For ninety years, Congress could build federal agencies designed to operate at arm's length from the president. Bipartisan commissions, staggered terms, for-cause removal — a whole architecture of institutional independence protected by Humphrey's Executor v. United States (1935). On June 29, 2026, in a 6-3 decision, the Supreme Court overruled Humphrey's by name and said it had been wrong the day it was decided. Rebecca Slaughter, the FTC commissioner Donald Trump fired in March 2025 for reasons that had nothing to do with her job performance, loses her case. So does the general category of "independent agency" as a distinct constitutional structure.
In this episode, we walk through what Trump v. Slaughter actually held, why the Court's reasoning goes wider than its holding, and what happens next. We cover the "Decision of 1789" the majority uses as its historical anchor and Justice Sotomayor's response. We examine the stare decisis fight — seven prior Supreme Court cases had blessed the Humphrey's structure by name, including recent decisions the Court had just handed down. We explain the companion case, Trump v. Cook, decided the same morning, which saved the Federal Reserve on historical grounds while everyone else lost the same protection. And we get into the part the majority didn't quite say out loud: the opinion carefully carves out the Fed and Article I courts, but not administrative law judges. What that silence means for the MSPB, for ALJ tenure protection, and for every federal adjudication system in the country is the question the next Supreme Court term will start to answer.
Justice Gorsuch's concurrence lays out what he calls the "ratchet effect" — Congress delegated enormous power to agencies on the premise that those agencies would be independent, and that premise is now gone. What Congress thought it bargained for is not what Congress got. Justice Barrett's dissent in Cook asks how history can support both a categorical rule ending independence everywhere and a carveout preserving it at one institution. The Court, she notes, does not say.
Read the full explainer at remediespodcast.com/learn-trump-v-slaughter-explained.
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. We said we would record an episode
00:00:50 --> 00:00:53 after Slaughter was decided. Slaughter has now
00:00:53 --> 00:00:55 been decided. So we're doing this episode today
00:00:55 --> 00:00:58 and we're going to do another episode on another
00:00:58 --> 00:01:01 recent Supreme Court case that will come out
00:01:01 --> 00:01:04 this next Tuesday. And then we will take a break
00:01:04 --> 00:01:07 before we finally start season three officially
00:01:07 --> 00:01:10 in August. So Slaughter, for those who missed
00:01:10 --> 00:01:13 the background in. 2018, the Senate confirmed
00:01:13 --> 00:01:15 Rebecca Slaughter to the Federal Trade Commission
00:01:15 --> 00:01:18 unanimously. She had been nominated by Donald
00:01:18 --> 00:01:20 Trump. This wasn't because she was a Republican.
00:01:21 --> 00:01:24 She wasn't. She was Democrat. But it was because
00:01:24 --> 00:01:26 the FTC was required to have members from both
00:01:26 --> 00:01:28 political parties and she was needed as a Democrat.
00:01:28 --> 00:01:33 Then in March 2025, when Trump resumes. The presidency,
00:01:33 --> 00:01:36 he fires her. And the letter he uses to do this
00:01:36 --> 00:01:39 doesn't allege inefficiency or neglect of duty
00:01:39 --> 00:01:42 or malfeasance. The three grounds the statute
00:01:42 --> 00:01:45 gives for removing an FTC commissioner. It said
00:01:45 --> 00:01:47 that her service was inconsistent with my administration's
00:01:47 --> 00:01:51 priorities. He also fired the commission's other
00:01:51 --> 00:01:55 Democrat, Alvaro Bedoya, the same week. And that
00:01:55 --> 00:01:58 left the body that Congress had built to be bipartisan.
00:02:00 --> 00:02:02 with only two members, both from the president's
00:02:02 --> 00:02:05 own party. And he was doing this specifically
00:02:05 --> 00:02:07 to challenge what had been settled administrative
00:02:07 --> 00:02:12 law for decades. And on Monday, the Supreme Court
00:02:12 --> 00:02:15 said that all of this is constitutional. That
00:02:15 --> 00:02:18 settled law was Humphrey's executor from 1935.
00:02:18 --> 00:02:21 Roosevelt had fired an FTC commissioner named
00:02:21 --> 00:02:24 William Humphrey for more or less the same reason,
00:02:24 --> 00:02:28 wrong politics. And the court told him he couldn't.
00:02:28 --> 00:02:30 The case is named for an executor because Humphrey
00:02:30 --> 00:02:33 died before it was decided and his estate finished
00:02:33 --> 00:02:36 the lawsuit for him. But that holding stood for
00:02:36 --> 00:02:40 90 years. Yes. And now it's gone. Explicitly
00:02:40 --> 00:02:44 overruled in an opinion handed down on June 29th.
00:02:44 --> 00:02:47 The opinion was Trump v. Slaughter. The decision
00:02:47 --> 00:02:50 was six to three and the court didn't mince words.
00:02:50 --> 00:02:53 It didn't. limited to the facts. It said the
00:02:53 --> 00:02:55 case was wrong the day it was decided. Last year,
00:02:55 --> 00:02:57 it reached the court on an emergency docket,
00:02:57 --> 00:03:00 a stay application, and the majority let the
00:03:00 --> 00:03:02 firing stand for the moment. We covered it then.
00:03:02 --> 00:03:06 And what stuck with me was that even in those
00:03:06 --> 00:03:08 emergency orders, the court went out of its way
00:03:08 --> 00:03:10 to say the Federal Reserve might be different.
00:03:10 --> 00:03:14 Hold that thought, though. We said back then
00:03:14 --> 00:03:16 this would be the case that decided whether Humphreys
00:03:16 --> 00:03:20 lived. This is that decision. Right. More specifically,
00:03:20 --> 00:03:22 we said this would be the case where Humphreys
00:03:22 --> 00:03:25 died. And this is part of a broader picture.
00:03:25 --> 00:03:27 In season one, we talked about the court limiting
00:03:27 --> 00:03:30 what agencies can decide. Through Loper Bright,
00:03:30 --> 00:03:32 through the major questions doctrine. Season
00:03:32 --> 00:03:34 two is the court limiting how they can adjudicate
00:03:34 --> 00:03:38 cases like jargonsy. This is the front after
00:03:38 --> 00:03:41 those. It's not what they decide. It's not how
00:03:41 --> 00:03:44 they hear it. But it's who controls the people
00:03:44 --> 00:03:47 doing both. We used to have independent agencies.
00:03:47 --> 00:03:50 Now we don't. So this is the wall that's coming
00:03:50 --> 00:03:54 down. Exactly. Okay, let's work through it systemically.
00:03:54 --> 00:03:58 What protection did Slaughter have exactly? One
00:03:58 --> 00:04:01 clause in the FTC Act. Here's the specific language.
00:04:01 --> 00:04:05 In 15 U .S .C. Section 41, it says they may be
00:04:05 --> 00:04:07 removed by the president for inefficiency, neglect
00:04:07 --> 00:04:10 of duty or malfeasance in office. That is the
00:04:10 --> 00:04:13 whole shield. But to make it independent, there
00:04:13 --> 00:04:16 were five commissioners on seven year staggered
00:04:16 --> 00:04:18 terms. We could have no more than three from
00:04:18 --> 00:04:21 one political party and the president could fire
00:04:21 --> 00:04:23 them for only one of those three things. This
00:04:23 --> 00:04:26 is the template for independent agencies. The
00:04:26 --> 00:04:28 architecture of agency after agency for 90 years
00:04:28 --> 00:04:31 is basically this one sentence reprinted. And
00:04:31 --> 00:04:34 Humphreys is what made the sentence mean anything.
