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SCOTUS Poised to Give Trump More Power · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio.
0:08
Speaker 2: The Supreme Court's conservatives appear poised to give the president
0:13
Speaker 2: control over potentially dozens of independent federal agencies, overturning or
0:19
Speaker 2: narrowing a ninety year old president called Humphreys executor that
0:23
Speaker 2: limits when presidents can fire agencies board members. At oral arguments,
0:29
Speaker 2: they suggested they'll let President Trump fire Rebecca Kelly Slaughter
0:33
Speaker 2: from the Federal Trade Commission, despite a law that says
0:37
Speaker 2: commissioners can only be fired for specified reasons. The liberal
0:42
Speaker 2: justices expressed alarm at giving the president unchecked authority over
0:47
Speaker 2: about two dozen agencies that regulate areas like nuclear energy,
0:52
Speaker 2: product safety, and labor relations. Here are Justices Sonya Sotomayor
0:58
Speaker 2: and Elena Kagan.
1:00
Speaker 3: You're asking us to destroy the structure of government and
1:04
Speaker 3: to take away from Congress its ability to protect its
1:10
Speaker 3: idea that the government is better structured with some agencies
1:16
Speaker 3: that are independent.
1:18
Speaker 4: So the result of what you want is that the
1:21
Speaker 4: president is going to have massive, unchecked, uncontrolled power not
1:26
Speaker 4: only to do traditional execution, but to make law through
1:31
Speaker 4: legislative and adjudicative frameworks.
1:34
Speaker 2: But the conservative justices like Brett Kavanaugh say the real
1:39
Speaker 2: concern is Congress's creation of agencies that exercise executive power
1:45
Speaker 2: but aren't accountable.
1:47
Speaker 5: Independent agencies are not accountable to the people, they're not elected,
1:53
Speaker 5: as Congress and the president are, and are exercising massive
1:57
Speaker 5: power over individual liberty and billion dollar industries, whether it's
2:02
Speaker 5: the FCC or the FTC or whatever it might be.
2:05
Speaker 2: My guest is constitutional law expert William Traynor, our professor
2:09
Speaker 2: at Georgetown Law Bill tell us about the issue in
2:13
Speaker 2: Kelly Slaughter's case against President Trump.
2:16
Speaker 6: The issue before the screen Court is that Congress puts
2:20
Speaker 6: limits on when the president and fire the heads of
2:25
Speaker 6: independent agencies. So an independent agency is like the Federal
2:29
Speaker 6: Trade Commission or the Federal Reserve. So really since the
2:33
Speaker 6: start of the Constitution, Congress has imposed limits on when
2:37
Speaker 6: the president can fire these people. The question in the
2:40
Speaker 6: case is whether that's unconstitutional, whether the president can fire
2:44
Speaker 6: the head of an independent agency for any reason, even
2:47
Speaker 6: if Congress has said they can only fire them, you know,
2:50
Speaker 6: if they're engaged in bad behavior. So this is a
2:54
Speaker 6: very big deal. So much of a government structure that
2:57
Speaker 6: protects people in different ways or regulates economy is done
3:01
Speaker 6: through independent agencies. Congress has wanted to insulate them from
3:05
Speaker 6: total executive control, and the Supreme Court is deciding right
3:09
Speaker 6: now whether, in fact, the president has the kind of
3:11
Speaker 6: control that comes with being able to fire the leaders
3:14
Speaker 6: of the agencies.
3:15
Speaker 2: In these oral arguments, you often hear the Supreme Court
3:18
Speaker 2: justices say, well, that's a job for Congress. You know,
3:22
Speaker 2: that's not something that we should be interfering in. So
3:25
Speaker 2: why are they interfering here where Congress has set up
3:29
Speaker 2: these agencies and the rules.
3:32
Speaker 6: That's a great question. There had been so many times
3:34
Speaker 6: in which the Court is saying, this is a political matter,
3:38
Speaker 6: we shouldn't be deciding. But at the same time, the
3:41
Speaker 6: conservative justices of the Court are very dedicated to what's
3:46
Speaker 6: called the unitary executive theory, which means that the president
3:50
Speaker 6: is in total charge of the executive branch. So what
3:55
Speaker 6: they're saying here is Congress doesn't get to be involved.
3:58
Speaker 6: The president is in total charge of the executive branch,
4:02
Speaker 6: including what have historically been things like the independent agencies.
