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Panel III: Redistricting, Removals, and Speech Restrictions
Cato Institute — 25th Annual Constitution Day Conference
Panelists:
- John Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance
- Christopher M. Kieser, Senior Attorney, Pacific Legal Foundation
- Robert Corn-Revere, Chief Counsel, Foundation for Individual Rights and Expression
Moderated by Thomas A. Berry, Director of the Robert A. Levy Center for Constitutional Studies and Editor in Chief of the Cato Supreme Court Review, Cato Institute
Panel Introduction
Thomas A. Berry: All right. Welcome back, everyone, to our third panel of the day, “Redistricting, Removals, and Speech Restrictions.” I’m Tommy Berry, director of our Center for Constitutional Studies and editor-in-chief of the Cato Supreme Court Review.
Every year at Constitution Day, we have to divide nine cases into three panels, and some divisions are very obvious — criminal justice, you might have three admin law cases, that type of thing. Usually there’s one panel that gets a little closer to the potpourri — the less obvious connections between the three. I don’t like to call it potpourri; I like to find a more consistent connection. One we obviously found here — all three I could describe with words starting with “R,” so that resonated. But I think there’s also potentially some other connections. All three of these cases are about what might be called politicized, controversial, sometimes even culture-war topics. You have election law — hard to get more literally politicized than that. You have speech related to transgender therapy, so-called conversion therapy — obviously a major culture-war topic. And you have removal — a very political controversy over the president removing an official he disagrees with ideologically.
But I think what’s also potentially consistent across all three is that that’s just the surface-level appearance — when you dig into the reasoning behind these decisions, you see there are actually principles involved that cut both ways, that aren’t just a win for one side of politics or one side of the culture war, but could just as easily have important implications for laws favoring the opposite political party. Indeed, the win for the Trump administration in the removal case came by overruling a decision tied to the FDR administration — the exact opposite political party. So you’ll hear more about those cases from our three distinguished panelists.
Before I briefly introduce them — as always, we’ll be taking questions, not just in the room but also online, so please, if you’re watching online, submit your questions via our events webpage, Facebook, YouTube, or X, using the hashtag #CatoSCOTUS, and questions will be answered following the conversation.
So, briefly: first, to my immediate right, John Vecchione, senior litigation counsel at the New Civil Liberties Alliance, where he represents clients challenging the administrative state. He previously served as president and CEO of Cause of Action Institute, and has practiced at several Washington law firms. Vecchione was counsel of record for the Relentless petitioners in the landmark case Loper Bright v. Raimondo and in Relentless, Inc. v. Department of Commerce. He was also counsel of record for most of the individual respondents in Murthy v. Missouri, concerning social media First Amendment rights. He holds a BA from Hamilton College and a JD from Georgetown University Law Center.
To his right, Christopher Kieser is a senior attorney at Pacific Legal Foundation. He’s challenged regulations requiring employers to allow union organizers onto their private property, state claims to privately owned lakefront property, and admissions policies of K–12 schools that discriminated against Asian American families. Before joining PLF, he clerked for both the U.S. Court of Appeals for the Seventh Circuit and the U.S. District Court for the Middle District of North Carolina. He earned his undergraduate and law degrees from the University of Notre Dame, where he was articles editor for the Notre Dame Law Review.
And finally, Robert Corn-Revere is chief counsel at the Foundation for Individual Rights and Expression. Before joining FIRE, he was a partner at Davis Wright Tremaine and Hogan & Hartson, and served as legal adviser and later chief counsel to FCC Chairman James H. Quello. He’s regularly listed as a leading First Amendment and media law practitioner by legal magazines, and is listed in Washingtonian magazine’s Top Lawyers Hall of Fame for lifetime achievement.
So we’ll go down the line. We’ll start with John, talking about the removal cases.
Trump v. Slaughter — Removal Power
John Vecchione: Sure, I’ll be potpourri for five minutes. I think Slaughter — it’s Trump v. Slaughter — is really what I call a coup de grâce case. It’s a case everybody saw coming. The principle of insulating federal agencies, certainly their principal officers, from being fired by the president had been undermined constantly, starting with Justice Scalia’s dissent in Morrison v. Olson, the independent counsel case. He said, “Look, you can’t have a prosecutor doing all these big things — prosecuting major political cases — not under the control of the president, because that’s an executive function. He has all the executive power, and he has to make sure the laws are faithfully executed. How can he do that if somebody totally outside his control is running around independently?” So that wolf came as a wolf, and it had been — the principle of independence had been salted throughout many agencies over many years, starting really with the FTC, back in the progressive era.
So here’s what happened: there was a case called Myers, back in the ’20s, decided by Chief Justice Taft, who’d been president himself — he knew the president had to be able to fire people, so Myers held that, of course, the president can fire principal officers. A few years go by — not very many, eight or nine — and then Humphrey’s Executor comes along. What happened there? Humphrey was a rabid Republican — like, absolutely rabid; he woke up in the morning and went to the union club and thought all day about being a Republican. FDR fires him. Humphrey says, “No, you can’t fire me — Congress has given me protections, I can only be fired for cause.” Humphrey dies, but his estate carries on the case to determine whether FDR could fire these people — not for any particular reason, just because FDR wanted to. And some of the same justices — the “Four Horsemen” trying to stop the New Deal, trying to contain the president — say, even though Myers had just held otherwise, “Well, it’s a multi-member body, it’s quasi-judicial and quasi-legislative.” Well, what’s it doing in the executive branch? No explanation — nobody ever really said. But they held he could be protected because the body isn’t “really” executive, and Congress has the power to do this.
That set off a chain reaction — Congress now knows it can do this, and starts making multi-member agencies where you can only fire commissioners for cause, staggering their terms so no president can really run the outfit. That starts to be a problem, and people start noticing. So the Supreme Court starts taking it up: in Seila Law, they say no, that principle doesn’t hold — the president can fire that guy. Then in Free Enterprise Fund, an organization under the SEC — well, that’s the executive branch too, so he can fire those officers. Then—
Thomas A. Berry: The CFPB?