00:04:34 --> 00:04:37 Without it, for cause is just words on a page
00:04:37 --> 00:04:41 if the president can ignore them. Right. So how
00:04:41 --> 00:04:43 did Humphreys justify this shield? It drew a
00:04:43 --> 00:04:46 line. There had been a previous opinion, Myers,
00:04:46 --> 00:04:50 from 1926 that said the president can fire executive
00:04:50 --> 00:04:52 officers at will. That was about a postmaster.
00:04:53 --> 00:04:55 In this case, Humphreys comes nine years later
00:04:55 --> 00:04:58 and it says that the FTC was different because
00:04:58 --> 00:05:00 the FTC wasn't really doing executive work. This
00:05:00 --> 00:05:03 is what it said. The commission's duties were
00:05:03 --> 00:05:06 neither political nor executive, but predominantly
00:05:06 --> 00:05:09 quasi -judicial and quasi -legislative. So quasi
00:05:09 --> 00:05:12 -judicial and quasi -legislative, the move was
00:05:12 --> 00:05:15 this agency makes rules like a little legislature
00:05:15 --> 00:05:18 and decides cases like a little court. Therefore,
00:05:19 --> 00:05:21 it isn't wielding the president's executive power.
00:05:21 --> 00:05:24 Therefore, Congress can protect it. Right. That
00:05:24 --> 00:05:26 was the deal for 90 years. And the slaughter
00:05:26 --> 00:05:29 court, its position is that there is no such
00:05:29 --> 00:05:32 thing as a quasi power. When an agency enforces
00:05:32 --> 00:05:34 a statute against a private party, that is the
00:05:34 --> 00:05:37 execution of the law full stop. Roberts borrowed
00:05:37 --> 00:05:41 a line from Justice Jackson of the 1950s. Different.
00:05:41 --> 00:05:44 Different Justice Jackson. Yes. So in Trump v.
00:05:44 --> 00:05:47 Slaughter. He says, when an agency executes a
00:05:47 --> 00:05:49 congressional mandate against private parties,
00:05:50 --> 00:05:53 it exercises executive power. No ifs, ands, or
00:05:53 --> 00:05:57 quasis about it. Right. No ifs, ands, or quasis.
00:05:57 --> 00:05:59 The FTC writes rules with the force of law, it
00:05:59 --> 00:06:02 investigates companies, and it prosecutes them
00:06:02 --> 00:06:04 in -house. The court says every piece of that
00:06:04 --> 00:06:07 is executive power. The president owns the executive
00:06:07 --> 00:06:09 power, so the president has to be able to fire
00:06:09 --> 00:06:13 the people wielding it. The four -clause protection
00:06:13 --> 00:06:17 fails. So that's the unitary executive theory
00:06:17 --> 00:06:19 at work. Right. So the phrase sounds academic,
00:06:19 --> 00:06:22 but it's pretty straightforward. Article 2 in
00:06:22 --> 00:06:24 the Constitution, this is the one setting out
00:06:24 --> 00:06:27 the executive. What's explicit is that the executive
00:06:27 --> 00:06:30 power goes to the president. If an officer is
00:06:30 --> 00:06:33 exercising executive power, the president must
00:06:33 --> 00:06:35 be able to control that officer. And control
00:06:35 --> 00:06:38 means removal. That's not the Constitution. That's
00:06:38 --> 00:06:40 the unitary executive theory that's doing the
00:06:40 --> 00:06:42 work in slaughter. The FTC enforces federal law.
00:06:43 --> 00:06:46 Enforcing federal law is executive power. Executive
00:06:46 --> 00:06:48 power belongs to the president. Therefore, Congress
00:06:48 --> 00:06:51 cannot put FTC commissioners beyond presidential
00:06:51 --> 00:06:54 removal. And the majority does not present that
00:06:54 --> 00:06:57 as a new theory. No, it doesn't. It never mentions
00:06:57 --> 00:07:00 the unitary executive theory. Instead, it presents
00:07:00 --> 00:07:02 this as the original idea, the one the first
00:07:02 --> 00:07:06 Congress supposedly confirmed in 1789. It never
00:07:06 --> 00:07:09 mentions the unitary executive theory. And why
00:07:09 --> 00:07:11 would they need to? Who needs a new theory when
00:07:11 --> 00:07:13 you can unearth the true meaning that was always
00:07:13 --> 00:07:16 there? There's some real Cardoza vibes in this.
00:07:16 --> 00:07:18 We've always done this, so therefore this is
00:07:18 --> 00:07:20 what we're doing, right? Or we always should
00:07:20 --> 00:07:21 have done this. Or we always should have done
00:07:21 --> 00:07:23 this. Never mind that we didn't at all, ever.
00:07:24 --> 00:07:26 So the majority's argument isn't just about Humphrey's
00:07:26 --> 00:07:30 executor in 1935, then. It's really about 1789.
00:07:31 --> 00:07:33 The first Congress debated how Secretary of Foreign
00:07:33 --> 00:07:36 Affairs could be removed and concluded the removal
00:07:36 --> 00:07:39 power belonged to the president alone. No Senate
00:07:39 --> 00:07:42 sign -off was required. That's the decision of
00:07:42 --> 00:07:46 1789. The court here treats it as a kind of founding
00:07:46 --> 00:07:49 era gloss on what Article II always meant then.
00:07:50 --> 00:07:52 Right. They're leaning on it really hard. They
00:07:52 --> 00:07:55 say that... This debate settled the question
00:07:55 --> 00:07:57 of the Constitution's meaning by the people who'd
00:07:57 --> 00:08:00 just written it. This chain of dependence idea
00:08:00 --> 00:08:04 comes straight out of Madison, that the lowest
00:08:04 --> 00:08:06 officer depends on the next all the way up to
00:08:06 --> 00:08:08 the president, and the president depends on the
00:08:08 --> 00:08:10 people. Break the chain anywhere and accountability
00:08:10 --> 00:08:14 leaks out. That's a pretty clean story. The problem
00:08:14 --> 00:08:17 is what it's being asked to prove. The decision
00:08:17 --> 00:08:20 of 1789 was about a single department head, one
00:08:20 --> 00:08:23 secretary running one department, obviously the
00:08:23 --> 00:08:26 president's right arm. Slaughter sat on a five
00:08:26 --> 00:08:29 -member bipartisan commission built specifically
00:08:29 --> 00:08:33 so no one party controlled it. Those just aren't
00:08:33 --> 00:08:37 the same animal. They really aren't. There's
00:08:37 --> 00:08:39 also the issue about what exactly they were deciding
00:08:39 --> 00:08:43 in 1789. And Sotomayor makes this clear in his
00:08:43 --> 00:08:45 dissent. The question on the floor was narrow.
