Month: June 2026

In this segment of Free Media, Senior Editor Robby Soave and Daily Caller Editor in Chief Amber Duke break down the Supreme Court’s opinions and dissents in the cases about birthright citizenship and transgender athletes.

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The Framers established a federal government consisting of three branches that were supposed to exercise distinct functions: legislative, executive, and judicial. But beginning in the late 19th century, Congress created dozens of “independent” agencies that exercise all three functions.

On Monday in Trump v. Slaughter, the Supreme Court addressed one puzzle posed by that situation: the purported independence of those agencies. But as Reason‘s Damon Root notes, that decision did not address the line-crossing authority of ostensibly executive agencies that also effectively make law and adjudicate cases. Instead, the Court concentrated those powers in the hands of the president—a development that should worry anyone concerned about executive overreach.

Fortunately, that is not the end of the matter. Even without congressional intervention, the Supreme Court can restrict the actions of presidentially controlled administrative agencies by enforcing the separation of powers. Potential tools include the nondelegation doctrine, the major questions doctrine, and statutory interpretation unconstrained by the deference that the Court repudiated in 2024. Agency actions also can be challenged under constitutional provisions guaranteeing due process and the right to trial by jury.

In Trump v. Slaughter, the Court answered a question that presidents of both major parties had been asking for more than a century: If agencies such as the Federal Trade Commission (FTC) are part of the executive branch, how can Congress, consistent with the separation of powers, restrict the president’s authority to remove the officials who run them? It can’t, the Supreme Court ruled, allowing President Donald Trump to fire FTC Commissioner Rebecca Slaughter without meeting the statutory requirement of citing “inefficiency, neglect of duty, or malfeasance in office.”

That decision applies broadly to agency leaders who were formerly protected by similar provisions. It overturns the Court’s 1935 ruling in Humphrey’s Executor v. United States, which rejected President Franklin Roosevelt’s attempt to fire an FTC commissioner on policy grounds. FTC commissioners are not “purely executive officers,” Justice George Sutherland said in that case. Rather, the FTC was a “nonpartisan” panel of “experts” with “predominantly quasi-judicial and quasi-legislative” functions that was meant to be “independent of executive authority.”

That take “was tethered to a highly circumscribed and almost fictional view of the FTC’s role,” Chief Justice John Roberts wrote for the majority in Trump v. Slaughter, noting the commission’s extensive law enforcement responsibilities. At the same time, Roberts highlighted the FTC’s mix of functions.

“Since its creation in 1914, the FTC has accumulated vast rulemaking, enforcement, and adjudicatory powers under more than 80 statutes,” Roberts noted. “Not only does it promulgate rules that carry the force of law, but it also enforces those rules against private parties, collecting civil penalties in the billions of dollars.”

The problem, as Roberts saw it: The FTC’s powers “do not belong to the President or his appointees alone; they instead belong to five Commissioners, each of whom serves for seven years and may be removed by the President only ‘for inefficiency, neglect of duty, or malfeasance in office.'” He concluded that “such protection from removal is contrary to the separation of powers enshrined in the Constitution.”

That is by no means the only way in which agencies like the FTC, given their “vast” rulemaking and adjudicatory authority, seem to violate the separation of powers. “Today, independent agencies do not just exercise executive law-enforcement powers,” Justice Neil Gorsuch noted in a concurring opinion. “Congress has also delegated to them vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them. And, after today’s decision, the President can effectively exercise all those powers too.”

Although Gorsuch joined the majority opinion, he noted that “allowing so much legislative and judicial power to accumulate in the President’s hands invites real risks” and raises “important questions.” For instance: “Would Congress have delegated so much power, including legislative and judicial power, to independent agencies had it known that the President would come to control them? How will Congress respond now—if realistically it can? And what, if anything, will this Court do about it?”

The Supreme Court “already has many doctrines designed to protect the Constitution’s separation of powers,” Gorsuch noted. Under the nondelegation doctrine, for example, Congress may not surrender its lawmaking powers to another branch of government. Although it has been nearly a century since the Court last invoked that doctrine in striking down a federal statute, several recent decisions have relied on a related principle: the major questions doctrine, which says an agency must identify “clear” statutory authority for regulations of “vast ‘economic and political significance.'”

Even when an agency is not claiming powers that would trigger either of those doctrines, its actions must be lawful. Until recently, the Supreme Court’s ability to enforce statutory limits on federal agencies was hampered by the Chevron doctrine, which required deference to an agency’s “reasonable” interpretation of an “ambiguous” law. But the justices ditched that doctrine in the 2024 case Loper Bright Enterprises v. Raimondo, saying courts should instead be guided by “the best reading of the statute.”

Gorsuch noted that vagueness doctrine, which requires that laws define offenses with “sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement,” also plays a role in constraining agency conduct. It is the job of Congress, “rather than the executive or judicial branch,” to make sure that standard is met, he noted, since it has the power to “define what conduct is sanctionable and what is not.”

