1 00:00:02,759 --> 00:00:07,480 Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio. 2 00:00:08,880 --> 00:00:13,000 Speaker 2: The Supreme Court's conservatives appear poised to give the president 3 00:00:13,119 --> 00:00:19,000 Speaker 2: control over potentially dozens of independent federal agencies, overturning or 4 00:00:19,160 --> 00:00:23,640 Speaker 2: narrowing a ninety year old president called Humphreys executor that 5 00:00:23,840 --> 00:00:29,160 Speaker 2: limits when presidents can fire agencies board members. At oral arguments, 6 00:00:29,200 --> 00:00:33,640 Speaker 2: they suggested they'll let President Trump fire Rebecca Kelly Slaughter 7 00:00:33,920 --> 00:00:37,160 Speaker 2: from the Federal Trade Commission, despite a law that says 8 00:00:37,159 --> 00:00:41,720 Speaker 2: commissioners can only be fired for specified reasons. The liberal 9 00:00:42,040 --> 00:00:47,360 Speaker 2: justices expressed alarm at giving the president unchecked authority over 10 00:00:47,440 --> 00:00:52,600 Speaker 2: about two dozen agencies that regulate areas like nuclear energy, 11 00:00:52,720 --> 00:00:58,160 Speaker 2: product safety, and labor relations. Here are Justices Sonya Sotomayor 12 00:00:58,280 --> 00:00:59,440 Speaker 2: and Elena Kagan. 13 00:01:00,040 --> 00:01:04,520 Speaker 3: You're asking us to destroy the structure of government and 14 00:01:04,560 --> 00:01:10,200 Speaker 3: to take away from Congress its ability to protect its 15 00:01:10,280 --> 00:01:15,960 Speaker 3: idea that the government is better structured with some agencies 16 00:01:16,319 --> 00:01:17,240 Speaker 3: that are independent. 17 00:01:18,240 --> 00:01:21,600 Speaker 4: So the result of what you want is that the 18 00:01:21,640 --> 00:01:26,560 Speaker 4: president is going to have massive, unchecked, uncontrolled power not 19 00:01:26,640 --> 00:01:30,920 Speaker 4: only to do traditional execution, but to make law through 20 00:01:31,040 --> 00:01:34,119 Speaker 4: legislative and adjudicative frameworks. 21 00:01:34,840 --> 00:01:39,200 Speaker 2: But the conservative justices like Brett Kavanaugh say the real 22 00:01:39,319 --> 00:01:45,319 Speaker 2: concern is Congress's creation of agencies that exercise executive power 23 00:01:45,880 --> 00:01:47,160 Speaker 2: but aren't accountable. 24 00:01:47,840 --> 00:01:52,520 Speaker 5: Independent agencies are not accountable to the people, they're not elected, 25 00:01:53,760 --> 00:01:56,840 Speaker 5: as Congress and the president are, and are exercising massive 26 00:01:57,520 --> 00:02:02,800 Speaker 5: power over individual liberty and billion dollar industries, whether it's 27 00:02:02,840 --> 00:02:05,040 Speaker 5: the FCC or the FTC or whatever it might be. 28 00:02:05,480 --> 00:02:09,760 Speaker 2: My guest is constitutional law expert William Traynor, our professor 29 00:02:09,800 --> 00:02:13,040 Speaker 2: at Georgetown Law Bill tell us about the issue in 30 00:02:13,120 --> 00:02:15,920 Speaker 2: Kelly Slaughter's case against President Trump. 31 00:02:16,360 --> 00:02:20,320 Speaker 6: The issue before the screen Court is that Congress puts 32 00:02:20,400 --> 00:02:25,000 Speaker 6: limits on when the president and fire the heads of 33 00:02:25,040 --> 00:02:29,040 Speaker 6: independent agencies. So an independent agency is like the Federal 34 00:02:29,080 --> 00:02:33,400 Speaker 6: Trade Commission or the Federal Reserve. So really since the 35 00:02:33,400 --> 00:02:37,600 Speaker 6: start of the Constitution, Congress has imposed limits on when 36 00:02:37,639 --> 00:02:40,320 Speaker 6: the president can fire these people. The question in the 37 00:02:40,400 --> 00:02:44,280 Speaker 6: case is whether that's unconstitutional, whether the president can fire 38 00:02:44,320 --> 00:02:47,919 Speaker 6: the head of an independent agency for any reason, even 39 00:02:47,919 --> 00:02:50,840 Speaker 6: if Congress has said they can only fire them, you know, 40 00:02:50,960 --> 00:02:54,240 Speaker 6: if they're engaged in bad behavior. So this is a 41 00:02:54,320 --> 00:02:57,480 Speaker 6: very big deal. So much of a government structure that 42 00:02:57,600 --> 00:03:01,360 Speaker 6: protects people in different ways or regulates economy is done 43 00:03:01,360 --> 00:03:05,400 Speaker 6: through independent agencies. Congress has wanted to insulate them from 44 00:03:05,560 --> 00:03:09,359 Speaker 6: total executive control, and the Supreme Court is deciding right 45 00:03:09,360 --> 00:03:11,840 Speaker 6: now whether, in fact, the president has the kind of 46 00:03:11,840 --> 00:03:14,519 Speaker 6: control that comes with being able to fire the leaders 47 00:03:14,520 --> 00:03:15,359 Speaker 6: of the agencies. 48 00:03:15,639 --> 00:03:18,240 Speaker 2: In these oral arguments, you often hear the Supreme Court 49 00:03:18,520 --> 00:03:22,080 Speaker 2: justices say, well, that's a job for Congress. You know, 50 00:03:22,240 --> 00:03:25,560 Speaker 2: that's not something that we should be interfering in. So 51 00:03:25,680 --> 00:03:28,960 Speaker 2: why are they interfering here where Congress has set up 52 00:03:29,000 --> 00:03:31,080 Speaker 2: these agencies and the rules. 53 00:03:32,000 --> 00:03:34,239 Speaker 6: That's a great question. There had been so many times 54 00:03:34,240 --> 00:03:37,480 Speaker 6: in which the Court is saying, this is a political matter, 55 00:03:38,160 --> 00:03:41,400 Speaker 6: we shouldn't be deciding. But at the same time, the 56 00:03:41,520 --> 00:03:46,320 Speaker 6: conservative justices of the Court are very dedicated to what's 57 00:03:46,360 --> 00:03:50,400 Speaker 6: called the unitary executive theory, which means that the president 58 00:03:50,560 --> 00:03:54,960 Speaker 6: is in total charge of the executive branch. So what 59 00:03:55,000 --> 00:03:58,600 Speaker 6: they're saying here is Congress doesn't get to be involved. 60 00:03:58,920 --> 00:04:02,400 Speaker 6: The president is in total charge of the executive branch, 61 00:04:02,440 --> 00:04:06,160 Speaker 6: including what have historically been things like the independent agencies. 