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Supreme Court Issues Ruling in EPA Case; Supreme Court Says Biden Can End Trump-Era Remain in Mexico Immigration Policy. Aired 10- 10:30a ET

Aired June 30, 2022 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:00:02]

JIM SCIUTTO, CNN ANCHOR: He also made some news on abortion, saying that he would support an exception, a carve-out to the filibuster to protect privacy rights. That was news. We're going to have much more on all this just ahead.

POPPY HARLOW, CNN ANCHOR: We certainly will.

At any moment, though, the Supreme Court will release its final two opinions of this term on the docket, two consequential cases, one involving immigration and the president's power to dictate U.S. foreign policy, the other on climate change, marking a decision on the most important environmental case in more than a decade. We will bring you those both as soon as they're handed down.

Today also marks the end of one of the most monumental terms for the high court with the decision on abortion rights, overturning decades, decades of a constitutionally held right in this country and an opinion on gun control that has wide ranging consequences.

Today's cases will be the final two for Justice Stephen Breyer. The 83-year-old will formally step down at noon today, and Judge Ketanji Brown Jackson will be sworn in immediately to become Justice Jackson, the first black woman to serve on the Supreme Court.

So, let's begin with these two outstanding Supreme Court decisions. Joining me now to talk about all of them as we wait for them to come down, CNN Chief Legal Analyst and former Federal Prosecutor Jeffrey Toobin.

So, Jeffrey, I want to start on a case that is so consequential, and that is West Virginia versus EPA. Explain why this matters so much for the climate change, this environment and the power of the administrative state and of the executive branch to delegate its power.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Congress passes laws. I think everybody knows that. But laws are generally phrased in fairly general terms. And we have administrative agencies that translate those laws into rules that individuals and companies must follow.

The question in the West Virginia case is how much deference, how much do we allow the administrative agencies to interpret the laws that Congress gives them. There's a doctrine of law called the Chevron Deference, where court has said if it's reasonable, we will allow administrative agencies to interpret Congress' statutes.

What conservatives have been fighting for in recent years is for the Supreme Court to say, no, we don't want to defer to the administrative agencies, we want to tie what administrative agencies can do much more closely to the words of the statutes. And what that would mean in real life is it would limit the power of administrative agencies to attack problems in any sort of meaningful way.

In this case, it's about climate change. It's about whether the Environmental Protection Agency has the authority to pass rules that limit greenhouse gases. That is not -- that's the issue in this case. But the so-called Chevron Doctrine, which is based on the case with Chevron, the oil company, who was one of the parties, is if they get rid of this doctrine of law, it would greatly limit the power of the federal government when it comes to environment but also lots of other areas as well.

HARLOW: So, we just got this decision down. It looks like Roberts wrote the majority opinion. We're waiting for Jessica Schneider to bring us that majority opinion. As Jeffrey just explained to our audience, it's complicated because it's beyond what the EPA can do here. This brings up the question potentially, will Chevron Deference be overturned in this country and will that really constrain the power of administrative agencies beyond the EPA? That's why it takes a moment to process this. We'll bring it to you as we can.

Jeffrey, as you look at it, one other thing that's very notable here is the same day that this was argued in oral argument, the United Nations handed down that report warning of the damage of climate change. If, in fact, this ruling does go, Jeffrey, against the EPA's power here, which we don't know, we don't know yet, but if it does, that significantly ties the Biden administration's hands to regulating any of this.

TOOBIN: You know, climate change is here regardless of what the Supreme Court says, regardless of what liberals say, regardless of what conservatives say. Climate change is not going to respond to politics. It's going to respond to actual things that human beings do with regard to how we regulate the environment. And, you know, that's why these cases matter so much because climate change is proceeding, and the only issue is what, if anything, our government is going to be done about it.

HARLOW: Jeffrey, another real question here, well, you look at the makeup of the court, I mean, any legal scholars would say Justice Gorsuch was brought to this court in many ways for this reason, the question of Chevron Deference and how much power these agencies should have.