4:06
Speaker 6: That is kind of one of the core commitments that
4:09
Speaker 6: has really been at the basis of what Chief Justice
4:12
Speaker 6: Roberts has thought really going back to when he was
4:15
Speaker 6: a young attorney, and that's the same thing for most
4:18
Speaker 6: of the members of the whole conservative wing.
4:21
Speaker 2: What kind of concerns did the conservative justices express during
4:25
Speaker 2: the oral arguments about this ninety year old President Humphrey's executor.
4:32
Speaker 6: There are two things that we're seeing the conservative wing
4:35
Speaker 6: of the Court struggle with. One is they want the
4:39
Speaker 6: Federal Reserve to continue to be independent. They don't want
4:45
Speaker 6: the president to be able to fire the commissioners of
4:49
Speaker 6: the Federal Reserve. And they don't want that because you know,
4:52
Speaker 6: that would be terrible for the economy. If the Federal
4:56
Speaker 6: Reserve is setting interest rates just in order to help
4:59
Speaker 6: the p resident rather than to help the economy, that
5:02
Speaker 6: would be a disaster, be a disaster for the market,
5:05
Speaker 6: the disaster for the economy as a whole. So the
5:08
Speaker 6: conservative wing of the Court i think, wants to overturn
5:12
Speaker 6: Humphrey's executor, but they're trying to come up with some
5:15
Speaker 6: rationale in which they can say the President can fire
5:20
Speaker 6: somebody on the FCC, but he can't fire somebody on
5:24
Speaker 6: the Federal Reserve. And they're going to be looking at
5:26
Speaker 6: the Federal Reserve later in the term that's a big
5:31
Speaker 6: concern for them. So I think that animates all of
5:34
Speaker 6: the conservative justices of the Court. I think also, you know,
5:37
Speaker 6: what I'm hearing with the Chief Justices. What he's trying
5:41
Speaker 6: to do is to come up with some way in
5:43
Speaker 6: which there's some agencies where Congress can in fact limit
5:48
Speaker 6: the president's ability to fire people. And he's thinking about,
5:53
Speaker 6: you know, are the ones that are essentially kind of
5:55
Speaker 6: judicial in their function, And you know, that may be
5:59
Speaker 6: an area in where which Congress can establish requirements or
6:03
Speaker 6: when the president can terminate somebody, but that's not the
6:05
Speaker 6: Federal Trade Commission. Federal Trade Commission is not making this
6:09
Speaker 6: judicial decision, you know, it's very much deciding executive type rules.
6:14
Speaker 6: So I think we're seeing two things on the conservative
6:16
Speaker 6: wing of the Court. One is they're trying to come
6:19
Speaker 6: up with some way in which they can say the
6:21
Speaker 6: president can fire somebody the FDC, but not at the FED.
6:25
Speaker 6: And I think the Chief is trying to come up
6:28
Speaker 6: with some way in which there's some type of agencies
6:31
Speaker 6: in which the president can be limited by Congress. But
6:35
Speaker 6: those would be ones that are really really deciding kind
6:38
Speaker 6: of fuzzi judicial matters, not the fdcate. I mean, you know,
6:42
Speaker 6: he's going back. There's a case from the nineteen fifties
6:45
Speaker 6: involving something. There was the War Commission that was basically,
6:48
Speaker 6: you know, making judicial type decisions involving people. He's trying
6:52
Speaker 6: to preserve that line of president, you know, even as
6:55
Speaker 6: he overturns Humphrey's executor.
6:58
Speaker 2: The liberals things that a dire picture of what would
7:01
Speaker 2: happen if Trump wins here. Justice Soto Mayor said to
7:05
Speaker 2: the Solicitor General, you're asking us to destroy the structure
7:08
Speaker 2: of government. Do you think it's that serious?
7:12
Speaker 6: I think that's absolutely right. You know, we have had
7:15
Speaker 6: independent agencies which largely exists to protect people of limited power,
7:21
Speaker 6: you know, and they've been in place really for one
7:23
Speaker 6: hundred years, you know, and the idea is that these
7:26
Speaker 6: should be basically bipartisan or apolitical. They should not just
7:31
Speaker 6: be tools of the president. So, you know, what the
7:34
Speaker 6: court is considering right now is whether that whole kind
7:37
Speaker 6: of structure gets got it. So the stakes on this
7:40
Speaker 6: are huge.
