What the Trump?! | Did an Executive Order just end the US Administrative State? (VL) - Virtual Legality

Episode Transcript
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(00:14):
Hello, and welcome to another episode ofVirtual Legality.
I'm your host, Richard Hogue, managing memberof the Hogue Law Business Law Firm of
Northville, Michigan.
And today, I think we have a very importantepisode for us because we're talking about the
United States government and just whatauthority president Trump does or does not
have.
Now if you're anything like my family, you maybe asking yourself the question, what is an

(00:35):
executive order?
Seeing as president Trump has signed hundredsof them in the first couple of months of his
presidency.
What does it do?
What authority does it have over me?
It's not a law.
It's clear from the titling of executive orderthat it's not that.
But how does it work?
What does it mean?
And I think in order to have that conversation,which will be very important to our topic of
discussion today, we need to understand as afirst principle how the United States

(00:55):
government is organized.
Now you might already know some of this fromcivics class back in grade school, but if you
don't, I think this will be helpful for ourunderstanding.
So the US government is divided into threebranches.
The first, the legislative branch, comprised ofthe Senate and House of Representatives, writes
the laws that govern our lives, makes the rulesthat are enforced by the executive branch.

(01:16):
So we have the legislative branch that writesthem, the executive branch, president Trump and
his administration, that enforces them.
And then when he seeks to enforce those laws,the judiciary, the judicial branch, the the
Supreme Court at its highest level, theninterprets the laws and sees whether the
executive is enforcing them correctly.
So we have those three branches, but becausethe executive branch is so big now, because the

(01:36):
administrative state in The United States in2025 has so many people working within it, the
presidency has to decide exactly how the lawsare going to be enforced and instruct the
employees in that branch exactly how to do so.
And the question then becomes, can Congressdelegate its authority to write the laws and do
other things to individuals within theexecutive branch that are otherwise independent

(02:01):
from the powers of the presidency.
We've seen institutions and agencies like thisin virtual reality before.
We did a lot of conversing about the FederalTrade Commission and its authority to enforce
the antitrust laws against corporations seekingto merge or otherwise restrain trade.
And that particular body, the FTC, has at itshead a number of individuals that are appointed

(02:23):
by the president when they are the president,but cannot be removed except for cause and have
set terms that are put forth by congress.
And that is deemed an independent agencybecause of that authority being separated from
the president.
Can the president nonetheless get rid of thosecommissioners?
Can he otherwise control that agency, which isoperating under the executive branch insofar as
it's choosing who to enforce its rules against.

(02:46):
Right?
And this is a part of the conversation.
I just described the three branches ofgovernment, but since the founding, congress
has created a number of these agencies, theFTC, the FCC, the SEC, all these letters that
sound a lot alike when you're listening to itin podcast form or watching it on YouTube.
But all of these agencies that are otherwiseoutside the complete power of the presidency
because the president can't remove theindividuals if they do something that he

(03:09):
doesn't like.
So can they do that?
And if they can, what are the limits on thatpower?
And this executive order from a few days ago isperhaps the most important executive order that
president Trump has so far signed because itseeks to change the way in which The United
States administrative state, those agencies inthe executive branch operate.
And I wanna talk to you all about it becauseit's not as clear as you might be hearing on

(03:33):
the internet whether this is a good thing,whether this is a bad thing, whether this is a
tyrannical or authoritarian seeking of kinglypowers or monarchy or something that is
otherwise required by the constitution.
We have a lot to talk about, so let's look atthe executive order itself first, which is
somewhat understatedly named ensuringaccountability for all agencies.

(03:56):
By the authority vested in Meade as presidentby the constitution and the laws of The United
States Of America, it is hereby ordered thatthe constitution vests all executive power in
the president and charges him with faithfullyexecuting the laws.
There is absolutely no controversy about thatsentence.
That is entirely true.
That is what The US constitution does.
The controversy, if it exists at all, iswhether or not that means the president has to

(04:18):
have the authority to remove and order thedirection of everyone within the executive
branch.
Reasonable minds can 100% differ on thisquestion.
We're gonna see how in just a minute.
Continuing with this executive order, whichagain is just a part of the executive branch
operations to instruct all of the people withinhis branch on how to pursue the execution and

(04:39):
enforcement of the laws that are written byCongress.
He then says the president is regularly electedby and accountable to the American people.
This is one of the structural safeguards alongwith the separation of powers between the
executive and legislative branches, regularelections for the Congress, and an independent
judiciary whose judges are appointed by thepresident by and with the advice and consent of
the Senate by which the framers created agovernment accountable to the American people.

(05:01):
Now all of that's extra information.
Right?
This is an executive order.
It's out of law.
It doesn't have any specific way that it needsto be written.
But the framing device for this is that I amnot a tyrannical king seeking authority over
everyone.
I am not trying to become Emperor Palpatine, ifyou're familiar with the Star Wars franchise.
Instead, what I am doing in this executiveorder is by design to bring us closer to the

(05:23):
constitutional republic that the founders ofThe United States envision.
Now you don't have to agree with that, butthat's the framing device of this particular
executive order.
He continues, however, previous administrationshave allowed so called independent regulatory
agencies to operate with minimal presidentialsupervision.
And this is another component of thisparticular discussion, which is to say the FTC

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obviously has been around a long time, as hasthe FECCC and the SEC and all sorts of other
letter agencies that you can think of.
But just because previous presidents agreed tothem, acceded to the congressional delegation
and creation of these independent agencies,doesn't mean that they're constitutionally
required, and this president has a differentinterpretation of what con congress's authority

(06:04):
should be on this particular question.
He continues, moreover, these regulatoryagencies have been permitted to promulgate,
that's just create in when we're not in lawyerterms, significant regulations without review
by the president.
They make rules that are not laws.
And remember, the process of making a law inThe United States is that the legislature
writes them, but the president has to sign themor veto them.

(06:25):
And these agencies, like the FTC, create thingslike the COPPA rule that we've talked about in
virtual reality without the need for thepresident to sign off on them, and so he's
objecting to that practice.
For the federal government to be trulyaccountable to the American people, officials
who wield vast executive power must besupervised and controlled by the people's
elected president.

(06:45):
It shall be the policy of the executive branchto ensure presidential supervision and control
of the entire executive branch.
So he's objecting to the creation of theseindependent agencies and the creation of
positions that he cannot otherwise control,direct, or fire.
And so he continues from there.
We're gonna skip a few of the definitions.
That the director of the Office of Managementand Budget, OMB, shall provide guidance on

(07:08):
implementation of this order to the heads ofthe executive departments.
And that the director of OMB shall establishperformance standards and management objectives
for independent agency heads.
So we're gonna run this government or at leastthis executive branch more like a corporation,
says president Trump, as appropriate andconsistent with applicable law and report
periodically to the president.
The director of OMB shall, on an ongoing basis,review independent regulatory agencies'

(07:32):
obligations for consistency with thepresident's policies and priorities.
So this is an area that's definitely gonna becontroversial in so far as the president is
saying, oh, I have full authority over theexecutive branch.
Independent agencies comport with my policypreferences because the people elected me to
direct this branch.
And these independent agencies are undoubtedly,in the near future, I would guess, going to sue

(07:54):
over this, or congress is.
One of those two bodies is going to sue overwhether the president can demand this
particular directive because it has not beenthe case over the course of the recent history
of The United States That the presidency hasotherwise accepted the existence of these
independent agencies and their authority.
He will also direct the OMB to adjust suchagencies apportionments, that's their money, to

(08:19):
advance the president's policies andpriorities.
Such adjustments to apportionments may prohibitindependent regulatory agencies from expending
appropriations on particular activities.
So the president is saying I have moreauthority than congress thought with respect to
these agencies, and so I'm gonna direct thepeople that are directly under my purview, like
the director of OMB, to go and check-in on howthese agencies are operating and change their

(08:41):
budgets if they aren't doing what I like.
This certainly sounds like a usurpation ofauthority, just as we're reading it right here.
But there's a lot going into this that may ormay not be as bad as is suggested on the
Internet.
So hang with me for just another minute as weread the rest of this executive order and then
get into the legal discussion of what thismeans and what it doesn't.

