In this episode, Gwen and Marc break down the Supreme Court’s oral argument in Trump v. Slaughter, the case that could upend nearly a century of precedent on independent agencies. Building on Part 1’s explanation of how the case reached the Court, this episode examines what happened in the courtroom: the justices’ questions, the strategies on both sides, and the constitutional stakes that hovered over every exchange.
They walk through the Solicitor General’s forceful attack on Humphrey’s Executor, including his description of the precedent as a “decaying husk,” and the Court’s repeated efforts to understand where the limits of the unitary executive theory might lie. Gwen and Marc explore sharp exchanges with Justices Kagan, Sotomayor, Jackson, Barrett, Roberts, Gorsuch, and Alito, from concerns about the scope of executive power to whether any multi-member commission could survive under the government’s theory.
They also examine what a ruling for Trump could mean in practice — from immediate at-will removal of commissioners to the ripple effects on agencies like the FTC, SEC, NLRB, and the Federal Reserve. Finally, they offer a grounded reading of where the Court seems headed and why even the “narrow” options would still reshape the administrative state.
This concludes their two-part series on Trump v. Slaughter. When the decision comes down, they will return with a follow-up episode analyzing the Court’s holding and its implications.
⭐ What They Cover in This Episode
- The Solicitor General’s argument for overruling Humphrey’s Executor
- Why the government describes independent agencies as constitutionally incompatible
- The justices’ concerns about where the unitary executive theory stops
- Sotomayor’s “for now, for now” challenge
- Kagan’s slippery-slope questions
- Gorsuch’s nondelegation angle and the “wolf comes as a wolf” moment
- Barrett and Roberts exploring “narrower” paths
- The debate over single-director vs. multi-member agencies
- How a ruling could affect the FTC, SEC, NLRB, Fed, and beyond
- The range of possible outcomes and what seems most likely
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 --> 00:00:51 this series. Welcome back. In the last episode,
00:00:51 --> 00:00:53 we gave the background to Trump v. Slaughter,
00:00:53 --> 00:00:55 and now we are getting into the oral argument.
00:00:55 --> 00:00:57 Let's get into deep into what happened in the
00:00:57 --> 00:01:00 courtroom. This argument went on for over two
00:01:00 --> 00:01:04 hours. It was long. People had very big feelings
00:01:04 --> 00:01:07 about it. The Solicitor General started by calling
00:01:07 --> 00:01:10 Humphrey's executor a decaying husk with bold
00:01:10 --> 00:01:13 and particularly dangerous pretensions. A decaying
00:01:13 --> 00:01:17 husk. That's not usually the way you describe
00:01:17 --> 00:01:20 precedent that you just merely want to distinguish.
00:01:20 --> 00:01:22 This is how you describe something you want dead
00:01:22 --> 00:01:25 and buried. That is absolutely what he wants
00:01:25 --> 00:01:27 here. He said this was grievously wrong when
00:01:27 --> 00:01:29 it was decided and wants it overruled outright.
00:01:30 --> 00:01:33 So we're not in the respectfully this case should
00:01:33 --> 00:01:36 be limited to the facts territory. No, the court
00:01:36 --> 00:01:38 could still go that route, but that is not what
00:01:38 --> 00:01:40 he's pushing for. The justice has also kept circling
00:01:40 --> 00:01:44 back to one question. Which is, if you buy this
00:01:44 --> 00:01:47 idea, where does it end? Basically, the slippery
00:01:47 --> 00:01:50 slope question. Yes. Here may be the slippery
00:01:50 --> 00:01:53 cliff. Kagan put it directly. She said that this
00:01:53 --> 00:01:55 entire brief is built on the idea that the vesting
00:01:55 --> 00:01:58 clause gives all executive power to the president
00:01:58 --> 00:02:02 and said, OK, if I accept that, then it's a bit
00:02:02 --> 00:02:06 hard to see how you stop. He kept saying, theoretically,
00:02:06 --> 00:02:07 it could be limited. They didn't need to decide
00:02:07 --> 00:02:09 stuff. But everybody knows what's really on the
00:02:09 --> 00:02:12 table here. Kagan tried to lay it out for everybody.