John Vecchione: Yeah, the CFPB — that was the culmination of all these agencies with all their acronyms. What they did with it was pull away the multi-member structure entirely, threw every kind of power into this one agency, and put one guy at the head of it — the guy Elizabeth Warren, who sponsored it, wanted running the thing. So what happens? The Supreme Court says, “No, you can’t do this — the president has to be in charge.” They found you couldn’t put removal protections on that guy either.
But still, Humphrey’s was wandering around — Humphrey’s dead, but his ghost is haunting all the agencies, because we still don’t know whether they can be fired or not. So this term, President Trump fires Slaughter, and he fires Bedoya — I think favorably to all of us, Bedoya decides he wants to go into the private sector, so he’s out of the case. We get a case called Slaughter. And Slaughter absolutely eliminates any protection against the president firing officers at these agencies, for the reasons I’ve already explained: the president has to take care that the laws are faithfully executed, and he has all the executive power. The only thing the Court makes sure everybody knows — just like in Loper Bright, where they said, “Chevron is overruled” — that’s a good sentence — here they say, “If anything is left of Humphrey’s Executor, it is hereby overruled.” No bones about it.
So Slaughter is an important case, but it doesn’t give the president any more power. I think it reaffirms the power he already had, by the decision of 1789 — George Washington, sure, advice and consent of the Senate to confirm, but you can fire him. I think we’ve returned to that, and it’s only a personnel matter — not about the power of the presidency otherwise.
Thomas A. Berry: Excellent, and under ten minutes. All right, Chris, you’ll be talking about the redistricting case.
Louisiana v. Callais — Voting Rights and Redistricting
Christopher M. Kieser: Yeah, thanks. So I’m here to talk about Louisiana v. Callais. Everybody today always says Congress doesn’t do anything, but the Voting Rights Act was one of the most consequential pieces of legislation Congress ever passed. In 1965, after a hundred years of the Fifteenth Amendment not being enforced, Congress finally decided there would be some teeth to federal enforcement of voting rights, particularly for Black voters. If you don’t follow these cases closely, you might not be aware of what’s happened over the last sixty years, but when the Court decided Callais, a lot of commentators said, “The Supreme Court just gutted the Voting Rights Act.” So what actually happened? Did the Court read the Voting Rights Act out of existence?
I argue in my piece in the Cato Supreme Court Review that it actually did more to recalibrate the Act back to its initial focus — protecting the individual right to vote and prohibiting discrimination against individuals — and away from a disparate-impact interpretation focused on group rights. Along with the 2021 case Brnovich v. DNC, I think it should ultimately lead to decreased salience of race in government decision-making, which I think we’d all agree is a good thing.
To explain how this happened, I need to get into the concept of vote dilution — you all know about gerrymandering. When a state gerrymanders a map, it typically spreads out the voters of the party it favors, to win as many districts as possible, while compacting the other party’s voters into a few districts they can win and no others. Vote dilution is a similar concept, but the idea is that the system dilutes the power of a particular racial group. These claims are brought under Section 2 of the Voting Rights Act, which, after being amended in 1982, prohibits any voting procedure that results in a denial or abridgment of the right to vote on account of race or color. That amendment was passed specifically to overrule a Supreme Court case, City of Mobile v. Bolden, which had required showing discriminatory intent to bring a Section 2 claim. Under the amendment, even without discriminatory intent, if a state draws a map that dilutes the voting power of Black voters, that’s a Voting Rights Act violation.
But you can see the problem: it essentially assumes voters vote as racial blocs, and that representatives represent racial blocs rather than individuals. Supreme Court precedent for a long time actually enabled this group-based approach — the seminal case is Thornburg v. Gingles, from 1986, decided at a time when the Court didn’t pay much heed to the actual text of statutes and largely quoted legislative history to reach its holding. The holding of Gingles is essentially just a Senate committee report from the 1982 amendments. It adopted three preconditions for a vote dilution claim: that a minority group is sufficiently large to form a majority in a reasonably compact district; that there’s typically racially polarized voting, with a majority of the other racial group voting against that bloc; and that the majority of the group claiming discrimination would vote for a different candidate. So, essentially: racially polarized voting, and enough minority voters concentrated in an area. Once you cleared that bar, Gingles said you then had to weigh a bunch of factors under a “totality of the circumstances” test to show a denial or abridgment of the right to vote — factors like a history of official discrimination and socioeconomic disparities, things that exist in every jurisdiction. So, practically speaking, once you cleared the three preconditions, it was pretty easy to threaten a vote dilution claim if you hadn’t drawn a sufficient number of majority-minority districts. Even though the Supreme Court only heard about three vote-dilution cases after Gingles, it became virtually universally accepted that certain districts had to be drawn on the basis of race to comply with Section 2.
That’s how Callais started — with a vote dilution claim in a case called Robinson, where the district court applied the Gingles framework and ordered Louisiana to draw a second majority-Black district, saying that otherwise it would violate the Voting Rights Act. Louisiana drew that map, and then another set of plaintiffs said, “Wait a second, that’s a racial gerrymander, which violates the Fourteenth Amendment” — because the court had ordered Louisiana to do exactly that, draw a second majority-Black district because of race. That set up a clear conflict between the Equal Protection Clause’s prohibition on racial discrimination and the prevailing interpretation of Section 2, which required states to consider race in redistricting. The question became whether the state could satisfy strict scrutiny by claiming a compelling interest in complying with the Voting Rights Act.
The Supreme Court had a few choices once the three-judge district court held the map was a racial gerrymander. It could have said compliance with Section 2 is never a compelling interest, and affirmed the racial-gerrymander finding on that ground. It could have said the map wasn’t narrowly tailored. Instead, it chose a different path: it said compliance with Section 2, properly interpreted, would be a compelling interest — but that the Robinson district court, following what courts had done for the past four decades, had misinterpreted Section 2. Louisiana actually didn’t need to draw a second majority-Black district to comply with the Voting Rights Act.