7:41
Speaker 2: Well, President Trump wasn't specifically mentioned by name, two of
7:47
Speaker 2: the liberal justices, Elena Kagan and Katanji Brown Jackson, did
7:53
Speaker 2: make broad references to his firing of experts and dismantling
7:58
Speaker 2: of the Department of Education.
8:00
Speaker 4: That the more realistic danger here is that we'll have
8:04
Speaker 4: an education department, as authorized by Congress by law, that
8:08
Speaker 4: won't have any employees in it.
8:11
Speaker 7: Congress is saying that expertise matters with respect to aspects
8:16
Speaker 7: of the economy and transportation and the various independent agencies
8:20
Speaker 7: that we have. So having a president come in and
8:24
Speaker 7: fire all the scientists and the doctors and the economists
8:28
Speaker 7: and the PhDs and replacing them with loyalists and people
8:33
Speaker 7: who don't know anything is actually not in the best
8:36
Speaker 7: interest of the citizens of the United States. This is
8:38
Speaker 7: what I think Congress's policy decision is.
8:42
Speaker 2: Do you think they were trying to remind their conservative
8:45
Speaker 2: colleagues about some of the actions he's taken.
8:49
Speaker 6: So the approach to the unitary executive, you know, what's
8:52
Speaker 6: motivating the court is pretty long standing. So people like
8:57
Speaker 6: the Chief have for a long time, I'm believed that
9:01
Speaker 6: the president should be able to fire the people who
9:05
Speaker 6: run independent agencies. So, you know, for Chief Justice Roberts
9:10
Speaker 6: or for Justice Kavanaugh, the basic legal principle is one
9:15
Speaker 6: that they believed for a long time, long before Trump.
9:18
Speaker 4: You know.
9:18
Speaker 6: At the same time, you know, what we're seeing right
9:20
Speaker 6: now is that in the Trump administration, you know, the
9:23
Speaker 6: independent agencies and all of the government watchdogs, there's an
9:27
Speaker 6: attempt to politicize them in a way that you know,
9:30
Speaker 6: we've never seen before. So the stakes are very different,
9:34
Speaker 6: and they're much higher. You know, if Humphrey's executor has
9:38
Speaker 6: been overturned, you know, in President bush forty threes administration,
9:44
Speaker 6: the stakes would have been very different because President Bush
9:48
Speaker 6: was not focused on making independent agencies kind of the
9:52
Speaker 6: tool for his politics. But that's what we're seeing with
9:54
Speaker 6: President Trump, and that's why the stakes.
9:57
Speaker 2: Are so high.
9:58
Speaker 6: They've always been big, but in this administration, where there's
10:02
Speaker 6: such an attempt to kind of move away from scientific
10:06
Speaker 6: expertise and neutral decision making to control every part of
10:12
Speaker 6: the executive branch, the stakes are huge. And that's really
10:16
Speaker 6: part of what those three liberal justices we're questioning about.
10:21
Speaker 6: You know, at the same time, I think, you know
10:22
Speaker 6: the other thing that they really are focusing in an honor.
10:26
Speaker 6: First of all, it's very very hard to come up
10:30
Speaker 6: with some line where you can say Congress can limit
10:34
Speaker 6: the present's ability to fire the heads of the sec
10:38
Speaker 6: they can't fire at will the heads of the FED.
10:42
Speaker 6: You know, it's very hard to come up and I
10:44
Speaker 6: can't think of any kind of coherent way to distinguish
10:48
Speaker 6: those two cases. And that's one of the things that
10:50
Speaker 6: the liberals were pressing on. You know, I think they're
10:53
Speaker 6: also pressing on the history. You know, if you look
10:55
Speaker 6: at the constitutions, the text of the constitutions doesn't say
10:59
Speaker 6: that the president gets to fire people in the executive rention.
11:02
Speaker 6: It doesn't deal with removal at all. So you know,
11:05
Speaker 6: there's not a text that really helps the conservative way
11:09
Speaker 6: of the Court and Congress. Really, starting in the Washington
11:13
Speaker 6: administration limited the president's ability to fire people running agencies
11:19
Speaker 6: or kind of what was analogous to modern agencies at
11:21
Speaker 6: the time. So I think what the liberals on the
11:24
Speaker 6: Court are focusing on our first of all, on the text,
11:27
Speaker 6: the original understanding, as well as the huge consequences of
11:32
Speaker 6: essentially giving the president of power to politicize all of
11:35
Speaker 6: the independent agencies.
