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A
You ready? I was born ready.
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Welcome to Advisory Opinions. I'm Sarah Isger, that's David French and it's the podcast we've all been waiting for. This is your deep dive into independent agencies. The Slaughter case that's getting argued on Monday and Dun Dun dun Dun Humphrey's executor. Okay, so look, this is really a two part podcast because the case is getting argued on Monday and we will have our live pod after that argument ends. But we want to jump right into the argument which means you need to listen to this podcast so that you understand all the ways that we marched here over the last 130 years. And we also have an argument at the Supreme Court that we'll need to talk about. First Choice Women's Resource Centers versus Plotkin. And we'll do a little update on that second boat strike as well. But let's do this. Advisory Opinions.
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A
All right David, so Monday morning you can listen to the oral argument. You can watch the SCOTUS blog, live blog starting at 9:30am if you don't want to have that audio on or if you want to do both at the same time. And then once the argument's over, you, me, Adam White, we're gonna dive right in to this argument. But before we can do that, we've gotta lay the foundation. And I have to tell you, I think these are my favorite podcasts, the Pre Argument foundation podcasts.
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C
This is just the sign that Advisory Opinions has reached new levels of nerdery. Because we didn't used to do this, we haven't always done oral argument previews, especially for previously obscure issues of administrative constitutional law. But times have changed, Sarah. The People demand more deep dives, more discussion of stare decisis. That's what they demand. And we give the people what they want.
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A
So in some ways, I think you can think of this as a three part podcast. The conversation that I had with Adam White in the last episode kind of sets up the philosophical problem that we're in right now. You know, Congress isn't doing a lot. The President's doing too much. How did we get here? And the big takeaway from that conversation for me, David, was that maybe Congress tried to hold onto some of its power in two different ways. Right. It creates these quasi independent agencies, but then puts limits on removal power. That was a way of maintaining control or at least preventing the President from having too much control over these large swaths of the economy. And they had that legislative veto. So if they didn't like something that these independent agencies did, or the President for that matter, they would be able to veto it pretty easily. It's sort of like a reverse impeachment. It's like so easy. You could just have one House and the majority say, nah, we don't like that tariff, or we don't like that decision by the Federal Trade Commission. Of course, in INS v. Chada, it was literally, we don't think this guy should get to stay in the country.
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C
Yeah, I think that's a really interesting perspective, that what Congress did and what it intended to do was not to just hand over a bunch of its power on a silver platter to the President. What the Congress intended to do was create what we think of as the modern administrative state, the kind of state that exists and you see in other advanced democracies, which is a class of bureaucrats, a class of technocrats who do manage different aspects of complex aspects of a complex society. And I think that, you know, if you're sort of tracing the evolution of this argument, we had the initial controversy that was sort of culminating in Humphrey's executor, in which the Supreme Court said, yeah, Congress, this version of the ftc, at least, you can attach strings, you can have strings attached to the President's removal authority that really seem to supercharge the very notion, the very idea that then has led to a number of other independent, quasi independent agencies to be created. And you had decades there, really, Sarah, where this whole unitary executive theory just wasn't in the ocean, it wasn't in the air. So in some ways, once Humphrey's executor was decided, a vision or a version of Congress, do your job, was create more independent Agencies. And that was a version of Congress. Do your job. And then there's this really interesting piece by Erwin Cheraminsky in the SCOTUS blog about how even as recent as the case of Morrison B. Olson, people may remember this as the independent counsel case. Is an independent counsel, a prosecutor, who at the time was appointed not by a president, but by coalition, a group of judges. Could a prosecutor be truly independent? And that case was seven to one. And there was one person there, the chief stood alone, Scalia, sort of reviving some of these arguments from pre Humphreys executor, et cetera, and really articulating the modern unitary executive theory. And he was one dude, but now one dude has five additional dudes and dudettes who share. Honestly, Sarah, the dissent in Morrison B. Olson may be one of the more influential dissents in modern constitutional history. And so we've now sort of come all the way back around.
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A
This wolf comes as a wolf.
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C
Yeah, exactly.