Callais did this by reimagining the three Gingles preconditions so that they don’t automatically trigger every time racially polarized voting and a substantial minority population are present. Instead, the Court sought to separate racial discrimination from permissible districting criteria — which now includes political considerations. Instead of requiring a challenger to show only that there are enough minority voters in an area to draw a reasonably compact district, Callais said the challenger must provide a map with an additional majority-minority district that also satisfies all the state’s other legitimate political goals, including incumbency protection and partisan advantage. And, importantly, the Court emphasized that a challenger must be able to disentangle race from party. In the days of the old white primary, when the South was a one-party state, it was easy to show that white Democrats wanted to discriminate against Black Democrats by keeping them out of the Democratic primary. But in a two-party system, where Black voters tend to vote Democratic and white voters tend to vote Republican, a political gerrymander can look just like a racial one. So the Callais majority places the burden on the challenger to isolate race from party — meaning you can’t just bring a political-gerrymandering claim and mask it as a vote-dilution claim anymore.
Callais didn’t overrule Gingles, but it took a big step away from reading Section 2 to require proportional representation in redistricting. It refused to elevate race above all other considerations, or to treat racial groups as blocs that must be assumed to vote together. The Equal Protection Clause prevailed over an interpretation of federal law that required considering race. So the result — which I think we should all agree is a good thing — is that there should be less consideration of race in districting going forward, consistent with the Fourteenth Amendment’s prohibition on racial discrimination. Thank you.
Thomas A. Berry: Excellent. And then, Bob, you’ll be discussing the free speech counseling case, Chiles v. Salazar.
Chiles v. Salazar — Professional Speech and Conversion Therapy
Robert Corn-Revere: Thank you, thank you — I’ll try to hold it to ten minutes. This is a case that I think meets Tommy’s qualifications for the importance of principle in cases with culture-war implications about as well as any I can imagine — and I think the Court stepped up to the challenge.
This was a case involving a constitutional challenge to Colorado’s Minor Conversion Therapy law, which prohibited various forms of “conversion therapy” for gender identification and sexual orientation. That really does hit the bullseye of culture-war issues, and these laws have a dark history — a number of the therapies they were reacting against involved things like drugs, electroshock therapy, aversion therapy, and so on. But this law was written very broadly. I’ll read the actual language, to give you a sense of why the decision came out the way it did: it prohibited any practice or treatment that attempts to change an individual’s sexual orientation or gender identity, including any effort to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions toward individuals of the same sex. But the law specifically allowed counselors to provide “acceptance, support, and understanding” for identity exploration and development, and to assist people undergoing gender transition. So the state was taking a position on what’s the right view, and on whether counselors could even talk about the other one.
The plaintiff was a counselor named Kaylee Chiles, who wanted to engage in talk therapy — none of the aversion-therapy stuff. She described her objective as letting clients come to her and express what they wanted to achieve, whether that was staving off feelings of gender identification that made them uncomfortable, or affirming those feelings — same with sexual orientation. She was simply there as a counselor, using only talk. Her motion for a preliminary injunction was denied by both the district court and the Tenth Circuit, on the theory that this wasn’t a regulation of speech but a regulation of conduct — merely regulating what medical treatments could be provided in Colorado — so no First Amendment issue was implicated, and the law only needed to meet rational basis scrutiny. Rational basis scrutiny basically just means the law isn’t crazy — almost anything can meet it, which makes First Amendment challenges go away.
The case reaches the Supreme Court, and in an eight-to-one vote, the Court reverses the lower courts and holds that yes, this does involve a First Amendment problem — and a pretty profound one. The opinion is written by Justice Gorsuch, who had a very good year in First Amendment terms across several cases, but this one especially. He says the lower courts got it wrong for three main reasons. First, the category of “professional speech” isn’t something you can set aside as unprotected, nor can you treat it like commercial speech, which gets a lesser level of protection. The fact that Chiles is a licensed professional doesn’t mean she’s entitled to less First Amendment protection. Second, the state can’t justify the regulation as merely regulating conduct — just because the state classifies something as a “treatment” or “modality” doesn’t mean it isn’t regulating speech, when what’s actually happening is talk therapy. In a phrase from the decision I think will be widely quoted — I’ve already used it in two briefs — he writes, “The First Amendment is not a word game. You can’t simply reclassify what something is and then say you’re not regulating speech” — which is exactly what governments try to do all the time: “Who’s regulating speech? We’re not regulating speech.” Well, yes, indeed you are. The paradigmatic case Justice Gorsuch cites is Cohen v. California — every law student’s favorite First Amendment case — the “Fuck the Draft” case, where a young man was arrested for disturbing the peace for wearing a jacket with that slogan on it, and the state said it wasn’t regulating speech, just regulating his conduct of wearing the jacket inside a courthouse. Word game? The Supreme Court decided fifty years ago that yes, that was a regulation of speech, and the “conduct” framing was just the state’s excuse.
And third — the clearest, most profound principle applied here — this is classic viewpoint discrimination. If anything is a per se violation of the First Amendment, it’s viewpoint discrimination; there’s no valid government interest in choosing one viewpoint over another and deciding which one gets government approval. Justice Gorsuch raised this at oral argument and repeats it in the opinion: what if the state simply got to decide what the correct viewpoint was? What about the DSM — the diagnostic manual for psychiatric conditions? What if it said, as it did in 1974, that homosexuality is a disorder — would that let a state, on a rational-basis theory, prohibit counselors from talking to gay people either to affirm or to dissuade them regarding sexual orientation? The Colorado Solicitor General, to her credit, admitted at oral argument that yes, a state would be able to do that if the Court upheld the Tenth Circuit. The Court said, essentially, “No, we’re not going to let the state put its thumb on the scale that way.”