11:36
Speaker 2: I've been talking to constitutional law professor William Trainor of
11:40
Speaker 2: Georgetown Law. Bill, did you sense that any of the
11:44
Speaker 2: conservative justices might vote against Trump here?
11:49
Speaker 6: I think that the chiefs may come up with, you know,
11:53
Speaker 6: an attempt to limit the ruling, but you know it
11:57
Speaker 6: would align with Trump. The only one who I think
11:59
Speaker 6: is at all you know from based on from what
12:01
Speaker 6: I heard, may vote against Trump is Justice Gorsic, And
12:07
Speaker 6: I think what he's really struggling with is, you know,
12:09
Speaker 6: he really thinks they're constitutional problems with the whole administrative state.
12:13
Speaker 6: So kind of thinking through how you feel about Humphrey's
12:16
Speaker 6: executor in that context, I think is complicated. So based
12:21
Speaker 6: on what I was hearing yesterday, I think he is
12:24
Speaker 6: the only one who I think there's some chance that
12:27
Speaker 6: would rule against the president, but I think at the
12:30
Speaker 6: end of the day, he probably would rule in the
12:32
Speaker 6: way the president wants.
12:34
Speaker 2: I wonder what happens when there's a democratic president. Do
12:38
Speaker 2: the conservatives then try to limit the ruling they're expected
12:42
Speaker 2: to make here.
12:43
Speaker 6: You know, one of the reasons why I think that
12:47
Speaker 6: the Court should not overturn Humphrey's executor is to the
12:51
Speaker 6: extent that you have any kind of political con terms,
12:54
Speaker 6: you're giving a democratic president the power to do exactly
12:58
Speaker 6: what President Trump is doing to to politicize every independent
13:02
Speaker 6: agency in the way that that president wants. You know,
13:05
Speaker 6: and then how does a conservative court say, well, you know,
13:09
Speaker 6: Humphrey executors is back. Once you establish a rule, you know,
13:13
Speaker 6: it applies to everybody. That's something that they really have
13:17
Speaker 6: to think through because of the long term consequences, because
13:20
Speaker 6: I don't think they would feel comfortable, you know, with
13:24
Speaker 6: limiting a democratic president after they allow you know, President
13:28
Speaker 6: Trump to fire people whenever he wants.
13:31
Speaker 2: So you think that they will completely overrule Humphrey's executor.
13:36
Speaker 6: No, I think they will completely overrule Humphrey's executor. I
13:40
Speaker 6: think the one question for me is whether the chief
13:44
Speaker 6: comes up with some limiting principle in which if there
13:49
Speaker 6: are you know, quasi judicial independent agencies, then Congress can
13:54
Speaker 6: put limitations on the president's ability to fire. But I think,
13:58
Speaker 6: you know, the basic point is, I think they're going
14:00
Speaker 6: to overturn Humphrey's executives, you know, and they've been you know,
14:03
Speaker 6: going in that way for some time.
14:05
Speaker 2: If Slaughter is fired, that leaves the FTC without any
14:10
Speaker 2: democratic commissioners. So then does that mean that you'll have
14:14
Speaker 2: these commissions where when there's a Republican in power, it
14:19
Speaker 2: will be all Republicans on the commission. And when there's
14:21
Speaker 2: a Democrat in power, there'll be all Democrats on the Commission.
14:26
Speaker 1: I think that's right.
14:27
Speaker 6: I think that's right. You know, because a democratic president
14:32
Speaker 6: is going to say, you know, I'm not going to
14:34
Speaker 6: have a bipartisan agency. If you know, in Republican administrations
14:40
Speaker 6: it's all Republicans. You are setting up something which is new,
14:45
Speaker 6: which is that, you know, independent agencies are not independent.
14:50
Speaker 6: Then they just follow what the president wants. That's empowering Trump,
14:55
Speaker 6: but it's also going to empower democratic presidents in the future.
14:58
Speaker 6: You know, in these areas where you really want non partisan,
15:03
Speaker 6: where you want kind of balanced decision making, that's going
15:06
Speaker 6: to go out the window.
15:08
Speaker 2: The Court in may call the FED uniquely structured quasi
15:13
Speaker 2: private entity, unlike other independent agencies. And here's what Justice
15:18
Speaker 2: Brett Kavanaugh said during neural arguments.
