The Removal Power | Administrative Remedies — Explaining How Government Actually Works

Having laid out why independent agencies exist, Gwen and Marc turn to the harder question: what happens when a president decides he wants someone gone? This episode unpacks the constitutional and political fault lines around the president’s removal power — and why the ability to “fire the referee” is one of the most dangerous pressures in modern governance.

The episode opens on the youth soccer field, where a bad call might enrage parents but doesn’t justify firing the ref mid-game. Gwen uses that intuitive norm to pivot into the most infamous political version of the same problem: the Saturday Night Massacre, when Nixon tried to purge the special prosecutor investigating him. The result wasn’t just chaos at DOJ — it was a national lesson in why removing investigators for doing their jobs destroys public trust.

From there, Gwen and Marc trace the constitutional silence on removal, the founders’ disagreements, and the early battles in Myers and Humphrey’s Executor. They walk through the real-world consequences of presidential pressure — from FDR’s failed attempt to oust an FTC commissioner, to Nixon’s behind-the-scenes arm-twisting of the Fed, to the market panic triggered by rumors that President Trump might fire Chair Powell. Each example shows how fragile independence becomes when removal power turns into a political weapon.

The episode closes by setting the stage for Trump v. Slaughter, the most significant removal case since the 1930s. For the first time in nearly a century, the Court will confront whether multi-member commissions — the backbone of the modern regulatory state — can still be insulated from presidential will. The stakes reach every corner of federal regulation: finance, monetary policy, labor, consumer protection, energy, and more.

Takeaway: A government can’t function if every tough call costs someone their job. Removal protections aren’t technicalities — they are the guardrails that keep expert judgment from collapsing under political pressure.

00:00:14 --> 00:00:17 Hello, and welcome to Administrative Remedies,
00:00:17 --> 00:00:19 because you can't fix what you don't understand.
00:00:19 --> 00:00:21 Brought to you in part by the University of Tulsa
00:00:21 --> 00:00:24 College of Law. I'm Gwendolyn Savitz, an associate
00:00:24 --> 00:00:26 professor here at TU and the associate dean of
00:00:26 --> 00:00:28 research and intellectual life. And I'm Mark
00:00:28 --> 00:00:31 Rourke. I'm the dean of the College of Law. We'll
00:00:31 --> 00:00:33 be breaking down complex doctrines with real
00:00:33 --> 00:00:35 -life analogies and examples to demystify the
00:00:35 --> 00:00:37 world of administrative law for everyone trying
00:00:37 --> 00:00:39 to understand how government actually works.
00:00:40 --> 00:00:41 Agencies are the main way the federal government
00:00:41 --> 00:00:44 gets things done. It's not through Congress for
00:00:44 --> 00:00:46 reasons we'll be addressing over the course of
00:00:46 --> 00:00:50 this series. Last time, we talked about independent
00:00:50 --> 00:00:53 agencies and the basic structure, but we didn't
00:00:53 --> 00:00:55 really hit the removal power. That's what we're
00:00:55 --> 00:00:59 talking about today. So, Mark, did you ever coach
00:00:59 --> 00:01:00 your kids' soccer team when they were little?
00:01:00 --> 00:01:03 Yeah. Have you never heard of the Islanders U
00:01:03 --> 00:01:08 -12 team that competed? in the famed soccer championship
00:01:08 --> 00:01:11 of 2014. Well, they were just amazing. They ran
00:01:11 --> 00:01:14 all of the different formations. It was a fantastic
00:01:14 --> 00:01:18 team. So I also coached Gabby's for years. I
00:01:18 --> 00:01:20 don't know how well the Rainbow Unicorns would
00:01:20 --> 00:01:24 have done against yours, but it was never something
00:01:24 --> 00:01:27 I was taking super seriously. That was definitely
00:01:27 --> 00:01:29 not universally true. I mean, I've seen those
00:01:29 --> 00:01:31 parents, the ones yelling on the sideline about
00:01:31 --> 00:01:34 a terrible call or that a ref should be fired.
00:01:35 --> 00:01:38 Can they fire the ref in those situations? No,
00:01:38 --> 00:01:41 absolutely not. All right, what about the crazy
00:01:41 --> 00:01:43 coach running the other team? Can they fire the
00:01:43 --> 00:01:46 ref? Yeah, no, again, they don't have an unbiased
00:01:46 --> 00:01:49 judgment about the ref's performance. Oh, definitely
00:01:49 --> 00:01:52 not. So what could get a ref removed in the middle
00:01:52 --> 00:01:56 of the game? Well, I mean, you'd have to be something
00:01:56 --> 00:01:59 so far beyond the pale, like if you were caught
00:01:59 --> 00:02:03 taking a bribe from the other team. Maybe if
00:02:03 --> 00:02:05 you were, like, drunk on the field. All right.
00:02:06 --> 00:02:08 Yeah, that could do it. I mean, it would have
00:02:08 --> 00:02:12 to be really egregious. Yes, it would. So notice
00:02:12 --> 00:02:15 the pattern here. We would need actual misconduct,
00:02:15 --> 00:02:19 not just bad calls. So legally, we would say
00:02:19 --> 00:02:22 this is malfeasance, neglect of duty or inefficiency.
