>> The Supreme Court's new term just kickoff kicked off on the agenda.

Free speech, LGBTQ rights tariffs and broad executive power just to name a few.

The justices are set to hear 39 cases on the court's regular docket.

They've already sifted through almost 30 Trump related cases on the so-called shadow docket.

Joining us to talk about all of that and more are Carolyn Shapiro, law professor and co-director of the Institute on the Supreme Court of the United States at Chicago.

Can't College of Law.

She served as a clerk to Supreme Court Justice Stephen Breyer, David Franklin, associate professor of law at DePaul University.

Franklin was a clerk to Justice Ruth Bader Ginsburg and Jon joke, Harris attorney at the law firm rock Fresco and Cali.

He is also a member of the Federalist Society.

Thanks to all 3 of you for joining us.

Okay.

So starting with birth right citizenship because I think the Trump administration's position on immigration is no more apparent than it is right now.

And this issue of birthright citizenship, though it's not on the court's docket just yet.

But President Trump, we did know, signed that executive order back in the beginning of this year, which seeks to deny citizenship to people who were born in the U.S.

to non-citizen parents.

And of course, raises questions about the scope of the 14th Amendment.

John started the beginning.

Police not too much the beginning, was the 14th Amendment created.

So the 14th Amendment was predominantly created to protect children of slaves.

>> To protect their rights, make sure that the slavery, you know, institution of slavery wasn't passed on to them.

And what challenger's of the interpretation of birthright citizenship to the 14th Amendment have alleged is while it was intended to protect specifically that class of people.

And while there has been a Supreme Court precedent in 18, 98 can walk or one mark that held that children of permanent legal residents are entitled to birthright citizenship.

The court has never actually ruled on whether or not a birthright citizenship applies to children of non-legal aliens.

And so what proponents of President Trump's executive order is trying to do is basically showed this in front of the court and President Trump certainly been very aggressive with his executive action actually had more executive orders than any other president since Franklin Roosevelt.

They want to get interpretation of birthright citizenship as it applies 2 children of nonresident aliens.

How will this ensure issue eventually make it before the court for a final decision?

>> So it already had sort of a preview before the court last term when they were deciding on the constitutionality of nationwide injunctions that the district court level the Trump administration has asked the court to revisit this case.

Again, it's quite possible it could get on on on the docket.

This term in any case, it's it's going to get there at some point whether it's now or later can use a brand.

this this issue, I think is an example.

Broader phenomenon, which is that the Trump administration is pushing the envelope in ways that are blatantly unlawful, right?

So the executive order and birthright citizenship is.

Inconsistent with the text of the 14th Amendment.

The history of the 14th Amendment English Common Law before the 14th Amendment.

The Supreme Court's decision from the 19th Century and congressional legislation.

Lower courts have uniformly said it's blatantly unconstitutional to deny citizenship to people who born here just because their parents happen to not have immigration status.

So there is an even really a split between the lower courts that would normally necessitate Supreme Court review.

But what we've seen the court too again and again on its so-called emergency or shadow docket is sort of short circuit the normal orderly process of appellate review and basically tell the lower courts you're not allowed to enjoy these initiatives by the Trump administration because in the Supreme Court's view, those lower court decision somehow create irreparable harm to the administration.

I don't know if we'll see that in the birthright citizenship context.

I think the court by saying no nationwide injunctions last year was trying to kind of push issue often kick the can down the road.

But a whole host of other issues, including issues that that implicate what I think of is the Trump administration's authoritarian agenda.

The court has been content to allow those policies to go into effect.

And definitely want to come back to the shadow docket in just a second.

Caroline.

There is precedent here.

Us versus Wong, Kim Ark.

How Strong is that in?

Could the current >> court realistically either overturn at or went.

>> Well, immigration was different than just the whole body of law surrounding immigration.

So the circumstances of that case.

Artist.

Hard to map on.

But it was it involved a child of Chinese immigrants who couldn't become citizens, he was born here and he was deemed to be the Supreme Court said yes, absolutely.

The 14th Amendment means that he is a citizen.

The executive order that the promote assigned doesn't just and I children of undocumented immigrant.