Those are the three main points of Justice Gorsuch’s majority opinion. There’s an important concurrence by Justice Kagan, joined by Justice Sotomayor, agreeing with the Court but not completely — she says there still has to be room for content-based but viewpoint-neutral regulations: certain regulations may touch on content and would normally get strict scrutiny, but if they’re content-based and viewpoint-neutral, there may be a way to uphold them, particularly in medical care. She didn’t give a clear example of when that would apply — it’s a little hard to imagine — the case she cited was a trademark case about whether you could require an individual’s permission before incorporating their name into a trademark, which doesn’t overlap much with this case. But it’s still an important qualifier, even in a solid eight-to-one opinion. Justice Kagan’s concurrence also raised, as came up at oral argument, the question of mirror-image laws: if states can prohibit counseling that tries to dissuade someone from their gender identity or orientation, as Colorado wanted, does that mean states could also prohibit any discussion of gender-affirming care, without a First Amendment problem? The combined opinion answers that the government, as in all First Amendment cases, must remain neutral — which is why this is such an important culture-war case: it doesn’t let the state legislature control the culture this way.
The one dissenter was Justice Jackson. I could spend another ten minutes on that dissent, but I’ll leave it with just its opening line, which basically says it’s been true for over a hundred years that states can regulate medical care, and no one has a right to hold a medical license regardless of their speech — harkening back to an 1893 opinion from the Massachusetts Supreme Court, where then-state-Justice Oliver Wendell Holmes wrote that a man may have a right to talk politics, but he doesn’t have a right to be a policeman. That view of the First Amendment has long since been eclipsed — even Holmes himself changed his views by the time he reached the Supreme Court — and doctrines like the unconstitutional-conditions doctrine have overridden that kind of thinking over the years. It’s a long dissent, but I don’t think it adds much to the discussion. Thanks very much.
Panel Discussion
Thomas A. Berry: So I’ll invite our panelists — any reactions or questions raised by what your co-panelists said?
John Vecchione: I did have one thing. I could see a speech-neutral prohibition on talk therapy — I don’t know if you’ve ever seen Sam Kinison’s bit where he does “therapy,” stands really close to someone and yells expletives at them to get them to change whatever they’re doing — I think a legislature might say you can’t do that.
Robert Corn-Revere: And that was the only thing I thought of when you said that — actually, Bob Newhart had a similar bit, though not with as many expletives as Sam Kinison — his “treatment” was just to say, “Stop it. Don’t do that,” whenever someone came to him with a problem that bothered them.
Christopher M. Kieser: Well, it seems like you rarely have truly viewpoint-neutral, content-based laws, because some side or the other wouldn’t like it. You could imagine a law that said, “No therapy related to sexual orientation or gender identity whatsoever — no pro, no anti, no affirming, no disaffirming, no cis, no trans, whatever” — but which party would support that? Everybody would dislike part of it, which is part of why you always see viewpoint discrimination creeping in.
Robert Corn-Revere: And it’s why legislatures are always trying to sneak in some kind of viewpoint discrimination one way or another, and then call it something else — regulation of conduct, for example.
Thomas A. Berry: I do have one question — did they touch at all, in Callais, on the issue of whether there’s a private right of action to bring these claims?
Christopher M. Kieser: Yeah, that wasn’t brought up at all. There are certainly cases floating around in the lower courts about whether there’s even a private right of action to enforce Section 2 — it’s not something I’ve written on, but it could certainly come up again. I do think there are going to be fewer Section 2 claims overall as a result of both Brnovich and Callais, so that issue might end up less salient than it otherwise would have been.
Thomas A. Berry: John, I’m curious whether you think there’s any principled distinction between Cook and Slaughter — I’d like to know.
John Vecchione: You have to say what Cook is.
Thomas A. Berry: Yeah, I will. One thing I’ll say is I’m pinch-hitting for Oliver Dunford, who has an article in the Review co-authored with Charlie Brandt, our former legal associate—
John Vecchione: Well, I want to hear your view — not Oliver’s.
Thomas A. Berry: I know, but I’ll say this — he notes that Slaughter may make the executive too powerful, because now he’s got all this power that Congress had thrown into these agencies with no protection against removal.
John Vecchione: On Cook, here’s where I differ with NCLA. We put in an amicus brief saying the banks aren’t any different at all — I’m not so sure of that. I think the national bank controversies of the early nineteenth century do touch on this as a matter of history, but here’s what I think is going to happen: the Federal Reserve may be constitutional in some areas — regulating interest rates, all of that — but they also get to penalize people. So I think that’s where it may end up — that the way you make both cases cohere—
Thomas A. Berry: And just to be clear, Cook upheld—
John Vecchione: Yes, Cook upheld—
Thomas A. Berry: —the protections for the Fed chairman and officers.
John Vecchione: Right. In fact — whether you like the rate rise that just happened or not, it wouldn’t have happened if Cook had come out the other way. That’s my very strong opinion. But I do think banks are different — not for that reason, though. When the Fed is setting rates, or lending money, that’s one thing. But when they came after an individual for violating one of their rules and fined him, that part of it — an individual attacking that piece of Federal Reserve power — has to be differentiated from the early national banks. So what you’re going to get is something closer and closer to the first and second national banks.
Thomas A. Berry: Interesting. Okay.
Robert Corn-Revere: I just wanted to pick up on the point John made about too much power being vested in the executive in the wake of Slaughter — that’s a point Justice Gorsuch touched on in his concurrence, where he talked about maybe having to rethink how much power these agencies can wield. It’s a good thing that the majority says, under this rule, you know who to fire — if the executive is making bad decisions, that’s something voters will work out. But in the meantime, you’re left with all this vast executive power that was sitting in these supposedly independent agencies, now just arms of the presidency. So the question becomes: what does that do, in constitutional terms? Justice Gorsuch talks about the FCC in particular, and about Brendan Carr threatening Jimmy Kimmel on air, and says someone might be able to weather that storm, but what if all the power of these other agencies gets brought to bear? And he adds, “Maybe it’s time to return all the way to the Constitution” — meaning we’re going to have to take constitutional limits on these executive functions much more seriously, which, in my estimation, is a good argument for why Loper Bright was correct. If the FCC starts leaning on broadcasters because the president and the chairman don’t like what’s being broadcast, you should have a constitutional remedy for that — and fortunately it’s in the statute: Section 326 of the Communications Act says the FCC has no power of censorship, which simply implements what the First Amendment requires anyway, but as a statutory command. So Congress has already spoken on this, and the question is just whether we’ll allow remedies for violations.