00:02:12 --> 00:02:15 She went through category after category, and
00:02:15 --> 00:02:19 in none of them did he say that he didn't think
00:02:19 --> 00:02:22 that would fall if Humphreys fell. This is essentially
00:02:22 --> 00:02:28 him conceding this is what the real game is after,
00:02:28 --> 00:02:33 and there is no end point, which indicates he's
00:02:33 --> 00:02:35 pretty confident he knows where we're headed.
00:02:35 --> 00:02:38 Let's talk about the liberal justices for a second.
00:02:38 --> 00:02:41 The three of them, were they all pushing basically
00:02:41 --> 00:02:44 in the same direction? They're all trying to
00:02:44 --> 00:02:46 preserve functional government as we know it.
00:02:48 --> 00:02:50 That's clearly a sinking ship at this point.
00:02:50 --> 00:02:53 And speaking of that, Sotomayor pointed to the
00:02:53 --> 00:02:56 sinking funds and the War Claims Commission,
00:02:56 --> 00:02:58 stuff that we'd already talked about. This case
00:02:58 --> 00:03:02 really has brought out some, what did you say
00:03:02 --> 00:03:04 before, deep feelings because we have the Solicitor
00:03:04 --> 00:03:08 General describing Humphrey's executor as the
00:03:08 --> 00:03:13 decaying husk of a president, whereas Sotomayor
00:03:13 --> 00:03:17 is saying that if we accept the government's
00:03:17 --> 00:03:20 position, we're essentially destroying the entire
00:03:20 --> 00:03:23 structure of government. The court will definitely
00:03:23 --> 00:03:26 try to find some sort of middle ground, but...
00:03:26 --> 00:03:29 We are headed into a brave new world of administrative
00:03:29 --> 00:03:33 law here. Were there any examples that were given
00:03:33 --> 00:03:36 as to why this might be the case? You mean why
00:03:36 --> 00:03:38 this destroys all government? Yeah. Why this
00:03:38 --> 00:03:41 destroys all government? There are part of the
00:03:41 --> 00:03:43 problem with CELA. I don't know how you can say
00:03:43 --> 00:03:47 it so easily. CELA is that it hadn't been in
00:03:47 --> 00:03:50 existence for very long. So when it switched
00:03:50 --> 00:03:53 to exclusively being an executive agency, the
00:03:53 --> 00:03:56 sky didn't come falling down. And it is almost
00:03:56 --> 00:03:58 certainly not doing the kind of probing work
00:03:58 --> 00:04:00 it would have done if it had remained independent.
00:04:00 --> 00:04:04 But that's like people living on the edges of
00:04:04 --> 00:04:06 poverty are taking out higher interest payday
00:04:06 --> 00:04:09 loans kind of thing. It's not necessarily obvious
00:04:09 --> 00:04:12 to everybody what the problems are. Whereas now
00:04:12 --> 00:04:15 we have all sorts of massive agencies that control
00:04:15 --> 00:04:18 huge parts of the economy. And this will be catastrophic
00:04:18 --> 00:04:21 if these all become executive agencies. What
00:04:21 --> 00:04:24 about Justice Jackson? But she's coming at it
00:04:24 --> 00:04:27 from a different angle. Her question is, why
00:04:27 --> 00:04:29 does the president's desire for control trump
00:04:29 --> 00:04:31 Congress's judgment that some things should be
00:04:31 --> 00:04:34 handled by experts? That's the expertise argument
00:04:34 --> 00:04:36 we've been talking about over and over again.