00:02:23 --> 00:02:26 Not I just disagree with your call, but you've
00:02:26 --> 00:02:29 literally stopped doing your job now. Exactly.
00:02:29 --> 00:02:33 Actual misconduct. This came up because we had.
00:02:33 --> 00:02:37 Sort of the same issue in 1973, but the angry
00:02:37 --> 00:02:39 parent screaming, fire the ref, was the president
00:02:39 --> 00:02:42 of the U .S. Nixon? Nixon, indeed. He kind of
00:02:42 --> 00:02:45 gives off that vibe. I know. So instead of referee,
00:02:45 --> 00:02:47 it was the special prosecutor, Archibald Cox,
00:02:48 --> 00:02:51 who was investigating Watergate. But Nixon didn't
00:02:51 --> 00:02:53 just yell, fire the ref. He tried to actually
00:02:53 --> 00:02:56 do it. So could he actually do it? Cox wasn't
00:02:56 --> 00:02:58 an independent official with the statutory protections
00:02:58 --> 00:03:01 we've been talking about. He was a special prosecutor
00:03:01 --> 00:03:03 and had been appointed by the attorney general.
00:03:03 --> 00:03:06 So technically, he served at the pleasure of
00:03:06 --> 00:03:08 the attorney general. So Nixon could fire him?
00:03:09 --> 00:03:11 Not directly. He had to go through the attorney
00:03:11 --> 00:03:14 general. What was Cox doing that Nixon wanted
00:03:14 --> 00:03:16 him gone? Cox had subpoenaed the White House
00:03:16 --> 00:03:19 tapes at that point. Those are the recordings
00:03:19 --> 00:03:21 that would ultimately prove Nixon's involvement
00:03:21 --> 00:03:24 in the Watergate cover -up. And Nixon was trying
00:03:24 --> 00:03:27 to claim executive privilege. Cox threatened
00:03:27 --> 00:03:30 to take Nixon to court over this. And so Nixon
00:03:30 --> 00:03:32 decided the best way to fix this would be to
00:03:32 --> 00:03:37 get rid of Cox. So what did Nixon do? So Saturday,
00:03:37 --> 00:03:39 October 20th, he calls the attorney general and
00:03:39 --> 00:03:43 says, fire Cox. So Richardson fired him? No,
00:03:43 --> 00:03:47 Richardson refused. So he said, Mr. President,
00:03:47 --> 00:03:49 I appointed Cox with a promise of independence.
00:03:49 --> 00:03:51 I promised the Senate during my confirmation
00:03:51 --> 00:03:54 that Cox would have free reign. I can't fire
00:03:54 --> 00:03:56 him for doing exactly what he was appointed to
00:03:56 --> 00:03:59 do, investigate political crimes. And he resigned
00:03:59 --> 00:04:02 on the spot. So he quit rather than fire Cox.
00:04:03 --> 00:04:06 He did. So then Nixon calls the deputy attorney
00:04:06 --> 00:04:08 general, William Racklehouse. Same order, fire
00:04:08 --> 00:04:12 Cox. And let me guess, he refused as well. He
00:04:12 --> 00:04:14 did. We don't quite have as elegant a speech
00:04:14 --> 00:04:18 prepared, but he refused and resigned. So Nixon's
00:04:18 --> 00:04:19 getting desperate and he goes to the third in
00:04:19 --> 00:04:22 command, Solicitor General Robert Bork. And Bork
00:04:22 --> 00:04:26 did it? He did. He fired Cox that night. But
00:04:26 --> 00:04:29 this wasn't quietly letting somebody go. This
00:04:29 --> 00:04:32 was huge, public, and unprecedented. The press
00:04:32 --> 00:04:34 called it the Saturday Night Massacre. Why a
00:04:34 --> 00:04:38 massacre? Because in one night... Nixon has lost
00:04:38 --> 00:04:40 his attorney general, his deputy attorney general,
00:04:40 --> 00:04:43 and gotten rid of the special prosecutor investigating
00:04:43 --> 00:04:46 him. It looked exactly like it was, a president
00:04:46 --> 00:04:49 trying to shut down investigation into his own
00:04:49 --> 00:04:51 misconduct because it was going to find questionable
00:04:51 --> 00:04:55 stuff. So how did people react? The public was
00:04:55 --> 00:05:00 furious. Congress was flooded with telegrams.
00:05:00 --> 00:05:02 This was the most traffic Western Union had seen
00:05:02 --> 00:05:05 since the Kennedy assassination. Editorial boards
00:05:05 --> 00:05:07 across the country condemned him. In the next
00:05:07 --> 00:05:09 few days, they introduced multiple impeachment
00:05:09 --> 00:05:12 resolutions into the House. It was a disaster.
00:05:13 --> 00:05:16 Yeah, nothing speaks vitriol like telegrams.
00:05:16 --> 00:05:20 But again, this was 1973. It was. So within days,
00:05:20 --> 00:05:23 Nixon is forced to appoint a new special prosecutor
00:05:23 --> 00:05:26 with even stronger independent protection. And
00:05:26 --> 00:05:30 this would eventually lead to his downfall. And
00:05:30 --> 00:05:33 he resigned less than a year later. And Cox didn't
00:05:33 --> 00:05:35 even have statutory independence protection.