John Vecchione: I’d also say the other thing you mentioned was unconstitutional conditions — it’s a license, and they’re really threatening the license, for speech, which strikes me as an unconstitutional condition.
Robert Corn-Revere: Yeah — well, they’re saying it’s for another reason.
John Vecchione: Yeah, that’ll be worked out in the litigation.
Thomas A. Berry: Well, the Brendan Carr example is a really interesting one, and it’s relevant to kind of the political science question of whether removal actually matters for changing an agency’s behavior, or whether it’s only about accountability — because Brendan Carr was doing very politicized things, things Trump loved, even before Slaughter was decided.
Robert Corn-Revere: Well, yeah — I think he was basking in the umbrella of White House approval, and I think he still is, for now, so long as he can be seen as serving the president’s interests. Right now ABC is in court challenging the licensing proceeding — if that case goes the way I hope, and holds that the FCC doesn’t get to do whatever it wants to licensees even before a final decision, we’ll see how much longer Chairman Carr stays useful to the president. It sort of shows that the president is still, at minimum, influencing things based on who he picked — especially since the chairman was appointed by him. Before Slaughter, he had some plausible deniability — “I can’t fire him,” “I don’t control what he’s doing, it’s an independent judgment.” Not anymore.
Thomas A. Berry: John — some have said this decision is unfair, that it takes one leg out of the stool but not another; that Congress never would have created these agencies if it had known they’d eventually be under the president’s control. What do you make of that argument?
John Vecchione: So I just gave a talk to the Alexander Hamilton Institute, and what I really think the problem is — is Chadha.
Thomas A. Berry: Okay — you’ll have to say what Chadha is.
John Vecchione: Oh, yeah. What I didn’t really realize until I got into these cases is — you kind of think of the ’30s and ’40s as huge Democratic majorities just doing whatever Roosevelt wants, but that’s not really what happened. What actually happened is that when they created these agencies, they attached a legislative veto — if Congress didn’t like a regulation, one house could veto the agency’s action. The federal government operated under that for about seventy years, and then in 1983 — INS v. Chadha — the Court says, no, Congress can only act through legislation and presentment to the president. I think that may be right, but it’s a huge problem when you come to that conclusion seventy years after creating all these agencies — because, as Gorsuch points out, it’s now very hard for Congress to take back the power it had, since the legislative veto is gone, and most of these agencies were built in through the ’30s, ’40s, ’60s, and ’70s under the assumption that Congress could check them that way. And right as that structure gets built out, the Court says, “Congress, you can’t control any of them through a legislative veto — but we’ll be kind and not strike down the whole statute, or send it back for you to redo now that you know the rules. We’ll just cut off the veto, and all the other powers stay in place.” That caused an enormous problem in our tripartite structure — I think you’re going to need another Calvin Coolidge or Ronald Reagan, somebody who actually cares about the constitutional structure as president, or you’ll need Congress to get so fed up that it overrides it. Because I don’t think Slaughter is unjust — I think it makes enormous sense. The problem is we had a hundred years of screwing up the balance first.
Thomas A. Berry: Do you think that, now that these are effectively all executive agencies even though they weren’t intended to be that way, that creates a non-delegation problem too? Is that a possible avenue?
John Vecchione: The question is whether there are any non-delegation problems now that are actually enforceable. I mean — should there be? Yes, obviously there should. But the fact is, we were all excited — I think everyone here at Cato was excited — about Gundy, which was 4–5, about whether this unbounded executive power to categorize crimes — sex offenses, mainly — could exist without Congress giving an intelligible principle for how to make those decisions. Gundy was 4–5, and Alito went the other way because it was criminal. And I’ve just seen nothing come of the non-delegation movement since. Gorsuch is basically saying, “We’ve got to be careful.” What they did come up with instead was the major questions doctrine — “we’re not doing this anymore, we’re not giving you broad policy power in the executive unless you show us, on the dotted line, where Congress gave it to you.” That’s Loper Bright, and that’s major questions. Kavanaugh thinks major questions has solved all this, but no — non-delegation was there, and it should be there again. I think it has to be, but I don’t see it coming. Stay tuned for the next panel, though — there’s a case called Fasano pending on cert at the Supreme Court about a BLM director creating crimes on national parks, so we’ll see. I think in the criminal context you’ve got a stronger case for non-delegation than in, say, the admin law context — maybe the Court will come around to that.
Thomas A. Berry: Chris, I wanted to ask you — and we’ll get to audience questions shortly — it feels like gerrymandering is becoming an increasing war of one-upmanship on both sides, with little end in sight; you’ve got mid-cycle redistricting, states saying, “If a red state creates four new red seats, we have to create four new blue seats just to stay even.” Does this decision feed that fire, or is there any hope it has a better effect?
Christopher M. Kieser: My own view is that it’s almost entirely separate, because the way vote-dilution cases were being brought before Callais, they weren’t really anything but challenges to political gerrymanders — that’s essentially what they’d always been, especially over the past twenty or thirty years, where it’s a pretty slender reed to argue that discrimination from the ’60s still controls. The pre-Callais interpretation of Section 2 was really only surviving on that kind of analysis. I think gerrymandering now, with Rucho v. Common Cause — which I think was correctly decided — both parties have the incentive to go all the way, and they’re not really going to be constrained by Section 2, nor should they be. Gerrymandering is a political problem that demands a political solution. It can’t be solved by claiming these are secretly racial gerrymanders when they were actually political gerrymanders in the first place.
Thomas A. Berry: And tell me if I’m wrong, but this decision could cut both ways in terms of who it helps. The context here was the creation of a new majority-Black seat that would have been a Democratic seat — but this also means that if a Democratic legislature intentionally creates an extra majority-Black seat beyond proportional representation mainly to create a new Democratic seat, you also can’t challenge that just because the new seat happens to be majority Black and disproportionate. Is that right?