00:04:36 --> 00:04:38 Yes, she's trying to make it really clear. So
00:04:38 --> 00:04:40 she talks about a danger of the president coming
00:04:40 --> 00:04:42 in and firing all the scientists and doctors
00:04:42 --> 00:04:45 and economists and PhDs and replacing them with
00:04:45 --> 00:04:47 loyalists and people who don't know anything.
00:04:48 --> 00:04:51 That's pretty. powerful given our current experience
00:04:51 --> 00:04:56 in the CDC. It is. But she wasn't done. She noted
00:04:56 --> 00:04:59 that Congress establishes the agencies and funds
00:04:59 --> 00:05:02 them and can eliminate them if they want to.
00:05:02 --> 00:05:04 So this idea that they don't answer to anybody
00:05:04 --> 00:05:07 didn't really fly with her. OK. What was Sauer's
00:05:07 --> 00:05:10 response? He said that that's the problem. If
00:05:10 --> 00:05:12 there's any way that Congress can control these,
00:05:12 --> 00:05:15 we don't have this true executive control that
00:05:15 --> 00:05:19 the Constitution requires. So his answer is these
00:05:19 --> 00:05:22 agencies answer to Congress, yes, but that's
00:05:22 --> 00:05:25 unconstitutional. One thing you can definitely
00:05:25 --> 00:05:27 say about the unitary executive theory is that
00:05:27 --> 00:05:30 you can be super consistent with it. And just
00:05:30 --> 00:05:35 kind of as a side note, I mean, other non -Republican
00:05:35 --> 00:05:39 administrations have argued the unitary executive
00:05:39 --> 00:05:43 theory, right? Yes, they have. Kagan talked about
00:05:43 --> 00:05:45 it. I know. She'd authored an article that was
00:05:45 --> 00:05:48 in favor of the unitary executive theory. And
00:05:48 --> 00:05:51 what she was trying to say is, well, when people
00:05:51 --> 00:05:53 first started pushing this, we didn't know nearly
00:05:53 --> 00:05:55 as much about what was going on at the founding
00:05:55 --> 00:05:58 as we do now. And now that we know about stuff
00:05:58 --> 00:06:00 like the sinking fund, we should be much more
00:06:00 --> 00:06:02 wary of believing that the founders would have
00:06:02 --> 00:06:05 wanted all power in the executive. So what about
00:06:05 --> 00:06:07 the other conservative justices? Were they all
00:06:07 --> 00:06:09 buying what Sauer was selling? There were a few
00:06:09 --> 00:06:12 divisions. Robert seemed to be looking for a
00:06:12 --> 00:06:15 narrow path, not terribly surprisingly. His questions
00:06:15 --> 00:06:17 were focused on whether the FTC of 2025 looks
00:06:17 --> 00:06:20 like the agency that Humphrey's executor described
00:06:20 --> 00:06:25 in 1935. Because the FTC has changed a lot? Yes,
00:06:25 --> 00:06:29 massively. So back then, it really was a much
00:06:29 --> 00:06:32 smaller body that was investigating trade practices.
00:06:32 --> 00:06:35 Now it's bringing enforcement actions. These
00:06:35 --> 00:06:38 actions are seeking huge penalties. It's doing
00:06:38 --> 00:06:41 rulemaking. He seemed to be asking, can we just
00:06:41 --> 00:06:43 rule against slaughter without having to overrule
00:06:43 --> 00:06:46 Humphreys and just say that whatever Humphreys
00:06:46 --> 00:06:48 protected, this is not the FTC now. Keep the
00:06:48 --> 00:06:52 precedent technically alive, but really defang
00:06:52 --> 00:06:55 it. Yes, that's one way to read it. Barrett also
00:06:55 --> 00:06:57 seemed interested in narrower grounds. She asked
00:06:57 --> 00:07:00 whether the court needed to identify exactly
00:07:00 --> 00:07:03 where this presidential removal power came from.