15:21
Speaker 5: The Federal Reserve. The other side says that your position
15:25
Speaker 5: would undermine the independence of the Federal Reserve, and they
15:29
Speaker 5: have concerns about that, and I share those concerns. So
15:32
Speaker 5: how would you distinguish the Federal Reserve from agencies such
15:37
Speaker 5: as the Federal Trade Commission?
15:39
Speaker 2: And just how would they do that?
15:41
Speaker 6: Again, I think the thing that the conservative wing of
15:45
Speaker 6: the Court has grabbed them with, is what's the rationale
15:50
Speaker 6: for saying that Congress can't limit the prison the ability
15:55
Speaker 6: to fire the heads of the SEC. But can that
16:00
Speaker 6: his ability to hire, you know, the heads of the Fed.
16:04
Speaker 6: You know, that's what they're struggling with because it would
16:07
Speaker 6: be a disaster economically if the president could fire Jerome Pal,
16:14
Speaker 6: and so you know they're struggling. They're trying to thread
16:17
Speaker 6: the needle so that the president can fire somebody at
16:21
Speaker 6: the FTC for any reason, but not do the same
16:23
Speaker 6: with the FET And you know, I think the historical
16:27
Speaker 6: examples to say that the First Bank and the Second
16:30
Speaker 6: Bank of the United States, going back to really to
16:32
Speaker 6: the origins of the of the country, that those were
16:36
Speaker 6: areas in which there was a kind of autonomy that
16:39
Speaker 6: the president didn't control. But you know, there were also
16:41
Speaker 6: examples outside of the First Bank and the Second Bank
16:45
Speaker 6: where the president's authority was limited. So I think what
16:48
Speaker 6: the court will try to do is to say the
16:51
Speaker 6: president can't fire Jerome Pal, can't fire at least to cook.
16:55
Speaker 6: But I don't think that that is kind of a
16:57
Speaker 6: coherent approach, you know, because I think it would be
17:00
Speaker 6: based on history. But the history doesn't support it.
17:03
Speaker 2: A lot of times they seem to pick and choose
17:05
Speaker 2: the history that's useful. It's been great talking to you, Bill.
17:08
Speaker 2: Thank you. That's Professor William Trainer of Georgetown Law. The
17:14
Speaker 2: Supreme Court heard arguments on Monday on whether President Trump
17:18
Speaker 2: has the authority to make hiring and firing decisions for
17:22
Speaker 2: independent government agencies like the FTC or the Federal Reserve.
17:27
Speaker 2: The case was brought to the Court by former FTC
17:30
Speaker 2: Commissioner Rebecca Kelly Slaughter, who was fired by the Trump
17:34
Speaker 2: administration because they said her appointment was quote inconsistent with
17:39
Speaker 2: the administration's policies. She told ABC News that if the
17:43
Speaker 2: Justices signed with the Trump administration, independent government agencies from
17:48
Speaker 2: the National Weather Service to the Federal Reserve could be
17:52
Speaker 2: stacked with the loyalists to the president.
17:55
Speaker 8: Congress decided that when it's set up these agencies like
17:59
Speaker 8: the FTC and like the Federal Reserve and about two
18:02
Speaker 8: dozen others, that there should be some checks and balances
18:06
Speaker 8: in how the powers that those agencies have are used
18:10
Speaker 8: to avoid political interference. I've said from the beginning that
18:15
Speaker 8: this isn't about me or my job, and that was
18:18
Speaker 8: very much on display at the arguments yesterday. It is
18:21
Speaker 8: about not just the agency I serve, the FTC, but
18:25
Speaker 8: a whole host of federal agencies. And it was clear
18:28
Speaker 8: that it's really difficult to come up with any principal
18:32
Speaker 8: distinction between the FTC and, for example, the.
18:36
Speaker 2: Fed joining me now is constitutional law expert Jillian Metzger,
18:41
Speaker 2: a professor at Columbia Law School, Jillian, in your view,
18:45
Speaker 2: what's at stake in this case?
18:47
Speaker 1: Well, there's a lot potentially at stake in this case.
18:50
Speaker 1: The specific issue in the Slaughter case itself has to
18:54
Speaker 1: do with the ability of the President to remove a
18:57
Speaker 1: member of the Federal Trade Commission without cause. But the
19:01
Speaker 1: logic of the Solicitor General's argument, and the argument that
19:07
Speaker 1: many of the conservative justices seem to be embracing, is
19:10
Speaker 1: considerably broader than that. It would not just extend to
19:14
Speaker 1: other independent agencies that have similar kinds of authorities as
19:18
Speaker 1: the FTC adjudicatory and regulatory. It would extend to what
19:23
Speaker 1: are called non Article three courts, entities that really function
19:27
Speaker 1: as courts but don't operate with the Article three protection.
