know. I don’t think anyone knows. I don’t even think Roberts knows how broad or narrow it is.
Craig: That’s the point Sotomayor made at some length: how far does this go?
Shugerman: And Roberts’ rebuttal was basically, “oh, you’re the straw man.” When he was challenged to say how far he’d go, he said, “well, the other side would basically make a secretary of state for life, or might make a National Labor Relations Board with five members with life tenure.” And no one’s saying that.
I filed an amicus brief with conservative, libertarian originalist Gary Lawson, one of the original founders of the Federalist Society, that makes an originalist argument: there is a moderate account here faithful to the original public meaning of the Constitution. It’s repeatedly been the fallback. Because when the unitary executive theorists are challenged about their evidence, they fall back and say, “well, where’s your limiting principle?” And we do have one. But that isn’t an argument—the fact that “you don’t have a limiting principle,” no. You have to have evidence.
What’s really dramatic, what’s remarkable, looking back at the mix of Slaughter and Cook, is that Roberts clearly didn’t read the briefs. And he didn’t even read Sotomayor’s dissent.
Craig: I sympathize from some election law cases.
Shugerman: I think what Roberts is doing now is—he perceives this as an unruly six-member majority. But as long as he can keep those votes, I think that’s part of his goal. And his goal is also to support the establishment of the conservative legal movement, many of whom have been working overtime to save the Fed.
“[There is still much to celebrate.] And all the more so if we remember the legacy of the Revolution. They fought a Revolution because of the abuse, in part, of executive power—by royal governors, by a king. It's important to us to embrace republicanism, even if it's not fealty to the Republican Party.” — Jed Shugerman
The Fed is the good independent agency. All other independence is bad independence, because that’s the deep state. And the deep state is regulatory, you know, too pro-regulation, too secular, can’t trust them on civil rights.
Craig: And they’re too aggressively regulatory. And we have free market policy preferences, which is totally legitimate. I share a lot of them. But that’s not a constitutional argument.
Shugerman: I’m an originalist. I think I still am, even after the last two days, because I actually think history should matter. I support things like the major questions doctrine, because I believe in left or right as a matter of law. I believe in constitutional design as text and context. But the point is that one of the biggest departures from the original public meaning of the Constitution is the unitary executive theory—because every major claim, every claim about a clause of the Constitution, has been debunked in the last three decades, but especially the last five years, as Sotomayor was writing about.
Craig: I went over this with Noah Rosenblum on our podcast, where we ran through the whole Decision of 1789 and the Tenure of Office Act. To a lay audience, a lot of this sounds like a very dry, technical thing. Birthright citizenship is vivid, you know what it means. Who has the power to fire who can sound kind of abstruse.
But this has been used in some ways going all the way back to the First Congress. The kinds of agencies we’re talking about here—there are dozens of them. The FTC, the SEC, all these commissions. Everything that ends with a “C” in a government agency, basically, is covered under this 90-year-old decision. And all of a sudden: “no, whoops, we changed our mind. Congress was wrong. Congress was wrong to listen to us, the Supreme Court.” It has a huge structural impact. This is radical presidential supremacy. I think it could reasonably be said that this makes the presidency more powerful than it has ever been before in American history. Because it means that no matter what laws Congress passes, no matter how much it wants to, everything is up for grabs every four years. It can see-saw the minute he wants, and the president can fire everyone. Except the Fed, because the Fed’s special, for reasons.
Shugerman: For Wall Street vibes.
Craig: Right. It’s so ridiculous on the, just, transparently inconsistent motivated reasoning about why the Fed is different.
Shugerman: That’s right. But to give some credit to Thomas and Barrett, they called that out. They’re wrong about the big theory, but at least they have the courage to call out the nonsense of claiming that the Banks of the United States were anything like the Fed.
Craig: Gorsuch, in Slaughter, also made a point that I think doesn’t quite get picked up on enough, on severability. If Congress passed this law to create these offices and these agencies and give them their powers and their funding, and you think, “no, that’s an unconstitutional way to structure it,” then the rule-of-law logic would be: “okay, then the whole thing’s invalid. Congress passed an unconstitutional law.”