00:07:03 --> 00:07:08 Could they just? not be specific. Yeah. Can we
00:07:08 --> 00:07:10 just leave it fuzzy in the Constitution, which
00:07:10 --> 00:07:15 seems like a very peculiar argument for jurists
00:07:15 --> 00:07:18 that pride themselves on originalism? It does.
00:07:19 --> 00:07:21 There's so many interesting things coming up
00:07:21 --> 00:07:23 right now. Then Gorsuch brought up something
00:07:23 --> 00:07:24 that should sound familiar, the non -delegation
00:07:24 --> 00:07:29 doctrine. Gorsuch's point was Congress has delegated
00:07:29 --> 00:07:31 huge lawmaking authority to these agencies. The
00:07:31 --> 00:07:34 court hasn't really reined that in. So if these
00:07:34 --> 00:07:36 agencies are to keep making law, shouldn't they
00:07:36 --> 00:07:38 at least be accountable to someone the voters
00:07:38 --> 00:07:42 elected? That's a different flavor of concern
00:07:42 --> 00:07:44 than what the other justices had represented.
00:07:44 --> 00:07:47 It is. And it's kind of coming to the issue that's
00:07:47 --> 00:07:49 going to happen if we move what had been independent
00:07:49 --> 00:07:53 agencies into the executive branch. This is power
00:07:53 --> 00:07:56 that. It does seem likely Congress did not intend
00:07:56 --> 00:07:59 to delegate entirely to the executive. You get
00:07:59 --> 00:08:02 this interesting moment in the argument where
00:08:02 --> 00:08:05 Sauer mentioned Justice Scalia's famous line
00:08:05 --> 00:08:08 from Morrison, this wolf comes as a wolf. And
00:08:08 --> 00:08:10 then Gorsuch said there are a lot of wolves around
00:08:10 --> 00:08:14 here. And Sauer responded that this particular
00:08:14 --> 00:08:18 wolf is Fenrir. I'm sorry, Fenrir? The giant
00:08:18 --> 00:08:21 wolf from Norse mythology who will devour Odin
00:08:21 --> 00:08:25 during Ragnarok. So the Solicitor General was
00:08:25 --> 00:08:28 comparing independent agencies to an apocalyptic
00:08:28 --> 00:08:32 wolf god. He was. He's saying that, yes, there
00:08:32 --> 00:08:34 are lots of wolves we're going to be taking down,
00:08:34 --> 00:08:36 but this is the biggest, baddest one that we
00:08:36 --> 00:08:39 should attack first. How did Slaughter's lawyers
00:08:39 --> 00:08:42 do? Her lawyer made smart moves. He had clerked
00:08:42 --> 00:08:44 for two of the conservative justices, so he knew
00:08:44 --> 00:08:48 his audience. And he conceded that CLA law, look
00:08:48 --> 00:08:51 how easily that flowed that time, that CFPB case.
00:08:51 --> 00:08:54 that that was correctly decided. Well, that's
00:08:54 --> 00:08:57 a pretty big concession. It certainly is a strategic
00:08:57 --> 00:09:00 one. It's giving him some credibility. But it's
00:09:00 --> 00:09:02 hard to imagine anybody realistically getting
00:09:02 --> 00:09:04 up there and saying that CELA was wrongly decided,
00:09:04 --> 00:09:05 because that is definitely not the direction
00:09:05 --> 00:09:09 the court's headed in. So his line was, we are
00:09:09 --> 00:09:11 asking the court to adhere to all of its precedent.
00:09:12 --> 00:09:14 Petitioners are asking you to abandon precedent
00:09:14 --> 00:09:17 after precedent after precedent. Did that resonate?
00:09:18 --> 00:09:21 I think that would have resonated. A lot more
00:09:21 --> 00:09:24 five years ago. I don't know if that really means
00:09:24 --> 00:09:27 much to the court now. He made some practical
00:09:27 --> 00:09:30 arguments that seemed to land with some justices.
