Trump v. Slaughter, Part 1: How We Got Here
In this episode, Gwen and Marc explore the road leading to Trump v. Slaughter, the Supreme Court case that places the very existence of independent agencies under constitutional scrutiny. After two episodes explaining why independent agencies exist and how they function, they turn to the core question now before the Court: can Congress insulate agency officials from at-will presidential removal?
They walk through the events that brought this case to the Supreme Court, beginning with President Trump’s Inauguration Day decision to remove FTC Commissioner Rebecca Kelly Slaughter—an action taken without any allegation of misconduct and in tension with long-standing precedent from Humphrey’s Executor. They explain how the lower courts responded, why the Supreme Court took the case early, and what is at stake for agencies like the FTC, SEC, NLRB, and even the Federal Reserve.
Along the way, Gwen and Marc revisit key administrative law cases, foundational constitutional theories, and the structural arguments both sides bring to the table. This episode takes listeners from the historical background and statutory framework all the way to the moment oral arguments begin.
This is Part 1 of a two-episode series. Part 2 covers the oral argument itself, the justices’ questions, and the potential outcomes the Court is weighing.
What They Cover in This Episode
- The statutory and constitutional background of independent agencies
- What happened on Inauguration Day and why it mattered
- Humphrey’s Executor and 90 years of precedent
- The district court and D.C. Circuit rulings
- Why the Supreme Court took the case before judgment
- Trump’s argument under Article II and the unitary executive theory
- Slaughter’s argument grounded in history, structure, and congressional design
- How multi-member commissions differ from single-director agencies
- What’s at stake for the modern administrative state
- The framework for understanding the oral argument in Part 2
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 --> 00:00:49 this series. We spent two episodes explaining
00:00:49 --> 00:00:51 why independent agencies exist and how they work.
00:00:52 --> 00:00:55 Now we're going to talk about whether the court
00:00:55 --> 00:00:58 will decide they are still constitutional. That's
00:00:58 --> 00:01:02 a pretty big question. It is. This case really
00:01:02 --> 00:01:04 isn't just about one commissioner at one agency.
00:01:05 --> 00:01:08 At stake are dozens of agencies, the Fed, the
00:01:08 --> 00:01:12 FCC, the SEC, the NLRB, asking whether any of
00:01:12 --> 00:01:14 them can continue to exist in their current form.
00:01:14 --> 00:01:17 So what happened to get us here? On Inauguration
00:01:17 --> 00:01:21 Day, Trump fires the FTC commissioner, Rebecca
00:01:21 --> 00:01:24 Slaughter. He didn't attempt to say there was
00:01:24 --> 00:01:27 a cause. It was just, nope, you're out. But the
00:01:27 --> 00:01:29 last episode, we talked about Humphrey's executor
00:01:29 --> 00:01:33 and the 1935 case that said that. Congress can
00:01:33 --> 00:01:36 protect the FTC commissioners from exactly that
00:01:36 --> 00:01:38 kind of removal. Yeah. Isn't that interesting?
00:01:38 --> 00:01:42 This is the exact agency that was at issue in
00:01:42 --> 00:01:45 Humphrey's executor. And yet here we are. For
00:01:45 --> 00:01:48 90 years, this precedent stood. This is what
00:01:48 --> 00:01:51 has formed one of the backbones of the administrative
00:01:51 --> 00:01:53 state. Presidents have grumbled about it, but
00:01:53 --> 00:01:56 it's been the law. Slaughter sued saying that
00:01:56 --> 00:01:59 he didn't have the right to fire her. And under
00:01:59 --> 00:02:02 the statute, he doesn't have the right to fire
00:02:02 --> 00:02:06 her. So the court's deciding whether Humphreys
00:02:06 --> 00:02:09 has been right for 90 years or whether we've
00:02:09 --> 00:02:14 been living under a incorrect premise of administrative
00:02:14 --> 00:02:18 power. Yes. Remember that Odysseus analogy from
00:02:18 --> 00:02:20 episode six? That's where Congress ties the president
00:02:20 --> 00:02:23 to the mast so he can't steer towards the sirens
00:02:23 --> 00:02:26 of short -term politics. But Trump's argument
00:02:26 --> 00:02:28 here is that... Congress is just not allowed
00:02:28 --> 00:02:32 to tie Odysseus to the mast. This forbids Congress
00:02:32 --> 00:02:34 from restraining the president in any way. And
00:02:34 --> 00:02:37 if he wins, all the ropes come off, potentially
00:02:37 --> 00:02:41 not just for the FTC, but again, for every independent
00:02:41 --> 00:02:44 agency. All those agencies that we talked about,
00:02:44 --> 00:02:46 the architecture, the fixed terms, the bipartisan
00:02:46 --> 00:02:49 requirements, the four cause removal protections,
00:02:49 --> 00:02:52 all of that would change. Yes, all of it. We're
00:02:52 --> 00:02:54 going to talk about both sides of the argument
00:02:54 --> 00:02:57 and then. what the stakes are before we talk
00:02:57 --> 00:02:59 about what actually happened at Oral Argument.