(09:01):
Continuing, subject to section b, independentregulatory agency chairman shall regularly
consult with and coordinate policies andpriorities with the directors of OMB, the White
House Domestic Policy Council, and the WhiteHouse National Economic Council.
So you FTC commissioners, you'll check-in withus pretty regularly.
The heads of independent regulatory agenciesshall establish a position of White House

(09:22):
liaison in their respective agencies.
So not only will you check-in with usregularly, you will get somebody from the White
House that will work directly with you andcommunicate whatever it is that you're doing
directly back to me so that we can adjust thosebudgets and we can otherwise control what it is
that you're doing in the executive branch.
The president and the attorney general, subjectto the president's supervision and control,

(09:44):
shall provide authoritative interpretations oflaw for the executive branch.
Now this for the executive branch is superimportant here.
I saw on my timeline and in social media and insome articles that have already been written
about this, even though I don't think thisexecutive order has been written about enough
at this moment in time, suggests that this wasthe president usurping the judiciary, the
judicial branch's authority to interpret thelaw.

(10:06):
That is not the case.
This is an executive order.
This is an assertion that the president and hisdirect respondent, the attorney general, will
have the authority to interpret law for theexecutive branch, not as it stands in a
platonic ideal sense.
The judiciary still gets to determine what thelaw is.
If the executive branch brings a case againstsomeone, they're still going to court over it.

(10:28):
But this rubbed a lot of people the wrong way.
I wanted to talk about that for a secondbecause that is not what is happening here.
The president and the attorney general'sopinions on questions of law are controlling on
all employees in the conduct of their officialduties.
No employee of the executive branch acting intheir official capacity may advance an
interpretation of the law as the position ofThe United States that contravenes the

(10:49):
president or the attorney general's opinions ona matter of law.
Now if you're a fan of Donald Trump, then youmight look at this and say, yeah, that's what
the election meant.
That when I when we elect a president to be thehead of the executive branch, then that's what
we are talking about.
That there shouldn't be other officials thatare otherwise undermining him or doing things
that are opposite what his policy preferencesare.
That's what elections have consequences mean.

(11:10):
But if you're not a Donald Trump fan, again,this looks like a usurpation of authority that
was delegated by congress to these otherindividuals, and that's gonna be an open point
of controversy.
But that's the real executive order.
I think this is probably the most important onethat he has so far signed.
It would upend the administrative state in TheUnited States in a way that we haven't seen for
a considerable amount of time in our recentpast, but it isn't what some people are saying

(11:36):
it is.
I pulled up a sample tweet here from a BrianAllen Allen analysis that says breaking, Trump
just signed an executive order declaring thatonly he can decide what the law is.
And that's in quotes because that is the famousMarbury versus Madison assertion of what the
judiciary and the Supreme Court in The UnitedStates does.
They interpret the law and they determine whatit is.
A full blown power grab as described by misterAllen here wrapped in authoritarian cosplay.

(12:00):
If anything, it's wrapped in populist ordemocratic cosplay.
This isn't how the constitution works, saysmister Allen.
The courts exist for a reason, but Trump is outhere acting like a king with a Sharpie.
If this stands, the rule of law doesn't justbend, it breaks.
Now this is wrong.
This tweet is wrong.
This message is wrong.
But equally wrong is a tweet from StephenMiller that says the founders created a unitary

(12:23):
executive branch, meaning one individual hasthe power, in which the executive power shall
be vested any president of The United States,the vesting clause.
All executive power is vested in the one manelected by the whole nation.
No unelected bureaucrat, that would be your FTCcommissioners or whatever other agency you
wanna think about on this score, has anyindependent authority.
And again, going back to first principles, thelegislative, executive, and judiciary branches

(12:47):
all exist from the authority of the people.
Right?
It's that's the we the people concept of TheUnited States.
The entire government has any authority over usbecause it's authority given to them by the
people of The United States.
This argument is that no one electedbureaucrat, none of these commissioners have
any independent authority.
It's all in the executive branch.
It's all the presidents to begin with.
This isn't exactly right either.

(13:09):
And so with that as our background, I wanted tolook a little bit further into this executive
order and the fact sheet that the White Houseput out so that we can better understand what
it is that they are claiming to have done here.
And then we're going to look at what I think isone of the better law review articles that I
have ever seen on this particular question.
And if you are at all interested in law or lawschool or thinking that you might wanna become

(13:31):
a lawyer, you're gonna wanna hang in here forthat because it's a really good law review
article.
It does argue things in the alternative so youget to see things from multiple different ways.
But if you find that to be boring oruninteresting, you're gonna wanna turn away
from law school.
Now, on this fact sheet, the president says,article two of The US constitution invests all
executive power in the president, much like wejust saw from the Stephen Miller tweet, meaning

(13:53):
that all executive branch officials andemployees are subject to a supervision.
And that's an assertion.
Right?
It sounds logical, but it is an assertion ofhow the constitution actually operates.
We'll see in just a minute why it doesn'tnecessarily flow from the first that the
executive power is all in the president.
Then it continues saying because all executivepower is vested in the president, all agencies

(14:14):
must submit draft regulations for White Housereview and consult with the White House on
their priorities and strategic plans.
The Office of Management and Budget will adjusttheir apportionments, and the president and the
attorney general will interpret the law.
So this is a good summary of what we just readin the executive order.
I always like to go to the primary sourcematerial first, but this is a good summary.
But again, it's not as hyperbolic as either ofthe two tweets that we just looked at, and

(14:38):
those were just representative of some of theconversations that I have seen online.
Then this fact sheet says the Federal TradeCommission, Federal Communications Commission,
and Securities and Exchange Commission haveexercised enormous power over the American
people without presidential oversight.
That is undoubtedly true.
And part of what we will see as we look at someof these cases and some of this analysis is
that the Supreme Court previously allowed theseindependent commissions on the premise that

(15:03):
when they were making rules, they were actingin a legislative capacity, not an executive
one.
And when they were essentially putting peoplein front of courts or tribunals or what have
you depending on the commission, they wereacting in a judicial capacity and not an
executive one.
So the legislative can obviously delegate itslegislative authorities to others as long as
they're still within their power and control.

(15:23):
And then the judiciary being implicated didn'tbother anyone really, but the executive is
where this really comes home to roost, and thisis where these people work and and live.
This is how they get paid.
They are part of the executive branch.
And when they select who they are going tobring their claims against, that is an
executive function.
They are choosing how to enforce the rules andlaws that otherwise they might have created

(15:45):
themselves.
So they're kind of little super governments asthey stand.
We've seen in the very recent past that thereis some notion at the Supreme Court level
currently in 2025 in The United States thatperhaps some of the way these are structured is
not so constitutional.
This executive order is really arguing tofinish the job there and say that these
independent agencies are not created in a waythat is com in comport with the constitution in

(16:09):
any in any reasonable way.
The order fulfills president Trump's promise torestore constitutional governance and
accountability to the entire executive branch.
Executive power without responsibility has noplace in our republic.
Again, I view this more as populist democraticcosplay.
This is saying that I am doing this not toclaim power for myself, but because the framers

(16:30):
of our constitution, the founders of ourrepublic said this is how these powers should
be separated.
And right this second, for the last hundredyears or more, they haven't been separated in
that way, and we have to make sure that the oneperson in this branch that was elected outside
of the vice president who has no authority overthese matters is the one to which the buck

(16:52):
stops.
Right?
Where the where the actual regulations andrules come from so that the people, if they
despise it or if they otherwise reject it, canvote him out in the next term or that congress
can impeach him when they don't really havethat same authority or ability for any of these
federal trade commissioners or SECcommissioners or anyone else.
So there are reasons to look at this and say,okay.

(17:15):
That's a good spin on it, but there are alsoreasons to say this does look like I'm taking
power.
Now, with that said, I promised you a good lawreview article.
Let's take a look at it.
This is written by Cass Sunstein and AdrianVermeule, the former of which I am familiar
with.
I had the good fortune of hearing a talk fromhim when I was at Michigan law, and this is

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about something called the unitary executive,the theory that the president is the one that
is the sole arbiter of control of the executivepower within the executive branch.
As they describe it, it is a bracingly simpleidea.
Article two, section one of The US constitutionvests the executive power in a president of The
United States.
Those words do not seem ambiguous.