62 00:04:06,240 --> 00:04:08,920 Speaker 6: That is kind of one of the core commitments that 63 00:04:09,160 --> 00:04:12,640 Speaker 6: has really been at the basis of what Chief Justice 64 00:04:12,720 --> 00:04:15,480 Speaker 6: Roberts has thought really going back to when he was 65 00:04:15,480 --> 00:04:18,159 Speaker 6: a young attorney, and that's the same thing for most 66 00:04:18,160 --> 00:04:20,560 Speaker 6: of the members of the whole conservative wing. 67 00:04:21,080 --> 00:04:25,599 Speaker 2: What kind of concerns did the conservative justices express during 68 00:04:25,640 --> 00:04:31,640 Speaker 2: the oral arguments about this ninety year old President Humphrey's executor. 69 00:04:32,240 --> 00:04:35,520 Speaker 6: There are two things that we're seeing the conservative wing 70 00:04:35,560 --> 00:04:39,680 Speaker 6: of the Court struggle with. One is they want the 71 00:04:39,720 --> 00:04:45,400 Speaker 6: Federal Reserve to continue to be independent. They don't want 72 00:04:45,600 --> 00:04:49,360 Speaker 6: the president to be able to fire the commissioners of 73 00:04:49,400 --> 00:04:52,720 Speaker 6: the Federal Reserve. And they don't want that because you know, 74 00:04:52,800 --> 00:04:56,480 Speaker 6: that would be terrible for the economy. If the Federal 75 00:04:56,520 --> 00:04:59,719 Speaker 6: Reserve is setting interest rates just in order to help 76 00:04:59,760 --> 00:05:02,640 Speaker 6: the p resident rather than to help the economy, that 77 00:05:02,720 --> 00:05:05,480 Speaker 6: would be a disaster, be a disaster for the market, 78 00:05:05,760 --> 00:05:08,599 Speaker 6: the disaster for the economy as a whole. So the 79 00:05:08,680 --> 00:05:11,880 Speaker 6: conservative wing of the Court i think, wants to overturn 80 00:05:12,000 --> 00:05:15,479 Speaker 6: Humphrey's executor, but they're trying to come up with some 81 00:05:15,800 --> 00:05:20,000 Speaker 6: rationale in which they can say the President can fire 82 00:05:20,520 --> 00:05:24,039 Speaker 6: somebody on the FCC, but he can't fire somebody on 83 00:05:24,080 --> 00:05:26,880 Speaker 6: the Federal Reserve. And they're going to be looking at 84 00:05:26,920 --> 00:05:31,240 Speaker 6: the Federal Reserve later in the term that's a big 85 00:05:31,320 --> 00:05:34,159 Speaker 6: concern for them. So I think that animates all of 86 00:05:34,200 --> 00:05:37,800 Speaker 6: the conservative justices of the Court. I think also, you know, 87 00:05:37,839 --> 00:05:41,360 Speaker 6: what I'm hearing with the Chief Justices. What he's trying 88 00:05:41,440 --> 00:05:43,560 Speaker 6: to do is to come up with some way in 89 00:05:43,600 --> 00:05:48,839 Speaker 6: which there's some agencies where Congress can in fact limit 90 00:05:48,920 --> 00:05:52,920 Speaker 6: the president's ability to fire people. And he's thinking about, 91 00:05:53,440 --> 00:05:55,440 Speaker 6: you know, are the ones that are essentially kind of 92 00:05:55,600 --> 00:05:59,040 Speaker 6: judicial in their function, And you know, that may be 93 00:05:59,120 --> 00:06:02,920 Speaker 6: an area in where which Congress can establish requirements or 94 00:06:03,080 --> 00:06:05,640 Speaker 6: when the president can terminate somebody, but that's not the 95 00:06:05,640 --> 00:06:09,680 Speaker 6: Federal Trade Commission. Federal Trade Commission is not making this 96 00:06:09,839 --> 00:06:14,320 Speaker 6: judicial decision, you know, it's very much deciding executive type rules. 97 00:06:14,440 --> 00:06:16,680 Speaker 6: So I think we're seeing two things on the conservative 98 00:06:16,800 --> 00:06:19,680 Speaker 6: wing of the Court. One is they're trying to come 99 00:06:19,760 --> 00:06:21,960 Speaker 6: up with some way in which they can say the 100 00:06:21,960 --> 00:06:25,000 Speaker 6: president can fire somebody the FDC, but not at the FED. 101 00:06:25,720 --> 00:06:28,400 Speaker 6: And I think the Chief is trying to come up 102 00:06:28,440 --> 00:06:31,400 Speaker 6: with some way in which there's some type of agencies 103 00:06:31,839 --> 00:06:34,919 Speaker 6: in which the president can be limited by Congress. But 104 00:06:35,120 --> 00:06:38,280 Speaker 6: those would be ones that are really really deciding kind 105 00:06:38,279 --> 00:06:42,400 Speaker 6: of fuzzi judicial matters, not the fdcate. I mean, you know, 106 00:06:42,440 --> 00:06:45,159 Speaker 6: he's going back. There's a case from the nineteen fifties 107 00:06:45,200 --> 00:06:48,280 Speaker 6: involving something. There was the War Commission that was basically, 108 00:06:48,720 --> 00:06:52,520 Speaker 6: you know, making judicial type decisions involving people. He's trying 109 00:06:52,560 --> 00:06:55,760 Speaker 6: to preserve that line of president, you know, even as 110 00:06:55,800 --> 00:06:57,360 Speaker 6: he overturns Humphrey's executor. 111 00:06:58,279 --> 00:07:01,200 Speaker 2: The liberals things that a dire picture of what would 112 00:07:01,200 --> 00:07:04,960 Speaker 2: happen if Trump wins here. Justice Soto Mayor said to 113 00:07:05,040 --> 00:07:08,720 Speaker 2: the Solicitor General, you're asking us to destroy the structure 114 00:07:08,800 --> 00:07:12,120 Speaker 2: of government. Do you think it's that serious? 115 00:07:12,360 --> 00:07:15,400 Speaker 6: I think that's absolutely right. You know, we have had 116 00:07:15,600 --> 00:07:20,760 Speaker 6: independent agencies which largely exists to protect people of limited power, 117 00:07:21,200 --> 00:07:23,720 Speaker 6: you know, and they've been in place really for one 118 00:07:23,800 --> 00:07:26,880 Speaker 6: hundred years, you know, and the idea is that these 119 00:07:26,920 --> 00:07:31,760 Speaker 6: should be basically bipartisan or apolitical. They should not just 120 00:07:31,840 --> 00:07:34,480 Speaker 6: be tools of the president. So, you know, what the 121 00:07:34,520 --> 00:07:37,200 Speaker 6: court is considering right now is whether that whole kind 122 00:07:37,200 --> 00:07:40,160 Speaker 6: of structure gets got it. So the stakes on this 123 00:07:40,600 --> 00:07:41,400 Speaker 6: are huge. 124 00:07:41,800 --> 00:07:47,360 Speaker 2: Well, President Trump wasn't specifically mentioned by name, two of 125 00:07:47,360 --> 00:07:53,320 Speaker 2: the liberal justices, Elena Kagan and Katanji Brown Jackson, did 126 00:07:53,400 --> 00:07:58,240 Speaker 2: make broad references to his firing of experts and dismantling 127 00:07:58,280 --> 00:08:00,040 Speaker 2: of the Department of Education. 