It also reaches the children of immigrants or people who are here but legally legal status legal status, but not permanently.

So we're not necessarily permanently.

So Stu people here on student visas, people here on H one H 2 b visas who it was who are working legally.

The people here tour on tourist visas, though.

There's never.

So it's not limited.

He did.

The order is not limited to undocumented it could have sweeping impacts course.

What would that mean then for who gets to be an American, it would have sweeping impact and we don't know what the administration how the administration would apply that retroactively.

They've said, well, it won't apply the actual order to executive branch, which is don't issue passports, don't issue Social Security guards that they say is going to be forward looking.

But then if they get this interpretation of the 14th Amendment, which I completely agree with David not remotely plausible.

But if they were to win that argument, then what would happen to all kinds of people who have always thought they were says it's because they always have been citizens OK?

So we've mentioned the shadow docket.

Let's get into The Supreme Court's, you so-called emergency docket shadow docket being used in record numbers in Trump's second term.

>> And he's also winning more cases than his predecessors.

David, do we know why there's such an increase in these emergency applications?

>> Well, we know more if the Supreme Court wrote opinions that accompanied the shadow docket rulings more often than not, they don't.

So these are situations where a lower court has enjoyed has put a stop to some administration policy case after case.

I think it's 23 in a row now the Trump administration has gone to the Supreme Court has jumped the queue.

That has said we want urgency relief.

We want you to tell the lower courts to lift those temporary injunctions.

That's all they are.

The lower courts are saying we think this policy by the Trump administration is unlawful and that therefore, during the pendency of litigation, we want to put a stop to it.

And the Supreme Court apparently based on a few things that it has deigned to tell us seems to think that those kinds of lower court rulings create irreparable harm for the government that the government being told you're doing something new.

And the lower court has said, let's put a pause to it for now.

That lower court ruling creates irreparable damage to the government.

And so the court has lifted some 23 in a row those instances.

That's like you said, there's only been a few instances where the court has actually written an opinion.

>> I guess you get me to to the non-legal like kind of how can they make decisions without having had formal hearings and without issuing necessarily a formal opinion on that?

Well, it is.

they they have the power to do it.

And they're doing OK, think it's just real quick.

I think another reason why federal like more and more on emergency docket is because because as I said, this Trump administration has been very aggressive on executive action.

Again, more executive orders than any other administration since the Roosevelt administration.

>> Carolyn, is it something we should be concerned about that the absolutely something we should be concerned about doing that with that.

>> the court is doing changing the allowing the administration to change the facts on the ground in situations where we don't have an adjudication of about whether or not something is in fact, legal or constitutional and changing the facts on the ground in a way that it will not.

It's not possible to things back together.

That's the point of these preliminary injunctions that the lower courts are issuing is that you hold off.

Things are supposed to The litigation is supposed to be relatively expedition but does that the standard that the Supreme Court is supposed to apply requires not only that they be able to say that the president where the administration would likely prevail, but also that there is this river will harm and they simply have not explain that beyond in the first birthright citizenship case, which was only about the nationwide injunction.

There's real real of suggestion that any time the Trump administration is told no, it's automatically irreparable OK?

So I want to get to some of the cases that actually are on the real-life Supreme Court docket.

>> There is the one of Trump versus Slaughter a so the court is also reexamining a 90 year-old precedent that prevents presidents from firing heads of independent federal agencies like the Federal Trade Commission without Cause Trump's legal team argues that those restrictions violate the Constitution's vesting of executive power.

So in September, Supreme Court did allow Trump to fire Rebecca Slaughter temporarily.

John, why is Trump said on ousting slaughter?

>> So this goes to what proponents of the Trump administration believe is unitary executive theory, which is that the president's article, 2 executive authority, he can fire pretty much anyone from any of administrative agency at will, again, not to keep coming back to the Roosevelt administration.

But the president on this 90 years ago was Humphrey's executor, which case the court held, then that President Roosevelt could only fire someone from an independent agency for cause.

Not simply at will and mini concert.

Many conservative libertarian Constitution was have always held that the court aired in that decision.

It might have been the result of a very hostile court to the Frank took to the Roosevelt administration.