00:08:45 --> 00:08:48 To remove the secretary, does the president need
00:08:48 --> 00:08:49 the Senate sign -off, the same way the president
00:08:49 --> 00:08:52 would need to appoint that person? And the first
00:08:52 --> 00:08:54 Congress said no, that removal was the president's
00:08:54 --> 00:08:57 alone, the Senate didn't need a vote. That's
00:08:57 --> 00:09:01 what got settled. It was, you do not need permission
00:09:01 --> 00:09:04 from the Senate to fire someone. That's a really
00:09:04 --> 00:09:06 different question than does the president alone
00:09:06 --> 00:09:09 possess all executive power in the unitary executive
00:09:09 --> 00:09:13 theory? So that's different from Congress can
00:09:13 --> 00:09:15 never protect anyone from being fired without
00:09:15 --> 00:09:18 cause. One is about who participates in the removal.
00:09:18 --> 00:09:21 The other is whether removal can be conditioned
00:09:21 --> 00:09:23 at all. The majority takes the first and reads
00:09:23 --> 00:09:26 it as the second. Shakier still, the members
00:09:26 --> 00:09:29 didn't even agree on why. Some thought the Constitution
00:09:29 --> 00:09:31 already gave the president the power. Others
00:09:31 --> 00:09:33 thought Congress was choosing to hand it over.
00:09:34 --> 00:09:36 You cannot pull a single constitutional command
00:09:36 --> 00:09:39 out of a vote like that. So the majority says
00:09:39 --> 00:09:42 1789 sealed the removal power, and the dissent
00:09:42 --> 00:09:46 says it sealed a much narrower thing, that the
00:09:46 --> 00:09:49 Senate is out of it, and not a word about whether
00:09:49 --> 00:09:52 Congress can require costs. Right. The Constitution
00:09:52 --> 00:09:54 never actually says who holds the removal power.
00:09:55 --> 00:09:58 The majority's argument is Article II. The president
00:09:58 --> 00:10:00 holds all the executive power. So the power to
00:10:00 --> 00:10:03 fire comes with it. The dissent is Article 1.
00:10:03 --> 00:10:06 That's the section creating Congress. And the
00:10:06 --> 00:10:08 dissent says that Congress creates these offices
00:10:08 --> 00:10:10 and setting the terms an officer can be removed
00:10:10 --> 00:10:14 on is part of building an office. So we're dealing
00:10:14 --> 00:10:18 with the same silence, but the majority claims
00:10:18 --> 00:10:19 this is based on a different branch than the
00:10:19 --> 00:10:23 dissent. OK. In Humphreys, the court said FTC
00:10:23 --> 00:10:27 was quasi -legislative and quasi -judicial. The
00:10:27 --> 00:10:31 FTC genuinely does both. It writes trade rules
00:10:31 --> 00:10:33 and it runs adjudications with an administrative
00:10:33 --> 00:10:35 law judge and an appeal up to the commissioners.
00:10:35 --> 00:10:38 So calling all of that executive full stop erases
00:10:38 --> 00:10:42 a real distinction. Why is the label wrong? The
00:10:42 --> 00:10:45 label was terrible. And the justices closest
00:10:45 --> 00:10:48 to this admitted as much. Robert Jackson, the
00:10:48 --> 00:10:49 Jackson we were talking about earlier, who had
00:10:49 --> 00:10:52 actually run an agency before he joined the court,
00:10:52 --> 00:10:55 called this quasi -framing a smooth cover drawn.
00:10:55 --> 00:10:58 over our confusion like a bedspread thrown over
00:10:58 --> 00:11:02 an unmade bed. Anyway, in 1988, in Morrison v.
00:11:02 --> 00:11:04 Olson, the court flatly conceded the FTC's powers.
00:11:05 --> 00:11:08 Even back then in 1935, would have been considered
00:11:08 --> 00:11:11 executive today, which makes sense since they're
00:11:11 --> 00:11:14 the powers that most agencies have. So the rationale
00:11:14 --> 00:11:17 was shaky. Yes, it was shaky for decades. But
00:11:17 --> 00:11:19 the court doubted the reasoning of Humphreys,
00:11:19 --> 00:11:23 but it blessed the result anyway, by name, explicitly,
00:11:23 --> 00:11:27 over and over. In 1958, in Wiener, it held the
00:11:27 --> 00:11:29 president couldn't fire a war claims adjudicator
00:11:29 --> 00:11:31 even though the statute gave him no protection
00:11:31 --> 00:11:34 at all. The court read the protection in. In
00:11:34 --> 00:11:37 1988, in Morrison v. Olson, 7 to 1, it upheld
00:11:37 --> 00:11:39 four -cause protection for an executive officer.
00:11:39 --> 00:11:42 Scalia alone was in dissent. This was the wolf
00:11:42 --> 00:11:46 comes as a wolf. In 1989, in Mistretta, it blessed
00:11:46 --> 00:11:48 the sentencing commission, four -cause removal
00:11:48 --> 00:11:51 and all. And the cases people think of as the
00:11:51 --> 00:11:54 turn against it, free enterprise fund, CELA law.
00:11:54 --> 00:11:56 Those narrowed it. And you don't even necessarily
00:11:56 --> 00:11:58 need to say they narrowed it. The justices often
00:11:58 --> 00:12:01 explicitly compared whatever they were looking
00:12:01 --> 00:12:04 at to the FTC, with the FTC as the shining example
00:12:04 --> 00:12:07 of good agency structure. Free Enterprise Fund
00:12:07 --> 00:12:10 in 2010 struck down a double layer of for -cause
00:12:10 --> 00:12:14 protection. They said that that double layer
00:12:14 --> 00:12:17 was the problem, but certainly a single layer,
00:12:17 --> 00:12:20 like at the FTC, wasn't the issue. In CLL Law
00:12:20 --> 00:12:23 in 2020, it struck four cause for a single director,
00:12:23 --> 00:12:26 the single director of the Consumer Finance Protection
00:12:26 --> 00:12:28 Bureau. And Roberts wrote that the multi -member
00:12:28 --> 00:12:31 expert commissions, like the FTC, were still
00:12:31 --> 00:12:34 good law. Collins, the year after that, it's
00:12:34 --> 00:12:36 the same. So from 1935 on, the court has the
00:12:36 --> 00:12:38 exact structure in front of it again and again.
00:12:39 --> 00:12:41 And every single time it says the FTC is fine.
00:12:42 --> 00:12:46 Until slaughter. Right. So. Before that, the
00:12:46 --> 00:12:48 rationale was contested. Absolutely. But the
00:12:48 --> 00:12:51 result was affirmed by name by courts that had
00:12:51 --> 00:12:53 every chance to do exactly what this one just
00:12:53 --> 00:12:56 did and didn't. This is not a doctrine quietly
00:12:56 --> 00:12:58 rotting. It is a court explicitly saying this
00:12:58 --> 00:13:02 is a system it is fine with over and over. OK,
00:13:02 --> 00:13:05 but here's the majority's case. Let's forget
00:13:05 --> 00:13:08 the labels. Let's ask who really ran these agencies.