Christopher M. Kieser: Sure — you’d have to make a racial-gerrymandering argument under the Fourteenth Amendment, and the current standard requires showing race was the predominant factor — not party, not just one of several factors. I’ve argued in the past that standard is probably too weak, but with Callais now demanding that you isolate race and party, I think it’ll be a lot harder, even in the racial-gerrymandering context — as opposed to the Section 2 context — to show this wasn’t just a partisan gerrymander. If they’re doing it for party, not race, it’s really hard to disentangle the two, especially in Southern states where race and party are so intertwined. That’s not true in every state, so it won’t play out the same way everywhere — but certainly in the states where Section 2 claims have been more common, that’s always been the case.
Thomas A. Berry: Bob, you mentioned professional speech, and I want to make sure we emphasize that point, because I think it’s crucial — people may be underestimating how far Chiles could reach. The Court is saying pretty explicitly, “If your job is talking, that doesn’t make it ‘conduct’ just because it’s your job or because you have a license for it.” We’ve been involved in a case called Upsolve, about the unauthorized practice of law — obviously sometimes lawyers do things with binding legal effect, but sometimes people are just providing advice. What does this mean going forward for restrictions on jobs that are essentially about talking?
Robert Corn-Revere: I think there will continue to be pressure and litigation over these questions, and I think the line will end up being drawn around minimum qualification requirements — do you have to be a member of the bar to practice law, for instance — where that may be an example of a content-based-but-viewpoint-neutral law the Court would affirm.
Thomas A. Berry: But what might be different is that courts are starting to actually recognize the First Amendment is implicated here—
Robert Corn-Revere: Well, that’s right — a couple of decades ago they’d have said, “What are you talking about, bringing up the First Amendment in a licensing case?” It was a long time coming, because for a long time there was no such thing — you didn’t even see the phrase “professional speech doctrine” in the cases, and then, within the last twenty years, it started cropping up, usually discussed as an offshoot of the commercial speech doctrine — which really relates to proposals for commercial transactions or advertising. That gets First Amendment protection, but not quite as much. Courts initially began equating professional speech, just because you’re in a profession, with commercial speech — but the two aren’t the same thing.
Thomas A. Berry: And you put your finger on why that’s a distinction — the value of cases like this, and NIFLA v. Becerra before it, is that they pull those concepts apart and say, no, we’re not talking about the same thing when we talk about commercial speech versus professional speech — and professional speech isn’t a doctrine that lets you protect speech less than you would in other contexts.
Robert Corn-Revere: Right — NIFLA was a case where California tried to force so-called crisis pregnancy centers, which try to dissuade people from getting abortions, to post signs saying where the nearest abortion provider was — against their own priorities — and the Supreme Court said that’s compelled speech; it doesn’t matter that you’re licensed or that we’re dealing with healthcare specifically.
Audience Q&A
Thomas A. Berry: I want to remind our online audience you can submit questions on our events webpage, Facebook, YouTube, or X using #CatoSCOTUS. Let’s see if there are any questions in the room — we have one here in the front row.
Audience member (Steven Keet): Steven Keet, a retired U.S. diplomat and retired economist — not a lawyer, I’d emphasize that. On Humphrey’s — you may not agree with me; I’m not going to comment on its legal strength, but having seen various agencies with representatives from both parties on them, I think that did a lot of good. Is there a constitutional way of reestablishing something like Humphrey’s, short of a constitutional amendment, which seems unlikely to pass anytime soon?
John Vecchione: The thing that hasn’t been decided is whether laws requiring bipartisan boards — commissioners from different parties, or non-affiliated — are still valid; the Supreme Court hasn’t struck those down, and they’re still live. What happens instead is presidents just don’t appoint anyone, so there’s no quorum, and the agency can’t do anything — that’s what’s happening right now at the Federal Election Commission.
Thomas A. Berry: The NLRB, too.
John Vecchione: The NLRB — though I think the NLRB’s back up to snuff now. But that’s the mechanism: presidents get around the bipartisan requirement by just never filling the seats, so there’s no quorum. That’s been going on for about ten years now — first Trump, then Biden, now Trump again — and they’re probably never getting the FEC back up to full strength. So far, at least, that doesn’t appear to be a constitutional problem — I haven’t brought any of those cases myself, but presidents seem to be able to get away with it that way.
Thomas A. Berry: More questions — I see one back in that corner.
Audience member (George Burch): George Burch — I’m a retired federal employee from an independent agency whose chairman was removed without cause. My question: is there a rationale that would maintain removal protections for federal employees generally, against a spoils system, on the theory that they’re purportedly necessary to faithfully execute the laws?
John Vecchione: Before Slaughter, I was actually designing a case to test exactly what the standard is for every kind of employee — I wanted a case with a principal officer, a sort of medium-level guy between the politicals and the career GS-7s and GS-8s, and then a mail-room employee Trump fires for, say, dating his daughter, so you’d get the whole spectrum of what’s actually required. I think for principal officers, they’re out — no protection. Below that, it’s going to depend, I believe, on how much power and discretion the position carries. That’s roughly where things stand now, though civil service protections generally are already somewhat under attack. As you probably know, civil service protections were put in because everyone knew the old system had become corrupt, and massive Republican majorities, with Republican presidents, said, “We have to have a regular civil service.” I don’t think, as a constitutional matter, the Court is going to strip protections from lower-level employees where it doesn’t matter much who holds the job so long as they’re doing it — those protections aren’t some creation of the Progressive Era or Woodrow Wilson, they go back further than that. So I think some of them will last; I just can’t tell you where the cutoff is.
Thomas A. Berry: As I read the opinion, it seems like they’ve only definitively ruled on what might be called principal officers, in the Appointments Clause sense — basically directly below the president. Everyone below that — say, an assistant attorney general — could maybe be fired by the attorney general, not necessarily the president directly; the Constitution doesn’t require that it be the president himself. Is that how you read it?
John Vecchione: So far, yeah. So far — but I don’t know, I mean, the president could just tell the attorney general to fire everyone in line, sort of a “midnight massacre”—
Thomas A. Berry: You mean the Saturday Night Massacre.