00:05:36 --> 00:05:39 No. And the point of this is to show how powerful
00:05:39 --> 00:05:42 that norm of independence was. Even without legal
00:05:42 --> 00:05:44 protection, firing somebody investigating you
00:05:44 --> 00:05:46 looked so corrupt that the political costs were
00:05:46 --> 00:05:50 devastating. I noticed you said was not is. Was
00:05:50 --> 00:05:54 that intentional? Well, things seem to be a little
00:05:54 --> 00:05:59 different now. Yeah. So you have. stronger norms
00:05:59 --> 00:06:02 back in the day that dealt with this question
00:06:02 --> 00:06:05 of independence. Were the norms that strong?
00:06:05 --> 00:06:08 They absolutely were. But this was also when
00:06:08 --> 00:06:10 we had a lot greater deference towards agencies
00:06:10 --> 00:06:14 in general. So after all this happened, Congress
00:06:14 --> 00:06:15 went through and tried to make sure the special
00:06:15 --> 00:06:18 prosecutors were actually independent. They passed
00:06:18 --> 00:06:20 the Ethics in Government Act to create an independent
00:06:20 --> 00:06:23 counsel with actual statutory protection. And
00:06:23 --> 00:06:26 this was upheld by the Supreme Court and Morrison
00:06:26 --> 00:06:28 v. Olson. One of the most contested opinions
00:06:28 --> 00:06:31 in administrative law history. Yeah. As I recall,
00:06:31 --> 00:06:34 the vote was seven to one. Scalia wrote the famous
00:06:34 --> 00:06:37 loan dissent and he said, this wolf comes as
00:06:37 --> 00:06:40 a wolf. He argued that an executive officer the
00:06:40 --> 00:06:44 president cannot control is fundamentally unconstitutional.
00:06:45 --> 00:06:47 Yes. And again, at the time, that was a loan
00:06:47 --> 00:06:49 dissent. But the modern court now treats Scalia's
00:06:49 --> 00:06:52 dissent almost like gospel. Morrison technically
00:06:52 --> 00:06:55 is still good law, but it's been so undermined
00:06:55 --> 00:06:57 that most people would say it's effectively overruled.
00:06:57 --> 00:06:59 And that should give you some sense of where
00:06:59 --> 00:07:01 the court is heading on presidential power. OK,
00:07:02 --> 00:07:05 so let's get back to basics then. Let's be fundamentalists
00:07:05 --> 00:07:08 for a second. What does the Constitution actually
00:07:08 --> 00:07:10 say about the president's power to remove officials?
00:07:11 --> 00:07:13 Almost nothing. Article 2 says the president
00:07:13 --> 00:07:17 has the executive power and must take care that
00:07:17 --> 00:07:20 the laws be faithfully executed. But virtually
00:07:20 --> 00:07:23 nothing on removal. Nothing at all. The closest
00:07:23 --> 00:07:26 is impeachment, but that's how Congress can remove
00:07:26 --> 00:07:29 the president, the vice president and civil officers.
00:07:29 --> 00:07:31 Nothing about how the president could remove
00:07:31 --> 00:07:34 executive branch officials. So why didn't the
00:07:34 --> 00:07:37 founders address this? They debated it, but they
00:07:37 --> 00:07:40 couldn't agree. So they just didn't resolve it.
00:07:40 --> 00:07:42 Some thought the Senate should be involved in
00:07:42 --> 00:07:44 removal because the Senate was involved in confirmation.
00:07:45 --> 00:07:47 But other people thought that the president would
00:07:47 --> 00:07:50 need unilateral removal power. So they just kicked
00:07:50 --> 00:07:52 the can down the road. Yeah, that seems like
00:07:52 --> 00:07:53 another thing that could have been in Hamilton
00:07:53 --> 00:07:56 easily. That really could have. That was like
00:07:56 --> 00:07:58 Hamilton time. So, yes, that would have been
00:07:58 --> 00:08:01 great to stick in. I mean, that seems like a
00:08:01 --> 00:08:04 pretty important thing to leave out. The first
00:08:04 --> 00:08:07 big showdown, though, didn't occur until 1926
00:08:07 --> 00:08:11 in Myers v. United States. So I'm going to have
00:08:11 --> 00:08:14 you read a section of Chief Justice Taft's opinion.
00:08:14 --> 00:08:16 And it's worth remembering that by this point,
00:08:16 --> 00:08:19 Taft had already been president. So he had very
00:08:19 --> 00:08:22 strong views on presidential power. So Taft wrote,
00:08:22 --> 00:08:25 the power of removal is incident to the power
00:08:25 --> 00:08:27 of appointment, not to the power of advising
00:08:27 --> 00:08:30 and consenting to the appointment. And when the
00:08:30 --> 00:08:32 grant of the executive power is enforced by the
00:08:32 --> 00:08:35 express mandate to take care that the laws be
00:08:35 --> 00:08:37 faithfully executed, it emphasizes the necessity
00:08:37 --> 00:08:41 for including within the executive power as conferred
00:08:41 --> 00:08:44 the exclusive power of removal. Taft is saying
00:08:44 --> 00:08:46 here that removal is inherently going to be part
00:08:46 --> 00:08:49 of the executive power. If the president can't
00:08:49 --> 00:08:51 remove officials, he can't really be the chief
00:08:51 --> 00:08:53 executive. Well, that makes sense. How can you
00:08:53 --> 00:08:56 be the boss if you can't fire people? That's
00:08:56 --> 00:08:58 certainly an argument, but there was another
00:08:58 --> 00:09:00 view. And again, this is why I couldn't agree.