19:30
Speaker 1: So the Court of Federal Claims, for example, was one
19:33
Speaker 1: that came up in the oral argument, and those are
19:37
Speaker 1: also entities that would if you focus on the breadth
19:42
Speaker 1: of the Solicitor General's argument and the kind of claims
19:45
Speaker 1: of really unlimited removal power in the president over executive officers,
19:49
Speaker 1: it would encompass those, It would encompass the FED, and
19:53
Speaker 1: a particular concern it wouldn't just be limited to principal officers,
19:56
Speaker 1: it would be also encompassing inferior officers and in particular
20:00
Speaker 1: employees and the civil service. And one of the interesting
20:04
Speaker 1: aspects of the oral argument was there were definitely some
20:07
Speaker 1: justices who were concerned about the potential implications of their
20:11
Speaker 1: holding and of the government's argument, and trying to find
20:15
Speaker 1: ways that they could decide more minimalistically and still hold
20:20
Speaker 1: for the government here without adopting all of these implications.
20:23
Speaker 1: And they were particularly concerned about the non Article three
20:25
Speaker 1: courts and also the FED. But it was only Justice
20:30
Speaker 1: Kagan who really pushed on how this would also apply
20:33
Speaker 1: to the civil service, and the conservative justices didn't refer
20:35
Speaker 1: to that. And that would be really quite extraordinary if
20:39
Speaker 1: it turns out that removal protections for the civil service,
20:41
Speaker 1: which are such a critical piece of our administrative state,
20:45
Speaker 1: are under this decision on constitution.
20:47
Speaker 2: Jillian, I've asked this question more than once. Why do
20:51
Speaker 2: the conservatives embrace this unitary executive theory that gives so
20:55
Speaker 2: much power to the president to another branch of government.
21:00
Speaker 1: You know, it's interesting. This is a received conservative legal
21:05
Speaker 1: idea and principle that the president has unlimited control over
21:11
Speaker 1: the executive branch, that the Constitution divides the authority between executive, legislative,
21:17
Speaker 1: and judicial, and the vesting clause means the president is
21:21
Speaker 1: vested with all the executive power. And when I say conservative,
21:25
Speaker 1: I mean conservative in the political sense. This goes back
21:29
Speaker 1: to the Reagan administration, the birth of the conservative legal movement,
21:34
Speaker 1: and this was one of their kind of founding principles
21:36
Speaker 1: as a way of pushing back on administrative government and
21:40
Speaker 1: the administrative state. I think that still actually underlies a
21:44
Speaker 1: lot of this that kind of resistance and a suspicion
21:47
Speaker 1: of administrative power. What's interesting is other principles of that
21:52
Speaker 1: conservative legal movement are actually intention with the unitary executive
21:56
Speaker 1: idea in this way. One of the things that's been
21:59
Speaker 1: established over time, particularly recently there's been a huge burst
22:02
Speaker 1: of excellent scholarship, is that really at the Founding, there
22:06
Speaker 1: was not this commitment to presidential unitary control over the
22:10
Speaker 1: executive brand. There are a number of instances of arrangements, commissions.
22:15
Speaker 1: Thinking Fund came up in the argument, The Revolutionary Debt
22:18
Speaker 1: Commission came up in the argument. These are entities that
22:21
Speaker 1: the president did not have full and unconstrained removal power over.
22:25
Speaker 1: There's just been a great deal of scholarship about the
22:28
Speaker 1: variety of kinds of appointment arrangements and institutions and how
22:34
Speaker 1: granting a term of years actually meant to provide some
22:37
Speaker 1: removal protection. So there really isn't an originalist case for this.
22:41
Speaker 1: There were certainly arguments made at the Founding that the
22:44
Speaker 1: president should have this power, but it's by no means obvious,
22:47
Speaker 1: and I think the weight of the evidence actually suggests
22:49
Speaker 1: that really that was not the view. And so, you know,
22:53
Speaker 1: you have a lot of justices who are ordinarily proclaimed
22:56
Speaker 1: their originalism being willing to just blithely ignore the fact
23:00
Speaker 1: fact that this restriction that they're imposing on the political
23:02
Speaker 1: branches are likely to impose has no historical founding and
23:07
Speaker 1: does not date back to the views of the founders.