00:03:00 --> 00:03:02 So let's start with the basic facts. Who is Rebecca
00:03:02 --> 00:03:05 Kelly Slaughter? She was an FTC commissioner.
00:03:06 --> 00:03:09 She was appointed by Trump in 2018. She was confirmed
00:03:09 --> 00:03:12 by the Senate and was serving a seven -year term
00:03:12 --> 00:03:15 that should have only expired in 2029. Let's
00:03:15 --> 00:03:18 just say that again and remind ourselves. Trump
00:03:18 --> 00:03:21 appointed her during his first term in office
00:03:21 --> 00:03:25 back in 2018. He did. And he was doing that because...
00:03:26 --> 00:03:27 As we talked about when we were talking about
00:03:27 --> 00:03:30 the independent agencies, the FTC is one where
00:03:30 --> 00:03:32 no more than three of the five commissioners
00:03:32 --> 00:03:35 can be from the same party. So the Democratic
00:03:35 --> 00:03:38 spot opened. He had to appoint a Democrat and
00:03:38 --> 00:03:42 she is who he picked to fill that seat. So the
00:03:42 --> 00:03:43 president can't just stack the commission with
00:03:43 --> 00:03:46 his own party. Yes, he was following what the
00:03:46 --> 00:03:50 requirements were at that point. But he's now
00:03:50 --> 00:03:54 seeking to fire her because he would rather have
00:03:54 --> 00:03:57 a new FTC. That is aligned with his own party,
00:03:57 --> 00:04:01 but without any claim of cause. He's trying to
00:04:01 --> 00:04:03 squarely set this up about as squarely as Humphrey's
00:04:03 --> 00:04:06 itself was set up. On inauguration day, he fired
00:04:06 --> 00:04:08 both of the Democratic commissioners. She's the
00:04:08 --> 00:04:10 one challenging it. The district court said she
00:04:10 --> 00:04:13 needed to be reinstated, which made a lot of
00:04:13 --> 00:04:16 sense. Humphrey's executor is still technically
00:04:16 --> 00:04:19 binding precedent until it's overturned. So they
00:04:19 --> 00:04:22 said that the government applying this binding
00:04:22 --> 00:04:26 law was unlikely to win. And the Supreme Court
00:04:26 --> 00:04:29 then stepped in. Yes. They granted certiorari
00:04:29 --> 00:04:31 before judgment, so they took the case before
00:04:31 --> 00:04:34 it had even finished at the appeals court. That's
00:04:34 --> 00:04:38 highly unusual. It is. And it signals that the
00:04:38 --> 00:04:41 court thinks this is urgent and important and
00:04:41 --> 00:04:44 that they fast -tracked it. I'll also note it
00:04:44 --> 00:04:46 probably means they didn't need to let the appeals
00:04:46 --> 00:04:48 court waste time on it because that was clearly
00:04:48 --> 00:04:51 not a precedent that was going to stand. OK,
00:04:51 --> 00:04:54 let's be charitable readers of this for a moment.