Gorsuch added that “our doctrines addressing Article III, the Due Process Clause, and the Seventh Amendment can help ensure that adjudications of private rights take place where they belong, before independent judges and juries.” Article III defines the functions of the judicial branch, the Due Process Clause requires fair civil and criminal procedures, and the Seventh Amendment guarantees the right to trial by jury in civil cases.

The Supreme Court has “no shortage of tools,” Gorsuch wrote. “The only real question is whether we will use them.”

Left-leaning critics of the Supreme Court historically have frowned on some of these tools, viewing them as excuses for unjustified interference with the judgments of dispassionate experts. They may change their tune now that Trump has untrammeled authority over the agencies that Congress sought to shield from presidential control.

Since “removal protections are a thing of the past,” Gorsuch noted, “the President enjoys direct control over independent and executive agencies alike. So even if entrusting legislative and judicial powers to insulated, independent agencies once seemed a good idea to some, it’s simply not an option anymore. Now, we face only two ways forward: Let Presidents exercise all those powers or begin subjecting them to the Constitution’s constraints.”

The post Here Are Some Ways SCOTUS Can Constrain Federal Agencies That Are Now Subject to Trump's Untrammeled Control appeared first on Reason.com.

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Usually the Supreme Court issues an order list the day after the last opinions are handed down. Today we got the so-called “mop-up” order list a few hours after Barbara dropped. I guess the Justices really wanted to get out of dodge before Independence Day. We should never forget who is really in charge.

First, the Court GVR’d Petersen v. Doe. This case, which concerns the Arizona Save Woman’s Sports Act, has been stuck in purgatory for nearly two years. John Sauer, while still in private practice, filed the cert petition in October 2024. Briefing concluded in January 2025. The case was then held until June 23, 2025 for Skrmetti. Then, the case was held until today, June 30, 2026, for B.J.P. And the Court GVR’d the case in light of B.J.P. I can’t recall when a petition was held for two terms for two separate merits cases, only to be GVR’d. I am just going to go out on a limb and predict the Ninth Circuit will find a way to distinguish B.J.P. and this case will be stuck in another two years of litigation. A preliminary injunction was granted in July 2023. This case likely will not make it back to the Court until 2028 at the earliest. Justice delayed is nevermind. Speaking of delays…

Second, the Court (finally) granted cert in a pair of cases concerning bans on AR-15s. These cases have been hanging around for a long time. Cutberto Viramontes v. Cook County, a case from Illinois, was initially filed in August 2025. It was relisted 21 times. Per John Elwood it was reslisted “after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, June 11, June 18, and June 25 conferences.” I can’t recall a case that was granted this many times after a relist. (I think there were some cases relisted more followed by a GVR or denial.) Perhaps Wolford was holding this case up? Well, I’m glad we finally get a grant here. Justices Thomas and Scalia dissented on an AR-15 case more than a decade ago. Glad the Justices finally got around to this pressing issue, as millions of Americans had their Second Amendment rights infringed. Good thing we figured out whether marijuana users get to bear arms first! As I’ll explain in a new piece, the Second Amendment jurisprudence has had only a marginal effect on gun owners in blue states. This case will actually make a difference. Relatedly, the Court denied cert in NRA v. Glass, which challenges Florida’s ban on firearms for 18-20 year olds. (The Florida AG has argued this statute is unconstitutional, so this case is not the best vehicle.)

Third, the Court denied a stay in Perlmutter. The SG’s “emergency” application has been pending since November 2025. I suspect the Chief hopes that Slaughter makes this case go away. I’m sure the D.C. Circuit will find a way to distinguish the Library of Congress and the Copyright Office as outside the executive branch.

Fourth, the Court CVSG’d Roybal v. Griffith, which involves sex-based housing and strip searches of transgender prisoners. As the petition notes, the Tenth Circuit ruled that prisons cannot “house a biologically male inmate with unaltered male anatomy alongside male inmates if the inmate expresses a female identity.” The court further held that “absent emergencies, male officers cannot search biologically male inmates who self-identify as female.” This case strikes me as far easier than B.J.P. I wonder if any female prisoner rights groups file in support of the government here–they should. Moreover, this case might give the Court another shot at revisiting Johnson v. California, which keeps getting cited in the context of affirmative action cases.

Fifth, the Court a pro se petition in Grand v. University Heights. This case presents a recurring issue for Jewish people where the government restricts small congregations to worship in a private home. My organization, the Jewish Coalition for Religious Liberty, filed an amicus brief. Here is how we framed the issue:

This Petition presents a simple but consequential question: may government officials circumvent RLUIPA by burdening religious exercise through denial by delay—via serial continuances, shifting demands, and procedural limbo—while insisting that nothing is ripe for judicial review because they have not yet said “no” in a final vote? The decision below effectively blesses that Kafkaesque regime, allowing officials to block religious use of property and then wield the absence of a formal denial to keep federal courts from hearing the merits at all. That rule is especially dangerous for Muslims, Jews, and other minority faith communities, which have long faced disproportionate resistance in zoning processes that appear neutral on paper but operate as instruments of exclusion in practice. In that setting, delay amounts to more than mere administrative inconvenience. It means missed worship, mounting costs, and the practical denial of the right to use one’s own property for religious exercise.