(17:56):
Under the constitution, the president and noone else has executive power.
The executive is therefore unitary.
It follows as the night follows the day thatCongress lacks the power to carve up the
executive.
To say, for example, that the secretary oftransportation is a free agent, immune from
presidential control, or that the secretary ofcommerce can maintain their job unless the

(18:17):
president is able to establish some kind ofcause for removing them.
On this view, the Supreme Court's unambiguousembrace of the idea of the unitary executive in
what we'll call the Myers case was a goldenmoment in constitutional law, a ruling on which
diverse people ought to be able to agree, andindeed one that they should enthusiastically
embrace.
And on this view, the court's messy, confusing,neologism based, indefensible rejection of the

(18:41):
unitary executive in Humphrey's executiveversus the Federal Trade Commission, unless you
think that case is recent, it's from 1935,upholding the independence of the Federal Trade
Commission was a dark stain, one of the lowestmoments in the court's history and a priming
candidate for inclusion in the anti canon ofconstitutional law, which is all a bunch of
legal speak of saying the supreme courtsometimes gets it wrong.
And part of the job of law review articles andconstitutional law professors and the rest is

(19:05):
to look at these things and say, where did thesupreme court go wrong?
What presidents might they want to overturn inthe future?
And the other thing that I wanted to mention aspart of the top of this article is, like I said
before, this is argued in the alternative.
Right?
Which means that like any lawyer that you'veheard talk, including this one on virtual
legality, they can argue these points frommultiple different perspectives in order to

(19:26):
give you the breadth of understanding of thisparticular topic.
So anything that they say here with the on thisview proviso is advocating from an almost
devil's advocacy standpoint of this is whatthis might look to for someone of this
particular persuasion.
If you believe that that's what article twoactually says, then this is obviously the case
that Humphrey's executor that allowed theFederal Trade Commission to exist is wrong

(19:51):
under constitutional law.
The only question remaining would be shouldHumphrey's executive be flatly overruled, or
should it be confined as much as possible?
And then we go talk about what these particularlaws mean as perceived by the Supreme Court
here here in 2025 or more recently, I thinkit's 2020 for this particular case.
In Celia Law versus the Consumer FinancialProtection Bureau, the court invalidated the

(20:13):
provision guaranteeing that the director of theCFPB could not be removed by the president
except for cause.
But the court did not overrule Humphrey'sexecutor, it distinguished it, confining it to
its facts.
So you don't have to overrule a case and saythat case is wrong.
You can just say it was very specific to thatspecific case, and this case is different.
You distinguish it.
You say it's different for these reasons, andwe're gonna hold in this particular instance

(20:36):
that those reasons are important here.
The resulting opinion, however, is deeplyambiguous because it is not obvious what the
legally relevant description of Humphrey'sexecutor should now be taken to be, which
sounds like a good entry point for us to go andbring up that particular court case so that we
can talk about it.
This court case is from 2020.
You see this is a justice Roberts opinion.
Chief justice Roberts delivered the opinion forparts one, two, and three.

(20:59):
And we'll see if the highlighting actually tookhere.
Under our constitution, says chief justiceRoberts, the executive power, all of it, is
vested in a president who must take care thatthe laws be faithfully executed.
And certainly, critics of Donald Trump havecertain issues with the fact that he may or may
not be faithfully executing the laws to theirparticular level of appreciation.

(21:19):
Because no single person could fulfill theresponsibility alone, the framers expected that
the president would rely on subordinateofficers for assistance.
As a general matter, the constitution gives thepresident the authority to remove those who
assist him in carrying out his duties.
Without such power, the president could not beheld fully accountable for discharging his own
responsibilities.
The buck would stop somewhere else.

(21:40):
So said another way, okay, the president isgiven the job to faithfully execute the laws.
If he's got people within his branch that hecan't otherwise fire, he can't control, if they
go rogue, then he can't have the properauthority to faithfully execute those laws, and
so he must have the ability to control for thepeople within his branch.
The president's power to remove and thussupervise those who wield executive power on

(22:02):
his behalf follows from the text of articletwo, was settled by the first congress, and was
confirmed in the landmark decision of Myersversus The United States, the Myers case we saw
referenced in that article.
Our presidents have recognized only twoexceptions to the president's unrestricted
removal power.
In Humphrey's executive versus The UnitedStates, we held that congress could create
expert agencies led by a group of principalofficers, removable by removable by the

(22:24):
president only for good cause.
And in The United States versus Perkins andMorrison versus Olson, we held that congress
could provide tenure protections to certaininferior officers with narrowly defined duties.
We are now asked to extend these precedents toa new configuration, an independent agency that
wield significant executive power and is run bya single individual who cannot be removed by

(22:45):
the president unless certain statutory criteriaare met.
We decline to take that step.
So the court is gonna hold that the CFPB isunconstitutionally created primarily because it
has one director instead of five commissionerslike the FTC or other numbers of commissioners
as seen in other groups.
Now, if that makes any sense to you, we'll seewhether it does when we look at the court's

(23:07):
reasoning in just a minute, That is the end ofthe story.
Right?
You can't have one person, you can havemultiple people, and that's the difference
under constitutional law as the Supreme Courtsees it.
But if you look at this and say, well, thatdoesn't make a ton of sense as a distinguishing
feature, you're really trying to overturnHumphrey's executor without saying that you
were doing that.
Then we create this whole area of ambiguity asto what is the status of the remaining

(23:29):
independent agencies under the executive branchas it stands after this case was decided.
And that's really what president Trump and hisadministration is reacting to.
While we need not and do not revisit our priordecisions allowing certain limitations on the
president's removal power, and this is a veryRobertson decision here to say, we're not gonna
look at any questions that might otherwise beuncomfortable.

(23:49):
We're gonna narrowly look at this as small aspossible so that we don't upturn any of the
administrative issues or otherwise make bigchanges to the US government.
While we need not and do not revisit thoseprior decisions, there are compelling reasons
not to extend those precedents to the novelcontext of an independent agency led by a
single director.
Such an agency lacks a foundation in historicalpractice and clashes with constitutional

(24:12):
structure by concentrating power in aunilateral actor insulated from presidential
control.
So we can already hear justice Roberts sayingthat one person versus five people is gonna
matter a lot to me.
We therefore hold that the structure of theCFPB violates the separation of powers.
The agency may continue to operate, but itsdirector, in light of our decision, must be
removable by the president at will.

(24:35):
Continuing, as a history of this particularlaw, after the crash in 02/2008 and 02/2010,
Congress acted on the proposals to fix thingsand created the Consumer Financial Protection
Bureau as an independent financial regulatorwithin the Federal Reserve System.
Congress tasked the CFPB with implementing andenforcing a large body of financial consumer
protection laws to ensure that all consumershave access to markets for commercial financial

(24:59):
products and services and that markets forconsumer financial products and services are
fair, transparent, and competitive.
Congress transferred the administration of 18existing federal statutes to the CFPB,
including the Fair Credit Reporting Act, theFair Debt Collection Practices Act, and the
Truth in Lending Act.
In addition, Congress enacted a new prohibitionon on any unfair, deceptive, or abusive act or

(25:20):
practice by certain participants in theconsumer finance sector.
And you might recognize that language from ourdiscussions on how the FTC operates outside the
consumer finance sector.
It was clear that the CFPB was designed tomirror the construction of the Federal Trade
Commission, but not as a commission, but with adirectorship.
Congress authorized the CFPB to implement thebroad standard through binding regulations.

(25:41):
Congress also bested the CFPB with potentenforcement powers.
The agency has the authority to conductinvestigations, issue subpoenas and civil
investigative demands, initiate administrativeadjudications, and prosecute civil actions in
federal court.
So it's an executive branch agency as we wouldrecognize it.
The CFPB's rulemaking and enforcement powersare coupled with extensive adjudicatory

(26:02):
authority.
So, again, it's one of those little supergovernments where it has all the branches
powers within it.
When the CFPB acts as an adjudicator, it hasjurisdiction to grant any appropriate legal or
equitable relief.
Congress has designed for the CFPB differentfrom the proposals of professor Warren and the
Obama administration in one critical respect.
Rather than create a traditional independentagency headed by a multi member board or

(26:22):
permission, congress elected to place the CFPBunder the leadership of a single director.
And, again, this is very important to chiefjustice Roberts for reasons that he has not yet
illuminated us on.
The director serves for a term of five years,during which the president may remove the
director from office only for inefficiency,neglect of duty, or malfeasance in office.
The took the court, the lower court on thisparticular question, took as its starting point

(26:46):
Humphrey's executor, which had approved forcause removal protection for the commissioners
of the Federal Trade Commission.
In applying that precedent, the courtrecognized that the CFPB wield substantially
more executive power than the FTC did back in1935, and that the CFPB's leadership by a
single director presented a structuraldifference that some jurists, including this
one, says the author, had found dispositive.