Shugerman: So the point I’ve been making is, there’s this case about the line item veto, where Congress passes a compromise—let’s say it passes a whole design that balances healthcare, this and that—that the president can’t strike out the particulars. The parts of the compromise that the president doesn’t like, he can’t take out.
Craig: They tried this under Clinton, and the Supreme Court struck it down.
Shugerman: Right. That was a case in the mid-’90s, in 1995. Well, that’s basically what the Supreme Court is doing: they’ve arrogated to themselves a line item veto. There’s a whole compromise package, [as it passed Congress]. Now, I’m not endorsing … I think this is a complicated question. What it raises is it’s kind of funny that the Supreme Court talks a lot about separation of powers, and yet it exercises this, arrogates to itself a whole bunch of legislative power. It votes its political preferences like legislators, and it exercises a line item veto.
Craig: And what we get is exactly that. They slice and dice the statute. Offices have to be created by law, but the law these offices are now supposedly created by is not the law Congress passed anymore. It’s a law the Supreme Court played Vanna White with.
Shugerman: And do we really think—I can tell you, because I know the history—that the Congress that created the Fed would have created it if they knew they were giving a president the power to put a thumb on the scale and throw a tantrum to get interest rates to go down in an election year? I think we know that they would not have done that.
The deal was independent banking. It wasn’t just monetary regulation, there are lots of ways to do that. They deliberately built on a model with a huge amount of tradition behind it, because they understood checks and balances.
“These last two days are really sad, really two sad days for the court. Even with the court ruling in favor of birthright citizenship, it's shocking that it was 5-4. But yesterday was shocking, too.” — Jed Shugerman
The Roberts opinion in Slaughter is an embarrassment. Everyone who studies these issues—many conservative originalists, and even the unitary executive theorists—have now conceded that you can’t rely on the First Congress. And these were people who used to file unitary executive briefs.
Craig: Very briefly on the First Congress: so they had the first Cabinet secretaries. They were creating them—the Constitution’s been ratified, and here’s our First Congress. We’ve got to create, I think it was the predecessor of the secretary of state. And they were saying, “well, wait, who can fire him? We know what the Constitution says about how they’re appointed—the president, with Senate confirmation—but the Constitution doesn’t say anything about how they’re removed. Should we say that requires the Senate? Does the Constitution require that, or is it up to Congress?”
And what actually came of it is that they basically dodged it. They didn’t address it, and implicitly left it up to the president. But that wasn’t Congress affirmatively saying, “we don’t think we have the power to ever restrict the president’s power to remove executive officers.” And that’s what it’s been twisted into. Starting with Scalia and his Morrison dissent, which was a 7-1 solo dissent that now has six votes. So anyway, that’s why the First Congress has been a big part of this. That’s the Decision of 1789.
Shugerman: I wrote an article that Sotomayor cited, called “The Indecisions of 1789.” And she also cited another article I wrote, on the misuse of ratification sources by the unitary executive theorists. But I’m one of, I’d say, a dozen legal scholars in the last five years—a whole bunch have done it over the last century, in the last 30 years—but I’d say a dozen of us in recent years have debunked every single one of these claims. Sotomayor did a pretty good job of summarizing all of that history. If people want to read more about it, just read Sotomayor’s dissent, and then ask yourself whether Roberts actually made the effort to really respond.
Craig: I appreciate you taking time out of your busy day. And I hope you have a very special 250th holiday weekend coming up, because there are some good things here still to celebrate.
Shugerman: All the more so if we remember the legacy of the Revolution. They fought a Revolution because of the abuse, in part, of executive power—by royal governors, by a king. It’s important to us to embrace republicanism, even if it’s not fealty to the Republican Party.
Craig: You’re singing my song. Lowercase-r republican.
Shugerman: Absolutely. Andy, thank you very much.
Craig: Thank you, I look forward to catching up with you again sometime.
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