00:09:30 --> 00:09:32 He pointed out that if the government's theory
00:09:32 --> 00:09:34 is right, every president can come in and clean
00:09:34 --> 00:09:37 house, which we would expect them to do. They
00:09:37 --> 00:09:38 can fire all the commissioners. They can replace
00:09:38 --> 00:09:41 them with loyalists. We're going to have constant
00:09:41 --> 00:09:43 flip -flop. Which is very different from the
00:09:43 --> 00:09:45 Chevron flip -flopping we've already talked about.
00:09:45 --> 00:09:48 Yes. Chevron was incredibly problematic and we
00:09:48 --> 00:09:50 needed to destabilize the administrative state
00:09:50 --> 00:09:55 in order to fix it. And now we need to destabilize
00:09:55 --> 00:09:57 the administrative state even more to enable
00:09:57 --> 00:09:59 more flip -flopping. The regulatory whiplash
00:09:59 --> 00:10:02 is going to be even worse. You listened to the
00:10:02 --> 00:10:03 whole thing. Where did you think it was headed?
00:10:04 --> 00:10:06 But I really felt like there were justices that
00:10:06 --> 00:10:08 it's very clear where they were going to land.
00:10:08 --> 00:10:12 I thought Kavanaugh and Alito are very clearly
00:10:12 --> 00:10:16 on the government side and will... rule for the
00:10:16 --> 00:10:18 government and give the maximum amount of authority.
00:10:18 --> 00:10:21 I thought that the three liberal justices very
00:10:21 --> 00:10:26 clearly are in favor of upholding Humphrey's
00:10:26 --> 00:10:30 executor. And I really felt like the other four
00:10:30 --> 00:10:35 justices, Gorsuch, Roberts, Barrett, and even
00:10:35 --> 00:10:38 Thomas, Thomas's initial questioning did not
00:10:38 --> 00:10:42 tip me off that he was necessarily going to be
00:10:42 --> 00:10:46 as pro - executive as I think our instincts all
00:10:46 --> 00:10:48 suggest that he will be. And the administration
00:10:48 --> 00:10:52 will win. The question is just how narrow the
00:10:52 --> 00:10:54 holding is going to be. I think the three most
00:10:54 --> 00:10:59 conservative would absolutely just overturn this.
00:10:59 --> 00:11:04 There is no such thing. But I think that the
00:11:04 --> 00:11:08 overriding concern among most people there is.
00:11:08 --> 00:11:11 We do not want to lose the Fed. We cannot let
00:11:11 --> 00:11:15 Trump run the Fed. So it's really hard to say.
00:11:15 --> 00:11:20 This theory says that anything other than direct
00:11:20 --> 00:11:23 control is unconstitutional, except for where
00:11:23 --> 00:11:26 it would be super bad. And then we'll make an
00:11:26 --> 00:11:29 exception. I think in order to avoid having to
00:11:29 --> 00:11:32 say that, it will do a narrower decision. It'll
00:11:32 --> 00:11:35 just be like, all we need to decide is whether
00:11:35 --> 00:11:40 the FTC. of today is different from the FTC when
00:11:40 --> 00:11:44 Humphreys was decided. It is. We're done. She
00:11:44 --> 00:11:49 can be dismissed. The question isn't just, is
00:11:49 --> 00:11:53 the FTC unconstitutional? They know this applies
00:11:53 --> 00:11:56 to functionally every independent agency. I just
00:11:56 --> 00:11:58 don't think they'll necessarily go and say that
00:11:58 --> 00:12:01 right now. So no question then that the government
00:12:01 --> 00:12:03 is going to win. Just the question is how big?
00:12:04 --> 00:12:06 Yes. That's all this comes down to right now.
