December 9, 2025 • 30 mins
Constitutional law experts William Treanor, a professor at Georgetown Law, and Gillian Metzger, a professor at Columbia Law School, discuss the Supreme Court’s oral arguments over whether the president can fire the heads of independent agencies. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June grosseol from Bloomberg Radio.
Speaker 2 (00:08):
The Supreme Court's conservatives appear poised to give the president
control over potentially dozens of independent federal agencies, overturning or
narrowing a ninety year old president called Humphreys executor that
limits when presidents can fire agencies board members. At oral arguments,
(00:29):
they suggested they'll let President Trump fire Rebecca Kelly Slaughter
from the Federal Trade Commission, despite a law that says
commissioners can only be fired for specified reasons. The liberal
justices expressed alarm at giving the president unchecked authority over
about two dozen agencies that regulate areas like nuclear energy,
(00:52):
product safety, and labor relations. Here are Justices Sonya Sotomayor
and Elena Kagan.
Speaker 3 (01:00):
You're asking us to destroy the structure of government and
to take away from Congress its ability to protect its
idea that the government is better structured with some agencies
that are independent.
Speaker 4 (01:18):
So the result of what you want is that the
president is going to have massive, unchecked, uncontrolled power not
only to do traditional execution, but to make law through
legislative and adjudicative frameworks.
Speaker 2 (01:34):
But the conservative justices like Brett Kavanaugh say the real
concern is Congress's creation of agencies that exercise executive power
but aren't accountable.
Speaker 5 (01:47):
Independent agencies are not accountable to the people, they're not elected,
as Congress and the president are, and are exercising massive
power over individual liberty and billion dollar industries, whether it's
the FCC or the FTC or whatever it might be.
Speaker 2 (02:05):
My guest is constitutional law expert William Traynor, our professor
at Georgetown Law Bill tell us about the issue in
Kelly Slaughter's case against President Trump.
Speaker 6 (02:16):
The issue before the screen Court is that Congress puts
limits on when the president and fire the heads of
independent agencies. So an independent agency is like the Federal
Trade Commission or the Federal Reserve. So really since the
start of the Constitution, Congress has imposed limits on when
(02:37):
the president can fire these people. The question in the
case is whether that's unconstitutional, whether the president can fire
the head of an independent agency for any reason, even
if Congress has said they can only fire them, you know,
if they're engaged in bad behavior. So this is a
very big deal. So much of a government structure that
protects people in different ways or regulates economy is done
(03:01):
through independent agencies. Congress has wanted to insulate them from
total executive control, and the Supreme Court is deciding right
now whether, in fact, the president has the kind of
control that comes with being able to fire the leaders
of the agencies.
Speaker 2 (03:15):
In these oral arguments, you often hear the Supreme Court
justices say, well, that's a job for Congress. You know,
that's not something that we should be interfering in. So
why are they interfering here where Congress has set up
these agencies and the rules.
Speaker 6 (03:32):
That's a great question. There had been so many times
in which the Court is saying, this is a political matter,
we shouldn't be deciding. But at the same time, the
conservative justices of the Court are very dedicated to what's
called the unitary executive theory, which means that the president
is in total charge of the executive branch. So what
(03:55):
they're saying here is Congress doesn't get to be involved.
The president is in total charge of the executive branch,
including what have historically been things like the independent agencies.
That is kind of one of the core commitments that
has really been at the basis of what Chief Justice
Roberts has thought really going back to when he was
(04:15):
a young attorney, and that's the same thing for most
of the members of the whole conservative wing.
Speaker 2 (04:21):
What kind of concerns did the conservative justices express during
the oral arguments about this ninety year old President Humphrey's executor.
Speaker 6 (04:32):
There are two things that we're seeing the conservative wing
of the Court struggle with. One is they want the
Federal Reserve to continue to be independent. They don't want
the president to be able to fire the commissioners of
the Federal Reserve. And they don't want that because you know,
(04:52):
that would be terrible for the economy. If the Federal
Reserve is setting interest rates just in order to help
the p resident rather than to help the economy, that
would be a disaster, be a disaster for the market,
the disaster for the economy as a whole. So the
conservative wing of the Court i think, wants to overturn
Humphrey's executor, but they're trying to come up with some
(05:15):
rationale in which they can say the President can fire
somebody on the FCC, but he can't fire somebody on
the Federal Reserve. And they're going to be looking at
the Federal Reserve later in the term that's a big
concern for them. So I think that animates all of
the conservative justices of the Court. I think also, you know,
(05:37):
what I'm hearing with the Chief Justices. What he's trying
to do is to come up with some way in
which there's some agencies where Congress can in fact limit
the president's ability to fire people. And he's thinking about,
you know, are the ones that are essentially kind of
judicial in their function, And you know, that may be
(05:59):
an area in where which Congress can establish requirements or
when the president can terminate somebody, but that's not the
Federal Trade Commission. Federal Trade Commission is not making this
judicial decision, you know, it's very much deciding executive type rules.
So I think we're seeing two things on the conservative
wing of the Court. One is they're trying to come
(06:19):
up with some way in which they can say the
president can fire somebody the FDC, but not at the FED.
And I think the Chief is trying to come up
with some way in which there's some type of agencies
in which the president can be limited by Congress. But
those would be ones that are really really deciding kind
of fuzzi judicial matters, not the fdcate. I mean, you know,
(06:42):
he's going back. There's a case from the nineteen fifties
involving something. There was the War Commission that was basically,
you know, making judicial type decisions involving people. He's trying
to preserve that line of president, you know, even as
he overturns Humphrey's executor.
Speaker 2 (06:58):
The liberals things that a dire picture of what would
happen if Trump wins here. Justice Soto Mayor said to
the Solicitor General, you're asking us to destroy the structure
of government. Do you think it's that serious?
Speaker 6 (07:12):
I think that's absolutely right. You know, we have had
independent agencies which largely exists to protect people of limited power,
you know, and they've been in place really for one
hundred years, you know, and the idea is that these
should be basically bipartisan or apolitical. They should not just
be tools of the president. So, you know, what the
(07:34):
court is considering right now is whether that whole kind
of structure gets got it. So the stakes on this
are huge.