00:04:54 --> 00:04:58 What is Trump's best argument for why he thinks
00:04:58 --> 00:05:00 Humphreys was wrong? He is pulling all of this
00:05:00 --> 00:05:02 from Article 2 of the Constitution. Can you read
00:05:02 --> 00:05:05 the vesting clause? The executive power shall
00:05:05 --> 00:05:08 be vested in a president of the United States
00:05:08 --> 00:05:11 of America. Notice what it says there. The executive
00:05:11 --> 00:05:14 power, not some of it, all of it. And it needs
00:05:14 --> 00:05:17 to be vested in one person, the president. So
00:05:17 --> 00:05:19 the argument is that if something is executive
00:05:19 --> 00:05:23 power, only the president can exercise it. It
00:05:23 --> 00:05:27 goes beyond that. It's really that the president
00:05:27 --> 00:05:29 must be able to control anybody who's exercising
00:05:29 --> 00:05:32 executive power. Otherwise, it isn't totally
00:05:32 --> 00:05:34 vested in him. This is how the government's brief
00:05:34 --> 00:05:37 says it. The president cannot take care that
00:05:37 --> 00:05:40 the laws be faithfully executed if he cannot
00:05:40 --> 00:05:42 oversee the officials responsible for executing
00:05:42 --> 00:05:45 them, and he cannot effectively oversee those
00:05:45 --> 00:05:48 officials without the power to remove them. They
00:05:48 --> 00:05:50 are relying on the unitary executive theory.
00:05:50 --> 00:05:53 There's one executive, that's the president,
00:05:53 --> 00:05:55 and the president needs complete control. If
00:05:55 --> 00:05:58 you can't fire somebody, you can't control them.
00:05:58 --> 00:06:01 So the president has to control everything. because
00:06:01 --> 00:06:05 otherwise he doesn't really have power vested
00:06:05 --> 00:06:08 in him as the president. Here, they're relying
00:06:08 --> 00:06:11 on Myers. They're taking it and running as far
00:06:11 --> 00:06:13 as they possibly can with it. So let's read a
00:06:13 --> 00:06:16 little bit of Myers. That was Justice Taft's
00:06:16 --> 00:06:18 opinion in Myers, correct? It was. Justice Taft,
00:06:18 --> 00:06:20 the former president. The power of removal is
00:06:20 --> 00:06:23 incident to the power of appointment, not to
00:06:23 --> 00:06:25 the power of advising and consenting to appointment.
00:06:25 --> 00:06:28 And when the grant of the executive power is
00:06:28 --> 00:06:30 enforced by the express mandate to take care
00:06:30 --> 00:06:33 that the laws be faithfully executed, it emphasizes
00:06:33 --> 00:06:35 the necessity for including within the executive
00:06:35 --> 00:06:38 power as conferred the exclusive power of removal.
00:06:39 --> 00:06:42 He's using a lot of words there to say that removal
00:06:42 --> 00:06:45 is inherent to executive power. If the president
00:06:45 --> 00:06:47 appoints somebody to execute the laws, the president
00:06:47 --> 00:06:50 must be able to remove them. But didn't Humphreys'
00:06:50 --> 00:06:53 executor come after Myers and then limit it?
00:06:53 --> 00:06:57 It did. It did indeed. And Trump's argument is
00:06:57 --> 00:06:59 that Humphreys was wrongly decided from the start,
00:06:59 --> 00:07:02 despite the fact that four of the justices from
00:07:02 --> 00:07:04 Myers were still around for Humphreys and signed
00:07:04 --> 00:07:07 on to the majority. So here's how they're arguing
00:07:07 --> 00:07:10 it. They argue that Humphreys invented this distinction
00:07:10 --> 00:07:13 that doesn't really exist between purely executive
00:07:13 --> 00:07:15 functions and quasi -legislative and quasi -judicial
00:07:15 --> 00:07:18 functions. The idea that the FTC is somehow not
00:07:18 --> 00:07:22 really executive because it does rulemaking and
00:07:22 --> 00:07:25 adjudication. Right. They're saying that this
00:07:25 --> 00:07:27 distinction is incoherent, and it certainly is
00:07:27 --> 00:07:29 an extraordinarily weak part of the opinion.