23:11
Speaker 1: So that's odd. You know. The other thing that's that's
23:14
Speaker 1: quite interesting is that, you know, at this point, particular
23:17
Speaker 1: point in time, where we have a president who is
23:20
Speaker 1: asserting very aggrandized understandings of executive power, and you know,
23:25
Speaker 1: refusing to adhere to statutes and limits enacted by Congress.
23:29
Speaker 1: Statutes and limits that aren't at issue in this case,
23:31
Speaker 1: but broad refusal to adhere to a number of governing statutes,
23:35
Speaker 1: you know, trying to dismantle agencies, you know, spending impowments
23:39
Speaker 1: and the like. That the Conservative justices concern was that
23:44
Speaker 1: Congress might make the Department of Education and independent agency
23:47
Speaker 1: that really seems not to be the threat on the horizon.
23:50
Speaker 1: The threat on the horizon is deeply a grandized executive
23:54
Speaker 1: and you would have thought that would have perhaps given
23:57
Speaker 1: more caution to them. I think the other thing that
23:59
Speaker 1: anim makes them. They have this image of the president
24:04
Speaker 1: being on top of the executive branch and a very
24:07
Speaker 1: simplistic model of political accountability where the president is nationally
24:10
Speaker 1: elected and therefore legitimizes everything but the executive branch does.
24:16
Speaker 1: And what they leave out of the equation is that
24:18
Speaker 1: there is extensive political accountability through Congress as well. And
24:22
Speaker 1: their model of very simplistic political accountability. This kind of
24:26
Speaker 1: chain of command way just isn't how government operates. There's complicated,
24:31
Speaker 1: messy relationships, which in fact do yield a great deal
24:35
Speaker 1: of accountability, but it just isn't accountability in the model
24:38
Speaker 1: that they want.
24:39
Speaker 2: They really gave short shrift to Congress and any congressional power.
24:44
Speaker 2: And I thought that it was interesting when Justice Sodo
24:47
Speaker 2: Mayor said to the Solicitor General, so you're arguing that
24:50
Speaker 2: the reasoning of the more current justices on this court
24:54
Speaker 2: has more purchase than the views of renowned jurists like
24:57
Speaker 2: Homes and brand Ice and Justice store right exactly.
25:01
Speaker 1: And then you had Kavanaugh trying to revive the scale
25:05
Speaker 1: by saying, well, we also have Taft and we also
25:08
Speaker 1: have Scalia, which was ironic.
25:10
Speaker 2: Scale and descent usually, yes, exactly, that point was.
25:13
Speaker 1: Not noted other than you. They noticed this as well.
25:16
Speaker 1: But when they're talking about reliance, so that you know,
25:19
Speaker 1: obviously starry decisis is a big factor in this argument.
25:22
Speaker 1: And when they're talking about reliance, several of the justices
25:25
Speaker 1: on the conservative side were suggesting that there was no
25:29
Speaker 1: reliance that mattered here because it was a structural issue,
25:32
Speaker 1: which is an essence to say the fact that for
25:35
Speaker 1: hundreds of years, our presidents, members of Congress, our political
25:40
Speaker 1: institutions have been operating and constructing a government on reliance
25:44
Speaker 1: on the idea that you could have these kinds of
25:46
Speaker 1: institutions that doesn't count. And that was just a remarkable suggestion.
25:51
Speaker 2: I thought it seemed to me that the liberals had
25:55
Speaker 2: the best part of the legal argument. So wondering how
26:00
Speaker 2: the conservatives are going to approach this decision, I.
26:06
Speaker 1: Think they're going to go more minimalists. There were several
26:08
Speaker 1: suggestions of some things that justices did not want to reach.