John Vecchione: Right — until they find a Bork to fire everybody. Richard Nixon didn’t like what his attorney general was doing, so he just kept firing the next one in line.
Thomas A. Berry: Which raises an interesting question — the Supreme Court has never actually held that the president can do something himself, despite the Take Care Clause. It’s just that he can fire people down the chain until he finds someone willing to do it.
John Vecchione: That’s true, too. And by the way, he can’t even fully do that — presidents have all these offices, we’ve got so many ambassadorships sitting empty in really important countries, because I don’t think any president really wants to have to personally fire everybody down the chain to get his way.
Thomas A. Berry: Some libertarians might want exactly that.
John Vecchione: Yes.
Thomas A. Berry: I saw another hand — we have one over here in the front row. Oh — did we have one back there first? Sure, we’ll come to you. Behind the cameras — go ahead.
Audience member (Jack Brown): Hi — Jack Brown, Pacific Legal Foundation. The commercial speech doctrine came up earlier in the context of Chiles — I’m curious what your thoughts are on potential reforms, or elimination, of the commercial speech doctrine.
Christopher M. Kieser: I don’t see the commercial speech doctrine going away. What I’d like to see is the Supreme Court clarifying the Zauderer doctrine — Zauderer v. Office of Disciplinary Counsel — a decision that said you can require commercial disclosures if there’s a risk something would otherwise be misleading. When you think about it, it’s actually a less-restrictive means than banning speech outright — false commercial speech is a kind of fraud, and one way to allow speech to happen anyway is to require a brief disclosure of the actual terms. In Zauderer itself it was about legal representation — when you say “no fee unless we win,” you have to disclose that you may still have to pay costs, even if not legal fees. But there’s been mission creep under Zauderer for twenty years — governments using it not just to prevent misleading commercial speech, but to require disclosures for all kinds of things. And Zauderer actually provides less First Amendment protection than the regular commercial speech doctrine, so governments have been trying to stretch it into non-commercial speech contexts too. It would help a lot if the Court clarified that Zauderer is really limited to disclosures addressing the risk of false commercial speech, and can’t be expanded beyond that — there’s constant pressure to do exactly that expansion.
Thomas A. Berry: They use the phrase “purely factual and non-controversial” for what can be required—
Christopher M. Kieser: Right — like “this product is known to the State of California to cause cancer.” If you go to California, every wall has that sign. And if everything causes cancer, nothing causes cancer — it starts to feel unrealistic. But you’re exactly right. We’ve done amicus briefs in cases about things like conflict diamonds — forcing disclosure that a diamond came from a war-torn country—
Robert Corn-Revere: Or where meat came from — there was a case about that in the D.C. Circuit.
Christopher M. Kieser: That’s right — political, culture-war stuff. That one was upheld, and the D.C. Circuit was guilty of allowing exactly this kind of Zauderer mission creep.
Thomas A. Berry: I saw a question up here in the front row — Richard Coleman, retired bureaucrat.
Audience member (Richard Coleman): Culpable behavior or protected speech — these robocalls that continue to plague us. Seems to me a decade or two ago we were supposed to be able to fine people, or go to court for $500 against whoever made this possible. Obviously it’s still not being curbed. How does this come down constitutionally?
Thomas A. Berry: You’ve hit on the least popular suits in America — I’ll let FIRE defend this one.
John Vecchione: No, I think — there was actually one interesting case last term. There’s a law that you couldn’t send faxes to people — this came from back when people would send paper faxes, and your paper would run out, so Congress passed a law letting you sue for $1,000 a fax. Well, now faxes come over email — they don’t run your paper out, you can just delete them. So the question was whether that law could still be enforced against emails, and the Court said, “Yeah, that’s still a fax.” It really ran up the bills.
Robert Corn-Revere: Well, although that question may get reopened in the wake of Loper Bright, because those interpretations have come from FCC decisions stretching how far a law can extend beyond the terms Congress actually used — and there was a decision just last week on that, not on telemarketing specifically, but on whether an FCC interpretation can survive changed technological conditions when Congress used particular language.
With respect to the Do Not Call issue specifically — I have to take some responsibility, not just in my capacity at FIRE, but because in private practice I represented telemarketers. I can tell you, from a First Amendment perspective: you can represent people accused of being terrorists, you can represent pornographers, and people don’t bat an eye. You represent a telemarketer, and people come after you. But the problem with the Do Not Call list, as configured back in 2002, was that it drew distinctions between what kinds of calls could go on the list — certain commercial calls, but not certain charitable calls, and so on—
Thomas A. Berry: Certain political calls—
Robert Corn-Revere: Right, certain political calls were exempt too—
Audience member (Richard Coleman): That explains why I’m getting so many of those.
Robert Corn-Revere: —and that was considered content-based discrimination. The Court’s solution was to strike the exemption rather than the underlying law. We lost that case, I’ll have you know.
Thomas A. Berry: We have an online question I’m obligated to take, because it’s from Bob Levy, the namesake of our center — it’s for John. He writes: Article I says Congress can make all laws necessary and proper for carrying into execution the powers vested in the president. So why couldn’t Congress limit the president’s removal power? Article I would seem to trump the amorphous “faithfully execute the laws” power. He says he’s seen this argument from originalist scholars — what’s your response?
John Vecchione: The idea that taking away his ability to appoint the right person makes him run the executive branch better is like saying that by not letting him direct the generals, he’ll run the war better. If Congress said, “The president shall no longer be able to direct the generals” — would the war be run better? It’s not literally war, obviously, but I don’t think the Necessary and Proper Clause trumps the removal power for that reason — it doesn’t make sense. Now, here’s the thing: what Congress could normally do is defund whatever agency is doing the bad thing — but they’re kind of out of that business too, in practice. I also think Federalist 51 is relevant — Madison talks about the “departments,” meaning the House, the Senate, the executive, and the judiciary, and how they can’t overlap or interfere with each other’s powers and abilities, can’t control each other’s emoluments, and so on. There’s a lot in the Federalist Papers cutting against that argument. Since I know the Supreme Court reads those, I’m skeptical.