00:09:01 --> 00:09:04 This is from Federalist 77, where Alexander Hamilton
00:09:04 --> 00:09:07 himself discusses this exact issue. The consent
00:09:07 --> 00:09:10 of the Senate would be necessary to displace
00:09:10 --> 00:09:13 as well as to appoint. So Hamilton definitely
00:09:13 --> 00:09:15 thought the Senate should be involved in removal
00:09:15 --> 00:09:17 as well. If they have to confirm appointments,
00:09:17 --> 00:09:20 they should confirm removals, too. So even the
00:09:20 --> 00:09:24 founders disagreed. Yes. This is why we don't
00:09:24 --> 00:09:26 have anything clear. They debated it for days.
00:09:26 --> 00:09:30 And then in the decision of 1789, they basically
00:09:30 --> 00:09:33 agreed the president had removal power, but it
00:09:33 --> 00:09:35 wasn't unanimous. And so it wasn't in the Constitution.
00:09:36 --> 00:09:38 Let me give the presidential power argument its
00:09:38 --> 00:09:40 strongest form, because I think it's important
00:09:40 --> 00:09:43 to understand why this is still a serious constitutional
00:09:43 --> 00:09:47 theory today. Yes, please do. Okay, the Constitution
00:09:47 --> 00:09:49 vests all executive power in one person, the
00:09:49 --> 00:09:53 president. Not some of it, but all of it. If
00:09:53 --> 00:09:56 someone is executing the law, making decisions,
00:09:56 --> 00:09:59 enforcing rules, imposing penalties, that is
00:09:59 --> 00:10:02 executive power. That means the president must
00:10:02 --> 00:10:05 be able to remove them. Otherwise, you have executive
00:10:05 --> 00:10:07 power being exercised by people the president
00:10:07 --> 00:10:10 can't control. And the Constitution, therefore,
00:10:10 --> 00:10:13 never allows. You can't have a fourth branch
00:10:13 --> 00:10:16 of government that's neither legislative nor
00:10:16 --> 00:10:21 judicial nor truly executive. That is the unitary
00:10:21 --> 00:10:25 executive theory. Exactly. You were hinting at
00:10:25 --> 00:10:28 it last episode, and there it is. This is exactly
00:10:28 --> 00:10:30 what the court is weighing right now in Trump
00:10:30 --> 00:10:34 v. Slaughter. Is this creating an unconstitutional
00:10:34 --> 00:10:36 fourth branch when it insulates these multi -member
00:10:36 --> 00:10:41 commissions? Or is this a reasonable compromise
00:10:41 --> 00:10:45 based on what we actually need to have a functional
00:10:45 --> 00:10:50 democracy with secure monetary policy? So when
00:10:50 --> 00:10:53 these statutes say officials can be removed for
00:10:53 --> 00:10:55 inefficiency, neglect of duty, or malfeasance
00:10:55 --> 00:10:59 in office, what does that actually mean? Those
00:10:59 --> 00:11:01 seem like pretty vague terms. They are vague
00:11:01 --> 00:11:05 and probably intentionally so. But malfeasance
00:11:05 --> 00:11:08 is the clearest. That's actual wrongdoing like
00:11:08 --> 00:11:11 crime, corruption. If the Fed chair is taking
00:11:11 --> 00:11:13 bribes from banks to set favorable rates, that
00:11:13 --> 00:11:16 would be malfeasance. Clear grounds for removal.
00:11:16 --> 00:11:18 No one would dispute that. So this is clearer
00:11:18 --> 00:11:21 than high crimes and misdemeanors. Part of the
00:11:21 --> 00:11:25 problem is that if we're thinking about impeachment.
00:11:26 --> 00:11:30 That's being decided by a group, and it's based
00:11:30 --> 00:11:32 on whatever the group thinks. Whereas here, we're
00:11:32 --> 00:11:36 dealing with a decision by the president to remove.
00:11:36 --> 00:11:38 And again, the president can remove these people.
00:11:38 --> 00:11:41 They just have to do it for cause. Okay, so what
00:11:41 --> 00:11:43 about neglect of duty? This would just be not
00:11:43 --> 00:11:45 doing your job, not showing up to work, or refusing
00:11:45 --> 00:11:48 to make decisions, abandoning your responsibilities.
00:11:49 --> 00:11:52 If a member of the board just stopped showing
00:11:52 --> 00:11:55 up to work and doing anything, that would be
00:11:55 --> 00:11:57 neglect of duty. So the referee who stops making
00:11:57 --> 00:12:01 calls in the middle of the game. Yes. So those
00:12:01 --> 00:12:04 people are pretty in agreement on. But then it
00:12:04 --> 00:12:07 starts to get tricky with inefficiency. What
00:12:07 --> 00:12:10 exactly is inefficiency? Would it be incompetence?
00:12:10 --> 00:12:13 Bad judgment? Could the president say that policy
00:12:13 --> 00:12:16 decisions he disagrees with are just inefficient?