128 00:08:00,760 --> 00:08:04,320 Speaker 4: That the more realistic danger here is that we'll have 129 00:08:04,360 --> 00:08:08,800 Speaker 4: an education department, as authorized by Congress by law, that 130 00:08:08,880 --> 00:08:10,520 Speaker 4: won't have any employees in it. 131 00:08:11,840 --> 00:08:16,480 Speaker 7: Congress is saying that expertise matters with respect to aspects 132 00:08:16,520 --> 00:08:20,720 Speaker 7: of the economy and transportation and the various independent agencies 133 00:08:20,720 --> 00:08:24,640 Speaker 7: that we have. So having a president come in and 134 00:08:24,800 --> 00:08:28,720 Speaker 7: fire all the scientists and the doctors and the economists 135 00:08:28,720 --> 00:08:33,400 Speaker 7: and the PhDs and replacing them with loyalists and people 136 00:08:33,400 --> 00:08:36,280 Speaker 7: who don't know anything is actually not in the best 137 00:08:36,280 --> 00:08:38,880 Speaker 7: interest of the citizens of the United States. This is 138 00:08:38,920 --> 00:08:41,960 Speaker 7: what I think Congress's policy decision is. 139 00:08:42,640 --> 00:08:45,600 Speaker 2: Do you think they were trying to remind their conservative 140 00:08:45,760 --> 00:08:48,560 Speaker 2: colleagues about some of the actions he's taken. 141 00:08:49,200 --> 00:08:52,439 Speaker 6: So the approach to the unitary executive, you know, what's 142 00:08:52,559 --> 00:08:57,120 Speaker 6: motivating the court is pretty long standing. So people like 143 00:08:57,559 --> 00:09:01,800 Speaker 6: the Chief have for a long time, I'm believed that 144 00:09:01,880 --> 00:09:05,439 Speaker 6: the president should be able to fire the people who 145 00:09:05,520 --> 00:09:10,400 Speaker 6: run independent agencies. So, you know, for Chief Justice Roberts 146 00:09:10,520 --> 00:09:15,040 Speaker 6: or for Justice Kavanaugh, the basic legal principle is one 147 00:09:15,080 --> 00:09:17,760 Speaker 6: that they believed for a long time, long before Trump. 148 00:09:18,080 --> 00:09:18,240 Speaker 4: You know. 149 00:09:18,360 --> 00:09:20,640 Speaker 6: At the same time, you know, what we're seeing right 150 00:09:20,679 --> 00:09:23,920 Speaker 6: now is that in the Trump administration, you know, the 151 00:09:23,960 --> 00:09:27,880 Speaker 6: independent agencies and all of the government watchdogs, there's an 152 00:09:27,880 --> 00:09:30,600 Speaker 6: attempt to politicize them in a way that you know, 153 00:09:30,679 --> 00:09:34,640 Speaker 6: we've never seen before. So the stakes are very different, 154 00:09:34,679 --> 00:09:38,320 Speaker 6: and they're much higher. You know, if Humphrey's executor has 155 00:09:38,320 --> 00:09:43,439 Speaker 6: been overturned, you know, in President bush forty threes administration, 156 00:09:44,080 --> 00:09:47,880 Speaker 6: the stakes would have been very different because President Bush 157 00:09:48,520 --> 00:09:52,040 Speaker 6: was not focused on making independent agencies kind of the 158 00:09:52,120 --> 00:09:54,640 Speaker 6: tool for his politics. But that's what we're seeing with 159 00:09:54,720 --> 00:09:57,600 Speaker 6: President Trump, and that's why the stakes. 160 00:09:57,320 --> 00:09:58,080 Speaker 2: Are so high. 161 00:09:58,400 --> 00:10:02,720 Speaker 6: They've always been big, but in this administration, where there's 162 00:10:02,760 --> 00:10:06,719 Speaker 6: such an attempt to kind of move away from scientific 163 00:10:06,800 --> 00:10:12,200 Speaker 6: expertise and neutral decision making to control every part of 164 00:10:12,240 --> 00:10:16,200 Speaker 6: the executive branch, the stakes are huge. And that's really 165 00:10:16,480 --> 00:10:20,640 Speaker 6: part of what those three liberal justices we're questioning about. 166 00:10:21,120 --> 00:10:22,760 Speaker 6: You know, at the same time, I think, you know 167 00:10:22,800 --> 00:10:25,680 Speaker 6: the other thing that they really are focusing in an honor. 168 00:10:26,120 --> 00:10:30,320 Speaker 6: First of all, it's very very hard to come up 169 00:10:30,480 --> 00:10:34,160 Speaker 6: with some line where you can say Congress can limit 170 00:10:34,600 --> 00:10:38,040 Speaker 6: the present's ability to fire the heads of the sec 171 00:10:38,640 --> 00:10:41,920 Speaker 6: they can't fire at will the heads of the FED. 172 00:10:42,200 --> 00:10:44,120 Speaker 6: You know, it's very hard to come up and I 173 00:10:44,160 --> 00:10:48,080 Speaker 6: can't think of any kind of coherent way to distinguish 174 00:10:48,120 --> 00:10:50,840 Speaker 6: those two cases. And that's one of the things that 175 00:10:50,880 --> 00:10:53,600 Speaker 6: the liberals were pressing on. You know, I think they're 176 00:10:53,640 --> 00:10:55,959 Speaker 6: also pressing on the history. You know, if you look 177 00:10:55,960 --> 00:10:59,200 Speaker 6: at the constitutions, the text of the constitutions doesn't say 178 00:10:59,200 --> 00:11:02,040 Speaker 6: that the president gets to fire people in the executive rention. 179 00:11:02,320 --> 00:11:05,320 Speaker 6: It doesn't deal with removal at all. So you know, 180 00:11:05,360 --> 00:11:09,240 Speaker 6: there's not a text that really helps the conservative way 181 00:11:09,240 --> 00:11:13,520 Speaker 6: of the Court and Congress. Really, starting in the Washington 182 00:11:13,559 --> 00:11:18,960 Speaker 6: administration limited the president's ability to fire people running agencies 183 00:11:19,320 --> 00:11:21,760 Speaker 6: or kind of what was analogous to modern agencies at 184 00:11:21,760 --> 00:11:24,679 Speaker 6: the time. So I think what the liberals on the 185 00:11:24,720 --> 00:11:27,400 Speaker 6: Court are focusing on our first of all, on the text, 186 00:11:27,760 --> 00:11:32,640 Speaker 6: the original understanding, as well as the huge consequences of 187 00:11:32,880 --> 00:11:35,600 Speaker 6: essentially giving the president of power to politicize all of 188 00:11:35,600 --> 00:11:36,800 Speaker 6: the independent agencies. 