Speaker 2 (07:41):
Well, President Trump wasn't specifically mentioned by name, two of
the liberal justices, Elena Kagan and Katanji Brown Jackson, did
make broad references to his firing of experts and dismantling
of the Department of Education.
Speaker 4 (08:00):
That the more realistic danger here is that we'll have
an education department, as authorized by Congress by law, that
won't have any employees in it.
Speaker 7 (08:11):
Congress is saying that expertise matters with respect to aspects
of the economy and transportation and the various independent agencies
that we have. So having a president come in and
fire all the scientists and the doctors and the economists
and the PhDs and replacing them with loyalists and people
(08:33):
who don't know anything is actually not in the best
interest of the citizens of the United States. This is
what I think Congress's policy decision is.
Speaker 2 (08:42):
Do you think they were trying to remind their conservative
colleagues about some of the actions he's taken.
Speaker 6 (08:49):
So the approach to the unitary executive, you know, what's
motivating the court is pretty long standing. So people like
the Chief have for a long time, I'm believed that
the president should be able to fire the people who
run independent agencies. So, you know, for Chief Justice Roberts
(09:10):
or for Justice Kavanaugh, the basic legal principle is one
that they believed for a long time, long before Trump.
Speaker 4 (09:18):
You know.
Speaker 6 (09:18):
At the same time, you know, what we're seeing right
now is that in the Trump administration, you know, the
independent agencies and all of the government watchdogs, there's an
attempt to politicize them in a way that you know,
we've never seen before. So the stakes are very different,
and they're much higher. You know, if Humphrey's executor has
been overturned, you know, in President bush forty threes administration,
(09:44):
the stakes would have been very different because President Bush
was not focused on making independent agencies kind of the
tool for his politics. But that's what we're seeing with
President Trump, and that's why the stakes.
Speaker 2 (09:57):
Are so high.
Speaker 6 (09:58):
They've always been big, but in this administration, where there's
such an attempt to kind of move away from scientific
expertise and neutral decision making to control every part of
the executive branch, the stakes are huge. And that's really
part of what those three liberal justices we're questioning about.
(10:21):
You know, at the same time, I think, you know
the other thing that they really are focusing in an honor.
First of all, it's very very hard to come up
with some line where you can say Congress can limit
the present's ability to fire the heads of the sec
they can't fire at will the heads of the FED.
(10:42):
You know, it's very hard to come up and I
can't think of any kind of coherent way to distinguish
those two cases. And that's one of the things that
the liberals were pressing on. You know, I think they're
also pressing on the history. You know, if you look
at the constitutions, the text of the constitutions doesn't say
that the president gets to fire people in the executive rention.
(11:02):
It doesn't deal with removal at all. So you know,
there's not a text that really helps the conservative way
of the Court and Congress. Really, starting in the Washington
administration limited the president's ability to fire people running agencies
or kind of what was analogous to modern agencies at
the time. So I think what the liberals on the
(11:24):
Court are focusing on our first of all, on the text,
the original understanding, as well as the huge consequences of
essentially giving the president of power to politicize all of
the independent agencies.
Speaker 2 (11:36):
I've been talking to constitutional law professor William Trainor of
Georgetown Law. Bill, did you sense that any of the
conservative justices might vote against Trump here?
Speaker 6 (11:49):
I think that the chiefs may come up with, you know,
an attempt to limit the ruling, but you know it
would align with Trump. The only one who I think
is at all you know from based on from what
I heard, may vote against Trump is Justice Gorsic, And
I think what he's really struggling with is, you know,
(12:09):
he really thinks they're constitutional problems with the whole administrative state.
So kind of thinking through how you feel about Humphrey's
executor in that context, I think is complicated. So based
on what I was hearing yesterday, I think he is
the only one who I think there's some chance that
would rule against the president, but I think at the
(12:30):
end of the day, he probably would rule in the
way the president wants.
Speaker 2 (12:34):
I wonder what happens when there's a democratic president. Do
the conservatives then try to limit the ruling they're expected
to make here.
Speaker 6 (12:43):
You know, one of the reasons why I think that
the Court should not overturn Humphrey's executor is to the
extent that you have any kind of political con terms,
you're giving a democratic president the power to do exactly
what President Trump is doing to to politicize every independent
agency in the way that that president wants. You know,
(13:05):
and then how does a conservative court say, well, you know,
Humphrey executors is back. Once you establish a rule, you know,
it applies to everybody. That's something that they really have
to think through because of the long term consequences, because
I don't think they would feel comfortable, you know, with
limiting a democratic president after they allow you know, President
(13:28):
Trump to fire people whenever he wants.
Speaker 2 (13:31):
So you think that they will completely overrule Humphrey's executor.
Speaker 6 (13:36):
No, I think they will completely overrule Humphrey's executor. I
think the one question for me is whether the chief
comes up with some limiting principle in which if there
are you know, quasi judicial independent agencies, then Congress can
put limitations on the president's ability to fire. But I think,
(13:58):
you know, the basic point is, I think they're going
to overturn Humphrey's executives, you know, and they've been you know,
going in that way for some time.
Speaker 2 (14:05):
If Slaughter is fired, that leaves the FTC without any
democratic commissioners. So then does that mean that you'll have
these commissions where when there's a Republican in power, it
will be all Republicans on the commission. And when there's
a Democrat in power, there'll be all Democrats on the Commission.
Speaker 1 (14:26):
I think that's right.
Speaker 6 (14:27):
I think that's right. You know, because a democratic president
is going to say, you know, I'm not going to
have a bipartisan agency. If you know, in Republican administrations
it's all Republicans. You are setting up something which is new,
which is that, you know, independent agencies are not independent.
(14:50):
Then they just follow what the president wants. That's empowering Trump,
but it's also going to empower democratic presidents in the future.
You know, in these areas where you really want non partisan,
where you want kind of balanced decision making, that's going
to go out the window.