(27:08):
But the court felt bound because where theSupreme Court and the lower courts have to feel
bound by our precedents.
Continuing on.
We hold that the CFPB's leadership by a singleindividual, removable only for inefficiency,
neglect, or malfeasance, violates theseparation of powers.
The entire executive power belongs to thepresident alone.
But because it would be impossible for one manto perform all the great business of the state,

(27:31):
the constitution assumes that lesser executiveofficers will assist the supreme magistrate in
discharging the duties of his trust as writtenin 30 writings of George Washington.
These lesser officers must remain accountableto the president whose authority they wield.
As Madison explained, if any power whatsoeveris in its nature it is the power of appointing,

(27:51):
overseeing, and controlling those who executethe laws.
That power in turn generally includes theability to remove executive officials for it is
only the authority that they can remove suchofficials that they must fear and in the
performance of their functions, obey.
The president's removal power has long beenconfirmed by history and precedent.
It was discussed extensively in congress whenthe first executive departments were created.

(28:13):
The view that prevailed as most consonant tothe text of the constitution and to the
requisite responsibility and harmony in theexecutive department was that the executive
power included a power to oversee executiveofficers through removal.
The court recognized the president'sprerogative to remove executive officials in
Myers versus The United States.
Just as the president's selection ofadministrative officers is essential to the

(28:33):
execution of the laws by him, so must be hispower of removing those for whom he cannot
continue to be responsible.
To hold otherwise, the court reasoned, wouldmake it impossible for the president to take
care that the laws be faithfully executed.
And if you're reading this case so far, yousay, okay.
Well, outside of the one person, multiplepeople things, Rick, I'm looking at this and
the Supreme Court seems to say that the FTC andother agencies might otherwise be in trouble,

(28:56):
and you would not be wrong.
First, in Humphrey's executor decided less thana decade after Myers, the court upheld a
statute that protected the commissioners of theFTC from removal except for inefficiency,
neglect of duty, or malfeasance in office.
In reaching that conclusion, the court stressedthat congress's ability to impose such removal
restrictions will depend on the character ofthe office.

(29:17):
And here's one of the big problems with TheUnited States legal system and legal systems of
this type in general.
This is the supreme court saying we don't knowwhen somebody will cross the border for making
this an illegal separation of powersunconstitutional arrangement, but we'll know it
when we see it.
We'll tell you later.
Good luck congress in writing these laws basedon people that don't even exist yet, let alone

(29:39):
people that are on the Supreme Court.
Because the court limited its holding toofficers of the kind here under consideration,
the contours of the Humphrey's executorexception depend on the characteristics of the
agency before the court.
Rightly or wrongly, and generally speaking,that means that this author here, chief justice
Roberts, believes it's probably wrongly, buthe's unwilling to overturn at this point in

(29:59):
time.
The court viewed the FTC as it existed in 1935,and it's unclear why that's included because is
it now illegal based on what it does in 2020 or2025?
We don't know As exercising no part of theexecutive power.
Back in 1935, they said the way the FTC doesits business is not executive in nature.
Instead, it was an administrative body thatperformed specified duties as a legislative or

(30:22):
judicial aid.
It acted as a legislative agency in makinginvestigations and reports to Congress, we
talked about that, and is an agency of thejudiciary in making recommendations to courts
as a master in chancery.
To the extent the FTC exercised any executivefunction as distinguished from executive power
in the constitutional sense, it did so only inthe discharge of its quasi legislative or quasi
judicial powers.

(30:43):
Now, this footnote here is important becausethis again is chief justice Roberts talking in
2020.
The court's conclusion that the FTC did notexercise executive power has not withstood the
test of time.
As we observed in Morrison versus Olson, it ishard to dispute that the powers of the FTC at
the time of Humphrey's executor would, at thepresent time, be considered executive at least

(31:03):
to some degree.
The court identified several organizationalfeatures that helped explain its
characterization of the FTC as non executive,composed of five members, no more than three
from the same political party.
The board was designed to be nonpartisan and toact with entire impartiality.
In short, Humphrey's executor permittedcongress to give four cause removal protections
to a multi member body of experts balancedalong partisan lines that performed legislative

(31:26):
and judicial functions and was said not toexercise any executive power.
Consistent with that understanding, the courtlater applied the philosophy of Humphrey's
executor to uphold four cause removalprotections for the members of the War Claims
Commission, a three member adjudicatory bodytasked with resolving claims for compensation
arising from World War two.
And in our current administrative state in TheUnited States, the other commissions, I don't

(31:46):
think, have been legally challenged so muchbased on the existence of the precedent in
Humphrey's Executor.
While recognizing an exception for multi memberbodies with quasi judicial or quasi legislative
functions, Humphrey's Executor reaffirmed thecore holding of Myers that the president has
unrestricted power to remove purely executiveofficers.
And again, that is that Supreme Court trying todistinguish.
We want both these cases to survive.

(32:07):
I don't wanna overturn Humphrey's executorbecause I think that would create a whole bunch
of problems with all these commissions thatexist in the administrative state right now.
And so I'm gonna say that Humphrey's executoractually said Myers was exactly right.
The president has the unrestricted power toremove executive officers, but we're not
talking about executive officers when we talkabout the FTC, the SEC, or anybody else.
The court acknowledged that between purelyexecutive officers on the one hand and officers

(32:30):
that closely resemble the FTC's commissionerson the other, there existed a field of doubt
that the court left for future consideration.
We have recognized a second exception forinferior officers in two places.
And just to shorten this up a little bit, thisexception is for people with much less power
than the FTC commissioners, much less powerthan the president himself.

(32:50):
We uphold tenure protections for a naval cadetengineer and a provision granting good cause
tenure protection to an independent counselappointed to investigate and prosecute
particularly alleged crimes by high rankinggovernment officials.
That's how the independent counsel statuteworks.
We view the ultimate questions whether removalrestriction is of such a nature that it impedes
the president's ability to perform hisconstitutional duty.

(33:10):
Now interestingly, that sounds like the courtessentially imposing its own policy preferences
on the executive branch because the presidentshould, at least as the framers put it in the
constitution and the federalist papers andeverything else they talked about, the
executive should have the full authority todetermine what would impede his ability to
perform his constitutional duty.
So that's already leaving a certain amount ofambiguity that the Supreme Court leaves, to

(33:35):
decide whether or not some statute affordingsome authority to some person is high enough in
level to impede the president's ability toperform.
Because the independent counsel was an inferiorofficer under the appoint appointments clause
with limited jurisdiction and tenure andlacking policy making or significant
administrative authority, it was allowed tohave this tenure authority.

(33:55):
There's another footnote about how theprincipal agents and inferior officers work.
These two exceptions, one for multi memberexpert agencies that do not wield substantial
executive power and one for inferior officerswith limited duties and no policy making or
administrative authority represent what up tillnow have been the outermost constitutional
limits or permissible congressionalrestrictions on the president's removal power.

(34:18):
So the court here is saying that that's reallythe only exceptions that we'll allow and we
will force certain of the existing laws intothose exceptions if we need to, but as it
stands right now, the one person directorshipof the CFPB is not gonna pass muster.
Unlike the New Deal FTC upheld there, the CFPBis led by a single director who cannot be

(34:39):
described as a body of experts.
I mean, he could, but that probably wouldrequire therapy and cannot be considered
nonpartisan in the same sense as a group ofofficials drawn from both sides of the aisle.
Moreover, while the staggered terms of the FTCcommissioners prevented complete turnovers in
agency leadership and guaranteed that therewould always be some commissioners who had
accrued significant expertise, that's just nottrue.
As we see with chairperson Alina Khan leavingthe FTC on the changeover in administration,

(35:03):
that was her choice, and that left thatexpertise.
People always leave when administrationschange.
They aren't going the direction that they wouldseek as commissioner.
So there already is a certain amount of policypreference and control in the executive branch
as it stands right now.
But the Supreme Court often looks at things inthe kind of platonic ideal sense how these
structures could work rather than the realityof the situation that's their own thing.