[10:05:10]

There's something we should look for called the major questions doctrine, which this court has used a lot more recently this term to say this is a question of such importance, Congress would have spoken more clearly on it. They gave -- they overturned the mask mandate and the eviction moratorium based on that, and that could be at play here too.

TOOBIN: And it all relates to the same general idea, which is, you know, conservatives who have been so successful in the Supreme Court this term and for a generation have been pushing on these issues. And one of their great causes has been limit the power of the federal government.

HARLOW: Right.

TOOBIN: And especially the administrative agencies. And the major question doctrine and the Chevron Deference all both deal with the question of how much power administrative agencies should have.

HARLOW: Okay. So, let's get to Jess. Jessica Schneider, how did the court come down?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: The court coming down against the Biden administration here, really saying that this is a ruling that will effectively limit the Biden administration's ability to regulate power plants and, in turn, affect climate change.

So, this was a 6-3 decision written by the chief justice, John Roberts. And it hampers the EPA's ability to enact regulations when it comes to power plants. The Supreme Court saying here that the EPA does not have that broad authority that the lower court said it did to regulate the power plant industry and emissions in general.

This is actually reversing the lower court. This is sending it back to the lower court. But this will have broad implications for the EPA's powers moving forward.

So, I want to just take you through some of the procedure here. Basically, the lower court had said here that an Obama rule which regulated carbon emissions from power plants and more broadly regulated power plants and how they should be shifting to renewable resources instead of just coal, they said that that rule was okay, that a subsequent Trump rule was not okay.

But the Supreme Court now reversing this and saying that, no, the EPA did not have this broad authority that the Obama administration said it did.

In addition, they've also invoked the major questions doctrine. And this is a doctrine that says if Congress doesn't give explicit power on major issues to an agency that the agency can't move forward in enacting some of these regulations that concern those major issues.

So, this is really a blow to the Biden administration and the EPA moving forward on two fronts, and it impacts other agencies and how they'll regulate. This is impacting the administration when it comes to the EPA, saying that they can't broadly regulate power plants, but then agencies as well, saying that if there are these major questions that have political implications, broad economic implications, that agencies basically won't be given carte blanche to regulate here.

So, this is a really major takedown of the administrative state here, Poppy.

HARLOW: It is a major takedown of the administrative state, Jessica, because it goes way beyond the EPA.

Quick follow-up for you, and if you need to read more to fully understand it, I completely get that. Did this court overturn Chevron Deference? Do we know?

SCHNEIDER: We're still looking at the opinion here. And it's very specific as to implicating the major questions doctrine saying that EPA doesn't have this authority. But as to how it plays with Chevron Deference, which is giving agencies deference when it's not specifically written into a statute, we have to look more into that, Poppy.

HARLOW: Okay. I'll let you do that, Jessica. Come back to us when you have more.

Jeffrey Toobin, to you. We were just talking about the major questions doctrine. This court this term has used that doctrine to say, no vaccine mandate, OSHA, you can't do that, no, CDC, you can't have an eviction moratorium, and, no, EPA, you cannot regulate this issue in this way that's in your wheelhouse.

TOOBIN: That's right.

HARLOW: That's a huge deal.

TOOBIN: It's a huge deal, but this case could be worse for the administrative agencies. I'm just reading it carefully. Chief Justice Roberts' opinion does not mention the Chevron case at all. Justice Kagan's dissent mentions it several times. So, they do not explicitly overrule the Chevron doctrine. So, it is sort of a classic Chief Justice Roberts opinion.

HARLOW: Move slowly and incrementally.

TOOBIN: Exactly. But, clearly, the direction he's going is quite clear, which is towards limiting the power of administrative agencies.