Speaker 2 (15:08):
The Court in may call the FED uniquely structured quasi
private entity, unlike other independent agencies. And here's what Justice
Brett Kavanaugh said during neural arguments.
Speaker 5 (15:21):
The Federal Reserve. The other side says that your position
would undermine the independence of the Federal Reserve, and they
have concerns about that, and I share those concerns. So
how would you distinguish the Federal Reserve from agencies such
as the Federal Trade Commission?
Speaker 2 (15:39):
And just how would they do that?
Speaker 6 (15:41):
Again, I think the thing that the conservative wing of
the Court has grabbed them with, is what's the rationale
for saying that Congress can't limit the prison the ability
to fire the heads of the SEC. But can that
his ability to hire, you know, the heads of the Fed.
(16:04):
You know, that's what they're struggling with because it would
be a disaster economically if the president could fire Jerome Pal,
and so you know they're struggling. They're trying to thread
the needle so that the president can fire somebody at
the FTC for any reason, but not do the same
with the FET And you know, I think the historical
(16:27):
examples to say that the First Bank and the Second
Bank of the United States, going back to really to
the origins of the of the country, that those were
areas in which there was a kind of autonomy that
the president didn't control. But you know, there were also
examples outside of the First Bank and the Second Bank
where the president's authority was limited. So I think what
(16:48):
the court will try to do is to say the
president can't fire Jerome Pal, can't fire at least to cook.
But I don't think that that is kind of a
coherent approach, you know, because I think it would be
based on history. But the history doesn't support it.
Speaker 2 (17:03):
A lot of times they seem to pick and choose
the history that's useful. It's been great talking to you, Bill.
Thank you. That's Professor William Trainer of Georgetown Law. The
Supreme Court heard arguments on Monday on whether President Trump
has the authority to make hiring and firing decisions for
independent government agencies like the FTC or the Federal Reserve.
(17:27):
The case was brought to the Court by former FTC
Commissioner Rebecca Kelly Slaughter, who was fired by the Trump
administration because they said her appointment was quote inconsistent with
the administration's policies. She told ABC News that if the
Justices signed with the Trump administration, independent government agencies from
(17:48):
the National Weather Service to the Federal Reserve could be
stacked with the loyalists to the president.
Speaker 8 (17:55):
Congress decided that when it's set up these agencies like
the FTC and like the Federal Reserve and about two
dozen others, that there should be some checks and balances
in how the powers that those agencies have are used
to avoid political interference. I've said from the beginning that
(18:15):
this isn't about me or my job, and that was
very much on display at the arguments yesterday. It is
about not just the agency I serve, the FTC, but
a whole host of federal agencies. And it was clear
that it's really difficult to come up with any principal
distinction between the FTC and, for example, the.
Speaker 2 (18:36):
Fed joining me now is constitutional law expert Jillian Metzger,
a professor at Columbia Law School, Jillian, in your view,
what's at stake in this case?
Speaker 1 (18:47):
Well, there's a lot potentially at stake in this case.
The specific issue in the Slaughter case itself has to
do with the ability of the President to remove a
member of the Federal Trade Commission without cause. But the
logic of the Solicitor General's argument, and the argument that
many of the conservative justices seem to be embracing, is
(19:10):
considerably broader than that. It would not just extend to
other independent agencies that have similar kinds of authorities as
the FTC adjudicatory and regulatory. It would extend to what
are called non Article three courts, entities that really function
as courts but don't operate with the Article three protection.
So the Court of Federal Claims, for example, was one
(19:33):
that came up in the oral argument, and those are
also entities that would if you focus on the breadth
of the Solicitor General's argument and the kind of claims
of really unlimited removal power in the president over executive officers,
it would encompass those, It would encompass the FED, and
a particular concern it wouldn't just be limited to principal officers,
(19:56):
it would be also encompassing inferior officers and in particular
employees and the civil service. And one of the interesting
aspects of the oral argument was there were definitely some
justices who were concerned about the potential implications of their
holding and of the government's argument, and trying to find
ways that they could decide more minimalistically and still hold
(20:20):
for the government here without adopting all of these implications.
And they were particularly concerned about the non Article three
courts and also the FED. But it was only Justice
Kagan who really pushed on how this would also apply
to the civil service, and the conservative justices didn't refer
to that. And that would be really quite extraordinary if
it turns out that removal protections for the civil service,
(20:41):
which are such a critical piece of our administrative state,
are under this decision on constitution.
Speaker 2 (20:47):
Jillian, I've asked this question more than once. Why do
the conservatives embrace this unitary executive theory that gives so
much power to the president to another branch of government.
Speaker 1 (21:00):
You know, it's interesting. This is a received conservative legal
idea and principle that the president has unlimited control over
the executive branch, that the Constitution divides the authority between executive, legislative,
and judicial, and the vesting clause means the president is
(21:21):
vested with all the executive power. And when I say conservative,
I mean conservative in the political sense. This goes back
to the Reagan administration, the birth of the conservative legal movement,
and this was one of their kind of founding principles
as a way of pushing back on administrative government and
the administrative state. I think that still actually underlies a
(21:44):
lot of this that kind of resistance and a suspicion
of administrative power. What's interesting is other principles of that
conservative legal movement are actually intention with the unitary executive
idea in this way. One of the things that's been
established over time, particularly recently there's been a huge burst
of excellent scholarship, is that really at the Founding, there
(22:06):
was not this commitment to presidential unitary control over the
executive brand. There are a number of instances of arrangements, commissions.
Thinking Fund came up in the argument, The Revolutionary Debt
Commission came up in the argument. These are entities that
the president did not have full and unconstrained removal power over.
There's just been a great deal of scholarship about the
(22:28):
variety of kinds of appointment arrangements and institutions and how
granting a term of years actually meant to provide some
removal protection. So there really isn't an originalist case for this.
There were certainly arguments made at the Founding that the
president should have this power, but it's by no means obvious,
and I think the weight of the evidence actually suggests
(22:49):
that really that was not the view. And so, you know,
you have a lot of justices who are ordinarily proclaimed
their originalism being willing to just blithely ignore the fact
fact that this restriction that they're imposing on the political
branches are likely to impose has no historical founding and
does not date back to the views of the founders.