(35:24):
I'm not a Supreme Court Justice.
I can't speak to that too much, but they do ita lot.
The point is the CFPB is struck down and it'sunclear what the other commissioners would do
because they haven't been challenged legally,and that's the ambiguity that is talked about
in this article that we are currentlydiscussing.
So the resulting opinion is deeply ambiguousbecause it is not obvious what the legally

(35:47):
relevant description of Humphrey's executorshould now be taken to be.
On one reading, which we will call theminimalist reading, the court's opinion might
be read to say, we've made some mistakes in thepast, and we may or may not overrule them.
But if we can find any minimally plausibleground for distinguishing them, that is exactly
what we will do.
On this view, the court distinguishedHumphrey's executor principally on the ground

(36:07):
that the CFPB is headed by a single person, nota multi member commission, along the lines of
then judge Kavanaugh's earlier opinion for DCCircuit panel.
In simpler words, go forth and sin no more.
We're not gonna overturn Humphrey's executive,but we're gonna distinguish everything that we
can.
That's what the court is signaling to congressand to these agencies in the future.
But in fact, says this article, there aresignificant strands of the court's opinion that

(36:32):
seem far more ambitious.
Call these the maximalist reading.
This reading arises because the courtrepeatedly describes the exception derived from
Humphrey's executor as not extending toindependent agencies that exercise significant
executive power as by rule making orenforcement in internal agency proceedings.
Remember that footnote where they say,actually, the court probably described the FTC
wrongly.
So if the court described the FTC wrongly andthat's an appropriate way to describe the FTC

(36:56):
right now that it is exerting executive powerof some significance and that could apply
equally to the other agencies, then didn't thiscourt case actually just say these other
agencies may well be operating outside ofconstitutional bounds?
Then the answer to that is yes.
That's the maximalist reading as described inthis article.
Justice Thomas, who joined the majority opinionin relevant part, also wrote a separate

(37:17):
opinion, joined by justice Gorsuch, sayingunambiguously that Humphrey's executor was
wrong and that he would overrule it.
And that's one of the reasons why Supreme Courtjustices' right dissents is to let potential
future litigants know that there are votes tooverturn certain rules and precedents on the
court right now.
So there are at least two votes, probably moreif you're really reading between the lines on

(37:37):
justice Roberts, that would be willing tooverturn Humphrey's executor, and that's the
state of play as it stands as of 2020 andcertainly as of right now.
The maximalist reading, if pursued in futurecases, would affect radical changes in
administrative law and indeed the fabric ofmodern government.
The main independent agencies with multipleheads wield broad rule making and enforcement

(37:57):
powers.
The court's ruling thus casts a legal cloudover the removal provisions for the
commissioners and heads of the FTC, the FCC,the SEC, the NRC, the NLRB, and others.
For the record, that is the Federal TradeCommission, the Federal Communications
Commission, the Securities and ExchangeCommission.
I believe that's the nuclear one, the NuclearRegulatory Commission, the National Labor

(38:17):
Relations Board, and others.
The constitutionality of those removalprovisions would seem to depend on what
particularly those agencies are authorized todo.
Whether the maximalist reading is in factpursued depends on many contingencies, not the
least of which was Donald Trump gettingreelected in 2024, but it is nonetheless
significant that the court read Humphrey'sexecutor so narrowly that it might well be

(38:39):
taken to have thrown the independence of mostof the current independent agencies and long
standing understandings of that 1935 decisioninto grave doubt.
And this, in my opinion, editorializing for aminute, is what our current Supreme Court does
most poorly.
This is chief justice Roberts' legacy is thatthat he writes these things so that nobody has
any idea what the law is after he gets donemaking these decisions.

(39:02):
And I really do think that happened here, andit does open the door even if just a crack for
a future president like we are seeing right nowin president Donald Trump to say, okay.
You know what?
Then all these agencies are not independent.
I'm asserting my executive authority over them,and they'll have to legally challenge me if
they wanna stop it.
And I already know, or I think I know, thatthere are multiple votes sitting on the court

(39:25):
ready to overturn this president from 1935.
Now, we have more to talk about because even asI have explained it, that is just one reading
of the 2020 case, and there are multiple waysto look at this particular situation and what
the unitary executive actually means.
It's what I wanna talk about you with the most.
In Celia Law, the decision reflects anxietyabout the powers of unaccountable bureaucrats

(39:48):
freed from the constraining arm of thepresident.
Is the number of agency heads, one versus many,actually relevant?
The court sometimes says it's not only relevantbut crucial.
Elsewhere, as we have described, the court'sfocus is on whether agencies wield executive
power.
The important thing is that on the terms of thecourt's own analysis, emphasizing those high
level principles, that is which features of thehistory and case law are critical, it's not

(40:10):
simply read from any previous precedent or fromthe original understanding of the text of the
constitution.
Rather, the court arrives at its conclusionsthrough high level structural reasoning from
what it sees as defining constitutionalprinciples, and it expressly defends that
structural reasoning as such.
So this is a discussion of whether originalism,which is the notion that in order to understand
the constitution, we have to go back to thefounding and figure out what they meant by the

(40:33):
words they put in, or something else iscontrolling what the court might do with the
unitary executive theory.
In other words, the conclusion and the analysisin Celia Law are rooted in large part in rich
interpretations of abstract contestedprinciples of self government and liberty.
That is why the decision can be understood notonly in originalist terms, going back to the
founding, but also as a species ofconstitutional common law, or more precisely as

(40:57):
a reflection of Dworkin's notion of law asintegrity by which judges attempt both to fit
existing legal materials and to justify them bymaking them the best that they can be.
So that's more of a living document kind ofinterpretive set that Chief Justice Roberts
really does a lot of.
Regardless of how you feel about him, whetheryou think he is conservative or not, he's not

(41:17):
so much a pure originalist or textualist asmuch as he's kind of a comporting what it is
that he sees into where he wants it to be atthe end of the day.
In what follows, we explore these twoambiguities about the opinion, which involve
respectively the scope of its holding and itsmethodology.
We also attempt to show that the emergence ofthe modern administrative state can be taken

(41:38):
both to fortify and to undermine the argumentfor the idea of a strongly unitary executive.
And this is really what I wanted to talk to youall about, which is this section on what it
means to be a unitary executive, how you canlook at it from a an originalist perspective at
the founding or in other perspectives, and whatthat means for understanding what it is that
Donald Trump is trying to do with his executiveorder, why it is not the usurpation of all

(42:01):
authority in complete violation ofconstitutional norms, and why it's also not
nothing and mandatory as you might read theconstitution.
So with that all as long form background, buthopefully informative and interesting
background, we start with two kinds ofunitariness.
In a sense, everyone agrees that theconstitution creates a unitary executive.

(42:21):
That is there is one president, not anexecutive council, and the president is broadly
in charge of the executive branch.
But reasonable people strenuously disagree,remember, reasonable minds can differ, about
what a unitary president entails.
Okay.
We can agree that it's one president that hascontrol of the executive, but what does that
mean?
Some people believe in strongly unitarypresidency.
Other believe in a weekly unitary presidency.

(42:44):
The former, Strong, insists that at a minimum,the president has the constitutional authority
to remove all non inferior policy makingofficials who exercise executive power and also
to control their decisions.
On this view, the executive power is thepresident's alone, and any congressional effort
to compromise that principle by limiting thepresident's ability to fire executive branch
officials is forbidden.

(43:05):
All those who implement the law, including allthose who exercise administrative authority,
must be controlled by the president at least inthe sense of being at will employees.
They have to be fireable.
The court's opinion in Celia law seems toembrace this view, certainly as a matter of
constitutional text and history.
By contrast, those who believe in a weeklyunitary presidency insist that under the

(43:26):
necessary and proper clause, and if you aren'tfamiliar with the way that we shorten these
references to the constitution in things likelaw review articles, thought we would discuss
the necessary and proper clause in whichcongress has given the legislative power to
make all laws which shall be necessary andproper for carrying into execution the
foregoing powers and all other powers vested bythe constitution in the government of the
United States or in any department or officerthereof.