00:12:17 --> 00:12:19 Well, that seems like a huge loophole. I mean,
00:12:19 --> 00:12:21 couldn't a president just say your policies are
00:12:21 --> 00:12:24 inefficient and fire someone? It's never really
00:12:24 --> 00:12:26 been tested in court. There were norms that had
00:12:26 --> 00:12:30 developed, but you can think of it like tenure
00:12:30 --> 00:12:33 for professors. So I'm tenured and you're my
00:12:33 --> 00:12:35 dean. Realistically, why could you fire me? For
00:12:35 --> 00:12:39 not showing up to class, plagiarizing articles,
00:12:39 --> 00:12:42 deciding to start grading with a dartboard. Yeah,
00:12:42 --> 00:12:46 so actual misconduct, not disagreement or controversy
00:12:46 --> 00:12:49 or citing too much reading. So not convincing
00:12:49 --> 00:12:52 someone to do a podcast. Fortunately. Has this
00:12:52 --> 00:12:56 ever been tested? Has a president said, I think
00:12:56 --> 00:12:57 your policy decisions constitute inefficiency?
00:12:58 --> 00:13:01 No. We came close in 2018. Trump was considering
00:13:01 --> 00:13:05 firing the Fed chair Powell over interest rate
00:13:05 --> 00:13:08 increases. And just the hint that this might
00:13:08 --> 00:13:12 happen caused the Dow to drop 350 points in minutes.
00:13:12 --> 00:13:14 So the market still enforced the norm, even if
00:13:14 --> 00:13:18 the law is unclear. The markets definitely have.
00:13:18 --> 00:13:21 The economic consequences of violating this independence
00:13:21 --> 00:13:24 would be immediate and severe. If we're allowing
00:13:24 --> 00:13:27 people to make these changes based on what politics
00:13:27 --> 00:13:30 demand, nobody's going to trust the market and
00:13:30 --> 00:13:33 the entire system will collapse. OK, so tell
00:13:33 --> 00:13:35 me about these close calls when we have presidents
00:13:35 --> 00:13:38 that have actually tested the limits of removal
00:13:38 --> 00:13:42 power. We'll start with FDR. This is 1933. He's
00:13:42 --> 00:13:45 just been elected. He's got big plans for the
00:13:45 --> 00:13:47 New Deal. And there's this federal trade commissioner
00:13:47 --> 00:13:49 named William Humphrey who's way too conservative.
00:13:49 --> 00:13:52 So could Roosevelt fire him? At that point, the
00:13:52 --> 00:13:55 FTC Act said commissioners could only be removed
00:13:55 --> 00:13:58 for cause. We read that last time. But FDR decided
00:13:58 --> 00:14:01 to test it. So he wrote Humphrey a letter. Could
00:14:01 --> 00:14:04 you read this part of it? You will, I know, realize
00:14:04 --> 00:14:06 that I do not feel that your mind and my mind
00:14:06 --> 00:14:09 go along together on either the policies or the
00:14:09 --> 00:14:11 administrating of the Federal Trade Commission.
00:14:12 --> 00:14:14 And frankly, I think it is best for the people
00:14:14 --> 00:14:16 of this country that I should have a full confidence.
00:14:17 --> 00:14:20 So here he's not even pretending there's cause.
00:14:20 --> 00:14:22 He's just saying, I'm firing you because we disagree.
00:14:23 --> 00:14:27 Well, that's surprisingly honest. It is. He thought
00:14:27 --> 00:14:29 honesty would be good enough. He thought the
00:14:29 --> 00:14:30 court would side with the presidential power.
00:14:32 --> 00:14:34 He probably also just thought Humphrey would
00:14:34 --> 00:14:37 resign. So Humphrey refused and then died while
00:14:37 --> 00:14:39 the case was pending, and his executor continued
00:14:39 --> 00:14:43 the lawsuit. Hence, Humphrey's executor. So what
00:14:43 --> 00:14:45 did the court then say? This is before the switch
00:14:45 --> 00:14:47 in time that we talked about earlier. This was
00:14:47 --> 00:14:50 a unanimous decision against FDR. The court said
00:14:50 --> 00:14:53 the FTC exercises quasi -legislative and quasi
00:14:53 --> 00:14:56 -judicial powers, not purely executive functions,
00:14:56 --> 00:14:58 and that Congress could protect commissioners
00:14:58 --> 00:15:01 from removal. Here's the key part. The authority
00:15:01 --> 00:15:04 of Congress in creating quasi -legislative or
00:15:04 --> 00:15:06 quasi -judicial agencies to require them to act
00:15:06 --> 00:15:09 and discharge their duties independently of an
00:15:09 --> 00:15:12 executive control cannot well be doubted, and
00:15:12 --> 00:15:14 the authority includes, as an appropriate incident,
00:15:14 --> 00:15:17 power to fix the period during which they shall
00:15:17 --> 00:15:19 continue in office and to forbid their removal
00:15:19 --> 00:15:22 except for cause in the meantime. For it's quite
00:15:22 --> 00:15:24 evident that one who holds his office only during
00:15:24 --> 00:15:27 the pleasure of another cannot be depended upon
00:15:27 --> 00:15:30 to maintain an attitude of independence against
00:15:30 --> 00:15:33 the latter's will. Again, by the time we heard
00:15:33 --> 00:15:35 this, this was 1935. The court was saying that
00:15:35 --> 00:15:38 agencies can be independent from the president.