(23:11):
So that's odd. You know. The other thing that's that's
quite interesting is that, you know, at this point, particular
point in time, where we have a president who is
asserting very aggrandized understandings of executive power, and you know,
refusing to adhere to statutes and limits enacted by Congress.
Statutes and limits that aren't at issue in this case,
(23:31):
but broad refusal to adhere to a number of governing statutes,
you know, trying to dismantle agencies, you know, spending impowments
and the like. That the Conservative justices concern was that
Congress might make the Department of Education and independent agency
that really seems not to be the threat on the horizon.
The threat on the horizon is deeply a grandized executive
(23:54):
and you would have thought that would have perhaps given
more caution to them. I think the other thing that
anim makes them. They have this image of the president
being on top of the executive branch and a very
simplistic model of political accountability where the president is nationally
elected and therefore legitimizes everything but the executive branch does.
(24:16):
And what they leave out of the equation is that
there is extensive political accountability through Congress as well. And
their model of very simplistic political accountability. This kind of
chain of command way just isn't how government operates. There's complicated,
messy relationships, which in fact do yield a great deal
of accountability, but it just isn't accountability in the model
(24:38):
that they want.
Speaker 2 (24:39):
They really gave short shrift to Congress and any congressional power.
And I thought that it was interesting when Justice Sodo
Mayor said to the Solicitor General, so you're arguing that
the reasoning of the more current justices on this court
has more purchase than the views of renowned jurists like
Homes and brand Ice and Justice store right exactly.
Speaker 1 (25:01):
And then you had Kavanaugh trying to revive the scale
by saying, well, we also have Taft and we also
have Scalia, which was ironic.
Speaker 2 (25:10):
Scale and descent usually, yes, exactly, that point was.
Speaker 1 (25:13):
Not noted other than you. They noticed this as well.
But when they're talking about reliance, so that you know,
obviously starry decisis is a big factor in this argument.
And when they're talking about reliance, several of the justices
on the conservative side were suggesting that there was no
reliance that mattered here because it was a structural issue,
which is an essence to say the fact that for
(25:35):
hundreds of years, our presidents, members of Congress, our political
institutions have been operating and constructing a government on reliance
on the idea that you could have these kinds of
institutions that doesn't count. And that was just a remarkable suggestion.
Speaker 2 (25:51):
I thought it seemed to me that the liberals had
the best part of the legal argument. So wondering how
the conservatives are going to approach this decision, I.
Speaker 1 (26:06):
Think they're going to go more minimalists. There were several
suggestions of some things that justices did not want to reach.
The Chief really seemed to want to carve out non
article free adjudication and the Fed Kavanaugh similarly, Barrett also suggested,
can we even not specify that this is based on
the executive power clause? But this is just an authority
(26:28):
to remove that the president has without specifying the full
contours of it, the idea being I think that when
it's based on the executive power clauses, when it has
its broadest implications, versus if you conclude the president has
power to remove based on the take care clause, that
may impose some limits on the scope because a presidential
(26:50):
removal power that's at odds with the statute being implemented
would be harder to infer. And similarly, presidential removal power
based on the appointments clause would really primarily extend to
principal officers or those inferior officers that Congress gives the
appointment of to the president. But for those instances where
inferior officers are given to the courts or heads of department,
(27:14):
the president wouldn't have the removal authority, And the appointments
clause just doesn't speak to employees, and so it would
leave that issue out.
Speaker 2 (27:22):
Let's say that the Conservatives, as expected, rule for the
president here, what kind of changes would we see in
the government. I mean, just changing the heads of agencies.
Will it make that much of a difference.
Speaker 1 (27:37):
I think it does depend a little bit how they
do it. So suppose what they do is they limit
their decision to really independent regulatory agencies like the FTC,
the NLRB, the Nuclear Regulatory Commission. These are agencies that
have adjudicatory responsibilities and also rulemaking responsibilities as well as enforcement,
(27:58):
and what they do is simply excise the removal protections
for the members who head those agencies. That leaves those
agencies standing, and it just would serve to allow the
president to remove it will the members of the commissions,
and I think we'll probably therefore also really eviscerate the
(28:18):
bipartisan requirements that are in the statute right now for
heading those agencies. There's no challenge to those bipartisan requirements
here except that if the president can remove it will
he can do what he's been doing, which is removing
the democratic members of these agencies. So that would be
what we would see. There's some suggestion in the argument
that the Court should consider a different kind of excising
(28:41):
and perhaps excise those powers that these agencies exercise that
are executive and need to be within the president's control.
That would be more of a fundamental change to the
scope of these agencies, but would leave the possibility that
the members of the commission that had them could still
have some removal protection. And I guess is that the
(29:03):
Court is going to do the former. It fits with
what their president has been and to be honest, it's
the situation we're in already because the President has been
removing the heads of a number of these independent agencies
without cause. Lower courts have given injunctions requiring that they
be able to stay in office, and the Supreme Court
stayed them. So currently, you know, these agencies are operating
(29:27):
under the situation where the president can remove at will
members of the commissions that had them, So we continue
in that situation. I mean, the other thing that's just
really striking is nineteen eighty eight in Morrison. That is
a Renquist opinion. It is incredibly lopsided in terms of
upholding removal restrictions and rejecting all of the arguments that
(29:47):
the conservatives were going for here, rejecting the idea that
the text is clear, rejecting the idea that there's a
constitutional separations of powers violation, and adopting what's a very
sensible line, which is basically, the removal restrictions are constitutional
unless they impede the president's ability to perform the president's
constitutional function. And that was nineteen eighty eight and Renquist.
(30:08):
And we're just in such a different landscape, and it's
not that long.
Speaker 2 (30:12):
Having this conservative super majority has really changed the law
in many respects. Thanks so much, Jillian. That's Professor Gillian
Metzger of Columbia Law School, And that's it for this
edition of The Bloomberg Law Show. Remember you can always
get the latest legal news on our Bloomberg Law Podcast.