If it was overstepping his authority.

So ever since we've had this president, but there many scholars across the board who actually think that this president is probably on its way out.

And the fact that the court is allowing a but commissioner Slaughter to be dismissed until this is fully adjudicated is probably a sign that it is on its way out.

Similarly, though, Trump is also trying to remove Lisa Cook, who serves on the Federal Reserve Board of Governors.

Supreme Court will hear arguments on this in January.

David.

>> What interest would the court have been keeping agency like the Federal Reserve Independents and what would be the legal basis for that?

Well, first, agree with John that the arguments that are being made in these cases on behalf of the Trump administration are kind of a >> culmination of a generation long movement within the conservative legal establishment to to to establish this notion that the president has to have.

Hierarchical control over everything that happens within the executive branch.

And I think the Supreme Court pretty clearly has signaled that it agrees with that theory.

Interestingly enough, the biggest proponent of that theory was the late Justice Antonin Scalia who was an originalist.

So he believed that the Constitution should be interpreted according to its the original meaning.

I think the original list case for a unitary executive theory is pretty questionable.

In fact, we've just seen today a prominent original, a scholar at the University Virginia saying I don't think that there is a strong originalist case for the unitary executive.

But I think clearly in the FTC case, that's the case of manslaughter.

The court is going to overrule that 90 year-old unanimous opinion of the Supreme Court.

But you're right.

The court seems to think that the Federal Reserve is different.

So when one of its shadow docket rulings, it wrote a couple of sentences saying the Federal Reserve has a unique history I don't know that logically that really holds up.

But I know this.

The Supreme Court has gotten debris from every living.

Former Fed chair Republican and Democrat telling the court that in countries that have independent central banks where the president comes in and removes that independence.

What do you get?

You get runaway inflation and you get economic crisis, you know, just ask anyone from Argentina.

We don't want the next Argentina.

Okay.

So lets people get through a few more of have to before we run out of Chiles versus Salazar.

So few cases dealing with LGBTQ rights.

This is one of them.

>> The case centers on Colorado law banning licensed therapists from practicing so-called conversion therapy on minors, citing research showing the that the practice can be harmful.

And even, you know, double the risk of suicide.

>> A Christian therapist named Kaylee Chiles suing arguing that the ban violates her First Amendment right to free speech.

Carolyn, why is this case framed as an issue of a free speech versus medical regulation?

Well, that's exactly what the argument is.

In the case.

The state of Colorado says, look, we regulate medical practice all the time.

That often includes the regulation of speech.

That's all that's happening here.

And that's how it should be understood, which means it would be evaluated on UN relatively differential, quite deferential standard she Charles says no, no, it's this is course.

This is my speech.

The Colorado is tell me what I can and can't say what my beliefs are.

And so it should be things that need to have an extremely high justification.

The there are some very strange things about this case.

One is she's actually said she doesn't want to practice conversion therapy.

So and the state of Colorado says they are not going to enforce this law against her.

So one might wonder what this case is doing in the Supreme Court at all.

But it is it is comparable to a case called 303, creative, Ruslan us.

That was decided a couple years ago.

Also out of Colorado involving a web designer who didn't want to be told she had to serve websites for to build websites, wedding websites for same couples get she won her case on again, hypothetical case because she didn't actually make wasn't making wedding website.

But she wanted on a free speech case OK quickly.

The courts also expected to weigh in on major cases involving transgender athletes.

>> Little versus he and West Virginia versus BP J John Conservative experts argue this is about maintaining fairness in competition, not about discrimination in 30 seconds.

How do you think the court is going to approach that argument?

So there was a scrum, any which pertain to whether or not states can constitutionally ban gender affirming care and the court upheld that right.

In this case we're talking about whether or not states can Athletes who are assigned a specific gender at birth from participating in women's sports since we're talking about discrimination, that this will hinge intermediate scrutiny, basically it's going to boil down to whether or not gender identity falls within a title 9 and women's sports which of course, against discrimination in sports and real quick.

You think what do I think there's a majority on the court that from the law.

>> At issue.

Yes, yes.

Okay.

Thank you.

Good will have to leave it there.

I'm sure