189 00:11:36,960 --> 00:11:40,400 Speaker 2: I've been talking to constitutional law professor William Trainor of 190 00:11:40,480 --> 00:11:44,480 Speaker 2: Georgetown Law. Bill, did you sense that any of the 191 00:11:44,520 --> 00:11:47,840 Speaker 2: conservative justices might vote against Trump here? 192 00:11:49,000 --> 00:11:53,760 Speaker 6: I think that the chiefs may come up with, you know, 193 00:11:53,800 --> 00:11:56,960 Speaker 6: an attempt to limit the ruling, but you know it 194 00:11:57,000 --> 00:11:59,400 Speaker 6: would align with Trump. The only one who I think 195 00:11:59,440 --> 00:12:01,680 Speaker 6: is at all you know from based on from what 196 00:12:01,760 --> 00:12:07,080 Speaker 6: I heard, may vote against Trump is Justice Gorsic, And 197 00:12:07,120 --> 00:12:09,520 Speaker 6: I think what he's really struggling with is, you know, 198 00:12:09,640 --> 00:12:13,520 Speaker 6: he really thinks they're constitutional problems with the whole administrative state. 199 00:12:13,880 --> 00:12:16,640 Speaker 6: So kind of thinking through how you feel about Humphrey's 200 00:12:16,640 --> 00:12:21,080 Speaker 6: executor in that context, I think is complicated. So based 201 00:12:21,120 --> 00:12:24,160 Speaker 6: on what I was hearing yesterday, I think he is 202 00:12:24,200 --> 00:12:27,640 Speaker 6: the only one who I think there's some chance that 203 00:12:27,840 --> 00:12:29,959 Speaker 6: would rule against the president, but I think at the 204 00:12:30,040 --> 00:12:32,400 Speaker 6: end of the day, he probably would rule in the 205 00:12:32,440 --> 00:12:33,640 Speaker 6: way the president wants. 206 00:12:34,679 --> 00:12:38,280 Speaker 2: I wonder what happens when there's a democratic president. Do 207 00:12:38,360 --> 00:12:42,600 Speaker 2: the conservatives then try to limit the ruling they're expected 208 00:12:42,640 --> 00:12:43,200 Speaker 2: to make here. 209 00:12:43,800 --> 00:12:47,360 Speaker 6: You know, one of the reasons why I think that 210 00:12:47,440 --> 00:12:51,680 Speaker 6: the Court should not overturn Humphrey's executor is to the 211 00:12:51,720 --> 00:12:54,760 Speaker 6: extent that you have any kind of political con terms, 212 00:12:54,960 --> 00:12:58,200 Speaker 6: you're giving a democratic president the power to do exactly 213 00:12:58,240 --> 00:13:02,319 Speaker 6: what President Trump is doing to to politicize every independent 214 00:13:02,320 --> 00:13:05,000 Speaker 6: agency in the way that that president wants. You know, 215 00:13:05,080 --> 00:13:09,040 Speaker 6: and then how does a conservative court say, well, you know, 216 00:13:09,280 --> 00:13:13,880 Speaker 6: Humphrey executors is back. Once you establish a rule, you know, 217 00:13:13,880 --> 00:13:17,600 Speaker 6: it applies to everybody. That's something that they really have 218 00:13:17,720 --> 00:13:20,760 Speaker 6: to think through because of the long term consequences, because 219 00:13:20,800 --> 00:13:24,160 Speaker 6: I don't think they would feel comfortable, you know, with 220 00:13:24,280 --> 00:13:28,440 Speaker 6: limiting a democratic president after they allow you know, President 221 00:13:28,520 --> 00:13:30,959 Speaker 6: Trump to fire people whenever he wants. 222 00:13:31,480 --> 00:13:35,679 Speaker 2: So you think that they will completely overrule Humphrey's executor. 223 00:13:36,400 --> 00:13:39,960 Speaker 6: No, I think they will completely overrule Humphrey's executor. I 224 00:13:40,000 --> 00:13:44,600 Speaker 6: think the one question for me is whether the chief 225 00:13:44,960 --> 00:13:49,880 Speaker 6: comes up with some limiting principle in which if there 226 00:13:49,920 --> 00:13:54,839 Speaker 6: are you know, quasi judicial independent agencies, then Congress can 227 00:13:54,880 --> 00:13:58,360 Speaker 6: put limitations on the president's ability to fire. But I think, 228 00:13:58,400 --> 00:14:00,400 Speaker 6: you know, the basic point is, I think they're going 229 00:14:00,440 --> 00:14:03,640 Speaker 6: to overturn Humphrey's executives, you know, and they've been you know, 230 00:14:03,720 --> 00:14:05,199 Speaker 6: going in that way for some time. 231 00:14:05,800 --> 00:14:09,920 Speaker 2: If Slaughter is fired, that leaves the FTC without any 232 00:14:10,000 --> 00:14:14,679 Speaker 2: democratic commissioners. So then does that mean that you'll have 233 00:14:14,760 --> 00:14:19,000 Speaker 2: these commissions where when there's a Republican in power, it 234 00:14:19,040 --> 00:14:21,800 Speaker 2: will be all Republicans on the commission. And when there's 235 00:14:21,840 --> 00:14:26,160 Speaker 2: a Democrat in power, there'll be all Democrats on the Commission. 236 00:14:26,760 --> 00:14:27,440 Speaker 1: I think that's right. 237 00:14:27,640 --> 00:14:31,200 Speaker 6: I think that's right. You know, because a democratic president 238 00:14:32,040 --> 00:14:34,520 Speaker 6: is going to say, you know, I'm not going to 239 00:14:34,600 --> 00:14:40,520 Speaker 6: have a bipartisan agency. If you know, in Republican administrations 240 00:14:40,520 --> 00:14:44,960 Speaker 6: it's all Republicans. You are setting up something which is new, 241 00:14:45,920 --> 00:14:49,280 Speaker 6: which is that, you know, independent agencies are not independent. 242 00:14:50,000 --> 00:14:54,720 Speaker 6: Then they just follow what the president wants. That's empowering Trump, 243 00:14:55,240 --> 00:14:58,680 Speaker 6: but it's also going to empower democratic presidents in the future. 244 00:14:58,960 --> 00:15:03,080 Speaker 6: You know, in these areas where you really want non partisan, 245 00:15:03,240 --> 00:15:06,520 Speaker 6: where you want kind of balanced decision making, that's going 246 00:15:06,600 --> 00:15:07,400 Speaker 6: to go out the window. 247 00:15:08,160 --> 00:15:13,080 Speaker 2: The Court in may call the FED uniquely structured quasi 248 00:15:13,240 --> 00:15:18,200 Speaker 2: private entity, unlike other independent agencies. And here's what Justice 249 00:15:18,200 --> 00:15:22,520 Speaker 2: Brett Kavanaugh said during neural arguments. 250 00:15:21,720 --> 00:15:25,000 Speaker 5: The Federal Reserve. The other side says that your position 251 00:15:25,040 --> 00:15:29,440 Speaker 5: would undermine the independence of the Federal Reserve, and they 252 00:15:29,440 --> 00:15:32,560 Speaker 5: have concerns about that, and I share those concerns. So 253 00:15:32,680 --> 00:15:37,600 Speaker 5: how would you distinguish the Federal Reserve from agencies such 254 00:15:37,640 --> 00:15:39,080 Speaker 5: as the Federal Trade Commission? 