You can find them on Apple Podcasts, Spotify, and at
(30:34):
www dot bloomberg dot com slash podcast Slash Law, And
remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso and
you're listening to Bloomberg
This is Bloomberg Law with June grosseol from Bloomberg Radio.
Speaker 2 (00:08):
The Supreme Court's conservatives appear poised to give the president
control over potentially dozens of independent federal agencies, overturning or
narrowing a ninety year old president called Humphreys executor that
limits when presidents can fire agencies board members. At oral arguments,
(00:29):
they suggested they'll let President Trump fire Rebecca Kelly Slaughter
from the Federal Trade Commission, despite a law that says
commissioners can only be fired for specified reasons. The liberal
justices expressed alarm at giving the president unchecked authority over
about two dozen agencies that regulate areas like nuclear energy,
(00:52):
product safety, and labor relations. Here are Justices Sonya Sotomayor
and Elena Kagan.
Speaker 3 (01:00):
You're asking us to destroy the structure of government and
to take away from Congress its ability to protect its
idea that the government is better structured with some agencies
that are independent.
Speaker 4 (01:18):
So the result of what you want is that the
president is going to have massive, unchecked, uncontrolled power not
only to do traditional execution, but to make law through
legislative and adjudicative frameworks.
Speaker 2 (01:34):
But the conservative justices like Brett Kavanaugh say the real
concern is Congress's creation of agencies that exercise executive power
but aren't accountable.
Speaker 5 (01:47):
Independent agencies are not accountable to the people, they're not elected,
as Congress and the president are, and are exercising massive
power over individual liberty and billion dollar industries, whether it's
the FCC or the FTC or whatever it might be.
Speaker 2 (02:05):
My guest is constitutional law expert William Traynor, our professor
at Georgetown Law Bill tell us about the issue in
Kelly Slaughter's case against President Trump.
Speaker 6 (02:16):
The issue before the screen Court is that Congress puts
limits on when the president and fire the heads of
independent agencies. So an independent agency is like the Federal
Trade Commission or the Federal Reserve. So really since the
start of the Constitution, Congress has imposed limits on when
(02:37):
the president can fire these people. The question in the
case is whether that's unconstitutional, whether the president can fire
the head of an independent agency for any reason, even
if Congress has said they can only fire them, you know,
if they're engaged in bad behavior. So this is a
very big deal. So much of a government structure that
protects people in different ways or regulates economy is done
(03:01):
through independent agencies. Congress has wanted to insulate them from
total executive control, and the Supreme Court is deciding right
now whether, in fact, the president has the kind of
control that comes with being able to fire the leaders
of the agencies.
Speaker 2 (03:15):
In these oral arguments, you often hear the Supreme Court
justices say, well, that's a job for Congress. You know,
that's not something that we should be interfering in. So
why are they interfering here where Congress has set up
these agencies and the rules.
Speaker 6 (03:32):
That's a great question. There had been so many times
in which the Court is saying, this is a political matter,
we shouldn't be deciding. But at the same time, the
conservative justices of the Court are very dedicated to what's
called the unitary executive theory, which means that the president
is in total charge of the executive branch. So what
(03:55):
they're saying here is Congress doesn't get to be involved.
The president is in total charge of the executive branch,
including what have historically been things like the independent agencies.
That is kind of one of the core commitments that
has really been at the basis of what Chief Justice
Roberts has thought really going back to when he was
(04:15):
a young attorney, and that's the same thing for most
of the members of the whole conservative wing.
Speaker 2 (04:21):
What kind of concerns did the conservative justices express during
the oral arguments about this ninety year old President Humphrey's executor.
Speaker 6 (04:32):
There are two things that we're seeing the conservative wing
of the Court struggle with. One is they want the
Federal Reserve to continue to be independent. They don't want
the president to be able to fire the commissioners of
the Federal Reserve. And they don't want that because you know,
(04:52):
that would be terrible for the economy. If the Federal
Reserve is setting interest rates just in order to help
the p resident rather than to help the economy, that
would be a disaster, be a disaster for the market,
the disaster for the economy as a whole. So the
conservative wing of the Court i think, wants to overturn
Humphrey's executor, but they're trying to come up with some
(05:15):
rationale in which they can say the President can fire
somebody on the FCC, but he can't fire somebody on
the Federal Reserve. And they're going to be looking at
the Federal Reserve later in the term that's a big
concern for them. So I think that animates all of
the conservative justices of the Court. I think also, you know,
(05:37):
what I'm hearing with the Chief Justices. What he's trying
to do is to come up with some way in
which there's some agencies where Congress can in fact limit
the president's ability to fire people. And he's thinking about,
you know, are the ones that are essentially kind of
judicial in their function, And you know, that may be
(05:59):
an area in where which Congress can establish requirements or
when the president can terminate somebody, but that's not the
Federal Trade Commission. Federal Trade Commission is not making this
judicial decision, you know, it's very much deciding executive type rules.
So I think we're seeing two things on the conservative
wing of the Court. One is they're trying to come
(06:19):
up with some way in which they can say the
president can fire somebody the FDC, but not at the FED.
And I think the Chief is trying to come up
with some way in which there's some type of agencies
in which the president can be limited by Congress. But
those would be ones that are really really deciding kind
of fuzzi judicial matters, not the fdcate. I mean, you know,
(06:42):
he's going back. There's a case from the nineteen fifties
involving something. There was the War Commission that was basically,
you know, making judicial type decisions involving people. He's trying
to preserve that line of president, you know, even as
he overturns Humphrey's executor.
Speaker 2 (06:58):
The liberals things that a dire picture of what would
happen if Trump wins here. Justice Soto Mayor said to
the Solicitor General, you're asking us to destroy the structure
of government. Do you think it's that serious?
Speaker 6 (07:12):
I think that's absolutely right. You know, we have had
independent agencies which largely exists to protect people of limited power,
you know, and they've been in place really for one
hundred years, you know, and the idea is that these
should be basically bipartisan or apolitical. They should not just
be tools of the president. So, you know, what the
(07:34):
court is considering right now is whether that whole kind
of structure gets got it. So the stakes on this
are huge.