This case may not be high-profile, but could be a significant victory for religious liberty.

Much more to come later.

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With fertilizer prices spiking due to the Iran War and contributing to rising food prices, the White House on Monday quietly dropped tariffs on fertilizer imports from Morocco.

Officially, that maneuver is meant to “ensure in the interim that United States farmers have access to a sufficient and timely supply of phosphate fertilizers during the planting and growing season, to ensure a stable domestic crop supply, and to meet our food production needs.”

In reality, this is yet another admission by the Trump administration that tariffs raise prices—otherwise, how could cutting tariffs bring prices down? It is exactly like when the White House rolled back tariffs on coffee, beef, and other imported food last year. Or when the White House rolled back tariffs on farm equipment earlier this month.

Over and over again, the Trump administration is making fools out of allies who insisted that tariffs would not raise prices.

The rollback of fertilizer tariffs ought to be a particularly humiliating moment for Trump’s own top trade official: U.S. Trade Representative Jamieson Greer. Greer has not only championed Trump’s foolish tariffs in his current role, but has also built his political career on pushing for those same high tariffs on fertilizer that his boss is now unwinding.

As Reason has previously reported, Greer spent years lobbying on behalf of Simplot, an American fertilizer manufacturer that has pushed for higher tariffs on its foreign competitors’ products. During the Biden administration, Greer testified before the International Trade Commission (ITC) in favor of those tariffs and downplayed the potential consequences.

“There has been no shortage of fertilizer for the American farmer, and there will be no such shortage,” he told the ITC. “When it comes to real supply in the market, farmers have gotten everything they need, and they will get everything they need for their acreage.”

Those tariffs were costly for farmers even before the Iran War. Tariffs on Moroccan fertilizer imports cost U.S. farmers an estimated $6.9 billion between 2021 and 2025, according to a report published earlier this year by the Texas A&M Agricultural and Food Policy Center.

But now that other fertilizer imports have been curtailed by the war, the crisis is getting more serious. In March, over 50 farming and agricultural industry groups signed a letter to the ITC seeking a reprieve from the tariffs that Greer had played a role in implementing.

Those tariffs had “already prevented farmers from accessing the tools that meet their crop production needs and resulted in lower yields and negative economic impacts,” the groups wrote. Eliminating them would “help restore balance to fertilizer markets by providing immediate relief to growers facing elevated input costs and a lack of availability,” they argued.

When you put it all together, Trump’s decision to walk back those tariffs is a damning admission of failure on multiple levels. It exposes how unprepared the administration was for the economic fallout of the war. It reveals, once more, how tariffs have raised prices and harmed crucial American supply chains. It illustrates how Trump’s tariffs have backfired on a specific industry—in this case, farmers—despite their political support for his election. And, thanks to Greer’s role in all of this, it shows how lobbyists with protectionist agendas have infiltrated the Trump administration.

Ultimately, actions speak louder than words. Trump can talk about the benefits of tariffs all he wants, but rolling back tariffs on Moroccan fertilizer is an undeniable demonstration that America is stronger and richer when it has unfettered access to global supply chains.

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The dissent cited Randy’s Trump Is Right on Birthright Citizenship and an annotated transcript of John Marshall Harlan’s 1897-98 Lectures on Constitutional Law, edited by Brian Frye, Michael McCloskey, and Josh.

The post Congratulations to Randy Barnett and Josh Blackman, Whose Work Was Cited by Justice Thomas's Dissent in <i>Trump v. Barbara</i> appeared first on Reason.com.

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Today, I did two TV interviews about the Supreme Court’s ruling in the birthright citizenship. They may be of interest to some of our readers. So I am posting links to the videos here.

The first is an appearance on C-SPAN’s Washington Journal lasting for over an hour. In addition to the C-SPAN interviewer, I was joined by Zach Shemtob of SCOTUSblog. We began about 15-20 minutes before the Supreme Court started issuing its decisions today, and continued for over an hour in all; in the first part of the show, we talked about some of the issues in the cases, even before they came down. In addition to birthright citizenship, we also discussed and took caller questions about the other three cases decided today (two on transgender athletes, and one on the First Amendment and campaign finance). I thank Zach for his excellent insights.

I am not able to embed the video in this post, for some reason. But it is available at this link.

NOTE: Late in this segment, Zach mentions the NPR report that Justice Alito had announced his retirement. The report turned out to be incorrect, and NPR has  retracted it.

I also did a much shorter interview, almost entirely focused on the birthright citizenship case for the Fox 10 TV station in Phoenix, Arizona. I embed the video below. My segment runs from about 5:15 to 13:45:

 

 

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