00:13:08 --> 00:13:11 Five commissioners, nobody elected, who can't
00:13:11 --> 00:13:14 be fired by anyone the public can vote out, writing
00:13:14 --> 00:13:17 rules that bind the entire economy and prosecuting
00:13:17 --> 00:13:20 the people who break with them. For 90 years,
00:13:20 --> 00:13:22 the honest answer to who's accountable for that
00:13:22 --> 00:13:26 was nobody. The president can't touch them. Congress
00:13:26 --> 00:13:29 legislates once a decade. The voters have no
00:13:29 --> 00:13:32 handle at all. The majority's point. isn't a
00:13:32 --> 00:13:35 dodge. It's that this is a hole in the democracy,
00:13:36 --> 00:13:39 not a feature of it. The Constitution puts the
00:13:39 --> 00:13:41 executive power in one person precisely because
00:13:41 --> 00:13:44 you can throw that person out, insulate the people
00:13:44 --> 00:13:47 who actually wield it, and you've built power
00:13:47 --> 00:13:49 with no leash. That objection has been gathering
00:13:49 --> 00:13:53 force since Myers, and it's a serious one that
00:13:53 --> 00:13:55 we should take seriously. But let's follow it
00:13:55 --> 00:13:57 all the way. If the only legitimate executive
00:13:57 --> 00:14:00 is one the voters can remove, then this buffer
00:14:00 --> 00:14:02 we've been circling, the thing that kept the
00:14:02 --> 00:14:04 commissioner deciding your case from being fireable
00:14:04 --> 00:14:06 the morning of your hearing, that buffer was
00:14:06 --> 00:14:09 the problem by definition. The accountability
00:14:09 --> 00:14:11 argument doesn't trim independence, it abolishes
00:14:11 --> 00:14:14 it. It says it is all or nothing, which is...
00:14:14 --> 00:14:17 Exactly why the court overruled Humphreys instead
00:14:17 --> 00:14:20 of narrowing it. So, sure, you can take the objection
00:14:20 --> 00:14:23 seriously. Just be honest that what is actually
00:14:23 --> 00:14:25 demanding is there be no insulated decision maker
00:14:25 --> 00:14:27 anywhere in the executive branch. That's the
00:14:27 --> 00:14:30 proposition on the table, not some sort of tidy
00:14:30 --> 00:14:32 course correction. And the price of the leash
00:14:32 --> 00:14:35 is that enforcement now swings with every election.
00:14:35 --> 00:14:38 Right. And it's not fair to say that the FTC
00:14:38 --> 00:14:41 had no political accountability. When presidents
00:14:41 --> 00:14:45 came in, they would appoint a new. head, we would
00:14:45 --> 00:14:48 still see the majority switch to that person's
00:14:48 --> 00:14:51 party. So they're being a little disingenuous
00:14:51 --> 00:14:53 here. What we're doing now is even more extreme.
00:14:53 --> 00:14:55 It's setting up the kinds of swings that made
00:14:55 --> 00:14:58 people so upset about Chevron that as we have
00:14:58 --> 00:15:01 a new administration come in, they clear house
00:15:01 --> 00:15:05 and start enacting their priorities. So accountability
00:15:05 --> 00:15:09 is up, but continuity is completely gone. Could
00:15:09 --> 00:15:12 be read as a repair or wrecking ball, but nobody
00:15:12 --> 00:15:14 should pretend that this is a costless change.
00:15:14 --> 00:15:16 The dissent's strongest argument isn't even about
00:15:16 --> 00:15:20 the FTC at all. It's reliance. That Congress
00:15:20 --> 00:15:23 built on this entire line, 90 years of it, of
00:15:23 --> 00:15:27 the court's choice over and over again to explicitly
00:15:27 --> 00:15:29 bless this kind of agency structure. You don't
00:15:29 --> 00:15:31 knock out the foundation of a building people
00:15:31 --> 00:15:34 have been adding floors to since 1935. And in
00:15:34 --> 00:15:37 most cases, that argument. typically wins. It's
00:15:37 --> 00:15:40 a doctrine we refer to as stare decisis, the
00:15:40 --> 00:15:43 rule that courts stick to their own past decisions.
00:15:43 --> 00:15:47 And it's strongest exactly when the country has
00:15:47 --> 00:15:50 ordered its affairs around this central case.
00:15:50 --> 00:15:55 So how did the majority get around this? They
00:15:55 --> 00:15:57 basically turned this argument completely inside
00:15:57 --> 00:15:59 out. The reliance interest, according to the
00:15:59 --> 00:16:03 majority, is the constitutional injury. The thing
00:16:03 --> 00:16:06 that they're being asked to protect is This thing
00:16:06 --> 00:16:09 they have explicitly held unconstitutional and
00:16:09 --> 00:16:11 you can't rely on an illegal arrangement to keep
00:16:11 --> 00:16:14 the arrangement. That's clever. It's a little
00:16:14 --> 00:16:18 circular, but it is a clever argument. So the
00:16:18 --> 00:16:21 majority would say that's why it has to be overruled.
00:16:21 --> 00:16:23 Once they determined this was an inappropriate
00:16:23 --> 00:16:26 rule, it was never valid. This reliance was always
00:16:26 --> 00:16:28 borrowed, whereas the dissent says the opposite.
00:16:30 --> 00:16:33 The point the liberals make is the court is treating
00:16:33 --> 00:16:35 a 90 -year line of its own decisions as a single
00:16:35 --> 00:16:38 mistake, and the silence in the Constitution
00:16:38 --> 00:16:40 was deliberate. And they had settled it in a
00:16:40 --> 00:16:42 way everybody seemed to be able to function with
00:16:42 --> 00:16:44 for a century and a half. Here's a line that's
00:16:44 --> 00:16:47 likely to be pretty heavily cited. The dissent
00:16:47 --> 00:16:50 says that the court gives the president a power
00:16:50 --> 00:16:53 unknown even to the English crown, against which
00:16:53 --> 00:16:56 the founders revolted, elevating him above his
00:16:56 --> 00:16:59 once co -equal branches by transforming a duty
00:16:59 --> 00:17:02 to take care that the laws be faithfully executed
00:17:02 --> 00:17:05 into a license to act in defiance of those very
00:17:05 --> 00:17:09 laws. So pretty strong language. She also takes
00:17:09 --> 00:17:12 direct aim at the majority as well. She says,
00:17:12 --> 00:17:15 perhaps worst of all, the court today forgets
00:17:15 --> 00:17:18 its place. Not a doctor. doctrinal complaint
00:17:18 --> 00:17:22 a specific targeted accusation about who decides
00:17:22 --> 00:17:25 a separation of powers opinion that in her telling
00:17:25 --> 00:17:30 violates the separation of powers by having nine
00:17:30 --> 00:17:32 justices undo what the elected branch has built
00:17:32 --> 00:17:35 and the court itself had blessed by my count
00:17:35 --> 00:17:38 seven times running Right. That's the through
00:17:38 --> 00:17:40 line. The majority is casting itself as restoring
00:17:40 --> 00:17:43 accountability. The buck stops with one president
00:17:43 --> 00:17:45 the voters can throw out. The dissent casts it
00:17:45 --> 00:17:47 as the court tearing out its own settled law
00:17:47 --> 00:17:49 to install a theory. Whether you think that's
00:17:49 --> 00:17:51 a correction or a power grab comes down to whether
00:17:51 --> 00:17:53 the original deal was constitutional. But there
00:17:53 --> 00:17:57 really is no neutral ground here. And just as
00:17:57 --> 00:18:01 a side note, that seven times tally, that is
00:18:01 --> 00:18:06 Humphreys in 1935, Weiner in 1958, Morrison in
00:18:06 --> 00:18:10 1988, Mistretta in 1989, Free Enterprise Fund
00:18:10 --> 00:18:14 in 2010, CELA law in 2020, and Collins in 2021,
00:18:14 --> 00:18:17 all leaving Humphreys executor still standing
00:18:17 --> 00:18:20 as the dominant law of the land. So how far does
00:18:20 --> 00:18:24 this opinion actually reach? Does every officer
00:18:24 --> 00:18:26 with any tenure protection just lose it now?