Speaker 2 (07:41):
Well, President Trump wasn't specifically mentioned by name, two of
the liberal justices, Elena Kagan and Katanji Brown Jackson, did
make broad references to his firing of experts and dismantling
of the Department of Education.
Speaker 4 (08:00):
That the more realistic danger here is that we'll have
an education department, as authorized by Congress by law, that
won't have any employees in it.
Speaker 7 (08:11):
Congress is saying that expertise matters with respect to aspects
of the economy and transportation and the various independent agencies
that we have. So having a president come in and
fire all the scientists and the doctors and the economists
and the PhDs and replacing them with loyalists and people
(08:33):
who don't know anything is actually not in the best
interest of the citizens of the United States. This is
what I think Congress's policy decision is.
Speaker 2 (08:42):
Do you think they were trying to remind their conservative
colleagues about some of the actions he's taken.
Speaker 6 (08:49):
So the approach to the unitary executive, you know, what's
motivating the court is pretty long standing. So people like
the Chief have for a long time, I'm believed that
the president should be able to fire the people who
run independent agencies. So, you know, for Chief Justice Roberts
(09:10):
or for Justice Kavanaugh, the basic legal principle is one
that they believed for a long time, long before Trump.
Speaker 4 (09:18):
You know.
Speaker 6 (09:18):
At the same time, you know, what we're seeing right
now is that in the Trump administration, you know, the
independent agencies and all of the government watchdogs, there's an
attempt to politicize them in a way that you know,
we've never seen before. So the stakes are very different,
and they're much higher. You know, if Humphrey's executor has
been overturned, you know, in President bush forty threes administration,
(09:44):
the stakes would have been very different because President Bush
was not focused on making independent agencies kind of the
tool for his politics. But that's what we're seeing with
President Trump, and that's why the stakes.
Speaker 2 (09:57):
Are so high.
Speaker 6 (09:58):
They've always been big, but in this administration, where there's
such an attempt to kind of move away from scientific
expertise and neutral decision making to control every part of
the executive branch, the stakes are huge. And that's really
part of what those three liberal justices we're questioning about.
(10:21):
You know, at the same time, I think, you know
the other thing that they really are focusing in an honor.
First of all, it's very very hard to come up
with some line where you can say Congress can limit
the present's ability to fire the heads of the sec
they can't fire at will the heads of the FED.
(10:42):
You know, it's very hard to come up and I
can't think of any kind of coherent way to distinguish
those two cases. And that's one of the things that
the liberals were pressing on. You know, I think they're
also pressing on the history. You know, if you look
at the constitutions, the text of the constitutions doesn't say
that the president gets to fire people in the executive rention.
(11:02):
It doesn't deal with removal at all. So you know,
there's not a text that really helps the conservative way
of the Court and Congress. Really, starting in the Washington
administration limited the president's ability to fire people running agencies
or kind of what was analogous to modern agencies at
the time. So I think what the liberals on the
(11:24):
Court are focusing on our first of all, on the text,
the original understanding, as well as the huge consequences of
essentially giving the president of power to politicize all of
the independent agencies.
Speaker 2 (11:36):
I've been talking to constitutional law professor William Trainor of
Georgetown Law. Bill, did you sense that any of the
conservative justices might vote against Trump here?
Speaker 6 (11:49):
I think that the chiefs may come up with, you know,
an attempt to limit the ruling, but you know it
would align with Trump. The only one who I think
is at all you know from based on from what
I heard, may vote against Trump is Justice Gorsic, And
I think what he's really struggling with is, you know,
(12:09):
he really thinks they're constitutional problems with the whole administrative state.
So kind of thinking through how you feel about Humphrey's
executor in that context, I think is complicated. So based
on what I was hearing yesterday, I think he is
the only one who I think there's some chance that
would rule against the president, but I think at the
(12:30):
end of the day, he probably would rule in the
way the president wants.
Speaker 2 (12:34):
I wonder what happens when there's a democratic president. Do
the conservatives then try to limit the ruling they're expected
to make here.
Speaker 6 (12:43):
You know, one of the reasons why I think that
the Court should not overturn Humphrey's executor is to the
extent that you have any kind of political con terms,
you're giving a democratic president the power to do exactly
what President Trump is doing to to politicize every independent
agency in the way that that president wants. You know,
(13:05):
and then how does a conservative court say, well, you know,
Humphrey executors is back. Once you establish a rule, you know,
it applies to everybody. That's something that they really have
to think through because of the long term consequences, because
I don't think they would feel comfortable, you know, with
limiting a democratic president after they allow you know, President
(13:28):
Trump to fire people whenever he wants.
Speaker 2 (13:31):
So you think that they will completely overrule Humphrey's executor.
Speaker 6 (13:36):
No, I think they will completely overrule Humphrey's executor. I
think the one question for me is whether the chief
comes up with some limiting principle in which if there
are you know, quasi judicial independent agencies, then Congress can
put limitations on the president's ability to fire. But I think,
(13:58):
you know, the basic point is, I think they're going
to overturn Humphrey's executives, you know, and they've been you know,
going in that way for some time.
Speaker 2 (14:05):
If Slaughter is fired, that leaves the FTC without any
democratic commissioners. So then does that mean that you'll have
these commissions where when there's a Republican in power, it
will be all Republicans on the commission. And when there's
a Democrat in power, there'll be all Democrats on the Commission.
Speaker 1 (14:26):
I think that's right.
Speaker 6 (14:27):
I think that's right. You know, because a democratic president
is going to say, you know, I'm not going to
have a bipartisan agency. If you know, in Republican administrations
it's all Republicans. You are setting up something which is new,
which is that, you know, independent agencies are not independent.
(14:50):
Then they just follow what the president wants. That's empowering Trump,
but it's also going to empower democratic presidents in the future.
You know, in these areas where you really want non partisan,
where you want kind of balanced decision making, that's going
to go out the window.
Speaker 2 (15:08):
The Court in may call the FED uniquely structured quasi
private entity, unlike other independent agencies. And here's what Justice
Brett Kavanaugh said during neural arguments.