(43:46):
Which is to say the necessary and proper clauseis that umbrella clause we've talked about with
respect to Federal Trade Act or other statutesthat we've talked about in virtual legality or
otherwise on this channel.
It is the place where the constitution sayswe've given you these powers and also you have
any other power that is necessary to affectthose powers.
As we see a little bit further on in thisarticle, in McCullough v Maryland, this clause

(44:08):
was interpreted to give implied powers tocongress in addition to enumerated powers.
With the unanimous decision, the court heldthat congress has an implied power to establish
a bank since a bank is a proper and suitableinstrument to aid in Congress's enumerated
power to tax and spend.
Reasonable minds can differ even on McCulloughv Maryland, an earlier case precedent that says
that the Congress should be limited to only itsenumerated powers.

(44:29):
But the necessary and proper clause is used bycongress that say, we have much more broad
authority to do the various things that you'veotherwise empowered us to do in writing the
laws of The United States.
So by contrast, those who believe in the weeklyunitary presidency insist that under the
necessary and proper clause, Congress hassignificant authority to limit the president's
authority of removal and also supervision.

(44:50):
They are likely to agree that with respect tosome executive officers, the secretary of
defense, the secretary of state, the attorneygeneral, the president must have plenary or
total removal authority.
The president must have that authority wherespecific constitutional text that make grants
of power to the president such as the commanderin chief clause are implicated and where
tradition holds that core executive powers andprerogatives involving war, diplomacy, and

(45:13):
foreign affairs are at issue.
So this article actually skips the folks thatsay there isn't any kind of, executive power
that can be limited outside of the unitaryconcept, saying that at least there are some
presidential appointees that congress cannotprevent the president from firing.

(45:33):
That's the weekly unitary theory.
But they also believe that as a general matter,congress has considerable room to structure the
administrative state as it sees fit, especiallywhere tradition suggests that agency
independence is essential, as with respect toagencies that engage in financial regulation.
Importantly, if we look at the fact sheet forthis particular move towards accountability in

(45:54):
government as the Trump administration puts it,one of the areas that they are not otherwise
seeking to control is, and I don't know where Iput it so bear with me for just a second here,
the Federal Reserve.
Oh, yes.
It's right here at the top.
They They will submit draft regulations forWhite House review with no carve outs for
independent agencies except for the monetarypolicy functions of the Federal Reserve.

(46:17):
So this executive order was clearly written byfolks familiar with the Celia Lawcla case,
familiar with what the Supreme Court had saidwas the interpretation of Humphrey's executor
and the potential problems with overturning theentirety of the administrative state and said,
okay.
We are gonna try to get out in front of thosethings that would be the most problematic for
people, and we are not going to seek to takecontrol of the monetary policy of the Federal

(46:40):
Reserve.
So those who believe in a weekly unitaryexecutive insist that congress is able to
immunize adjudicative officers frompresidential control.
They add that some administrative functionsmight be exercised by people who are not
subject to the president's policy preferences.
They believe that multiple authorities,including rulemaking and even prosecution,

(47:02):
might be taken out of plenary presidentialcontrol so long as doing so does not prevent
the president from exercising constitutionallyspecified functions.
And again, we have that same issue, which is tosay, who's deciding when something steps on the
toes of presidential functions?
Generally speaking, the Supreme Court isn'tgoing to get into whether it considers
political questions or the separation of powersconcepts unless they are really over the line.

(47:22):
Congress doesn't know where the line is becauseof decisions like the Celia law, and we're left
now with this ambiguity, especially whensomeone like president Trump says, nope.
The line is here.
I'm taking complete control over all theseindependent agencies.
Of course, it is true that those who believe ina weekly unitary executive have to do
considerable work to spell out what theirposition particularly entails because they are

(47:43):
making these decisions between these variouspowers.
Some participants in these debates speak inoriginalist terms, others do not.
We can therefore identify four positions.
I really like the way they do this here.
Originalist, meaning we're gonna only focus onthe original writing of the constitution and
what the founding thought was the way thatthese words were written.
You could have an originalist that was in favorof strongly unitary or an originalist that was

(48:04):
in favor of weakly unitary, or you could haveeither those positions on a non originalist
backing, meaning something else that's justbetter for society or some other function, that
to be strongly unitary or weakly unitary.
So we're gonna talk about those particularcells.
Seeking to uncover the original public meaningof the founding document, those in cell one
begin with the text.

(48:25):
Invoking history, those in cell one add thatthe contemporaneous debates show that the
strongly unitary view reflects the originalpublic meaning.
Cell one is often thought to have compellingstructural justifications as emphasized in the
founding period.
As Hamilton, not yet of the musical, but of thefounding fathers, put it in the Federalist
number 70, decision, activity, secrecy, anddispatch will generally characterize the

(48:48):
proceedings of one man in a much more eminentdegree than the proceedings of any greater
number.
That an one individual in the role ofpresidency will do better than a council.
In addition, one of the weightiest objectionsto a plurality in the executive is that it
tends to conceal faults and destroyresponsibility.
Yes.
Any given individual is a little bit harder toput down as the one responsible for something

(49:09):
that the public disagrees with if it's in agroup rather than a single individual in that
role.
A unitary executive is more clearly subject tothe people and therefore well suited to a self
governing nation.
If Congress were authorized to divide theexecutive power, for example, by creating
independent officials charged with implementingimportant aspects of federal law, all of the
constitution structural commitments asspecified by Hamilton would be gravely

(49:31):
undermined.
If there were any doubts, Sal one asserts, thedecision of 1789, as it is called, resolves
them.
In that year, an early congress debated thepresident's removal power and the unitariness
of the executive at great length in the contextof determining the legal relationship between
early cabinet heads, treasury war and foreignaffairs, and the president.

(49:51):
Various views were represented in that debate,but Congress ultimately concluded that by
constitutional compulsion, those who executethe laws must be at will employees of the
president, at least if they work atsufficiently high levels.
That conclusion, clearly emerging from thehistorical materials, is, on this view,
authoritative with respect to the originalpublic meaning of the constitution.
And again, this is argued in the alternative.
These authors will say what cell they are in atthe end of all this.

(50:13):
They are not in cell one and yet they arepresenting what the cell one view would be in
its strongest possible terms.
That's what a good law review article does.
Those in cell three, the weekly unitary butoriginalists, respond either that the text is
murky and inconclusive or that it rejects sucha strong unitary view.
In their view, the original understanding doesnot call for cell one.

(50:33):
With respect to the text itself, justice Holmesput it briskly, but memorably.
The arguments drawn from the executive power ofthe president and from his duty to appoint
officers of The United States when congressdoes not vest the appointment elsewhere to take
care that the laws be faithfully executed andto commission all officers of The United States
seemed to me spiders webs inadequate to controlthe dominant facts.
Justice Holmes did not spell it out, but on oneview, the vesting of executive power in a

(50:58):
president says essentially nothing aboutCongress's capacity to insulate certain
officials from presidential control.
It is a spider's web.
The general idea that there is one presidentand the general idea that the president has the
executive power need not be taken to resolvethe the specific question whether congress can
declare that some officials executing the lawsare not his at will employees.
Essentially that these are two different kindof concepts.

(51:20):
If this proposition seems puzzling orprovocative, those in cell three add that
tellingly, Hamilton himself, a strong believerin a unitary executive, we just heard his
writings in Federalist number 70, specificallyrejected cell one in the Federalist and
concluded that the removal power followed fromthe appointments clause.
In his view, that meant that officials who weresubject to advice and consent for their

(51:40):
appointment could be made removable only withthe consent of the Senate.
In other words, the consent of the senate wouldbe necessary to to displace as well as to
appoint.
Remarkably, he added this in a passage that ismuch less well known than it ought to be.
A change of chief magistrate president,therefore, would not occasion so violent or so
general a revolution in the officers of thegovernment as might be expected if he were the

(52:02):
sole disposer of offices.
Where a man in any station had givensatisfactory evidence of his fitness for it, a
new president would be restrained fromattempting a change in favor of a person more
agreeable to him by the apprehension that adiscountenance of the senate might frustrate
the attempt and bring some degree of discreditupon himself.
So I'm not as positive that this particularwriting is as suggestive of what these authors

(52:25):
say as they are, but I will yield to theirexpertise on this question.
I read this to mean that the advice and consentprocess of the Senate in bringing somebody in
might well wind up in a rejection, and thatwould bring negativity on the president if the
if the former owner of that role were seen tobe a good person and effective in that role.

(52:46):
But this is read to mean that the senate wouldhave the necessary to displace as well as to
appoint as part of a secondary kind of consentto removal concept.
I'm not as positive about that, but it is usedin defense of this cell three kinda concept.
Thus far, the claim is not that Hamiltonnecessarily had the original public meaning
right.
We don't need that to be correct.