00:18:27 --> 00:18:28 At this point, the writing is on the wall for
00:18:28 --> 00:18:31 virtually every independent agency. Slaughter
00:18:31 --> 00:18:34 says that the FTC is not a closed case. The FTC
00:18:34 --> 00:18:37 makes rules, it investigates, it brings enforcement
00:18:37 --> 00:18:40 actions, it runs in -house adjudication, and
00:18:40 --> 00:18:42 it's used in federal court. The court says this
00:18:42 --> 00:18:45 is the heartland of executive power, so FTC commissioners
00:18:45 --> 00:18:47 have to be removable by the president at will.
00:18:48 --> 00:18:50 But the court doesn't say every protected official
00:18:50 --> 00:18:54 everywhere is now exposed. Right. So it leaves
00:18:54 --> 00:18:56 some edges open. It says not every office Congress
00:18:56 --> 00:18:59 creates necessarily carries executive power.
00:18:59 --> 00:19:01 It flags the Federal Reserve as different because
00:19:01 --> 00:19:03 of the historical traditions of the first and
00:19:03 --> 00:19:06 second banks. And then it flags something directly
00:19:06 --> 00:19:09 relevant to this season, the tenured protection
00:19:09 --> 00:19:11 of judges for non -Article 3 courts. Meaning
00:19:11 --> 00:19:14 what exactly? The court gives two examples. It
00:19:14 --> 00:19:16 talks about the tax court and the court of federal
00:19:16 --> 00:19:19 claims. These are really weird examples because
00:19:19 --> 00:19:21 these are not typical non -Article 3 courts.
00:19:21 --> 00:19:24 Those are like the adjudications that we talked
00:19:24 --> 00:19:27 about all through season two, the hearings and
00:19:27 --> 00:19:29 the Social Security Administration, all of those
00:19:29 --> 00:19:33 things. Instead, the examples they use, the tax
00:19:33 --> 00:19:35 court is expressly independent of the executive
00:19:35 --> 00:19:37 branch. It's a weird little entity. It was set
00:19:37 --> 00:19:40 up strangely. And the court of federal claims
00:19:40 --> 00:19:42 sits in the federal court system, even though
00:19:42 --> 00:19:44 its judges don't have Article 3 life tenure.
00:19:44 --> 00:19:46 So when the court says non -Article 3 courts,
00:19:47 --> 00:19:50 it's not talking about the usual agency adjudicator.
00:19:50 --> 00:19:54 I think it is. I'm not totally sure what they
00:19:54 --> 00:19:57 were doing. I don't know if they understood the
00:19:57 --> 00:20:01 structures of these. It looks like today ALJs
00:20:01 --> 00:20:03 are still theoretically protected, but they won't
00:20:03 --> 00:20:07 be for long. The two examples that it cites are
00:20:07 --> 00:20:09 supposedly not part of the executive branch anyway,
00:20:09 --> 00:20:12 so it's weird they would need to explicitly say
00:20:12 --> 00:20:14 the president isn't coming after tax court judges.
00:20:14 --> 00:20:17 What is interesting is they don't even call out
00:20:17 --> 00:20:21 ALJs as a protected edge case. That silence feels
00:20:21 --> 00:20:25 pretty loud. It really does, because the ALJ
00:20:25 --> 00:20:28 problem is sitting right there. So the line is
00:20:28 --> 00:20:31 not all tenure protection is dead. Not yet. But
00:20:31 --> 00:20:34 really, the line is, if you're inside the president's
00:20:34 --> 00:20:36 general administrative control and exercising
00:20:36 --> 00:20:38 executive power, Slaughter says you need to be
00:20:38 --> 00:20:41 removable at will. If you are a historically
00:20:41 --> 00:20:46 distinct institution like the Fed or potentially
00:20:46 --> 00:20:48 like an Article I court like the Tax Court or
00:20:48 --> 00:20:51 the Court of Federal Claims, the court says that's
00:20:51 --> 00:20:54 for another day. But for agency ALJs, the question
00:20:54 --> 00:20:57 is still unresolved. And this is also a bit of
00:20:57 --> 00:20:59 an issue because that Merit Systems Protection
00:20:59 --> 00:21:03 Board, that itself functions like the FTC. It
00:21:03 --> 00:21:06 was treated like an independent agency, and those
00:21:06 --> 00:21:09 people are now removable at will. If a single
00:21:09 --> 00:21:11 layer is now unconstitutional for agency heads
00:21:11 --> 00:21:14 who execute the law, the obvious next question
00:21:14 --> 00:21:17 is what happens to the ALJ sitting under the
00:21:17 --> 00:21:20 two? Right. This is something Slaughter's teed
00:21:20 --> 00:21:23 up but hasn't answered yet. The court isn't ready
00:21:23 --> 00:21:25 to say that the judge in a benefits hearing serves
00:21:25 --> 00:21:27 at the president's pleasure. The optics are pretty
00:21:27 --> 00:21:31 bad there. And the law is genuinely harder because
00:21:31 --> 00:21:33 the ALJ is deciding the facts of one person's
00:21:33 --> 00:21:36 case. That looks less like executing policy and
00:21:36 --> 00:21:38 more like judging. But the logic is pointed straight
00:21:38 --> 00:21:41 at it. Everything we've covered about the hearing,
00:21:41 --> 00:21:44 the record, the internal appeal, all of it assumes
00:21:44 --> 00:21:46 that the person deciding has some distance from
00:21:46 --> 00:21:49 the political branches. Just take that away.
00:21:49 --> 00:21:51 It removes the theory that was protecting it.
00:21:51 --> 00:21:54 It's also worth noting that the MSPB, the Merit
00:21:54 --> 00:21:57 Systems Protection Board, which is supposed to
00:21:57 --> 00:21:59 be protecting the ALJs, is going to fall with
00:21:59 --> 00:22:02 slaughter. The board will not be protected. So
00:22:02 --> 00:22:04 we're really now down to one level of four -cause
00:22:04 --> 00:22:08 protection. And we can say, do we even have four
00:22:08 --> 00:22:11 -cause protection if the people making that decision
00:22:11 --> 00:22:15 aren't themselves protected? So, yeah. So the
00:22:15 --> 00:22:17 holding is narrow and the reasoning is wide.