00:07:30 --> 00:07:33 There is no such thing as quasi -legislative
00:07:33 --> 00:07:36 or quasi -judicial agency? That is what they're
00:07:36 --> 00:07:38 arguing, that the FTC exercises executive powers
00:07:38 --> 00:07:41 when it investigates violations, when it brings
00:07:41 --> 00:07:43 enforcement actions, when it seeks penalties
00:07:43 --> 00:07:46 against private parties. It is executing the
00:07:46 --> 00:07:48 laws. That is the definition of executive power.
00:07:48 --> 00:07:52 There's no quasi anything going on here. Next,
00:07:52 --> 00:07:55 they argue that this isn't even close. Do you
00:07:55 --> 00:07:59 remember? It's CELA law, but I want to say Celia.
00:07:59 --> 00:08:01 Yeah. It seems like there should be an extra
00:08:01 --> 00:08:03 vowel at the end of that. It's really hard. They're
00:08:03 --> 00:08:06 also butchering it in oral arguments. So CELA
00:08:06 --> 00:08:10 law from last episode on the CFPB. Where the
00:08:10 --> 00:08:12 court said a single director with four -cause
00:08:12 --> 00:08:16 protection was unconstitutional. Yes. So Trump's
00:08:16 --> 00:08:19 lawyers say that Celia itself had already rejected
00:08:19 --> 00:08:22 the reasoning of Humphrey's executor. And the
00:08:22 --> 00:08:25 only question remaining was when the court would
00:08:25 --> 00:08:27 finally accept that and overrule it. But what
00:08:27 --> 00:08:30 about stare decisis? I mean, 90 years of precedent
00:08:30 --> 00:08:33 has to count for something relating to Humphrey's
00:08:33 --> 00:08:36 executor, right? In the past, it certainly would
00:08:36 --> 00:08:40 have. But Chevron was also a critical precedent
00:08:40 --> 00:08:42 that had been in place for decades. Here's what
00:08:42 --> 00:08:45 the government says in its brief. Stare decisis
00:08:45 --> 00:08:48 does not require this court to adhere to a decision
00:08:48 --> 00:08:51 that was wrong the day it was decided and has
00:08:51 --> 00:08:54 only become more obviously wrong over time. Humphreys'
00:08:54 --> 00:08:56 executor rested on a distinction this court has
00:08:56 --> 00:08:59 repeatedly questioned, limited and declined to
00:08:59 --> 00:09:02 extend. The time has come to overrule it. What
00:09:02 --> 00:09:05 they're saying here is you overruled Chevron
00:09:05 --> 00:09:08 last term after 40 years. Humphreys is older,
00:09:08 --> 00:09:12 sure, but it's also super wrong. Let's think
00:09:12 --> 00:09:15 about the other side. What does Slaughter's side
00:09:15 --> 00:09:18 say about this power? They start with history,
00:09:18 --> 00:09:20 but they're going way further back in history
00:09:20 --> 00:09:22 than we did when we were talking about independent
00:09:22 --> 00:09:26 agencies. We generally think about it as starting
00:09:26 --> 00:09:30 maybe late 1800s. But Slaughter's side argues
00:09:30 --> 00:09:32 that this really goes back to the founding. The
00:09:32 --> 00:09:36 founders created independent agencies, not just
00:09:36 --> 00:09:39 administrative authority like we read relating
00:09:39 --> 00:09:42 to Alexander Hamilton and the Treasury. It really
00:09:42 --> 00:09:44 wasn't what we would say a modern regulatory
00:09:44 --> 00:09:47 agency is, but they did have some multi -membered
00:09:47 --> 00:09:50 bodies with fixed terms and insulation from presidential
00:09:50 --> 00:09:55 removal. In 1790, Congress created the Sinking
00:09:55 --> 00:09:58 Fund Commission to try and manage the national
00:09:58 --> 00:10:01 debt. And the Sinking Fund Commission consisted
00:10:01 --> 00:10:03 of the vice president, the chief justice, and
00:10:03 --> 00:10:06 three cabinet secretaries. So this was a five
00:10:06 --> 00:10:09 -person group where the president couldn't automatically
00:10:09 --> 00:10:12 remove every member at will, although the president
00:10:12 --> 00:10:14 would have had control over the cabinet secretaries.