00:12:07 --> 00:12:10 Why are you so confident? We can certainly start
00:12:10 --> 00:12:12 with the fact that they took the case before
00:12:12 --> 00:12:15 the D .C. Circuit had decided. They understand
00:12:15 --> 00:12:17 that under their precedent, the D .C. Circuit
00:12:17 --> 00:12:19 will be upholding Humphreys and they don't need
00:12:19 --> 00:12:22 to see how that happens. Everybody, I think,
00:12:22 --> 00:12:24 knows that it's going to fall. The question is
00:12:24 --> 00:12:27 just how narrow do we keep the ruling? OK, so
00:12:27 --> 00:12:30 that's telling, right? Yes. There are some other
00:12:30 --> 00:12:32 issues that are importantly really on the table
00:12:32 --> 00:12:36 right now. If we get rid of every... independent
00:12:36 --> 00:12:39 agency, some of them really do just do pretty
00:12:39 --> 00:12:42 adjudicatory functions. And if the president
00:12:42 --> 00:12:45 gains control over those, that will be really
00:12:45 --> 00:12:48 problematic. There's levels of problems, but
00:12:48 --> 00:12:51 that's definitely partway up the ladder. So let's
00:12:51 --> 00:12:53 talk about these outcomes. Give me the menu.
00:12:53 --> 00:12:55 What are the possibilities that we're looking
00:12:55 --> 00:12:58 at? All right. Option one. This is the full Monty.
00:12:58 --> 00:13:01 Humphreys is overruled. Forecause removal protections
00:13:01 --> 00:13:04 for any agency head exercising executive power
00:13:04 --> 00:13:07 is unconstitutional. That would hit every multi
00:13:07 --> 00:13:10 -member independent agency. Yes, all of them.
00:13:10 --> 00:13:13 The FTC, the SEC, the NLRB, the Nuclear Regulatory
00:13:13 --> 00:13:17 Commission, the FEC, all the acronyms. Okay.
00:13:17 --> 00:13:20 All right. So aside from administrative Armageddon,
00:13:20 --> 00:13:25 let's see what option two is. This we could call
00:13:25 --> 00:13:29 the Roberts special. They say that whatever Humphrey's
00:13:29 --> 00:13:32 protected, the FTC doesn't qualify for. He was
00:13:32 --> 00:13:36 kind of probing this in his questions. The 1935
00:13:36 --> 00:13:39 FTC might have been some sort of quasi -judicial
00:13:39 --> 00:13:43 body, but the 2025 FTC is an enforcement machine.
00:13:44 --> 00:13:47 Humphreys could survive in theory, but this FTC
00:13:47 --> 00:13:49 would fall out of it. It's like the airline saying
00:13:49 --> 00:13:52 your boarding pass is still valid, just not for
00:13:52 --> 00:13:55 any actual flight that you're going to take this
00:13:55 --> 00:13:57 year. Yes, but you'll only find that out by going
00:13:57 --> 00:14:00 up to counter after counter and asking whether
00:14:00 --> 00:14:04 it works there. Basically... Does this boarding
00:14:04 --> 00:14:06 pass work at the SEC? Does it work at the FTC?
00:14:07 --> 00:14:10 Does the SEC function like the new FTC? It really
00:14:10 --> 00:14:12 raises a very factual question on all these agencies.
00:14:13 --> 00:14:15 Yep. We litigate it agency by agency. That does
00:14:15 --> 00:14:18 make it really easy to keep the Fed. Okay. But
00:14:18 --> 00:14:21 it means that this is going to be a really slow,
00:14:21 --> 00:14:24 painful process. And lots of uncertainty. Yes.
00:14:25 --> 00:14:27 Uncertainty as far as the eye can see. Okay.
00:14:27 --> 00:14:29 Option three then. We could potentially do some
00:14:29 --> 00:14:33 sort of balancing test. There was some talk about
00:14:33 --> 00:14:36 what was a core presidential power. So maybe
00:14:36 --> 00:14:38 there could still be something that survives
00:14:38 --> 00:14:41 as an independent agency. Is this part of the
00:14:41 --> 00:14:44 severance discussion that the justices were having?