00:22:17 --> 00:22:19 Yes, that's the pattern of this whole line of
00:22:19 --> 00:22:22 cases. Narrow disposition, sweeping rationale,
00:22:22 --> 00:22:24 and the rationale is what the next plaintiff
00:22:24 --> 00:22:27 cites. OK, so let's talk about the Federal Reserve,
00:22:28 --> 00:22:31 because its governors have the same kind of protection.
00:22:31 --> 00:22:33 But the court didn't just hand the president
00:22:33 --> 00:22:36 the power to fire people who set interest rates.
00:22:37 --> 00:22:39 That's the companion case. It was decided the
00:22:39 --> 00:22:43 same day. That is Trump v. Cook. Lisa Cook is
00:22:43 --> 00:22:46 a governor of the Fed. Last August, the president
00:22:46 --> 00:22:48 tried to fire her for the first time in the Fed's
00:22:48 --> 00:22:53 111 -year history. A governor had been attempted
00:22:53 --> 00:22:56 to be fired. And here, the stated rationale was
00:22:56 --> 00:22:58 an allegation of mortgage fraud on paperwork
00:22:58 --> 00:23:00 from before she joined the board. So she sued.
00:23:00 --> 00:23:04 And on Slaughter's logic, she should lose. The
00:23:04 --> 00:23:07 Fed exercises executive power. It regulates banks.
00:23:07 --> 00:23:10 It issues enforcement orders. No ifs, ands, or
00:23:10 --> 00:23:14 quasis is the rule. A Fed governor is removable
00:23:14 --> 00:23:17 at will like anyone else. Before we go further,
00:23:17 --> 00:23:20 it's worth noting that for slaughter, he didn't
00:23:20 --> 00:23:23 try to say there was cots. Here, he did try to
00:23:23 --> 00:23:25 say there was cots. So he wasn't even trying
00:23:25 --> 00:23:27 to make this removable at will. The majority
00:23:27 --> 00:23:31 here carves the Fed out. And it told you the
00:23:31 --> 00:23:33 carve out was coming. It told you when it allowed
00:23:33 --> 00:23:36 her to retain her position. Well, nobody else
00:23:36 --> 00:23:38 could. And it says it in slaughter itself, too.
00:23:39 --> 00:23:42 Here's the slaughter quote. One example the court
00:23:42 --> 00:23:44 has given of such an entity is the Federal Reserve,
00:23:45 --> 00:23:47 to the extent that it follows in the tradition
00:23:47 --> 00:23:49 of the First and Second Banks of the United States.
00:23:50 --> 00:23:52 This is their escape hatch. The Fed isn't spared
00:23:52 --> 00:23:55 because of what it does. It certainly does plenty
00:23:55 --> 00:23:57 of executive work. It's spared because of history.
00:23:57 --> 00:24:00 The First and Second Banks of the United States
00:24:00 --> 00:24:02 ran independent of presidential control. This
00:24:02 --> 00:24:04 is going back to Hamilton. And the court treats
00:24:04 --> 00:24:07 the Fed as the heir to that specific tradition.
00:24:07 --> 00:24:09 A historical exception, not a functional one.
00:24:10 --> 00:24:13 The result was clear, like I said, when she was
00:24:13 --> 00:24:15 the only person that the court allowed to stay
00:24:15 --> 00:24:17 at their job after the president had attempted
00:24:17 --> 00:24:20 to fire them. And it was also telling that for
00:24:20 --> 00:24:22 her, he theoretically tried to do it for cause.
00:24:22 --> 00:24:27 Again, he wasn't even trying to say that this
00:24:27 --> 00:24:30 is the kind of thing he should be able to remove
00:24:30 --> 00:24:35 at will. The question is more specifically for
00:24:35 --> 00:24:39 her, if we're alleging. some four -cause removal
00:24:39 --> 00:24:41 protection. Does the person get to keep their
00:24:41 --> 00:24:44 position? Well, that's being decided. So in Cook
00:24:44 --> 00:24:48 itself, who wins and how? Cook wins. The vote
00:24:48 --> 00:24:51 is five to four. The court allows her to keep
00:24:51 --> 00:24:53 her position for now. This is written by Roberts.
00:24:54 --> 00:24:56 And the reasoning is that the four -cause protection
00:24:56 --> 00:24:59 she has has to mean something. And the president
00:24:59 --> 00:25:02 here didn't give her any real process. There
00:25:02 --> 00:25:04 was no notice of the evidence. There was no chance
00:25:04 --> 00:25:06 to respond before he fired her. Here's what they
00:25:06 --> 00:25:09 say. The president's reading would turn forecalls
00:25:09 --> 00:25:11 protection into little more than an at -will
00:25:11 --> 00:25:15 employment. So isn't this funny, setting these
00:25:15 --> 00:25:18 two cases side by side? This idea of at -will
00:25:18 --> 00:25:20 employment, this is what Slaughter did to every
00:25:20 --> 00:25:23 other independent agency the same morning. For
00:25:23 --> 00:25:26 the FTC, forecalls becomes at -will. For the
00:25:26 --> 00:25:29 Fed, the court refuses to let it. So they saw
00:25:29 --> 00:25:32 the choice cleanly. The one door said the Fed
00:25:32 --> 00:25:34 is just another agency and the president can
00:25:34 --> 00:25:37 clean house. The other says the Fed is unique
00:25:37 --> 00:25:40 and they picked unique. And Kavanaugh basically
00:25:40 --> 00:25:43 admitted they had to in a concurrence because
00:25:43 --> 00:25:46 leaving it ambiguous would itself spook the markets.
00:25:47 --> 00:25:50 So that's the real critical point here. This
00:25:50 --> 00:25:53 reads like an opinion written by people who could
00:25:53 --> 00:25:54 picture the bond market if they got it wrong.
00:25:55 --> 00:25:57 The Fed doesn't really survive on any sort of
00:25:57 --> 00:25:59 principle that scales. It survives because it's
00:25:59 --> 00:26:02 the Fed. And the principle is actually so important
00:26:02 --> 00:26:04 that they released both of these opinions simultaneously,
00:26:05 --> 00:26:08 presumably to reassure everyone. Normally, they
00:26:08 --> 00:26:10 would have released each one only when it was
00:26:10 --> 00:26:14 being read in chambers. So doing them at the
00:26:14 --> 00:26:16 same time because slaughter was coming first
00:26:16 --> 00:26:18 meant that there wouldn't be some point where
00:26:18 --> 00:26:20 the markets panicked thinking the Fed was going
00:26:20 --> 00:26:25 down. OK, so does Cook actually protect the governor
00:26:25 --> 00:26:28 or does it just slow down the president? I mean,
00:26:28 --> 00:26:30 if he can fire her later with the right paperwork,
00:26:31 --> 00:26:33 that's a process win, not a substantive win.
00:26:34 --> 00:26:36 Right. Really, she has a process win. This is
00:26:36 --> 00:26:39 a preliminary decision. The court doesn't say
00:26:39 --> 00:26:41 the president can never remove Cook. It just
00:26:41 --> 00:26:43 says he has to do it the right way. He has to
00:26:43 --> 00:26:45 give her notice of the evidence, a genuine chance
00:26:45 --> 00:26:48 to respond, a deadline to do so. And the cause
00:26:48 --> 00:26:50 has to actually imply she's unfit for the office
00:26:50 --> 00:26:52 with some nexus to her duties, not just some
00:26:52 --> 00:26:55 pretext to swap in someone friendlier. Do that
00:26:55 --> 00:26:58 and he can try again. Barrett and dissent. reads
00:26:58 --> 00:27:01 this as written to block him from refiring her
00:27:01 --> 00:27:03 over the mortgage allegation at all and accuses
00:27:03 --> 00:27:05 the majority of trying to paper over that. So
00:27:05 --> 00:27:08 here, even the size of Cook's win is contested.