00:15:38 --> 00:15:42 And not surprisingly, this made FDR furious and
00:15:42 --> 00:15:45 was part of what contributed to his war with
00:15:45 --> 00:15:48 the court and his court packing plans. OK, so
00:15:48 --> 00:15:52 what about more recent presidents? We talked
00:15:52 --> 00:15:55 about Nixon earlier, but he had also pressured
00:15:55 --> 00:15:57 the Fed chair at the time to keep interest rates
00:15:57 --> 00:16:00 low before the 1972 election. Wait, so how could
00:16:00 --> 00:16:03 he pressure Burns if he couldn't fire him? Great
00:16:03 --> 00:16:06 question. So federal governors can only be removed
00:16:06 --> 00:16:09 for cause. So he couldn't fire him, but he did
00:16:09 --> 00:16:12 have other leverage. Like what? He controlled
00:16:12 --> 00:16:14 future Fed appointments. He could publicly attack
00:16:14 --> 00:16:17 Burns, making his life miserable. And unlike
00:16:17 --> 00:16:19 with Cox, this was all behind the scenes. He
00:16:19 --> 00:16:21 actually had regular meetings with him where
00:16:21 --> 00:16:24 he would pressure him repeatedly in person. That
00:16:24 --> 00:16:28 seems really beyond the pale. It does seem inappropriate,
00:16:28 --> 00:16:32 but it worked. Burns gave in, and interest rates
00:16:32 --> 00:16:35 stayed low through the election. And Nixon won.
00:16:35 --> 00:16:39 He went in a landslide. 49 states. Wow. But...
00:16:39 --> 00:16:43 What was the consequence? Massive inflation through
00:16:43 --> 00:16:48 the 1970s. How bad? So in 1974, inflation was
00:16:48 --> 00:16:52 up to 11%. By 1980, it was almost 14%. That's
00:16:52 --> 00:16:56 devastating. It was terrible. A lot of economists
00:16:56 --> 00:16:58 blamed Burns' capitulation for some of the worst
00:16:58 --> 00:17:01 inflation in modern American history. So what
00:17:01 --> 00:17:04 about even more recent examples, like this century?
00:17:04 --> 00:17:07 We talked before about Trump's frustration with
00:17:07 --> 00:17:10 the Fed in his first term. He... was frustrated
00:17:10 --> 00:17:12 the Fed was raising interest rates. He thought
00:17:12 --> 00:17:13 it was hurting the economy and his re -election
00:17:13 --> 00:17:17 chances. And so what did he do? He started tweeting
00:17:17 --> 00:17:19 attacks on Powell, calling him an enemy of America,
00:17:20 --> 00:17:22 saying the Fed had gone crazy. Could he actually
00:17:22 --> 00:17:26 fire Powell? His advisors told him no. And the
00:17:26 --> 00:17:27 Federal Reserve Act says board members can only
00:17:27 --> 00:17:32 be removed for cause. But he wanted to. He definitely
00:17:32 --> 00:17:34 did. Reportedly, the Treasury Secretary had to
00:17:34 --> 00:17:37 talk him out of it multiple times. So how did
00:17:37 --> 00:17:40 the markets react? Every time rumors surfaced
00:17:40 --> 00:17:42 that Trump was considering this, stocks dropped.
00:17:42 --> 00:17:46 How much? December 2018 was the worst December
00:17:46 --> 00:17:49 for stocks since the Great Depression. Just from
00:17:49 --> 00:17:52 the possibility that Powell might be fired? Yes.
00:17:52 --> 00:17:54 The markets were saying, do not dare touch Fed
00:17:54 --> 00:17:58 independence. And did Trump back down? He eventually
00:17:58 --> 00:18:02 did. That's why we didn't have the cases in 2019.
00:18:02 --> 00:18:06 So, yes. The economic consequences were too severe,
00:18:06 --> 00:18:11 but never stopped criticizing Powell. So that
00:18:11 --> 00:18:15 brings us to 2020, right? It does. So in 2020,
00:18:15 --> 00:18:18 we have Celia Law v. Consumer Financial Protection
00:18:18 --> 00:18:21 Bureau. Congress had created the CFPB after the
00:18:21 --> 00:18:24 financial crisis. They created it with a single
00:18:24 --> 00:18:25 director who was supposed to serve a five -year
00:18:25 --> 00:18:29 term and could be removed only for cause. And
00:18:29 --> 00:18:32 the court said this is a problem. Because unlike
00:18:32 --> 00:18:35 the FTC, there aren't multiple commissioners,
00:18:35 --> 00:18:38 just one very powerful director. Yes, we talked
00:18:38 --> 00:18:40 about this some last time, but now we're really
00:18:40 --> 00:18:43 going into why. Chief Justice Roberts laid out
00:18:43 --> 00:18:46 why the structure made the court nervous. Can
00:18:46 --> 00:18:47 you read the part here where it's talking about
00:18:47 --> 00:18:50 why a single director was such a problem? The
00:18:50 --> 00:18:52 CFPB single director structure contravenes this
00:18:52 --> 00:18:56 carefully calibrated system by vesting significant
00:18:56 --> 00:18:59 governmental power in the hands of a single individual
00:18:59 --> 00:19:02 accountable to no one. That's the core concern.