[10:10:01]

But he does not go as far as some conservatives wanted in overruling the Chevron case altogether. But no one should be confused, this decision is a defeat for the Biden administration. It's a defeat for the regulatory agencies. It's a defeat for the cause of limiting climate change, but it's not quite as bad a defeat as it might have been.

HARLOW: How you read as fast as you, I'll never know, Jeffrey Toobin, but it's really notable that the court even took up this case since neither of these -- the Trump administration rule nor the Obama administration rule for the EPA was actually even in effect. Let's go to Rene Marsh. This is her beat. She covers this day in and day out. So, Rene, talk to people about the actual implications of this given, as I said, the same day oral argument happened in this case, the U.N. came out with this climate report and said, any further delay in addressing climate change will miss a brief and rapidly closing window of opportunity to secure a livable, sustainable future for all.

RENE MARSCH, CNN NATIONAL CORRESPONDENT: And really, as we listen to this opinion and what it means for the EPA, I mean, I think just regular folks who are watching at home, how this impacts us, this ruling will impact many people's lives because this is happening in the context of climate change here, now.

We have seen the flooding. We have seen the heat waves. We have seen the 22-year mega drought out west. We have seen the longer, more intense wildfire season. And this is just the beginning as it relates to climate change. And we also know it is not debatable that high concentrations of greenhouse gases contribute to the warming of the planet.

And what this ruling does is it takes away the most effective tool for the EPA to curb those greenhouse gases, and that emission from these power plants. Power plants are the second largest source of these greenhouse gases.

And so I said this yesterday and I'm going to say it again, it is -- curbing the EPA's ability to regulate power plants and the emissions that come from these power plants is like saying you can cut the grass but we're taking away your lawnmower. So, get out your scissors, EPA, because that is the situation.

The EPA has been -- has had this posture that they will find ways to continue to curb greenhouse gases, but I have to say this is -- it makes it just difficult for them to do this job of curbing these gases in such a dramatic way that scientists have been sounding the alarm that we need to do and not like over the next 25 years, like right now. And so this makes it more difficult.

And, Poppy, the one other thing that I want to mention is just the idea of giving this authority to Congress. I mean, we have seen what that looks like and we have seen what that means. Just look at the Biden administration's climate legislation. It has been stalled within Congress. So, this idea of giving Congress the authority, to me, is the equivalent of not doing anything because you certainly have seen that there's not enough political will there to get that sort of drastic and dramatic regulation over the line. Poppy?

HARLOW: That is such a good point, Rene Marsh. Stand by for us. Thank you very much.

We're just pulling up the next opinion coming down from the court. But before we get to our Jessica Schneider with that ruling on Biden versus Texas, the immigration question, Jeffrey Toobin, I think Rene just raised such an important point, okay? Because Congress isn't acting on these big issues, major questions, the court's word is the final word. I mean, Congress does have the ability to codify an abortion right, for example. Congress does have the ability to explicitly say the EPA can regulate on issues of climate change. It just hasn't acted.

TOOBIN: That's the point. I mean, that's a feature, not a bug. The reason conservatives in the Federalist Society want to limit -- want to push these doctrines is because they know that Congress is not going to be able to pass these laws. So, when the court says it's up to Congress to address climate change --

HARLOW: They know.

TOOBIN: -- what they are really saying is, we don't want climate change addressed because we know that Congress is not going to address it. So, I mean, that's what's really going on here. And that's the real significance of these opinions when --

HARLOW: In this moment.

TOOBIN: Yes, in this moment, and especially when it comes to the climate because the climate is an international crisis. And when the court says the only agency that has the expertise and ability to address climate change can't do it, it means that it will not be done by anyone or any part of government.

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HARLOW: Yes. And it was notable that even Justice Breyer (ph) in oral arguments did concede and did say, look, this climate issue really is in the wheelhouse of the EPA.

Joan Biskupic, come in here, join us, please. I know you're trying to juggle two cases. But can we just step back for a moment? This is the last day of this term that has been so momentous in so many ways. And if you look at major questions here in this doctrine that has been used three huge times by this court this term to change the American way of life, frankly.