Speaker 5 (15:21):
The Federal Reserve. The other side says that your position
would undermine the independence of the Federal Reserve, and they
have concerns about that, and I share those concerns. So
how would you distinguish the Federal Reserve from agencies such
as the Federal Trade Commission?
Speaker 2 (15:39):
And just how would they do that?
Speaker 6 (15:41):
Again, I think the thing that the conservative wing of
the Court has grabbed them with, is what's the rationale
for saying that Congress can't limit the prison the ability
to fire the heads of the SEC. But can that
his ability to hire, you know, the heads of the Fed.
(16:04):
You know, that's what they're struggling with because it would
be a disaster economically if the president could fire Jerome Pal,
and so you know they're struggling. They're trying to thread
the needle so that the president can fire somebody at
the FTC for any reason, but not do the same
with the FET And you know, I think the historical
(16:27):
examples to say that the First Bank and the Second
Bank of the United States, going back to really to
the origins of the of the country, that those were
areas in which there was a kind of autonomy that
the president didn't control. But you know, there were also
examples outside of the First Bank and the Second Bank
where the president's authority was limited. So I think what
(16:48):
the court will try to do is to say the
president can't fire Jerome Pal, can't fire at least to cook.
But I don't think that that is kind of a
coherent approach, you know, because I think it would be
based on history. But the history doesn't support it.
Speaker 2 (17:03):
A lot of times they seem to pick and choose
the history that's useful. It's been great talking to you, Bill.
Thank you. That's Professor William Trainer of Georgetown Law. The
Supreme Court heard arguments on Monday on whether President Trump
has the authority to make hiring and firing decisions for
independent government agencies like the FTC or the Federal Reserve.
(17:27):
The case was brought to the Court by former FTC
Commissioner Rebecca Kelly Slaughter, who was fired by the Trump
administration because they said her appointment was quote inconsistent with
the administration's policies. She told ABC News that if the
Justices signed with the Trump administration, independent government agencies from
(17:48):
the National Weather Service to the Federal Reserve could be
stacked with the loyalists to the president.
Speaker 8 (17:55):
Congress decided that when it's set up these agencies like
the FTC and like the Federal Reserve and about two
dozen others, that there should be some checks and balances
in how the powers that those agencies have are used
to avoid political interference. I've said from the beginning that
(18:15):
this isn't about me or my job, and that was
very much on display at the arguments yesterday. It is
about not just the agency I serve, the FTC, but
a whole host of federal agencies. And it was clear
that it's really difficult to come up with any principal
distinction between the FTC and, for example, the.
Speaker 2 (18:36):
Fed joining me now is constitutional law expert Jillian Metzger,
a professor at Columbia Law School, Jillian, in your view,
what's at stake in this case?
Speaker 1 (18:47):
Well, there's a lot potentially at stake in this case.
The specific issue in the Slaughter case itself has to
do with the ability of the President to remove a
member of the Federal Trade Commission without cause. But the
logic of the Solicitor General's argument, and the argument that
many of the conservative justices seem to be embracing, is
(19:10):
considerably broader than that. It would not just extend to
other independent agencies that have similar kinds of authorities as
the FTC adjudicatory and regulatory. It would extend to what
are called non Article three courts, entities that really function
as courts but don't operate with the Article three protection.
So the Court of Federal Claims, for example, was one
(19:33):
that came up in the oral argument, and those are
also entities that would if you focus on the breadth
of the Solicitor General's argument and the kind of claims
of really unlimited removal power in the president over executive officers,
it would encompass those, It would encompass the FED, and
a particular concern it wouldn't just be limited to principal officers,
(19:56):
it would be also encompassing inferior officers and in particular
employees and the civil service. And one of the interesting
aspects of the oral argument was there were definitely some
justices who were concerned about the potential implications of their
holding and of the government's argument, and trying to find
ways that they could decide more minimalistically and still hold
(20:20):
for the government here without adopting all of these implications.
And they were particularly concerned about the non Article three
courts and also the FED. But it was only Justice
Kagan who really pushed on how this would also apply
to the civil service, and the conservative justices didn't refer
to that. And that would be really quite extraordinary if
it turns out that removal protections for the civil service,
(20:41):
which are such a critical piece of our administrative state,
are under this decision on constitution.
Speaker 2 (20:47):
Jillian, I've asked this question more than once. Why do
the conservatives embrace this unitary executive theory that gives so
much power to the president to another branch of government.
Speaker 1 (21:00):
You know, it's interesting. This is a received conservative legal
idea and principle that the president has unlimited control over
the executive branch, that the Constitution divides the authority between executive, legislative,
and judicial, and the vesting clause means the president is
(21:21):
vested with all the executive power. And when I say conservative,
I mean conservative in the political sense. This goes back
to the Reagan administration, the birth of the conservative legal movement,
and this was one of their kind of founding principles
as a way of pushing back on administrative government and
the administrative state. I think that still actually underlies a
(21:44):
lot of this that kind of resistance and a suspicion
of administrative power. What's interesting is other principles of that
conservative legal movement are actually intention with the unitary executive
idea in this way. One of the things that's been
established over time, particularly recently there's been a huge burst
of excellent scholarship, is that really at the Founding, there
(22:06):
was not this commitment to presidential unitary control over the
executive brand. There are a number of instances of arrangements, commissions.
Thinking Fund came up in the argument, The Revolutionary Debt
Commission came up in the argument. These are entities that
the president did not have full and unconstrained removal power over.
There's just been a great deal of scholarship about the
(22:28):
variety of kinds of appointment arrangements and institutions and how
granting a term of years actually meant to provide some
removal protection. So there really isn't an originalist case for this.
There were certainly arguments made at the Founding that the
president should have this power, but it's by no means obvious,
and I think the weight of the evidence actually suggests
(22:49):
that really that was not the view. And so, you know,
you have a lot of justices who are ordinarily proclaimed
their originalism being willing to just blithely ignore the fact
fact that this restriction that they're imposing on the political
branches are likely to impose has no historical founding and
does not date back to the views of the founders.