00:19:02 --> 00:19:04 We have one person with huge authority and no
00:19:04 --> 00:19:07 real oversight. And Roberts continues, the director
00:19:07 --> 00:19:09 is neither elected by the people nor meaningfully
00:19:09 --> 00:19:12 controlled through the threat of removal by someone
00:19:12 --> 00:19:15 who is. The director does not even depend on
00:19:15 --> 00:19:19 Congress for annual appropriations. So we have
00:19:19 --> 00:19:22 no voters, no president, no Congress, no one
00:19:22 --> 00:19:25 providing Democratic accountability. Right. And
00:19:25 --> 00:19:27 then he describes what that director can do.
00:19:27 --> 00:19:30 Yet, the director may unilaterally, without meaningful
00:19:30 --> 00:19:33 supervision, issue final regulations, oversee
00:19:33 --> 00:19:36 adjudications, set enforcement priorities, initiate
00:19:36 --> 00:19:39 prosecutions, and determine what penalties to
00:19:39 --> 00:19:42 impose on private parties. This is an enormous
00:19:42 --> 00:19:46 amount of power for one unelected official. And
00:19:46 --> 00:19:48 then the opinion sums it up. It says, with no
00:19:48 --> 00:19:51 colleagues to persuade and no boss or electorate
00:19:51 --> 00:19:54 looking over her shoulder, the director may dictate
00:19:54 --> 00:19:56 and enforce policy for a vital segment of the
00:19:56 --> 00:20:00 economy affecting millions of Americans. So that
00:20:00 --> 00:20:02 line is the key. The court wasn't rejecting independence
00:20:02 --> 00:20:05 per se. It was rejecting unilateral independence
00:20:05 --> 00:20:08 by a single director. Again, they weren't saying
00:20:08 --> 00:20:11 the idea of independence was unconstitutional.
00:20:11 --> 00:20:13 At the time, they doubled down on Humphrey's
00:20:13 --> 00:20:16 executor for multi -member commissions, but they
00:20:16 --> 00:20:18 drew a bright line. A single director with four
00:20:18 --> 00:20:20 -cause protection is too much unchecked power.
00:20:21 --> 00:20:24 So up to this point, that multi -layered system
00:20:24 --> 00:20:27 has been the only thing keeping independent agencies
00:20:27 --> 00:20:31 safe. And even that is unlikely to persist for
00:20:31 --> 00:20:33 much longer. So what did the court then actually
00:20:33 --> 00:20:35 do? They severed the removal restriction. They
00:20:35 --> 00:20:39 said the CFPB can stay, but the president has
00:20:39 --> 00:20:42 to be able to remove its director at will. It
00:20:42 --> 00:20:44 kept the agency alive, but under closer executive
00:20:44 --> 00:20:47 control. At the time, Roberts described it as
00:20:47 --> 00:20:49 the most recent chapter in a serious, ongoing
00:20:49 --> 00:20:51 conversation about the constitutional structure
00:20:51 --> 00:20:54 of the executive branch. And that conversation
00:20:54 --> 00:20:57 isn't over. No, and Celia Law itself didn't even
00:20:57 --> 00:20:59 stand alone for long. Two years later, the court
00:20:59 --> 00:21:03 decided another case about a single director
00:21:03 --> 00:21:05 of an independent agency, Collins v. Yellen.
00:21:05 --> 00:21:07 That was the case about the Federal Housing Finance
00:21:07 --> 00:21:09 Agency. Did the court strike down everything
00:21:09 --> 00:21:13 the FHA had done? No. The court said the removal
00:21:13 --> 00:21:16 restriction was unconstitutional, but it also
00:21:16 --> 00:21:19 made clear that not every action by an improperly
00:21:19 --> 00:21:21 insulated director would automatically get unwound.
00:21:21 --> 00:21:24 The plaintiffs would have to show actual harm
00:21:24 --> 00:21:27 from the removal protection itself. So we're
00:21:27 --> 00:21:29 totally done with the idea of single director
00:21:29 --> 00:21:32 independent agencies. Yes. Absolutely no single
00:21:32 --> 00:21:35 director independent agencies. But if the court
00:21:35 --> 00:21:38 does strike down an agency, claiming that the
00:21:38 --> 00:21:40 structure violates the separation of powers,
00:21:40 --> 00:21:43 that will not automatically undo everything the
00:21:43 --> 00:21:46 agency has done up to that point. And importantly,
00:21:47 --> 00:21:52 as of November 2025, Humphrey's executor is still
00:21:52 --> 00:21:55 good law. We just need to have a board, not an
00:21:55 --> 00:21:58 individual. Which brings us to our present moment.
00:21:58 --> 00:22:01 It does, because Trump v. Slaughter, the case
00:22:01 --> 00:22:04 the court is going to hear next week, asks whether
00:22:04 --> 00:22:07 even the classic multi -member commissions, the
00:22:07 --> 00:22:09 one that Humphrey's executor explicitly protected,
00:22:10 --> 00:22:13 can still be independent. And the stakes here
00:22:13 --> 00:22:16 are enormous. If the court narrows or overturns
00:22:16 --> 00:22:18 Humphrey's executor, as it almost certainly will,
00:22:18 --> 00:22:21 the entire architecture of independent agencies
00:22:21 --> 00:22:24 will shift. An oral argument is happening on
00:22:24 --> 00:22:28 December 8th. So what is Trump v. Slaughter about?