00:10:15 --> 00:10:16 But seriously, the very first Congress did that.
00:10:17 --> 00:10:20 Yes, they did. And that obviously included a
00:10:20 --> 00:10:23 lot of framers. So if the unitary executive theory
00:10:23 --> 00:10:25 was correct, why would they create a commission
00:10:25 --> 00:10:27 where the president couldn't fire all the members?
00:10:28 --> 00:10:32 Were there others? Yes. Starting in 1782, Congress
00:10:32 --> 00:10:35 created a series of commissioners to settle claims
00:10:35 --> 00:10:38 arising from the Revolutionary War. These commissioners
00:10:38 --> 00:10:40 also served fixed terms. They exercised significant
00:10:40 --> 00:10:43 discretion. They operated independently of presidential
00:10:43 --> 00:10:46 control. The framers were not unfamiliar with
00:10:46 --> 00:10:50 this idea. So the argument is that the founders
00:10:50 --> 00:10:52 themselves used multi -member bodies with independent
00:10:52 --> 00:10:55 protections when they thought certain functions
00:10:55 --> 00:10:59 required them. But let's just be clear, that's
00:10:59 --> 00:11:01 nowhere in the constitutional text. The vesting
00:11:01 --> 00:11:06 clause does seem pretty clear. It certainly vests
00:11:06 --> 00:11:09 executive power in the president, but it doesn't
00:11:09 --> 00:11:11 mention removal at all unless we're talking about
00:11:11 --> 00:11:14 impeachment. And we also talked about how this
00:11:14 --> 00:11:16 isn't an oversight. In the last episode, when
00:11:16 --> 00:11:19 we talked about the decision of 1789, when the
00:11:19 --> 00:11:22 first Congress debated the removal power. And
00:11:22 --> 00:11:24 when they're doing that, they couldn't agree.
00:11:24 --> 00:11:28 This idea that obviously from the very beginning.
00:11:28 --> 00:11:31 They meant to have a president who had exclusive
00:11:31 --> 00:11:33 removal authority. Doesn't make sense. They left
00:11:33 --> 00:11:35 it to Congress to structure the executive branch
00:11:35 --> 00:11:39 as circumstances would require. What about the
00:11:39 --> 00:11:42 multi -member structure specifically? Trump's
00:11:42 --> 00:11:44 lawyers seem to think that doesn't matter. That
00:11:44 --> 00:11:48 is pretty critical. CELA law, the CFPB case,
00:11:48 --> 00:11:50 turns heavily on the fact that it only had a
00:11:50 --> 00:11:54 single director. And when writing it. Roberts
00:11:54 --> 00:11:56 emphasized that multi -member commissions were
00:11:56 --> 00:11:58 different. So let's just go back to this excerpt.
00:11:59 --> 00:12:02 The CFPB single director structure contravenes
00:12:02 --> 00:12:05 this carefully calibrated system by vesting significant
00:12:05 --> 00:12:08 governmental power in the hands of a single individual
00:12:08 --> 00:12:11 accountable to no one. With no colleagues to
00:12:11 --> 00:12:14 persuade and no boss or electorate looking over
00:12:14 --> 00:12:16 his shoulder, the director may dictate and enforce
00:12:16 --> 00:12:18 policy. The court here was worried about one
00:12:18 --> 00:12:21 person with unchecked power. But the FTC had
00:12:21 --> 00:12:24 five commissioners. Power was diffuse. No single
00:12:24 --> 00:12:28 person could dictate policy. And this bipartisan
00:12:28 --> 00:12:30 requirement always meant that the minority party
00:12:30 --> 00:12:33 at least had some representation. So the structure
00:12:33 --> 00:12:37 itself is the check. Yes, exactly. 33 former
00:12:37 --> 00:12:40 commissioners from various agencies also weighed
00:12:40 --> 00:12:42 in on the case. And their point was that these
00:12:42 --> 00:12:45 multi -member boards actually do foster deliberation.