(23:11):
So that's odd. You know. The other thing that's that's
quite interesting is that, you know, at this point, particular
point in time, where we have a president who is
asserting very aggrandized understandings of executive power, and you know,
refusing to adhere to statutes and limits enacted by Congress.
Statutes and limits that aren't at issue in this case,
(23:31):
but broad refusal to adhere to a number of governing statutes,
you know, trying to dismantle agencies, you know, spending impowments
and the like. That the Conservative justices concern was that
Congress might make the Department of Education and independent agency
that really seems not to be the threat on the horizon.
The threat on the horizon is deeply a grandized executive
(23:54):
and you would have thought that would have perhaps given
more caution to them. I think the other thing that
anim makes them. They have this image of the president
being on top of the executive branch and a very
simplistic model of political accountability where the president is nationally
elected and therefore legitimizes everything but the executive branch does.
(24:16):
And what they leave out of the equation is that
there is extensive political accountability through Congress as well. And
their model of very simplistic political accountability. This kind of
chain of command way just isn't how government operates. There's complicated,
messy relationships, which in fact do yield a great deal
of accountability, but it just isn't accountability in the model
(24:38):
that they want.
Speaker 2 (24:39):
They really gave short shrift to Congress and any congressional power.
And I thought that it was interesting when Justice Sodo
Mayor said to the Solicitor General, so you're arguing that
the reasoning of the more current justices on this court
has more purchase than the views of renowned jurists like
Homes and brand Ice and Justice store right exactly.
Speaker 1 (25:01):
And then you had Kavanaugh trying to revive the scale
by saying, well, we also have Taft and we also
have Scalia, which was ironic.
Speaker 2 (25:10):
Scale and descent usually, yes, exactly, that point was.
Speaker 1 (25:13):
Not noted other than you. They noticed this as well.
But when they're talking about reliance, so that you know,
obviously starry decisis is a big factor in this argument.
And when they're talking about reliance, several of the justices
on the conservative side were suggesting that there was no
reliance that mattered here because it was a structural issue,
which is an essence to say the fact that for
(25:35):
hundreds of years, our presidents, members of Congress, our political
institutions have been operating and constructing a government on reliance
on the idea that you could have these kinds of
institutions that doesn't count. And that was just a remarkable suggestion.
Speaker 2 (25:51):
I thought it seemed to me that the liberals had
the best part of the legal argument. So wondering how
the conservatives are going to approach this decision, I.
Speaker 1 (26:06):
Think they're going to go more minimalists. There were several
suggestions of some things that justices did not want to reach.
The Chief really seemed to want to carve out non
article free adjudication and the Fed Kavanaugh similarly, Barrett also suggested,
can we even not specify that this is based on
the executive power clause? But this is just an authority
(26:28):
to remove that the president has without specifying the full
contours of it, the idea being I think that when
it's based on the executive power clauses, when it has
its broadest implications, versus if you conclude the president has
power to remove based on the take care clause, that
may impose some limits on the scope because a presidential
(26:50):
removal power that's at odds with the statute being implemented
would be harder to infer. And similarly, presidential removal power
based on the appointments clause would really primarily extend to
principal officers or those inferior officers that Congress gives the
appointment of to the president. But for those instances where
inferior officers are given to the courts or heads of department,
(27:14):
the president wouldn't have the removal authority, And the appointments
clause just doesn't speak to employees, and so it would
leave that issue out.
Speaker 2 (27:22):
Let's say that the Conservatives, as expected, rule for the
president here, what kind of changes would we see in
the government. I mean, just changing the heads of agencies.
Will it make that much of a difference.
Speaker 1 (27:37):
I think it does depend a little bit how they
do it. So suppose what they do is they limit
their decision to really independent regulatory agencies like the FTC,
the NLRB, the Nuclear Regulatory Commission. These are agencies that
have adjudicatory responsibilities and also rulemaking responsibilities as well as enforcement,
(27:58):
and what they do is simply excise the removal protections
for the members who head those agencies. That leaves those
agencies standing, and it just would serve to allow the
president to remove it will the members of the commissions,
and I think we'll probably therefore also really eviscerate the
(28:18):
bipartisan requirements that are in the statute right now for
heading those agencies. There's no challenge to those bipartisan requirements
here except that if the president can remove it will
he can do what he's been doing, which is removing
the democratic members of these agencies. So that would be
what we would see. There's some suggestion in the argument
that the Court should consider a different kind of excising
(28:41):
and perhaps excise those powers that these agencies exercise that
are executive and need to be within the president's control.
That would be more of a fundamental change to the
scope of these agencies, but would leave the possibility that
the members of the commission that had them could still
have some removal protection. And I guess is that the
(29:03):
Court is going to do the former. It fits with
what their president has been and to be honest, it's
the situation we're in already because the President has been
removing the heads of a number of these independent agencies
without cause. Lower courts have given injunctions requiring that they
be able to stay in office, and the Supreme Court
stayed them. So currently, you know, these agencies are operating
(29:27):
under the situation where the president can remove at will
members of the commissions that had them, So we continue
in that situation. I mean, the other thing that's just
really striking is nineteen eighty eight in Morrison. That is
a Renquist opinion. It is incredibly lopsided in terms of
upholding removal restrictions and rejecting all of the arguments that
(29:47):
the conservatives were going for here, rejecting the idea that
the text is clear, rejecting the idea that there's a
constitutional separations of powers violation, and adopting what's a very
sensible line, which is basically, the removal restrictions are constitutional
unless they impede the president's ability to perform the president's
constitutional function. And that was nineteen eighty eight and Renquist.
(30:08):
And we're just in such a different landscape, and it's
not that long.
Speaker 2 (30:12):
Having this conservative super majority has really changed the law
in many respects. Thanks so much, Jillian. That's Professor Gillian
Metzger of Columbia Law School, And that's it for this
edition of The Bloomberg Law Show. Remember you can always
get the latest legal news on our Bloomberg Law Podcast.
You can find them on Apple Podcasts, Spotify, and at
(30:34):
www dot bloomberg dot com slash podcast Slash Law, And
remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso and
you're listening to Bloomberg
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