00:22:28 --> 00:22:30 Earlier this year, Trump fired two members of
00:22:30 --> 00:22:32 the Federal Trade Commission, Rebecca Slaughter
00:22:32 --> 00:22:36 and Alvarado Bedoyo. They were both Democrats.
00:22:36 --> 00:22:38 He argued that the FTC's removal protections
00:22:38 --> 00:22:42 were unconstitutional under Celia Law. And Slaughter
00:22:42 --> 00:22:44 sued, saying the law still protected her from
00:22:44 --> 00:22:47 being removed without cause. And the court sides
00:22:47 --> 00:22:51 with her. So far, yes. Lower courts aren't going
00:22:51 --> 00:22:53 to have a choice. The federal district court
00:22:53 --> 00:22:56 ordered her to be reinstated and pointing out
00:22:56 --> 00:22:58 that. Humphrey's executor was still binding precedent.
00:22:59 --> 00:23:01 The D .C. Circuit agreed that the administration
00:23:01 --> 00:23:04 was unlikely to win on appeal. Again, assuming
00:23:04 --> 00:23:06 Humphrey's executor is still good precedent.
00:23:06 --> 00:23:09 Then the Supreme Court stepped in, granting certiorari
00:23:09 --> 00:23:12 before judgment and fast tracking the case. So
00:23:12 --> 00:23:14 is this the direct collision between Roosevelt's
00:23:14 --> 00:23:18 1930s case and Trump's 2020s presidency? Yes.
00:23:18 --> 00:23:21 The justices are now going to explicitly decide
00:23:21 --> 00:23:24 again whether multi -member commissioners like
00:23:24 --> 00:23:27 the FTC still deserve insulation for presidential
00:23:27 --> 00:23:30 removal or whether that violates the separation
00:23:30 --> 00:23:33 of powers. And that's a huge deal, right? Because
00:23:33 --> 00:23:35 if they strike down those protections... Yes.
00:23:35 --> 00:23:38 It changes everything. The president gains at
00:23:38 --> 00:23:42 -will removal power over potentially every independent
00:23:42 --> 00:23:44 regulator. the SEC, the Federal Reserve, the
00:23:44 --> 00:23:47 NLRB, the FCC, the Federal Energy Regulatory
00:23:47 --> 00:23:50 Commission, the entire system of referees. The
00:23:50 --> 00:23:52 entire game would look very different. It would.
00:23:53 --> 00:23:56 So supporters, people who believe in the unitary
00:23:56 --> 00:23:59 executive theory, say that this would finally
00:23:59 --> 00:24:01 restore democratic accountability. If the president
00:24:01 --> 00:24:03 is the one responsible for executing the laws,
00:24:03 --> 00:24:06 and again, no question that's what the Constitution
00:24:06 --> 00:24:09 says, he should control the people who are supposed
00:24:09 --> 00:24:11 to execute the laws under him. So everything
00:24:11 --> 00:24:13 we've discussed over these past two episodes...
00:24:13 --> 00:24:17 Is potentially on the table. If the Supreme Court
00:24:17 --> 00:24:19 says Humphrey's executor was wrong, the president
00:24:19 --> 00:24:21 needs full control, suddenly all these independent
00:24:21 --> 00:24:25 protections disappear. Or they could potentially
00:24:25 --> 00:24:27 reaffirm that some decisions still need to be
00:24:27 --> 00:24:30 insulated from political pressure. The stakes
00:24:30 --> 00:24:32 really couldn't be higher. That's why we're watching
00:24:32 --> 00:24:35 this case so closely. So next episode, we'll
00:24:35 --> 00:24:37 talk through what happened in the argument and
00:24:37 --> 00:24:39 what it could mean for the administrative state.
00:24:39 --> 00:24:41 whether we're watching the death of Humphrey's
00:24:41 --> 00:24:44 executor or if some independents may still hold
00:24:44 --> 00:24:47 on by a thread. Right. The justices repeatedly
00:24:47 --> 00:24:50 said they think the Fed is different, likely
00:24:50 --> 00:24:52 because of the concern that we've been reiterating
00:24:52 --> 00:24:55 over these two episodes. So that might be the
00:24:55 --> 00:24:59 only independent entity left standing. So on
00:24:59 --> 00:25:01 the next episode, we'll be talking through the
00:25:01 --> 00:25:05 case. After that, we will move on to the major
00:25:05 --> 00:25:08 questions doctrine. So that does it for today's
00:25:08 --> 00:25:10 episode on administrative remedies. Thank you
00:25:10 --> 00:25:13 for joining us today. Please, if you enjoy this
00:25:13 --> 00:25:15 podcast and enjoy this episode, give us a like
00:25:15 --> 00:25:19 on Spotify, iTunes, or whatever platform you're
00:25:19 --> 00:25:21 listening on. And be sure to tune in next time
00:25:21 --> 00:25:23 where we'll continue to dive into the contours
00:25:23 --> 00:25:26 of administrative law, because remember, you
00:25:26 --> 00:25:27 can't fix what you don't understand.