00:12:45 --> 00:12:48 They require consensus building. They do prevent
00:12:48 --> 00:12:50 arbitrary decision making. No commissioner can
00:12:50 --> 00:12:53 act unilaterally. This really is a fundamentally
00:12:53 --> 00:12:55 different structure than a single director. And
00:12:55 --> 00:12:58 then there's stare decisis. 90 years is a lot.
00:12:59 --> 00:13:01 Congress has relied on this for decades. It has
00:13:01 --> 00:13:04 created... dozens of independent agencies since
00:13:04 --> 00:13:07 1935. And it's done that with the understanding
00:13:07 --> 00:13:11 that for -cause removal was constitutional. The
00:13:11 --> 00:13:13 SEC, the Federal Reserve Board, the NLRB, the
00:13:13 --> 00:13:17 FCC, the CFTC, the NRC, the FEC, all structured
00:13:17 --> 00:13:20 in reliance on Humphreys. Overruling it now wouldn't
00:13:20 --> 00:13:22 just change a constitutional quirk. It would
00:13:22 --> 00:13:25 destabilize. the entire framework of federal
00:13:25 --> 00:13:28 regulation. All those agencies we've talked about
00:13:28 --> 00:13:30 over the past two episodes, their structure depends
00:13:30 --> 00:13:33 on Humphreys being correct, which is what Sotomayor
00:13:33 --> 00:13:38 seems to allude to when she challenges the Solicitor
00:13:38 --> 00:13:41 General and says, you're basically destabilizing
00:13:41 --> 00:13:44 the basic structure of all governance. Yes, that
00:13:44 --> 00:13:46 is what is really on the plate here. Okay, something
00:13:46 --> 00:13:49 I've been wondering, does every agency need the
00:13:49 --> 00:13:53 same level of independence or... Is the Fed something
00:13:53 --> 00:13:57 different from the FTC, which might be something
00:13:57 --> 00:14:01 different from the NLRB? People are trying to
00:14:01 --> 00:14:03 figure out how to save as many independent agencies
00:14:03 --> 00:14:06 as possible because it's clear that a lot of
00:14:06 --> 00:14:09 them are headed out. These tests are supposed
00:14:09 --> 00:14:12 to do some sort of balancing test, weighing the
00:14:12 --> 00:14:14 president's interest in control against Congress's
00:14:14 --> 00:14:17 reason for insulating particular functions. What
00:14:17 --> 00:14:19 would that look like? Well, you can think of
00:14:19 --> 00:14:21 it like a hospital. You would treat a trauma
00:14:21 --> 00:14:22 case differently from a dermatology patient.
00:14:23 --> 00:14:26 And agencies do lots of different things. So
00:14:26 --> 00:14:28 it's possible the Constitution could treat some
00:14:28 --> 00:14:31 different things differently. They identified
00:14:31 --> 00:14:34 three tiers. First, agencies that primarily do
00:14:34 --> 00:14:37 adjudication, deciding individual cases. The
00:14:37 --> 00:14:39 Merit Systems Protection Board, for example.
00:14:39 --> 00:14:41 Or the NLRB if it's resolving a labor dispute.
00:14:42 --> 00:14:45 That's being court -like functions. Yeah, they're
00:14:45 --> 00:14:47 acting like a court and... We've always understood
00:14:47 --> 00:14:51 that judicial independence is essential. We don't
00:14:51 --> 00:14:53 want to create a situation where the judge can
00:14:53 --> 00:14:55 be fired for ruling against the wrong party.
00:14:56 --> 00:14:58 And the Merit Systems Protection Board serves
00:14:58 --> 00:15:00 as a neutral adjudicator of federal employment
00:15:00 --> 00:15:03 disputes. Its entire function basically depends
00:15:03 --> 00:15:06 on the perception and reality of impartiality.
00:15:06 --> 00:15:09 If they can be removed for deciding cases in
00:15:09 --> 00:15:11 a way the president dislikes, they can't do this.