00:27:08 --> 00:27:10 That could lead some people to say this is so
00:27:10 --> 00:27:13 preliminary that we can't really compare these
00:27:13 --> 00:27:16 two. But the court made clear that here the process
00:27:16 --> 00:27:18 does have to be followed and she is potentially
00:27:18 --> 00:27:21 protected. She is protected by four cause. We're
00:27:21 --> 00:27:23 just not totally sure what this cause could be.
00:27:23 --> 00:27:26 So it's doing more than some people are claiming.
00:27:26 --> 00:27:28 If the Fed didn't have for -cause protection,
00:27:28 --> 00:27:30 she's not entitled to any process. She can be
00:27:30 --> 00:27:32 fired just like every other independent agency
00:27:32 --> 00:27:35 official. And for the administrative state, this
00:27:35 --> 00:27:38 matters. It matters less whether her particular
00:27:38 --> 00:27:41 mortgage fraud allegation would count as for
00:27:41 --> 00:27:44 -cause and more just that there is the existence
00:27:44 --> 00:27:47 of a requirement of for -cause protection. So
00:27:47 --> 00:27:50 for -cause survived at the Fed. There's still
00:27:50 --> 00:27:54 something there. Not nothing is now the most
00:27:54 --> 00:27:56 protection that any officer in the federal government
00:27:56 --> 00:27:58 has against being fired. That's the measure of
00:27:58 --> 00:28:01 the day. This also shows how important judicial
00:28:01 --> 00:28:04 review is. And we'll talk about that in the next
00:28:04 --> 00:28:07 episode. Here, Cook is able to have her case
00:28:07 --> 00:28:09 reviewed because the court is willing to review
00:28:09 --> 00:28:11 whether the proper procedures were followed.
00:28:12 --> 00:28:15 OK, look at the justices. In Slaughter, six justices.
00:28:16 --> 00:28:19 In General Agency, independents. In Cook, five,
00:28:19 --> 00:28:22 say, the Fed. Roberts is in both majorities.
00:28:22 --> 00:28:25 Kavanaugh is in both majorities. So the three
00:28:25 --> 00:28:27 slaughter dissenters, Sotomayor, Kagan, and Jackson,
00:28:27 --> 00:28:29 cross over to join Roberts and Kavanaugh and
00:28:29 --> 00:28:32 Cook. So the Cook majority is the three liberals
00:28:32 --> 00:28:35 plus Roberts plus Kavanaugh. The four who would
00:28:35 --> 00:28:37 have let the president fire Cook are Thomas Alito,
00:28:37 --> 00:28:40 Gorsuch, and Barrett. So Roberts and Kavanaugh
00:28:40 --> 00:28:42 are the whole ballgame. They voted to end independence
00:28:42 --> 00:28:45 as a general matter and preserve it for one institution.
00:28:45 --> 00:28:48 That is not a contradiction if you think the
00:28:48 --> 00:28:51 Fed is generally one of a kind. But it is a narrow
00:28:51 --> 00:28:54 ledge. A very narrow ledge. Barrett is pointing
00:28:54 --> 00:28:57 right at it. In Cook, she says that this holding
00:28:57 --> 00:28:59 is in serious tension with slaughter, which it
00:28:59 --> 00:29:02 obviously is. Slaughter announced what Barrett
00:29:02 --> 00:29:05 calls a categorical rule. When an agency executes
00:29:05 --> 00:29:07 a congressional mandate against private parties,
00:29:07 --> 00:29:10 it exercises executive power and it has to be
00:29:10 --> 00:29:13 under presidential control. No ifs, ands, or
00:29:13 --> 00:29:15 quasis about it. But then Cook turns around and
00:29:15 --> 00:29:18 recognizes a Fed exception sanctioned by history.
00:29:18 --> 00:29:21 So her point is the court is trying to have both
00:29:21 --> 00:29:23 things at once. If the rule is categorical, then
00:29:23 --> 00:29:26 the Fed should lose. If history can override
00:29:26 --> 00:29:29 the rule, then the rule is not categorical. Barrett
00:29:29 --> 00:29:31 asks it directly. How can history support both
00:29:31 --> 00:29:35 a categorical rule and a carve -out? And when
00:29:35 --> 00:29:37 she asks whether the Fed is actually unique or
00:29:37 --> 00:29:39 whether history might sanction other exceptions
00:29:39 --> 00:29:42 too, her answer is blunt. The court does not
00:29:42 --> 00:29:45 say. So then Gorsuch says, look at what we just
00:29:45 --> 00:29:49 did. joins the slaughter majority. He agrees
00:29:49 --> 00:29:51 that officers exercising executive power have
00:29:51 --> 00:29:54 to answer to the president. But he also says
00:29:54 --> 00:29:57 Congress has given independent agency vast legislative
00:29:57 --> 00:30:00 and judicial powers to the power to make rules,
00:30:00 --> 00:30:03 to decide disputes. And after slaughter, the
00:30:03 --> 00:30:05 president can effectively exercise all those
00:30:05 --> 00:30:08 powers, too. So the problem is not just the president
00:30:08 --> 00:30:11 controls enforcement. Right. The problem is that
00:30:11 --> 00:30:13 Congress built these agencies on the premise
00:30:13 --> 00:30:15 that they were insulated. A premise that would
00:30:15 --> 00:30:17 have been really reasonable given 90 years of
00:30:17 --> 00:30:20 court historical precedent saying exactly that.
00:30:21 --> 00:30:23 Now Congress may have delegated power under one
00:30:23 --> 00:30:25 assumption and the court has changed that assumption.
00:30:25 --> 00:30:28 The rules, the prosecutions, the adjudications,
00:30:28 --> 00:30:30 all of it now runs through people the president
00:30:30 --> 00:30:32 can fire. Which makes the delegation question
00:30:32 --> 00:30:35 unavoidable. Right. That's what he's saying.
00:30:35 --> 00:30:37 Would Congress have delegated so much legislative
00:30:37 --> 00:30:39 and judicial power to independent agencies if
00:30:39 --> 00:30:41 it had known the president would control them?
00:30:42 --> 00:30:44 And even if Congress wants to pull that power
00:30:44 --> 00:30:46 back now, he says there's a ratchet effect. This
00:30:46 --> 00:30:48 power that Congress delegated by simple majority
00:30:48 --> 00:30:51 could now take a veto -proof supermajority to
00:30:51 --> 00:30:54 retrieve. So independence was not decoration.