255 00:15:39,880 --> 00:15:41,120 Speaker 2: And just how would they do that? 256 00:15:41,720 --> 00:15:45,040 Speaker 6: Again, I think the thing that the conservative wing of 257 00:15:45,080 --> 00:15:49,280 Speaker 6: the Court has grabbed them with, is what's the rationale 258 00:15:50,120 --> 00:15:55,560 Speaker 6: for saying that Congress can't limit the prison the ability 259 00:15:55,600 --> 00:16:00,120 Speaker 6: to fire the heads of the SEC. But can that 260 00:16:00,240 --> 00:16:03,400 Speaker 6: his ability to hire, you know, the heads of the Fed. 261 00:16:04,040 --> 00:16:07,000 Speaker 6: You know, that's what they're struggling with because it would 262 00:16:07,040 --> 00:16:13,280 Speaker 6: be a disaster economically if the president could fire Jerome Pal, 263 00:16:14,040 --> 00:16:17,280 Speaker 6: and so you know they're struggling. They're trying to thread 264 00:16:17,320 --> 00:16:21,000 Speaker 6: the needle so that the president can fire somebody at 265 00:16:21,000 --> 00:16:23,600 Speaker 6: the FTC for any reason, but not do the same 266 00:16:23,640 --> 00:16:27,440 Speaker 6: with the FET And you know, I think the historical 267 00:16:27,480 --> 00:16:30,400 Speaker 6: examples to say that the First Bank and the Second 268 00:16:30,440 --> 00:16:32,840 Speaker 6: Bank of the United States, going back to really to 269 00:16:32,920 --> 00:16:36,440 Speaker 6: the origins of the of the country, that those were 270 00:16:36,480 --> 00:16:39,000 Speaker 6: areas in which there was a kind of autonomy that 271 00:16:39,080 --> 00:16:41,920 Speaker 6: the president didn't control. But you know, there were also 272 00:16:41,960 --> 00:16:45,240 Speaker 6: examples outside of the First Bank and the Second Bank 273 00:16:45,280 --> 00:16:48,440 Speaker 6: where the president's authority was limited. So I think what 274 00:16:48,560 --> 00:16:51,360 Speaker 6: the court will try to do is to say the 275 00:16:51,400 --> 00:16:54,680 Speaker 6: president can't fire Jerome Pal, can't fire at least to cook. 276 00:16:55,080 --> 00:16:57,640 Speaker 6: But I don't think that that is kind of a 277 00:16:57,720 --> 00:17:00,280 Speaker 6: coherent approach, you know, because I think it would be 278 00:17:00,360 --> 00:17:02,800 Speaker 6: based on history. But the history doesn't support it. 279 00:17:03,120 --> 00:17:05,200 Speaker 2: A lot of times they seem to pick and choose 280 00:17:05,240 --> 00:17:08,680 Speaker 2: the history that's useful. It's been great talking to you, Bill. 281 00:17:08,760 --> 00:17:14,960 Speaker 2: Thank you. That's Professor William Trainer of Georgetown Law. The 282 00:17:14,960 --> 00:17:18,719 Speaker 2: Supreme Court heard arguments on Monday on whether President Trump 283 00:17:18,760 --> 00:17:22,159 Speaker 2: has the authority to make hiring and firing decisions for 284 00:17:22,280 --> 00:17:27,160 Speaker 2: independent government agencies like the FTC or the Federal Reserve. 285 00:17:27,720 --> 00:17:30,800 Speaker 2: The case was brought to the Court by former FTC 286 00:17:30,880 --> 00:17:34,480 Speaker 2: Commissioner Rebecca Kelly Slaughter, who was fired by the Trump 287 00:17:34,520 --> 00:17:39,000 Speaker 2: administration because they said her appointment was quote inconsistent with 288 00:17:39,080 --> 00:17:43,560 Speaker 2: the administration's policies. She told ABC News that if the 289 00:17:43,720 --> 00:17:48,480 Speaker 2: Justices signed with the Trump administration, independent government agencies from 290 00:17:48,520 --> 00:17:52,320 Speaker 2: the National Weather Service to the Federal Reserve could be 291 00:17:52,400 --> 00:17:54,600 Speaker 2: stacked with the loyalists to the president. 292 00:17:55,640 --> 00:17:59,159 Speaker 8: Congress decided that when it's set up these agencies like 293 00:17:59,240 --> 00:18:02,480 Speaker 8: the FTC and like the Federal Reserve and about two 294 00:18:02,520 --> 00:18:06,119 Speaker 8: dozen others, that there should be some checks and balances 295 00:18:06,200 --> 00:18:10,280 Speaker 8: in how the powers that those agencies have are used 296 00:18:10,760 --> 00:18:15,679 Speaker 8: to avoid political interference. I've said from the beginning that 297 00:18:15,760 --> 00:18:18,679 Speaker 8: this isn't about me or my job, and that was 298 00:18:18,920 --> 00:18:21,919 Speaker 8: very much on display at the arguments yesterday. It is 299 00:18:21,960 --> 00:18:25,520 Speaker 8: about not just the agency I serve, the FTC, but 300 00:18:25,600 --> 00:18:28,879 Speaker 8: a whole host of federal agencies. And it was clear 301 00:18:28,960 --> 00:18:32,480 Speaker 8: that it's really difficult to come up with any principal 302 00:18:32,560 --> 00:18:36,560 Speaker 8: distinction between the FTC and, for example, the. 303 00:18:36,520 --> 00:18:40,960 Speaker 2: Fed joining me now is constitutional law expert Jillian Metzger, 304 00:18:41,040 --> 00:18:44,760 Speaker 2: a professor at Columbia Law School, Jillian, in your view, 305 00:18:45,040 --> 00:18:46,639 Speaker 2: what's at stake in this case? 306 00:18:47,480 --> 00:18:49,879 Speaker 1: Well, there's a lot potentially at stake in this case. 307 00:18:50,080 --> 00:18:54,159 Speaker 1: The specific issue in the Slaughter case itself has to 308 00:18:54,160 --> 00:18:57,399 Speaker 1: do with the ability of the President to remove a 309 00:18:57,440 --> 00:19:01,239 Speaker 1: member of the Federal Trade Commission without cause. But the 310 00:19:01,480 --> 00:19:06,800 Speaker 1: logic of the Solicitor General's argument, and the argument that 311 00:19:07,200 --> 00:19:10,439 Speaker 1: many of the conservative justices seem to be embracing, is 312 00:19:10,680 --> 00:19:13,960 Speaker 1: considerably broader than that. It would not just extend to 313 00:19:14,240 --> 00:19:18,359 Speaker 1: other independent agencies that have similar kinds of authorities as 314 00:19:18,400 --> 00:19:23,800 Speaker 1: the FTC adjudicatory and regulatory. It would extend to what 315 00:19:23,840 --> 00:19:27,200 Speaker 1: are called non Article three courts, entities that really function 316 00:19:27,280 --> 00:19:30,120 Speaker 1: as courts but don't operate with the Article three protection. 