JOAN BISKUPIC, CNN LEGAL ANALYST AND SUPREME COURT BIOGRAPHER: You know, that is so true, Poppy. We focused a lot on what this court has done to individual rights, especially with abortion, but another pattern of this court has been stripping regulatory authority from the federal government over here, the environment, earlier over public health and safety with the OSHA rule for vaccine requirements, earlier, as you mentioned, for the eviction moratorium.

This is a major emphasis that the three Trump appointees especially have been on, and now it will change all the rules going forward for how regulatory agencies, which typically will have the expertise in certain areas, environment, public safety, labor issues, they will have the expertise that Congress lacks.

And they'll also, actually, be able to do something. We know that Congress has a hard time speaking clearly. In this ruling today, John Roberts writes in the majority that Congress needs to speak clearly, and it didn't hear and it probably won't in the future, Poppy. HARLOW: Right, because that is not how it has worked through our history.

Joan Biskupic, stand by. I'm going to bring you back in on this next ruling. But let's get the actual decision from the high court from our Jessica Schneider.

So, Jess, explain this next case and how the court came down.

SCHNEIDER: This relates to immigration, Poppy, and the court actually coming down in favor of the Biden administration here, saying that the Biden administration does have the power to end the Trump policy remain in Mexico rule. However, the Biden administration now needs to go back to the lower courts to work things out. So, it's not exactly like this policy is going to end tomorrow.

So, let me explain a bit. This remain in Mexico policy, it's been in effect since 2019. And it said that non-Mexican migrants that came into the U.S., they could be turned back to Mexico to be held there while their immigration proceedings were ongoing.

Critics disputed that saying it was inhumane, they should be let into the United States to remain there while their court proceedings played out. So, the Biden administration wanted to end that policy.

Well, lower courts had said, Biden administration, they didn't do it the right way going about rescinding this policy. And then those lower courts went a step further saying, they didn't have the authority overall.

So, what the Supreme Court is saying here is that the Biden administration does have the power to get rid of remain in Mexico. However, they still need to look at the reasoning and the way that the Biden administration went about this.

So, what they're going to do is they're going to send this back to the lower courts, they're going to have that court take a look at a second memo that homeland security put out last fall, giving their reasonings for ending this program. If those reasonings are sufficient, that will allow the Biden administration to end this program, but it's up to this lower court.

So, a little bit complicated as the procedure here, but, broadly, the Biden administration can end this Trump policy but a lower court needs to take a look first.

THESE are two really significant, really complex cases, Jess, and you helped us understand them so well. We'll get back to you in just a second.

Jeffrey Toobin, it was a question of immigration law, a president's power to dictate foreign policy and what an administration deems to be in the country's interest, and it was -- is a question of administrative law.

TOOBIN: It is both of those things. And, notably, Chief Justice Roberts wrote the opinion. Chief Justice Roberts came of age as a young lawyer in the Reagan administration. And one of the big causes he was associated with there was a broad understanding of executive power versus the other branches of government.

This is a case where Chief Justice Roberts, in a fairly convoluted situation, is saying the president has this authority, which is to set sort of how these claims are litigated at the border. I mean, it is certainly a victory for the Biden administration. It is a very small one compared to the magnitude of the loss in the Environmental Protection Agency case that was decided the same day.

HARLOW: Also written by Roberts.

TOOBIN: Also written by Roberts.

HARLOW: Our Priscilla Alvarez joins me now to talk about the actual implication of this. And, Priscilla, as we just heard from Jessica, this still now has to go through the lower courts. So, it doesn't appear to be an immediate change.

[10:20:01]

But if you could talk about the big picture here, because you're looking at an administration that is dealing with an influx of migrants at the border and an inability and not enough funding from Congress to detain nearly close to the majority of them, therefore, the question about this policy and whether the Biden administration can overturn what the Trump administration had done. What are the actual implications now?