00:14:44 --> 00:14:47 There's some issues, though, because almost every
00:14:47 --> 00:14:50 agency does something that everybody would agree
00:14:50 --> 00:14:52 is executive. This is why when we were talking
00:14:52 --> 00:14:55 about Humphreys the first time, we said, yeah,
00:14:55 --> 00:14:57 they're saying quasi -legislative, quasi -adjudicatory,
00:14:57 --> 00:15:00 but everybody would put it in the executive branch.
00:15:00 --> 00:15:02 Does this get any traction with the justices?
00:15:02 --> 00:15:07 I really don't think so. This is, again, it means
00:15:07 --> 00:15:10 it's easy to save the Fed. So that option alone
00:15:10 --> 00:15:13 means it's potentially on the table. But it's
00:15:13 --> 00:15:18 a lot harder to find something based on the unitary
00:15:18 --> 00:15:20 executive theory, which again argues that. All
00:15:20 --> 00:15:23 power must be vested in the president when you're
00:15:23 --> 00:15:25 saying, well, we're going to take it on a case
00:15:25 --> 00:15:28 by case basis. Now it gets awkward, right? Because
00:15:28 --> 00:15:30 removal restrictions then are unconstitutional,
00:15:30 --> 00:15:33 except when we like them. Yes. And Kagan pointed
00:15:33 --> 00:15:36 that out. This is very intellectually wobbly.
00:15:36 --> 00:15:39 But sometimes courts do wobbly things if the
00:15:39 --> 00:15:42 stakes are high enough and stakes can be high
00:15:42 --> 00:15:45 here. And even the narrow option isn't really
00:15:45 --> 00:15:48 all that narrow. It's not. It doesn't necessarily
00:15:48 --> 00:15:50 matter whether you're knocking down a building
00:15:50 --> 00:15:52 with a wrecking ball or if you're taking it apart
00:15:52 --> 00:15:54 brick by brick. You're still ending up with a
00:15:54 --> 00:15:57 pile of rubble. The middle route just looks a
00:15:57 --> 00:15:59 little tidier while the demolition is happening.
00:16:00 --> 00:16:04 Let's talk about this as something related to
00:16:04 --> 00:16:06 literature. Maybe one of the things that we could
00:16:06 --> 00:16:09 start thinking about is a new kind of term, naked
00:16:09 --> 00:16:12 governance. That is essentially what the Trump
00:16:12 --> 00:16:14 administration is after. They are after a power
00:16:14 --> 00:16:17 that is stripped away from any form of governance.
00:16:18 --> 00:16:21 If you remember from your childhood nursery tales,
00:16:21 --> 00:16:24 Hans Christian Andersen's The Emperor's New Clothes,
00:16:24 --> 00:16:26 the emperor was bamboozled by someone who sold
00:16:26 --> 00:16:29 him clothes that were non -existent. The outcome
00:16:29 --> 00:16:33 was an emperor parading nakedly around town while
00:16:33 --> 00:16:36 the public guffawed over his new clothes, not
00:16:36 --> 00:16:38 because the clothes were there, but rather because
00:16:38 --> 00:16:41 the pretense of power was there to support the
00:16:41 --> 00:16:43 emperor's fictitious belief that he was actually
00:16:43 --> 00:16:47 clothed. So in Trump v. Kelly, the solicitor
00:16:47 --> 00:16:49 general is the clothesmaker who's trying to convince
00:16:49 --> 00:16:53 the court to pretend that this is anything other
00:16:53 --> 00:16:55 than naked governance. Is that a fair analogy?
00:16:56 --> 00:16:59 I think it's a good way to think about it. This
00:16:59 --> 00:17:03 is definitely a pretty naked power grab. And
00:17:03 --> 00:17:05 we could potentially say that the court is trying
00:17:05 --> 00:17:08 to cloak it in the finest constitutional garments.