317 00:19:30,359 --> 00:19:33,760 Speaker 1: So the Court of Federal Claims, for example, was one 318 00:19:33,800 --> 00:19:37,600 Speaker 1: that came up in the oral argument, and those are 319 00:19:37,640 --> 00:19:42,119 Speaker 1: also entities that would if you focus on the breadth 320 00:19:42,200 --> 00:19:45,480 Speaker 1: of the Solicitor General's argument and the kind of claims 321 00:19:45,480 --> 00:19:49,520 Speaker 1: of really unlimited removal power in the president over executive officers, 322 00:19:49,840 --> 00:19:52,840 Speaker 1: it would encompass those, It would encompass the FED, and 323 00:19:53,080 --> 00:19:56,320 Speaker 1: a particular concern it wouldn't just be limited to principal officers, 324 00:19:56,359 --> 00:20:00,000 Speaker 1: it would be also encompassing inferior officers and in particular 325 00:20:00,119 --> 00:20:03,400 Speaker 1: employees and the civil service. And one of the interesting 326 00:20:04,040 --> 00:20:07,600 Speaker 1: aspects of the oral argument was there were definitely some 327 00:20:07,920 --> 00:20:11,720 Speaker 1: justices who were concerned about the potential implications of their 328 00:20:11,720 --> 00:20:15,680 Speaker 1: holding and of the government's argument, and trying to find 329 00:20:15,680 --> 00:20:20,000 Speaker 1: ways that they could decide more minimalistically and still hold 330 00:20:20,000 --> 00:20:23,080 Speaker 1: for the government here without adopting all of these implications. 331 00:20:23,520 --> 00:20:25,920 Speaker 1: And they were particularly concerned about the non Article three 332 00:20:25,960 --> 00:20:30,440 Speaker 1: courts and also the FED. But it was only Justice 333 00:20:30,520 --> 00:20:33,200 Speaker 1: Kagan who really pushed on how this would also apply 334 00:20:33,240 --> 00:20:35,920 Speaker 1: to the civil service, and the conservative justices didn't refer 335 00:20:35,960 --> 00:20:38,880 Speaker 1: to that. And that would be really quite extraordinary if 336 00:20:39,080 --> 00:20:41,720 Speaker 1: it turns out that removal protections for the civil service, 337 00:20:41,720 --> 00:20:45,160 Speaker 1: which are such a critical piece of our administrative state, 338 00:20:45,200 --> 00:20:47,119 Speaker 1: are under this decision on constitution. 339 00:20:47,440 --> 00:20:50,960 Speaker 2: Jillian, I've asked this question more than once. Why do 340 00:20:51,000 --> 00:20:55,639 Speaker 2: the conservatives embrace this unitary executive theory that gives so 341 00:20:55,800 --> 00:20:59,720 Speaker 2: much power to the president to another branch of government. 342 00:21:00,119 --> 00:21:05,680 Speaker 1: You know, it's interesting. This is a received conservative legal 343 00:21:05,960 --> 00:21:11,480 Speaker 1: idea and principle that the president has unlimited control over 344 00:21:11,920 --> 00:21:17,879 Speaker 1: the executive branch, that the Constitution divides the authority between executive, legislative, 345 00:21:17,880 --> 00:21:21,520 Speaker 1: and judicial, and the vesting clause means the president is 346 00:21:21,600 --> 00:21:25,159 Speaker 1: vested with all the executive power. And when I say conservative, 347 00:21:25,200 --> 00:21:29,200 Speaker 1: I mean conservative in the political sense. This goes back 348 00:21:29,240 --> 00:21:33,960 Speaker 1: to the Reagan administration, the birth of the conservative legal movement, 349 00:21:34,320 --> 00:21:36,960 Speaker 1: and this was one of their kind of founding principles 350 00:21:36,960 --> 00:21:40,560 Speaker 1: as a way of pushing back on administrative government and 351 00:21:40,800 --> 00:21:44,280 Speaker 1: the administrative state. I think that still actually underlies a 352 00:21:44,320 --> 00:21:47,119 Speaker 1: lot of this that kind of resistance and a suspicion 353 00:21:47,119 --> 00:21:52,360 Speaker 1: of administrative power. What's interesting is other principles of that 354 00:21:52,400 --> 00:21:56,840 Speaker 1: conservative legal movement are actually intention with the unitary executive 355 00:21:56,880 --> 00:21:59,159 Speaker 1: idea in this way. One of the things that's been 356 00:21:59,240 --> 00:22:02,680 Speaker 1: established over time, particularly recently there's been a huge burst 357 00:22:02,800 --> 00:22:06,600 Speaker 1: of excellent scholarship, is that really at the Founding, there 358 00:22:06,680 --> 00:22:10,639 Speaker 1: was not this commitment to presidential unitary control over the 359 00:22:10,680 --> 00:22:15,200 Speaker 1: executive brand. There are a number of instances of arrangements, commissions. 360 00:22:15,200 --> 00:22:18,160 Speaker 1: Thinking Fund came up in the argument, The Revolutionary Debt 361 00:22:18,200 --> 00:22:21,280 Speaker 1: Commission came up in the argument. These are entities that 362 00:22:21,960 --> 00:22:25,359 Speaker 1: the president did not have full and unconstrained removal power over. 363 00:22:25,960 --> 00:22:28,560 Speaker 1: There's just been a great deal of scholarship about the 364 00:22:28,680 --> 00:22:34,120 Speaker 1: variety of kinds of appointment arrangements and institutions and how 365 00:22:34,760 --> 00:22:37,159 Speaker 1: granting a term of years actually meant to provide some 366 00:22:37,240 --> 00:22:41,000 Speaker 1: removal protection. So there really isn't an originalist case for this. 367 00:22:41,080 --> 00:22:44,159 Speaker 1: There were certainly arguments made at the Founding that the 368 00:22:44,200 --> 00:22:47,720 Speaker 1: president should have this power, but it's by no means obvious, 369 00:22:47,720 --> 00:22:49,680 Speaker 1: and I think the weight of the evidence actually suggests 370 00:22:49,680 --> 00:22:53,359 Speaker 1: that really that was not the view. And so, you know, 371 00:22:53,400 --> 00:22:56,560 Speaker 1: you have a lot of justices who are ordinarily proclaimed 372 00:22:56,560 --> 00:22:59,960 Speaker 1: their originalism being willing to just blithely ignore the fact 373 00:23:00,000 --> 00:23:02,880 Speaker 1: fact that this restriction that they're imposing on the political 374 00:23:02,880 --> 00:23:07,080 Speaker 1: branches are likely to impose has no historical founding and 375 00:23:07,119 --> 00:23:10,600 Speaker 1: does not date back to the views of the founders. 376 00:23:11,080 --> 00:23:14,080 Speaker 1: So that's odd. You know. The other thing that's that's 377 00:23:14,119 --> 00:23:17,320 Speaker 1: quite interesting is that, you know, at this point, particular 378 00:23:17,320 --> 00:23:20,320 Speaker 1: point in time, where we have a president who is 379 00:23:20,400 --> 00:23:25,199 Speaker 1: asserting very aggrandized understandings of executive power, and you know, 380 00:23:25,320 --> 00:23:28,920 Speaker 1: refusing to adhere to statutes and limits enacted by Congress. 