PRISCILLA ALVAREZ, CNN REPORTER: That's right, Poppy. We don't expect an immediate change because, as you mentioned, this still has to go to the lower courts. But to remind viewers, this had been an unprecedented policy that was put in place in January of 2019 under then-President Donald Trump. And it allowed authorities to turn migrants back to Mexico while they waited for their U.S. immigration court date.

Now, many, over 68,000 migrants, had been put under this policy. And now, we are learning from the Supreme Court that the Biden administration can end it. Of course, there's still a legal route that that needs to be taken. But what it means big picture is that, yes, border crossings remain high, and the Biden administration has been grappling with that for months. And they are still using a separate policy known as the Title 42, that's a Trump-era pandemic emergency rule, to turn back migrants.

Now, the Biden administration had already implemented this policy because of lower courts. That is the remain in Mexico policy. So, there are some migrants, some 5,000 migrants who are in Mexico under this policy right now. And we'll learn from the Biden administration over the next weeks and months as it goes through the courts how they plan to deal with that.

But big picture, Poppy, the administration is still dealing with border crossings here. This was not a policy that they were using on large scale, as they have been, that Trump-era pandemic emergency rule, but it is for now a victory for this administration, Poppy.

HARLOW: Okay. And then we'll see what the lower courts decide. Priscilla Alvarez for us in Hidalgo, Texas, thanks very much.

Jennifer Rodgers, former federal prosecutor, I'd like to bring you in on this latest decision on Biden versus Texas. As Jeffrey, a win for the Biden administration but on a smaller scale than what we're seeing with this EPA decision.

JENNIFER RODGERS, CNN LEGAL ANALYST: Yes. There's a threat here, Poppy, that we've seen through some of the cases this term where the justices have been reluctant to tell an administration that they can't change policy, right? So, we have a Trump-era policy. Biden wants to shift gears and do something different and people are saying, no, wait a minute, let's find a statutory reason or another reason that they can't do it. And the justices here, they do a statutory interpretation argument, but they do also hold firm to this notion that administrations are allowed to change their policies when the White House changes hands, and that does trickle down. So, at least that notion of the ability of the president to change policy and to make that policy into action throughout the country still holds firm, at least for now.

HARLOW: Okay. Joan Biskupic, let me bring you in here because it was, I think, the last day of last term when the court made its decision on the DACA ruling and the Trump administration there. And my question to you is, how does this compare?

BISKUPIC: Poppy, you're remembering it being at the end of a term, but, believe it or not, it was in 2020. So much has happened since then. But what you're remembering exactly right is the thematic part here because John Roberts wrote the decision in June of 2020 invalidating what Donald Trump had done to eliminate President Biden's DREAMERs program for undocumented children who had come here at a young age with their parents. And as you remember, President Obama had allowed work permits and shielded these young people from deportation. Trump tried to end that.

And what John Roberts did, Poppy, when he cast the deciding vote you're recalling, is say that the administration did not offer a proper explanation. It did not do it correctly. And that theme that we saw in that decision just two years ago, which feels like it was yesterday, comes through loud and clear in this. In fact, what the chief, again, writing the decision, this time he's joined by now the three remaining liberals and Justice Brett Kavanaugh saying, you can do this, but you just have to do it with the proper explanation, which is why Jessica just told us --

HARLOW: Yes, try again.

BISKUPIC: Yes, exactly right, it has to go back to a lower court. So, same thing, if you're going to do this, the government has to cut square corners here.

HARLOW: Right. Joan, thank you, stand by.

A quick point from you, Jeffrey Toobin, and I'm going to get our David Chalian in on the politics of all this.

[10:25:00]

TOOBIN: Chief Justice Roberts sends this back to the district court judge who decided this case in Texas. That district court judge has been extremely hostile to the Biden administration and has found reasons to rule against the Biden administration in every possible respect with regard to immigration. So, even though this decision --

HARLOW: It goes back to the 5th Circuit.