00:17:08 --> 00:17:12 But the difference is that in the emperor's new
00:17:12 --> 00:17:15 clothes, the emperor himself doesn't know what's
00:17:15 --> 00:17:18 happening. And here, I think everybody knows
00:17:18 --> 00:17:21 full well what's on the table. Okay. So let's
00:17:21 --> 00:17:23 see if we got this. Two episodes ago, we explained
00:17:23 --> 00:17:27 why independent agencies exist. We used the Odysseus
00:17:27 --> 00:17:29 analogy, the need for expertise and stability,
00:17:30 --> 00:17:32 the dangers of short -term political thinking.
00:17:32 --> 00:17:35 Right. And then last episode, we explained the
00:17:35 --> 00:17:38 Constitutional Foundation and what for cause
00:17:38 --> 00:17:41 means, looking at Humphrey's executor, Myers,
00:17:41 --> 00:17:43 the ongoing tension between presidential power
00:17:43 --> 00:17:46 and congressional structure. Yes. And so now
00:17:46 --> 00:17:49 the Supreme Court is deciding. whether any of
00:17:49 --> 00:17:52 that was constitutional in the first place. Yep,
00:17:52 --> 00:17:55 that sounds right. I feel like the last two episodes
00:17:55 --> 00:17:57 were the prequel, and now we're finally at the
00:17:57 --> 00:18:00 battle scene at the end of our trilogy. We are,
00:18:00 --> 00:18:02 and the court is holding the lightsabers. Trump
00:18:02 --> 00:18:05 v. Slaughter is the culmination of most of what
00:18:05 --> 00:18:08 we've discussed up to this point. If the court
00:18:08 --> 00:18:10 sides with Trump, and it will, at least to some
00:18:10 --> 00:18:13 extent, the entire architecture of independent
00:18:13 --> 00:18:15 agency changes overnight. I don't even think
00:18:15 --> 00:18:17 we need to talk about the possibility they could...
00:18:18 --> 00:18:20 side with slaughter, really. So then when will
00:18:20 --> 00:18:23 we know? Probably a few months. This is moving
00:18:23 --> 00:18:25 quickly, but I don't think it'll come out as
00:18:25 --> 00:18:29 fast as the tariff will. So spring -ish, I don't
00:18:29 --> 00:18:31 think this is going to be dropping the last day
00:18:31 --> 00:18:35 of the term. But when it does, we'll address
00:18:35 --> 00:18:37 it. And we'll have a new episode about it. We
00:18:37 --> 00:18:39 will. It'll almost be like a choose -your -own
00:18:39 --> 00:18:42 -adventure kind of book, except we know exactly
00:18:42 --> 00:18:45 where the pathway is leading. Next episode, we're
00:18:45 --> 00:18:46 going to be shifting gears. We're going to start
00:18:46 --> 00:18:49 talking about some of the major doctrines that
00:18:49 --> 00:18:53 define rulemaking. We will be talking about the
00:18:53 --> 00:18:55 major questions doctrine. And then after that,
00:18:55 --> 00:19:00 Chevron, Skidmore, Loper Bright, and Corner Post.
00:19:00 --> 00:19:02 For Administrative Remedies, I'm Mark Rourke.
00:19:03 --> 00:19:07 And I'm Gwen Savitz. So that does it for today's
00:19:07 --> 00:19:09 episode on Administrative Remedies. Thank you
00:19:09 --> 00:19:12 for joining us today. Please, if you enjoy this
00:19:12 --> 00:19:15 podcast, enjoy this episode, give us a like on
00:19:15 --> 00:19:18 Spotify, iTunes, or whatever platform you're
00:19:18 --> 00:19:21 listening on. And be sure to tune in next time
00:19:21 --> 00:19:23 where we'll continue to dive into the contours
00:19:23 --> 00:19:25 of administrative law. Because remember, you
00:19:25 --> 00:19:27 can't fix what you don't understand.