381 00:23:29,080 --> 00:23:31,280 Speaker 1: Statutes and limits that aren't at issue in this case, 382 00:23:31,600 --> 00:23:35,560 Speaker 1: but broad refusal to adhere to a number of governing statutes, 383 00:23:35,960 --> 00:23:39,680 Speaker 1: you know, trying to dismantle agencies, you know, spending impowments 384 00:23:39,880 --> 00:23:44,240 Speaker 1: and the like. That the Conservative justices concern was that 385 00:23:44,400 --> 00:23:47,360 Speaker 1: Congress might make the Department of Education and independent agency 386 00:23:47,400 --> 00:23:50,280 Speaker 1: that really seems not to be the threat on the horizon. 387 00:23:50,560 --> 00:23:54,040 Speaker 1: The threat on the horizon is deeply a grandized executive 388 00:23:54,760 --> 00:23:57,440 Speaker 1: and you would have thought that would have perhaps given 389 00:23:57,480 --> 00:23:59,639 Speaker 1: more caution to them. I think the other thing that 390 00:23:59,680 --> 00:24:04,359 Speaker 1: anim makes them. They have this image of the president 391 00:24:04,920 --> 00:24:07,280 Speaker 1: being on top of the executive branch and a very 392 00:24:07,320 --> 00:24:10,880 Speaker 1: simplistic model of political accountability where the president is nationally 393 00:24:10,880 --> 00:24:15,720 Speaker 1: elected and therefore legitimizes everything but the executive branch does. 394 00:24:16,000 --> 00:24:18,600 Speaker 1: And what they leave out of the equation is that 395 00:24:18,640 --> 00:24:22,520 Speaker 1: there is extensive political accountability through Congress as well. And 396 00:24:22,600 --> 00:24:26,359 Speaker 1: their model of very simplistic political accountability. This kind of 397 00:24:26,400 --> 00:24:31,080 Speaker 1: chain of command way just isn't how government operates. There's complicated, 398 00:24:31,119 --> 00:24:35,400 Speaker 1: messy relationships, which in fact do yield a great deal 399 00:24:35,400 --> 00:24:38,320 Speaker 1: of accountability, but it just isn't accountability in the model 400 00:24:38,359 --> 00:24:38,880 Speaker 1: that they want. 401 00:24:39,760 --> 00:24:44,200 Speaker 2: They really gave short shrift to Congress and any congressional power. 402 00:24:44,200 --> 00:24:47,000 Speaker 2: And I thought that it was interesting when Justice Sodo 403 00:24:47,000 --> 00:24:50,639 Speaker 2: Mayor said to the Solicitor General, so you're arguing that 404 00:24:50,720 --> 00:24:53,639 Speaker 2: the reasoning of the more current justices on this court 405 00:24:54,040 --> 00:24:57,119 Speaker 2: has more purchase than the views of renowned jurists like 406 00:24:57,160 --> 00:25:01,480 Speaker 2: Homes and brand Ice and Justice store right exactly. 407 00:25:01,920 --> 00:25:05,159 Speaker 1: And then you had Kavanaugh trying to revive the scale 408 00:25:05,240 --> 00:25:08,040 Speaker 1: by saying, well, we also have Taft and we also 409 00:25:08,080 --> 00:25:10,320 Speaker 1: have Scalia, which was ironic. 410 00:25:10,040 --> 00:25:13,920 Speaker 2: Scale and descent usually, yes, exactly, that point was. 411 00:25:13,880 --> 00:25:16,640 Speaker 1: Not noted other than you. They noticed this as well. 412 00:25:16,640 --> 00:25:19,200 Speaker 1: But when they're talking about reliance, so that you know, 413 00:25:19,240 --> 00:25:22,080 Speaker 1: obviously starry decisis is a big factor in this argument. 414 00:25:22,480 --> 00:25:25,520 Speaker 1: And when they're talking about reliance, several of the justices 415 00:25:25,720 --> 00:25:28,919 Speaker 1: on the conservative side were suggesting that there was no 416 00:25:29,000 --> 00:25:32,440 Speaker 1: reliance that mattered here because it was a structural issue, 417 00:25:32,440 --> 00:25:34,919 Speaker 1: which is an essence to say the fact that for 418 00:25:35,080 --> 00:25:40,400 Speaker 1: hundreds of years, our presidents, members of Congress, our political 419 00:25:40,400 --> 00:25:44,359 Speaker 1: institutions have been operating and constructing a government on reliance 420 00:25:44,400 --> 00:25:46,479 Speaker 1: on the idea that you could have these kinds of 421 00:25:46,520 --> 00:25:51,240 Speaker 1: institutions that doesn't count. And that was just a remarkable suggestion. 422 00:25:51,400 --> 00:25:55,680 Speaker 2: I thought it seemed to me that the liberals had 423 00:25:55,760 --> 00:26:00,880 Speaker 2: the best part of the legal argument. So wondering how 424 00:26:00,920 --> 00:26:06,240 Speaker 2: the conservatives are going to approach this decision, I. 425 00:26:06,200 --> 00:26:08,560 Speaker 1: Think they're going to go more minimalists. There were several 426 00:26:08,600 --> 00:26:11,960 Speaker 1: suggestions of some things that justices did not want to reach. 427 00:26:12,200 --> 00:26:15,040 Speaker 1: The Chief really seemed to want to carve out non 428 00:26:15,160 --> 00:26:21,840 Speaker 1: article free adjudication and the Fed Kavanaugh similarly, Barrett also suggested, 429 00:26:22,560 --> 00:26:25,480 Speaker 1: can we even not specify that this is based on 430 00:26:25,480 --> 00:26:28,879 Speaker 1: the executive power clause? But this is just an authority 431 00:26:28,920 --> 00:26:32,040 Speaker 1: to remove that the president has without specifying the full 432 00:26:32,080 --> 00:26:35,800 Speaker 1: contours of it, the idea being I think that when 433 00:26:35,800 --> 00:26:38,119 Speaker 1: it's based on the executive power clauses, when it has 434 00:26:38,200 --> 00:26:42,480 Speaker 1: its broadest implications, versus if you conclude the president has 435 00:26:43,000 --> 00:26:46,160 Speaker 1: power to remove based on the take care clause, that 436 00:26:46,359 --> 00:26:50,600 Speaker 1: may impose some limits on the scope because a presidential 437 00:26:50,640 --> 00:26:53,800 Speaker 1: removal power that's at odds with the statute being implemented 438 00:26:54,040 --> 00:26:57,760 Speaker 1: would be harder to infer. And similarly, presidential removal power 439 00:26:57,840 --> 00:27:02,280 Speaker 1: based on the appointments clause would really primarily extend to 440 00:27:03,000 --> 00:27:07,000 Speaker 1: principal officers or those inferior officers that Congress gives the 441 00:27:07,040 --> 00:27:10,360 Speaker 1: appointment of to the president. But for those instances where 442 00:27:10,400 --> 00:27:14,640 Speaker 1: inferior officers are given to the courts or heads of department, 443 00:27:14,640 --> 00:27:17,840 Speaker 1: the president wouldn't have the removal authority, And the appointments 444 00:27:17,840 --> 00:27:20,520 Speaker 1: clause just doesn't speak to employees, and so it would 445 00:27:20,560 --> 00:27:21,400 Speaker 1: leave that issue out. 446 00:27:22,160 --> 00:27:25,720 Speaker 2: Let's say that the Conservatives, as expected, rule for the 447 00:27:25,760 --> 00:27:30,840 Speaker 2: president here, what kind of changes would we see in 448 00:27:30,880 --> 00:27:34,760 Speaker 2: the government. I mean, just changing the heads of agencies. 