TOOBIN: Well, no, it's going to the district court.

HARLOW: Because 5th Circuit also said that.

TOOBIN: Within -- yes, and the 5th Circuit, which has also been extremely hostile to the Biden administration. But the district court judge in particular is going to have to evaluate this again. And given his history, I wouldn't be surprised if the Biden administration was going to have to appeal this again.

So, yes, this is technically a victory for the Biden administration but it may only be a temporary one, and the litigation about this policy will definitely, definitely continue in a very unfriendly forum for the Biden administration.

HARLOW: It is a great point about where this goes next and where it could end up.

David Chalian, let's talk big picture here. And as we do, I just want to read to people from Justice Kagan's dissent in West Virginia versus EPA, which is a huge defeat for the Biden administration and for the administrative state as it stands right now.

Justice Kagan writes whatever else this court may know about, it does not have a clue about how to address climate change. The court appoints itself instead of Congress or the expert agency as the decision-maker on climate policy. I cannot think of something more frightening.

Talk about the big picture, David. This was, you know, two of five questioners today in the NATO press conference with President Biden asked about the Supreme Court and --

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Yes. And, listen, you know President Biden is an constitutionalist at heart. I mean, that is what he is. But he expressed a real concern about this current court not sort of being in line with the views of the American people.

I will just say, for these two cases today, you note in the EPA case and reading Kagan's dissent there. Poppy, when I saw this case come down, I was thinking back. You will remember the famous expression that Barack Obama said that he had his pen and his phone. That's what he could rely on when Congress would not sort of bend to his will. And we have this historically, closely divided Congress right now. And what this ruling did was basically even limit President Biden's pen ability, if you will, and really sort of put handcuffs on the Biden administration to attack what is one of the major priorities of this presidency. I mean, he laid that out in the campaign and he has laid that out as one of the major tenets of his entire presidency to try and deal with climate change and he's restricted in doing so.

HARLOW: That's a great point. And, David, stick with me here. If we could also bring in Jeffrey Toobin on screen to talk about that, what President Biden said about what to do now in the face of what the Supreme Court has decided this term, behavior, which he called, quoting him here, outrageous. He talked about a carve-out in the filibuster, essentially, to codify, Jeffrey Toobin, privacy rights, he said.

My understanding would be that to do that, you would have to get Congress to codify each and every one on its own.

TOOBIN: Right which strikes me as --

HARLOW: Like can you do what the president said he thinks you can do?

TOOBIN: I mean, as a technical legal matter, you could perhaps draft some bill before Congress that talks about abortion, that talks about same-sex marriage, that talks about private, consensual, sexual activity, all of which the court travel, all of which the court has talked about as unenumerated rights in involving privacy.

You would need 60 -- well, you wouldn't need 60 votes if you got rid of it but there are but there are not 50 votes for those principles anyway because Joe Manchin has already said he's not for the abortion rights provision, as it's been drafted.

So, it's very difficult for me to imagine how such a privacy bill could be drafted in Congress, but even if you could do it, they're not 50 votes for it today, so it's kind of a theoretical discussion.

HARLOW: Stay right there.

CHALIAN: There aren't even votes to actually follow through on the president's desire for a carve-out on the filibuster. So, Jeffrey is talking about the substance itself that there may not be the 50 votes for -- the 50 votes for the codification of Roe, but there's not even 50 votes right now to do what the president called for today.

And I think it's unclear, Poppy, how hard the president is really going to push for that. Is he going to sway Manchin and Sinema or is he just going to wait and hope that Democrats win more seats in the Senate this year in a very tough political environment and then approach it.

[10:30:00]

I don't think he made that clear at all today.

HARLOW: That's a great point. Don't go anywhere. We have more of this breaking news on the other side.

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