00:15:11 --> 00:15:13 That would mean that the president can fire somebody.
00:15:14 --> 00:15:16 even improperly. And then when they went to challenge
00:15:16 --> 00:15:19 it, the Merit Systems Protection Board would
00:15:19 --> 00:15:21 side with the president because otherwise they
00:15:21 --> 00:15:24 would lose their jobs. The next level, agencies
00:15:24 --> 00:15:27 that regulate markets where credibility and stability
00:15:27 --> 00:15:30 matter like the Fed. But we talked in episode
00:15:30 --> 00:15:33 six about how the Fed needs to be insulated from
00:15:33 --> 00:15:35 election year pressure. And the justices themselves
00:15:35 --> 00:15:38 also really want to protect the Fed. I would
00:15:38 --> 00:15:40 be shocked if the Fed were actually destroyed
00:15:40 --> 00:15:43 after this. They went out of their way to say
00:15:43 --> 00:15:45 they weren't addressing the Federal Reserve,
00:15:45 --> 00:15:47 that potentially it would be a fallback position,
00:15:48 --> 00:15:51 but they will carve out the Fed. Is it too cynical
00:15:51 --> 00:15:55 to suggest that one reason that the justices
00:15:55 --> 00:15:57 might be so interested in protecting the Fed
00:15:57 --> 00:16:02 is that they have 401ks and investments in the
00:16:02 --> 00:16:04 stock market? That would certainly be something
00:16:04 --> 00:16:06 somebody could say. Well, what about the third
00:16:06 --> 00:16:10 tier? Third tier. This is policymaking agencies
00:16:10 --> 00:16:13 like the FTC if it's doing rulemaking or the
00:16:13 --> 00:16:15 FCC if it's studying telecommunications policy.
00:16:15 --> 00:16:18 The argument is that these functions might warrant
00:16:18 --> 00:16:20 less independence because they're more like traditional
00:16:20 --> 00:16:25 executive action. So this might mean that the
00:16:25 --> 00:16:28 court is basically drawing lines. Some agencies
00:16:28 --> 00:16:30 get to keep their independence protections while
00:16:30 --> 00:16:33 others just don't. It's possible they could do
00:16:33 --> 00:16:36 that. That's going to create some issues of its
00:16:36 --> 00:16:39 own, though. The FTC does rulemaking and adjudication.
00:16:40 --> 00:16:43 Same with the SEC and the NLRB. Most agencies
00:16:43 --> 00:16:45 do that. So how do you separate it? You'd have
00:16:45 --> 00:16:48 to have different removal standards for the same
00:16:48 --> 00:16:51 person doing different things. Yes. There are
00:16:51 --> 00:16:53 a lot of people arguing this really is all or
00:16:53 --> 00:16:55 nothing. Either Humphreys is right and we can
00:16:55 --> 00:16:58 have these multi -member boards, or Humphreys
00:16:58 --> 00:17:01 is wrong and the president needs to control everybody.
00:17:01 --> 00:17:05 Okay. So let's get to brass tacks. What happens
00:17:05 --> 00:17:09 if Trump wins? If Trump wins, because the court
00:17:09 --> 00:17:10 has completely overruled Humphrey's executor,
00:17:11 --> 00:17:14 he will have at -will removal power over every
00:17:14 --> 00:17:16 commissioner on every multi -member independent
00:17:16 --> 00:17:19 agency. Immediately? Immediately. The four cause
00:17:19 --> 00:17:22 removal restrictions would be unconstitutional.
00:17:22 --> 00:17:25 The president would go through and fire everybody
00:17:25 --> 00:17:27 who was not in alignment with him politically.
00:17:27 --> 00:17:30 What about the Federal Reserve? That's where
00:17:30 --> 00:17:33 we keep hitting this problem. The court could
00:17:33 --> 00:17:36 theoretically issue a broad ruling saying that
00:17:36 --> 00:17:38 These removal restrictions are unconstitutional,
00:17:38 --> 00:17:40 including the Fed, but that seems really unlikely.