(53:06):
It it is only that the textual vesting of theexecutive power in the president by itself need
not be taken to resolve the question at hand.
You can read these things in multitude of ways.
The same conclusion holds for the take careclauses where the president says that they will
take care that the laws are faithfullyexecuted.
The duty of faithful execution need not entailthe conclusion that the president can discharge
law implementing officials in the president'sdiscretion.

(53:27):
You can see that when we talk about it even inthe Celia Law case that we say that you need to
have the ability to fire in order to controlwhat it is that they are doing under you
because without that fear of firing then youcan't actually control the people in the
branch.
But that is one step removed from the actualquestion of whether or not you can fire people.
Hamilton's views are relevant here as well.
Hamilton had no problem with the take careclause, but he also believed that Congress

(53:49):
could condition removal of cabinet officials onthe advice and consent of the Senate.
Consider in this regard the opinions in writingclause.
The president may require the opinion inwriting of the principal officer in each of the
executive departments upon any subject relatingto the duties of their respective offices.
On one view, this clause is hard textualevidence against the strongly unitary view
taken as an originalist matter.

(54:10):
If the president is fully in control of theoperations of all those who administer federal
law, why would the framers and ratifiers deemit necessary to specify this particular power?
And again, here I think they probably reach alittle bit too far in this argumentation.
I think it is still, even if you have fullcontrol over your branch, you aren't in full
control of every human being in that branch.
We've already talked about the fact that theconstitution contemplates that you're gonna

(54:30):
have inferior and other officers that are helpgonna help you as president to do what you need
to do to execute the laws.
So reporting is still useful just like stilluseful in a corporation for people to have
reporting requirements up to the CEO.
Because the CEO can't know everything even ifhe's in total control of the entire c suite
level of executives.
So I'm not sure this is as demonstrative asthey would have it be either.

(54:53):
And yet it is still an interesting question.
Right?
These articles are useful in understandingbetter how different people can come to
different conclusions on the same words, on thepage with respect to the constitution.
As for post ratification history, the decisionof 1789 contained a range of competing strands.
It would be possible to read them as rejectingthe proposition that the strongly unitary view

(55:13):
is con constitutionally mandatory and insteadis revealing a discretionary congressional
choice.
Not compelled by the constitution to conferunrestricted removal authority over particular
officials.
After a careful study of the debates forexample, Jed Shugarmen refers to the legend of
the decision of 1789 and concludes that amajority of the first congress opposed the
power cited by unitary theorists on whether thepresident had exclusive removal power, the

(55:38):
first Congress decisively answered no.
So this is one of the other reasons why I amnot personally an originalist if you were ever
wondering, and that is to say I think that youcan generally comport originalist doctrine into
whatever position you want to have.
And that the Supreme Court right now, as anoriginalist court, tends to do that.
Tends to decide what it is that they wannadecide for whatever interpretive reasons they
have.

(55:58):
And then say, we can shoehorn in certainhistorical evidence into what it is that we've
already decided.
I view this exercise as emblematic of that, andit's why I'm not an originalist.
If you were to describe me, I'm probably atextualist on these scores.
Although, I'm never gonna be challenged on thatbecause I'm not gonna have the Supreme Court
Justice on my resume?
If so, the decision of 1789 might have nobearing on congressional efforts to immunize

(56:21):
from presidential control the decisions ofagencies with other sorts of authorities.
In addition, prominent legal historians haveread both theory and practice during the
founding era as an endorsement of the weeklyunitary view, at least in some form.
Now there are also non originalist approaches.
Right?
We don't have to go back to the founding.
We can instead just look at the structure ofthe government from a kind of naked or first

(56:43):
principles kind of approach for variousreasons, many people are not originalists.
They do not believe that the original publicunderstanding is binding.
They do commit to following the text, ofcourse, but they have other primary reasons to
interpret it in a different way.
In the context at hand, the rise of the modernadministrative state, arguably an unanticipated
development, might be taken to motivate nonoriginalist approaches to separation of powers

(57:05):
questions.
Said another way, the founders, as bright asthey were and as smart as they were in what
they did to build The United States up and howthe government operates, could not have
anticipated the multitude of agencies that areexisting under the executive branch, how
congress would delegate authority to thoseagencies, how they would be formed.
And so without that anticipation, we have tostart analyzing things somewhat separately from

(57:26):
the way they are strictly written in The USconstitution.
Cell two can be seen as an exercise inconstitutional common law in translation.
The basic idea is that in a period in which theexecutive branch is wielding unanticipatedly
expansive power that touches so many domains ofdomestic affairs, the founding commitments to
accountability, dispatch coordination, andenergy call for strong unitarianism even if

(57:47):
those commitments authorized weak unitarianismtwo centuries earlier.
It is one thing to say that in, for example,1800, Congress had the constitutional authority
to immunize certain agencies and institutions,not so fundamental to national life from
plenary presidential control.
It is quite another to say that Congress cancarve out an assortment of crucial agencies
affecting the economy in multiple ways, such asthe Federal Communications Commission, the

(58:09):
Federal Trade Commission, the NuclearRegulatory Commission, and the CFPB, and let
them do their work without control from theconstitutionally specified executor of the
laws.
In the modern era, fidelity to constitutionalcommitments calls for insistence on
presidential primacy even if it did not quitedo that in the founding era when the
administrative state was so much smaller andless central to people's lives.
And then I do think that that's a at least acompelling argument to say, alright, they

(58:31):
didn't anticipate it.
And right now, if we do believe in Federalistseventy that the usefulness of a president is
that he can respond to things better, faster,and more ably than a council or congress can,
then it's better to have the president havethat authority over these various agencies and
to have, as described in the executive order ofDonald Trump, the people determining whether or

(58:52):
not they like the direction a president isgoing in.
It is true that this approach to constitutionalinterpretation might seem looser and more
speculative than originalism, supposing quitecontroversially that the latter yields
straightforward answers.
And that's a little bit of glibness, that's alittle bit of snark.
It's lawyer snark in a law review articlesaying, okay, originalism, some people say that
that's just a direct line to God as it werethat you can just read the text, look at the

(59:15):
historical documents and have the answers.
And that's quite controversial because as Ialready suggested as part of this video, in
general, I think there's a lot of historicalrecords that can be pushed and prodded into
whatever it is that you wanna say from a legaltheory kind of perspective.
But even supposing that the latter should yieldstraightforward answers, there's still reasons
to not go for an originalist approach?

(59:35):
The ironic conclusion embraced by those in celltwo is that even if the founding generation did
not believe that a strongly unitary presidencywas necessary to promote their own deepest
commitments, such a presidency is necessarynow, given the sheer size and nature of the
contemporary administrative state date.
Those in cell two think that those in cell onedo not have the original understanding right.
But for reasons of principle, they're happy tomake common cause with them.

(59:58):
A firm rejoinder comes from cell four, andspoiler alert, this is where the authors
actually live.
They believe in a weekly unitary theory notsupported by originalism at all.
Perhaps cell two gets it exactly wrong.
If fidelity is the goal, perhaps we shouldemphasize the risks of concentrated power and
the importance of checks and balances, and theneed to allow congress to have some flexibility
given the diversity of circumstances that giverise to new agencies.

(01:00:20):
This is essentially saying congress is the bestplace to have this particular responsibility
live rather than the presidency.
Perhaps the real concern highlighted by changedcircumstances is the capacity of just one
person acting on their own to move thegovernment in their preferred direction.
It should not be necessary to mention that thiscapacity is anathema to the founding
commitments.
It raises the specter of monarchy.
Right?
As I suggested in the thumbnail, it's kings andconstitutions that we're talking about here.

(01:00:43):
Is this a usurpation of authority?
When you give it to one person, when you sayindependent agencies can't exist, that does
start to look like a collection of powers.
The strong unitary presidency or imperialpresidency does start to look a bit like a
king.
As James Landis put it in a famous translationbased defense of expert administrative
tribunals, the administrative process is, inessence, our generation's answer to the

(01:01:05):
inadequacy of the judicial and the legislativeprocesses.
If the doctrine of the separation of powerimplies division, it also implies balance, and
balance calls for equality.
The creation of administrative power may be themeans for the preservation of that balance.
So that paradoxically enough, though it mayseem in theoretic violation of the doctrine of
the separations of power, it may in matter offact be the means for the preservation of the

(01:01:27):
content of the doctrine, the spirit of the lawrather than the words of the law, if you will.
If we accept sweeping delegations of law makingpower to the president, then to capture
accurately the framers principles, principlesthat deserve our continuing adherence, we must
accept some, though not all, congressionalefforts at regulating presidential lawmaking.
And I think that though not all is actuallyvery important here.