Thomas A. Berry: More questions — I see one back there, Christine.
Audience member (Christine Marsden): Hi, Christine Marsden, Alliance Defending Freedom. On Chiles — you talked about how legislators like to be sneaky about how they define things. In the wake of the decision, Colorado has tried to re-legislate the issue and re-ban what it calls conversion therapy or sexual-orientation/gender-change efforts, this time framed as a medical malpractice issue — so if it’s not speech, and it’s not “conduct” exactly, now it’s malpractice. I’m curious what you think of that.
Robert Corn-Revere: That’s a perfect example of trying to shift categories and say, “We’re going to regulate it a different way.” Justice Jackson touched on malpractice a bit in her dissent, but so did the majority — saying you simply can’t reclassify these things that way. We actually have another case going on where a plaintiff is arguing a pollster being too far off in its results is “malpractice” that a newspaper subscriber should be able to sue over — you can imagine how broad that concept of liability would get. It just doesn’t make sense. But it’s a good example of the kind of reaction you get when people try to reinterpret around these principles.
Thomas A. Berry: More questions? We’ve got one over here — and there’s one in the back, Tommy — back there.
Audience member (J.B. Hogan): J.B. Hogan, independent writer — hogantwocents.com. You brought me back to a question earlier, from the namesake of this place. If the president has veto power and Congress has the power to do things, doesn’t Congress’s power have to be able to trump his veto power in some ways — a president can act up until Congress uses its power to override the veto, so it’s not necessarily a 51 percent power in every situation; it might need two-thirds. I’m just wondering—
John Vecchione: So, first — the supermajority, it depends how they do it. Let’s say they have a supermajority — they can’t just pass a “sense of the Senate” or “sense of Congress” resolution; those let everyone go on record being on the right side of apple pie and motherhood, but they have no actual power — you could get 100 percent of the vote and it wouldn’t do anything. If the president says — I’ll play to the Cato audience — “I’m taking out Iran,” and Congress says, “No, you’re not,” and passes a “sense of the Congress” resolution saying he can’t, that does nothing to the ships or anything else already moving. What they have to do is say, “We’re providing no money for what you’ve just ordered” — that’s it, that’s what they can actually do. Or, more controversially, they could pass a criminal law making it a crime for anyone to engage in warfare against Iran under those circumstances — and then everyone down the chain who engaged in it would be criminally liable. That would require a supermajority too, and I don’t see it happening — but sure, they can, if they’re all acting together. It’s just very unlikely — look, how many members voted against the president on the last one, maybe three?
Thomas A. Berry: More questions — was there one back—
Audience member: Yeah, that’s who I meant.
Thomas A. Berry: It’s hard to see behind the cameras. Go ahead — thank you for the correction.
Audience member (Jan Volcker Leonberg): My name is Jan Volcker Leonberg, I work in the cruise industry — the business side. My question is about gerrymandering. Basically, I work on a ship — if there’s a problem, we look for a solution. So what’s your recommendation to prevent this kind of gerrymandering? Do we need a constitutional amendment, or do laws need to be written differently to prevent this from happening?
Christopher M. Kieser: I think states can experiment with all sorts of things — some states have gone with independent redistricting commissions and so on — but I don’t think there’s necessarily a solution coming from the federal courts. Congress could pass something, but the problem is there’s no real baseline for what a map is “supposed” to look like. People say “fair maps,” but what counts as fair is a pretty subjective question — is it partisan balance, incumbency protection, something else? There are lots of different maps that could all be called fair. And the underlying problem is that this is an inherently political process, and politicians are very unlikely to pass laws limiting their own discretion over the most political process there is. That’s why gerrymandering has been a thing since the beginning of the Republic, and will probably keep being one. Even states that experimented with independent commissions, like California, have started rolling them back once they realized the other side was gerrymandering and they weren’t — nobody wants to unilaterally disarm. There’s really not much the federal courts can do about that. I’ll say Virginia has a pretty good commission — there was an attempt to get rid of it that failed — but the pressure is always there. State courts can enforce their own restrictions on political gerrymandering, even after Rucho, since that was only a federal non-justiciability ruling — so I think the best hope, if there is one, is at the state level. Both Virginia and New York’s state courts have stopped attempts like that under state law.
Thomas A. Berry: And it’s worth mentioning federal law is what requires single-member districts everywhere, if I’m not mistaken—
Christopher M. Kieser: Correct — so states would otherwise have more freedom to experiment or get creative, but the federal government isn’t currently letting them. The problem is multi-member districts were traditionally used in ways that limited Black voting power specifically, so they’re inherently suspect now — though they’re not necessarily bad in themselves, there’s nothing sacrosanct about requiring single-member districts. Congress could also pass a law saying you can only redistrict once every ten years — I’d support that, to stop mid-decade redistricting — but again, it’s political, so it’s hard to get both sides to agree to it at any given moment.
Thomas A. Berry: Now, Chris, to your point — you said you don’t see help coming from the federal courts, or “help” is maybe a loaded word — the status quo won’t be changed by the federal courts. That raises the question: is this decision the end of a line, where the Court had been getting closer and closer to a big decision and now this is it, everything settled — or are there still more chips to fall? Alito writes it almost like, “This whole doctrine’s been a mess, and we’re cleaning it all up right now.”
Christopher M. Kieser: I think, as far as Section 2 is concerned, it’s going to calm the waters — the same thing happened with Brnovich in 2021, in the vote-denial context. The standard is clear now, and you’re actually going to have to bring facts showing an inference of discrimination to win one of these claims. Where things are still unsettled is the Fourteenth Amendment racial-gerrymandering claims themselves — what you have to show to actually prove one, since it’s all intertwined with race, party, and everything else. But as far as Section 2 goes, yes, I think this is a culmination. There will still be claims out there, but not like there used to be.
Thomas A. Berry: Fantastic. Well, I learned a ton from this panel — I’m really grateful to all of you for being here. Let’s show our appreciation for our great panel.