449 00:27:35,160 --> 00:27:36,680 Speaker 2: Will it make that much of a difference. 450 00:27:37,160 --> 00:27:38,840 Speaker 1: I think it does depend a little bit how they 451 00:27:38,880 --> 00:27:43,119 Speaker 1: do it. So suppose what they do is they limit 452 00:27:43,160 --> 00:27:47,640 Speaker 1: their decision to really independent regulatory agencies like the FTC, 453 00:27:47,960 --> 00:27:51,879 Speaker 1: the NLRB, the Nuclear Regulatory Commission. These are agencies that 454 00:27:51,960 --> 00:27:57,960 Speaker 1: have adjudicatory responsibilities and also rulemaking responsibilities as well as enforcement, 455 00:27:58,200 --> 00:28:01,800 Speaker 1: and what they do is simply excise the removal protections 456 00:28:02,520 --> 00:28:06,760 Speaker 1: for the members who head those agencies. That leaves those 457 00:28:06,800 --> 00:28:12,320 Speaker 1: agencies standing, and it just would serve to allow the 458 00:28:12,320 --> 00:28:15,200 Speaker 1: president to remove it will the members of the commissions, 459 00:28:15,640 --> 00:28:18,879 Speaker 1: and I think we'll probably therefore also really eviscerate the 460 00:28:18,960 --> 00:28:22,359 Speaker 1: bipartisan requirements that are in the statute right now for 461 00:28:22,440 --> 00:28:26,240 Speaker 1: heading those agencies. There's no challenge to those bipartisan requirements 462 00:28:26,280 --> 00:28:28,440 Speaker 1: here except that if the president can remove it will 463 00:28:28,440 --> 00:28:30,040 Speaker 1: he can do what he's been doing, which is removing 464 00:28:30,080 --> 00:28:33,040 Speaker 1: the democratic members of these agencies. So that would be 465 00:28:33,119 --> 00:28:36,720 Speaker 1: what we would see. There's some suggestion in the argument 466 00:28:37,000 --> 00:28:40,560 Speaker 1: that the Court should consider a different kind of excising 467 00:28:41,120 --> 00:28:46,360 Speaker 1: and perhaps excise those powers that these agencies exercise that 468 00:28:46,600 --> 00:28:49,760 Speaker 1: are executive and need to be within the president's control. 469 00:28:50,040 --> 00:28:52,560 Speaker 1: That would be more of a fundamental change to the 470 00:28:52,760 --> 00:28:57,280 Speaker 1: scope of these agencies, but would leave the possibility that 471 00:28:57,320 --> 00:29:00,360 Speaker 1: the members of the commission that had them could still 472 00:29:00,400 --> 00:29:03,000 Speaker 1: have some removal protection. And I guess is that the 473 00:29:03,000 --> 00:29:04,920 Speaker 1: Court is going to do the former. It fits with 474 00:29:04,960 --> 00:29:08,000 Speaker 1: what their president has been and to be honest, it's 475 00:29:08,040 --> 00:29:11,840 Speaker 1: the situation we're in already because the President has been 476 00:29:11,880 --> 00:29:15,960 Speaker 1: removing the heads of a number of these independent agencies 477 00:29:15,960 --> 00:29:20,760 Speaker 1: without cause. Lower courts have given injunctions requiring that they 478 00:29:20,880 --> 00:29:22,520 Speaker 1: be able to stay in office, and the Supreme Court 479 00:29:22,520 --> 00:29:27,080 Speaker 1: stayed them. So currently, you know, these agencies are operating 480 00:29:27,280 --> 00:29:30,240 Speaker 1: under the situation where the president can remove at will 481 00:29:30,720 --> 00:29:33,240 Speaker 1: members of the commissions that had them, So we continue 482 00:29:33,320 --> 00:29:36,040 Speaker 1: in that situation. I mean, the other thing that's just 483 00:29:36,360 --> 00:29:39,880 Speaker 1: really striking is nineteen eighty eight in Morrison. That is 484 00:29:39,920 --> 00:29:44,360 Speaker 1: a Renquist opinion. It is incredibly lopsided in terms of 485 00:29:44,440 --> 00:29:47,760 Speaker 1: upholding removal restrictions and rejecting all of the arguments that 486 00:29:47,800 --> 00:29:50,760 Speaker 1: the conservatives were going for here, rejecting the idea that 487 00:29:50,800 --> 00:29:54,160 Speaker 1: the text is clear, rejecting the idea that there's a 488 00:29:54,200 --> 00:29:58,480 Speaker 1: constitutional separations of powers violation, and adopting what's a very 489 00:29:58,480 --> 00:30:02,480 Speaker 1: sensible line, which is basically, the removal restrictions are constitutional 490 00:30:02,560 --> 00:30:05,800 Speaker 1: unless they impede the president's ability to perform the president's 491 00:30:05,800 --> 00:30:08,680 Speaker 1: constitutional function. And that was nineteen eighty eight and Renquist. 492 00:30:08,800 --> 00:30:11,600 Speaker 1: And we're just in such a different landscape, and it's 493 00:30:11,640 --> 00:30:12,400 Speaker 1: not that long. 494 00:30:12,880 --> 00:30:17,800 Speaker 2: Having this conservative super majority has really changed the law 495 00:30:17,800 --> 00:30:21,880 Speaker 2: in many respects. Thanks so much, Jillian. That's Professor Gillian 496 00:30:21,960 --> 00:30:25,640 Speaker 2: Metzger of Columbia Law School, And that's it for this 497 00:30:25,800 --> 00:30:28,520 Speaker 2: edition of The Bloomberg Law Show. Remember you can always 498 00:30:28,520 --> 00:30:31,440 Speaker 2: get the latest legal news on our Bloomberg Law Podcast. 499 00:30:31,720 --> 00:30:34,760 Speaker 2: You can find them on Apple Podcasts, Spotify, and at 500 00:30:34,920 --> 00:30:39,960 Speaker 2: www dot bloomberg dot com slash podcast Slash Law, And 501 00:30:40,040 --> 00:30:43,080 Speaker 2: remember to tune into The Bloomberg Law Show every weeknight 502 00:30:43,160 --> 00:30:46,640 Speaker 2: at ten pm Wall Street Time. I'm June Grosso and 503 00:30:46,680 --> 00:30:48,160 Speaker 2: you're listening to Bloomberg