(01:01:48):
We'll talk about where I think this winds up atthe end of this video, but I think that what is
most likely is we get a Supreme Court that willsee some challenges and decide that this
executive order is okay for some of thecommissions, some of the agencies, but not all
of the agencies.
And that's very likely where Roberts courtwinds up on almost every decision.
You would not go broke just betting that ChiefJustice Roberts will find a way to split the

(01:02:09):
baby in a way that probably makes things moreambiguous for the next decade.
But that's where I think this likely winds up.
Given the risk of a discretion wieldingimmensely powerful set of administrative
authorities concentrated in a single person,Congress should have the authority to insulate
at least some authorities from presidentialcontrol simply in order to preserve diffusion
of power.
The strongest example may well be the FederalReserve Board.

(01:02:29):
If presidents could control it, they couldpromote their own short term political interest
by reducing interest rates to the detriment ofthe economy's long term health.
Heaven forfend.
Certainly, no president has ever put pressureon the Federal Reserve Board to hurt the
economy in interest of the president beingreelected.
A similar argument might apply to the FederalCommunications Commission whose independence
might be deemed necessary to prevent asituation in which the president is punishing

(01:02:50):
their political enemies and rewarding theirpolitical friends.
Now, the counterargument to all of this isthat, okay, that's fine.
These agencies should not be under thePresident's purview because the President could
manipulate them in this way.
But the Congress has the authority to pull themback to say, alright, we're not gonna delegate
our own law making, our own rule makingauthority to these agencies under the
President's power, and we're gonna keep thatpower on our own, and that's a more kind of

(01:03:12):
platonic ideal of what the founders envisionedwhen they put forth the constitution.
You don't you won't see that in this article,but I do think that that is an existing
counterargument.
These arguments could easily be generalized,for example, to the FTC, which has the
authority to approve or disapprove mergers andto a range of financial authorities whose
decisions might bear on the short termpolitical prospects of the president.
There are some things that should be outsidethe executive's purview.

(01:03:33):
I do not disagree with that concept at all, butI think maybe Congress should keep that power
for itself And to the extent that it tries todelegate it to others, that this might be a
functional way to penalize that delegation isto say they'll all operate under the
presidency, and so you should be really carefulabout delegating that power.
Our goal here is not to resolve thesequestions, says the authors.

(01:03:53):
At the same time, we agreed that on originalistgrounds, some executive officers, including the
secretary of state, secretary of defense, thesecretary of the treasury, and the attorney
general must be at will employees of thepresident.
They are enforcing the president's will onthings that the constitution directly gives the
president authority over.
But we are not originalists and we would givesubstantial weight both to judicial precedents
and institutional practices over time, whichmeans that we land in cell four, which can

(01:04:17):
easily fit, broadly speaking, with judicialdecisions since 1926.
Said another way, they are conservative, not inthe Republican sense of the word, but in small
sea land to say we don't want to have ajudiciary make decisions that would otherwise
upturn the entire history of the last hundredyears of American jurisprudence or the
administrative state.
And so we're gonna find ourselves in cell fourbecause we don't wanna see that happen.

(01:04:41):
Thus far, our momentous goal has been to offera concrete sense of why many people believe
that a strongly unitary executive isconstitutionally mandatory and why many people
reject that proposition.
So going back to the purpose of this video,when we see things that say the the rule of law
doesn't bend, it breaks or that he obviouslyhas authority because no one wants a bureaucrat
has any independent authority, Both of thosepositions are undoubtedly wrong.

(01:05:03):
They're the hyperbolic ends of the curve ofunderstanding of this particular question.
And if you're here in virtual reality listeningto me, then you know that we can do better than
that.
Right?
We can have a better conversation about thesethings.
You might look at an executive order like theone that President Trump put forth on
02/18/2025 and be scared about it.
Be scared about what it means.
That is totally within your rights, but it doesnot mean that it is just a usurpation

(01:05:26):
authority.
It does not mean that he is trying to declarehimself king.
It's not the end all and be all of thatconversation.
Although, I will add to that particular pointthat it might be nice if someone told him.
Certainly, President Donald Trump does himselfno favors when he goes out with tweets like
saying long live the king with respect to someaspect or another of what he is doing and I

(01:05:48):
understand people's reactions to that.
Yet, the way he actually is operating right nowis well within the bounds of his authority,
executive orders, directing his attorneygeneral to do things, is well within his
authority and we can expect that one or more ofthe agencies or maybe even Congress itself will
bring some kind of litigation on thisparticular question about whether he has the

(01:06:09):
capacity to require these agencies to report tohim, to adjust the apportionments of these
agencies in that regard.
And we also know that his Department of Justicehas already put forth challenges to this
particular question.
As we see in the letter from February 12, justa few days before that executive order, it said
to Senator Durbin of the Committee on theJudiciary that I am writing to advise you that

(01:06:30):
the Department of Justice has determined thatcertain for cause removal provisions that apply
to members of multi member regulatorycommissions are unconstitutional and that the
department will no longer defend theirconstitutionality.
Goes back to the Myers case that we talkedabout.
It basically says, we would ask the court tooverturn Humphrey's executor, and this is again
kind of normal procedure for a presidentseeking to change something within the law.

(01:06:53):
To say, alright, Supreme Court, you'veindicated that this is bad precedent.
Why don't you go and make this decision?
You need a case or controversy to make thesedecisions, and so we're gonna give you a case
or controversy.
Nevertheless, the Senate Judiciary Democratsput forth a very political statement that says,
Pam Bondi weaponized the justice department isno longer defending duly enacted laws to
protect consumers and workers.
She's with wealthy special interests, not theAmerican people.

(01:07:15):
We can expect online that politicians fromeither stripe are going to defend their guy or
attack their guy in ways that look like this.
But as you now know, having listened or watchedthis video in its entirety, that is not the
entire state of affairs and it's important toget that right when we're having conversations
of this level of importance.
This is a very important executive order.

(01:07:36):
This really does have the possibility ofchanging our understanding of the American
presidency now and into the future, which isone aspect of things that people always forget.
Right?
If if Joe Biden were to return for a secondterm after Donald Trump concludes his term,
then he would have this authority over thoseagencies as well.
These are all things that move forward into thefuture.

(01:07:57):
So this is something that is not unique toDonald Trump.
He isn't declaring himself king.
It isn't a usurpation of authority or at leastnot a naked one as ascribed to him by various
places on the Internet, but nor is it somethingthat is clear and obvious just by the text in
the constitution itself.
Now, with that all said, if you found thisinformative or educational, please consider

(01:08:18):
supporting us us on Patreon or throughmemberships and super chats on our live streams
on this channel.
I very much appreciate the support.
I can't do this without listeners and viewerslike you, so I very much appreciate that.
But if you don't have the money or you don'twanna give that financial support, there's
absolutely no obligation to do so.
Please just consider subscribing, leaving upvotes or down votes, commenting on these
things, telling your friends that we're havingthese conversations, and leaving questions or

(01:08:41):
comments below this video because I like torespond to those.
I like to have these conversations.
If you can't tell, I'm passionate about thisstuff.
I really think this is important for people tounderstand and that the current discourse
online is not sufficient for people tounderstand it and honestly, results and
passions inflamed, results andmisunderstandings, and people not really
knowing what's going on with the US government.
I wouldn't handle things the same way as theTrump administration is doing, but be that as

(01:09:06):
it may since they are the actual actingpresidential presidential administration right
now, I would see people have a betterunderstanding of what is happening and what is
not.
So this has been virtual legality for today.
Thank you so much for joining me, and I willsee you on the next one on the Hoagla YouTube
channel.
Virtual legality is a YouTube video series withaudio podcast versions presented as commentary

(01:09:29):
and for education and entertainment purposesonly.
It does not constitute legal advice and doesnot create an attorney client relationship.
If you have legal questions about the topicsdiscussed, please consult your own legal
counsel.

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What the Trump?! | Did an Executive Order just end the US Administrative State? (VL)

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