00:17:40 --> 00:17:43 They will almost certainly carve out some sort
00:17:43 --> 00:17:46 of exception so that the Fed can survive. What
00:17:46 --> 00:17:48 would this mean, though, practically? In CLL
00:17:48 --> 00:17:51 law, when they said that the removal restriction
00:17:51 --> 00:17:54 was unconstitutional, they solved it by just
00:17:54 --> 00:17:57 taking the removal restriction out. Rather than
00:17:57 --> 00:17:59 an independent agency, it just became an executive
00:17:59 --> 00:18:01 agency that the president had full control over.
00:18:01 --> 00:18:03 That is almost certainly what they would be doing
00:18:03 --> 00:18:06 in these cases, too. This is basically Chevron
00:18:06 --> 00:18:08 flip -flopping, which we talked about before,
00:18:08 --> 00:18:12 except now actual human lives and mortgage rates
00:18:12 --> 00:18:15 are on the line. Yes. Chevron was about who got
00:18:15 --> 00:18:17 to say what a statute means. But this is about
00:18:17 --> 00:18:19 who gets to control the people making those decisions
00:18:19 --> 00:18:23 to begin with. And at least under Chevron, to
00:18:23 --> 00:18:25 really earn Chevron deference, agencies had to
00:18:25 --> 00:18:27 go through the notice and comment process, which
00:18:27 --> 00:18:30 took a long time. If you can fire commissioners
00:18:30 --> 00:18:32 and replace them overnight, you can shift policy
00:18:32 --> 00:18:34 instantaneously. And we would expect presidents
00:18:34 --> 00:18:36 to come in and clear house. One would expect
00:18:36 --> 00:18:39 those to start swinging wildly if the president
00:18:39 --> 00:18:41 has full control over the agency. So what if
00:18:41 --> 00:18:43 Slaughter wins? And I think the question was
00:18:43 --> 00:18:46 raised by Justice Kavanaugh that couldn't Kelly
00:18:46 --> 00:18:49 just continue to receive her salary but be replaced
00:18:49 --> 00:18:52 on the commission? So that was the second question
00:18:52 --> 00:18:54 they asked and the one they didn't really get
00:18:54 --> 00:18:56 to, which indicates it is likely she is not going
00:18:56 --> 00:18:59 to receive her position. But that was going to
00:18:59 --> 00:19:01 create incredible problems of its own. That was
00:19:01 --> 00:19:04 essentially a backdoor to removal because then
00:19:04 --> 00:19:07 the president could go in and improperly fire
00:19:07 --> 00:19:09 everybody and just pay them off. That seemed
00:19:09 --> 00:19:12 like a short shrift way of the president being
00:19:12 --> 00:19:15 able to get what he wants, but putting it at
00:19:15 --> 00:19:18 taxpayer expenses. Essentially, this is going
00:19:18 --> 00:19:20 to kick the can down the road again. We're going
00:19:20 --> 00:19:23 to see this come up. If slaughter wins, this
00:19:23 --> 00:19:27 is not the end of this question. No, but again.
00:19:28 --> 00:19:30 I would be shocked if Slaughter wins. That really,
00:19:30 --> 00:19:33 that doesn't seem like it's on the table. The
00:19:33 --> 00:19:34 question is just how narrowly the court decides.
00:19:35 --> 00:19:38 We are going to break this episode into two episodes
00:19:38 --> 00:19:41 since these are pretty dense. The next one we'll
00:19:41 --> 00:19:44 pick up as we begin talking about oral argument.
00:19:50 --> 00:19:52 So that does it for today's episode on administrative
00:19:52 --> 00:19:55 remedies. Thank you for joining us today. Please,
00:19:55 --> 00:19:57 if you enjoy this podcast, enjoy this episode,
00:19:57 --> 00:20:01 give us a like on Spotify, iTunes, or whatever
00:20:01 --> 00:20:04 platform you're listening on. And be sure to
00:20:04 --> 00:20:05 tune in next time where we'll continue to dive
00:20:05 --> 00:20:08 into the contours of administrative law. Because
00:20:08 --> 00:20:10 remember, you can't fix what you don't understand.