00:30:54 --> 00:30:57 It was the price of the delegation. Take it away,
00:30:57 --> 00:30:59 and the bargain Congress struck starts to look
00:30:59 --> 00:31:02 something that Congress may never have agreed
00:31:02 --> 00:31:06 to. So can I ask you, before we close out today,
00:31:06 --> 00:31:09 what your take on the cynical view of the difference
00:31:09 --> 00:31:13 between cook and slaughter is? So there's at
00:31:13 --> 00:31:17 least some smoke, right? You hear this concern
00:31:17 --> 00:31:21 about markets with Roberts and Kavanaugh that
00:31:21 --> 00:31:24 we could look at these two cases and say, well,
00:31:24 --> 00:31:26 the biggest difference between these two cases
00:31:26 --> 00:31:30 is that Roberts and Kavanaugh have a 401k and
00:31:30 --> 00:31:33 that the Federal Reserve is directly going to
00:31:33 --> 00:31:38 impact that 401k. Is that too cynical to think
00:31:38 --> 00:31:42 of these two cases? So it is definitely a view
00:31:42 --> 00:31:46 that a lot of people are taking. And there is
00:31:46 --> 00:31:48 no question we are protecting the Fed because
00:31:48 --> 00:31:49 we are concerned about what's going to happen
00:31:49 --> 00:31:52 to the markets if we don't. Not just the markets,
00:31:52 --> 00:31:54 the entire national economy. We do not want to
00:31:54 --> 00:31:57 let Trump be in charge of interest rates. I mean,
00:31:57 --> 00:32:01 catastrophic. So there are real practical reasons
00:32:01 --> 00:32:03 why we need to do this. What's actually kind
00:32:03 --> 00:32:06 of more interesting is how many of the conservatives
00:32:06 --> 00:32:09 weren't on board with it. You'd think that if
00:32:09 --> 00:32:12 this is really just personal financial benefit,
00:32:12 --> 00:32:15 they would all be jumping on board. But aside
00:32:15 --> 00:32:17 from the two who switch sides, we really have
00:32:17 --> 00:32:20 pretty principled positions. All the liberals
00:32:20 --> 00:32:22 say this is absolutely a valid agency structure.
00:32:23 --> 00:32:25 We've done this for decades. We should keep doing
00:32:25 --> 00:32:28 it. And a lot of the conservatives say, no, we
00:32:28 --> 00:32:31 absolutely want to hand the president total control
00:32:31 --> 00:32:33 over everything. There are way more people than
00:32:33 --> 00:32:35 you would think who are. totally on board with
00:32:35 --> 00:32:38 that idea. It seemed pretty clear from early
00:32:38 --> 00:32:40 on that they were not going to touch the Fed,
00:32:40 --> 00:32:42 that that would just be nuclear, essentially.
00:32:42 --> 00:32:45 So it wasn't surprising that it was protected,
00:32:45 --> 00:32:47 but it was kind of surprising that it was protected
00:32:47 --> 00:32:50 by such a thin majority. So, all right, as we
00:32:50 --> 00:32:53 wrap up, I mean, Humphreys is 90 years old and
00:32:53 --> 00:32:56 it lived a good life, but it died on Monday.
00:32:57 --> 00:32:59 Right. And it died next to a case that saved
00:32:59 --> 00:33:01 the one institution it would have hurt most to
00:33:01 --> 00:33:04 lose. That's the pairing to remember. Slaughter
00:33:04 --> 00:33:07 and Cook. Same day, same Chief Justice writing
00:33:07 --> 00:33:09 both. One ended independence as a general rule.
00:33:10 --> 00:33:11 The other proved that the court will protect
00:33:11 --> 00:33:13 independence when it decides the stakes are high
00:33:13 --> 00:33:16 enough. But only for the Fed and only on a tradition
00:33:16 --> 00:33:19 that it falsely claims runs back to Hamilton's
00:33:19 --> 00:33:23 bank. And Rebecca Slaughter herself? She doesn't
00:33:23 --> 00:33:26 get her seat back. Lisa Cook. keeps hers, at
00:33:26 --> 00:33:29 least while the case continues. We had two officers
00:33:29 --> 00:33:31 fired by the same president, two opposite results,
00:33:31 --> 00:33:34 and the line between them is just the institution
00:33:34 --> 00:33:36 they're sitting on. But Cook is doing something
00:33:36 --> 00:33:39 else as well. Right. Cook isn't just about the
00:33:39 --> 00:33:42 Fed. It's about review. The president said, I
00:33:42 --> 00:33:44 have cause. The court says that can't be the
00:33:44 --> 00:33:46 end of it. A court has to be able to ask whether
00:33:46 --> 00:33:48 cause means cause, whether the officer had a
00:33:48 --> 00:33:51 real chance to answer, whether the process was
00:33:51 --> 00:33:54 real or just paperwork, whether it's valid to
00:33:54 --> 00:33:58 say this. over social media. This is covering
00:33:58 --> 00:34:00 a decision that was already made. So the judicial
00:34:00 --> 00:34:04 review then is the safeguard. Right. And that's
00:34:04 --> 00:34:06 the point. Once that independence is gone, once
00:34:06 --> 00:34:08 the president controls the agencies directly,
00:34:08 --> 00:34:11 the remaining check is supposed to be the courts.
00:34:11 --> 00:34:14 If the executive takes something from you, you
00:34:14 --> 00:34:16 need this promise that someone outside the executive
00:34:16 --> 00:34:18 can still ask whether the government at least
00:34:18 --> 00:34:22 followed the law. And that's where next time
00:34:22 --> 00:34:26 starts. Right. So in Cook, the court said that
00:34:26 --> 00:34:28 review matters when the president removes a Fed
00:34:28 --> 00:34:31 governor. But in Mullen v. Doe, the court says
00:34:31 --> 00:34:33 something very different when the executive terminated
00:34:33 --> 00:34:36 temporary protective status. The statute required
00:34:36 --> 00:34:39 process. It required consultation. It required
00:34:39 --> 00:34:41 the government to look at country conditions
00:34:41 --> 00:34:43 before cutting off protection for people who
00:34:43 --> 00:34:46 had been living here lawfully for years. And
00:34:46 --> 00:34:49 the claim was that did not happen. Right. That's
00:34:49 --> 00:34:50 the other half of the story. In Slaughter Independence
00:34:50 --> 00:34:54 Falls, in Cook Review Saves the Fed, and in Mullen,
00:34:54 --> 00:34:56 what we're talking about in the next episode,
00:34:56 --> 00:34:59 the court shows what happens when the last check
00:34:59 --> 00:35:02 on that executive action disappears too. The
00:35:02 --> 00:35:05 executive acts, the process is challenged, and
00:35:05 --> 00:35:06 the courthouse door is locked before any judge
00:35:06 --> 00:35:09 can ask whether the law was followed. So that
00:35:09 --> 00:35:11 does it for today's episode on administrative
00:35:11 --> 00:35:14 remedies. Thank you for joining us today. Please,
00:35:14 --> 00:35:16 if you enjoy this podcast, enjoy this episode,
00:35:17 --> 00:35:20 give us a like on Spotify, iTunes, or whatever
00:35:20 --> 00:35:23 platform you're listening on. And be sure to
00:35:23 --> 00:35:25 tune in next time where we'll continue to dive
00:35:25 --> 00:35:27 into the contours of administrative law. Because
00:35:27 --> 00:35:29 remember, you can't fix what you don't understand.