26:12
Speaker 1: The Chief really seemed to want to carve out non
26:15
Speaker 1: article free adjudication and the Fed Kavanaugh similarly, Barrett also suggested,
26:22
Speaker 1: can we even not specify that this is based on
26:25
Speaker 1: the executive power clause? But this is just an authority
26:28
Speaker 1: to remove that the president has without specifying the full
26:32
Speaker 1: contours of it, the idea being I think that when
26:35
Speaker 1: it's based on the executive power clauses, when it has
26:38
Speaker 1: its broadest implications, versus if you conclude the president has
26:43
Speaker 1: power to remove based on the take care clause, that
26:46
Speaker 1: may impose some limits on the scope because a presidential
26:50
Speaker 1: removal power that's at odds with the statute being implemented
26:54
Speaker 1: would be harder to infer. And similarly, presidential removal power
26:57
Speaker 1: based on the appointments clause would really primarily extend to
27:03
Speaker 1: principal officers or those inferior officers that Congress gives the
27:07
Speaker 1: appointment of to the president. But for those instances where
27:10
Speaker 1: inferior officers are given to the courts or heads of department,
27:14
Speaker 1: the president wouldn't have the removal authority, And the appointments
27:17
Speaker 1: clause just doesn't speak to employees, and so it would
27:20
Speaker 1: leave that issue out.
27:22
Speaker 2: Let's say that the Conservatives, as expected, rule for the
27:25
Speaker 2: president here, what kind of changes would we see in
27:30
Speaker 2: the government. I mean, just changing the heads of agencies.
27:35
Speaker 2: Will it make that much of a difference.
27:37
Speaker 1: I think it does depend a little bit how they
27:38
Speaker 1: do it. So suppose what they do is they limit
27:43
Speaker 1: their decision to really independent regulatory agencies like the FTC,
27:47
Speaker 1: the NLRB, the Nuclear Regulatory Commission. These are agencies that
27:51
Speaker 1: have adjudicatory responsibilities and also rulemaking responsibilities as well as enforcement,
27:58
Speaker 1: and what they do is simply excise the removal protections
28:02
Speaker 1: for the members who head those agencies. That leaves those
28:06
Speaker 1: agencies standing, and it just would serve to allow the
28:12
Speaker 1: president to remove it will the members of the commissions,
28:15
Speaker 1: and I think we'll probably therefore also really eviscerate the
28:18
Speaker 1: bipartisan requirements that are in the statute right now for
28:22
Speaker 1: heading those agencies. There's no challenge to those bipartisan requirements
28:26
Speaker 1: here except that if the president can remove it will
28:28
Speaker 1: he can do what he's been doing, which is removing
28:30
Speaker 1: the democratic members of these agencies. So that would be
28:33
Speaker 1: what we would see. There's some suggestion in the argument
28:37
Speaker 1: that the Court should consider a different kind of excising
28:41
Speaker 1: and perhaps excise those powers that these agencies exercise that
28:46
Speaker 1: are executive and need to be within the president's control.
28:50
Speaker 1: That would be more of a fundamental change to the
28:52
Speaker 1: scope of these agencies, but would leave the possibility that
28:57
Speaker 1: the members of the commission that had them could still
29:00
Speaker 1: have some removal protection. And I guess is that the
29:03
Speaker 1: Court is going to do the former. It fits with
29:04
Speaker 1: what their president has been and to be honest, it's
29:08
Speaker 1: the situation we're in already because the President has been
29:11
Speaker 1: removing the heads of a number of these independent agencies
29:15
Speaker 1: without cause. Lower courts have given injunctions requiring that they
29:20
Speaker 1: be able to stay in office, and the Supreme Court
29:22
Speaker 1: stayed them. So currently, you know, these agencies are operating
29:27
Speaker 1: under the situation where the president can remove at will
29:30
Speaker 1: members of the commissions that had them, So we continue
29:33
Speaker 1: in that situation. I mean, the other thing that's just
29:36
Speaker 1: really striking is nineteen eighty eight in Morrison. That is
29:39
Speaker 1: a Renquist opinion. It is incredibly lopsided in terms of
29:44
Speaker 1: upholding removal restrictions and rejecting all of the arguments that
29:47
Speaker 1: the conservatives were going for here, rejecting the idea that
29:50
Speaker 1: the text is clear, rejecting the idea that there's a
29:54
Speaker 1: constitutional separations of powers violation, and adopting what's a very
29:58
Speaker 1: sensible line, which is basically, the removal restrictions are constitutional
30:02
Speaker 1: unless they impede the president's ability to perform the president's
30:05
Speaker 1: constitutional function. And that was nineteen eighty eight and Renquist.
30:08
Speaker 1: And we're just in such a different landscape, and it's
30:11
Speaker 1: not that long.
30:12
Speaker 2: Having this conservative super majority has really changed the law
30:17
Speaker 2: in many respects. Thanks so much, Jillian. That's Professor Gillian
30:21
Speaker 2: Metzger of Columbia Law School, And that's it for this
30:25
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30:28
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30:31
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