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A
That's where the famous line comes from. Can I read the whole. The whole quote from Scalia's Descent, the wolf? Because I actually think, you know, we always just say, the wolf comes as a wolf. But actually the rest of the quote kind of explains the whole thing. Thus, while all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives, the executive power shall be vested in a President of the United States. That is what this suit is about. Power, the allocation of power among Congress, the President and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish, so that a gradual concentration of the several powers in the same department can effectively be resisted. Frequently, an issue of this sort will come before the court clad, so to speak, in sheep's clothing. The potential of the asserted principle to affect important change in the equilibrium of power is not immediately evident and must be discerned by a careful and perspective analysis. But this wolf comes as a wolf. The wolf comes as a wolf. Lion is all about the time I think we find ourselves in, you know, 30 years later. That case was from 1988, and he was really predicting in a lot of ways the fall of the three branches of government having any sort of equilibrium. Okay, but David, that's part one of this, right? The philosophical underpinnings of how we got here today is part two. Where are we? So let's start with Rebecca Slaughter. By the way, David, I recently met the person who officiated Rebecca Slaughter's wedding. Rebecca and her husband now have four children. I have also met Republican friends of Rebecca Slaughter. By all accounts, this is a lovely person, Rebecca Slaughter. So she went to Yale undergrad, Yale Law School, worked for Chuck Schumer as one of his counsels, and then was appointed to the Federal Trade Commission during the first Trump administration. Now, this gets to the whole point, David, when you're like, wait a second, this is a hardcore Democrat getting appointed to the FTC during the Trump administration. Say what now? But that's the whole point of these independent agencies. They have statutory requirements about how many people must be appointed from each party. So whenever you're thinking independent agency and you hear someone was appointed under ex president, that's a useless piece of information because it had to be someone who was from that opposing party. Okay, so Rebecca Slaughter gets appointed. She gets reappointed for her second term under the Biden administration. By the way, this is a weird fact in Wikipedia. She gave birth to her third child during this time, making her the first woman to give birth while serving on the ftc. Okay, that's. Okay. Fun fact.
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All right, so then she gets fired on March 18, 2025, along with another Democratic commissioner. That's what this case is going to be about. Can President Trump fire Rebecca Slaughter from the ftc? When the statute says, basically, you have to be fired for cause, there has to be this partisan balance. Now, this originally comes up on the interim docket. Basically, the question is, what does Rebecca Slaughter do? What is a Rebecca Slaughter? While this case is pending, the stay presented to the Chief justice and by him referred to the court is granted.
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C
The.
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A
That means that Rebecca Slaughter was not reinstated into the ftc. Okay. The application is also treated as a petition for a writ of certiorari before judgment, and the petition is granted. That means that even though this case was still at the district court, because, remember, it was an interim stay question that the Supreme Court reached down and was like, you know what? Let's just go ahead and decide this one. So cert before judgment means it came from the district court, not the circuit court. The parties are directed to brief and argue the following questions. And, David, this gets really interesting because Question one, everyone is like, yeah, okay, got it. Question two, though. Fascinating. All right, question one. Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers, and if so, whether Humphrey's Executor v. United States from 1935 should be overruled. It doesn't get clearer than that. Question one, question two. Whether a federal court may prevent a person's removal from public office either through relief at equity or at law. That is when the President fired Rebecca Slaughter and the District Court held that that firing was unlawful under Humphrey's executor, the binding Supreme Court precedent. What was the remedy at that point? Was it back pay or did the District Court have the power to do what it did, which was order the reinstatement of Rebecca Slaughter to the FTC and how that happened and everything else gets to be like a pretty messy question. And David, I'll give you my spoiler alert on question two. I actually think it's pretty circular.
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Begs the question in the actual way we were supposed to use that term, I. E. Your answer to that question is based on your answer to question one.
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C
So I don't think so. Because isn't question two broader than question one? Because question one really is related to Humphrey's executor for cause removal of independent members of independent commissions. Question two, a person's removal from public office. So question one is really a Humphreys executor question about leadership of independent commissions. Question two is a person, a person's removal from public office of any. If you're looking at that as it's written, it would apply to everything from a junior, a janitor at a, at a federal building, a line prosecutor for the, you know, in the U.S. attorney's office, or head of an independent commission. It's a person. So it seems to me that that's broader than question one. In fact, it felt to me so much more broad that when they added that question, I had a reaction. Do you remember the old Saturday morning cartoons where like their eyeballs would pop out of their head. It'd be like oooga. You know, like I was, like I had an eyeball. What, what you're adding this, this is bigger, big.
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A
Here's my argument to you about why it's circular. Because if you think that the courts don't have the power to order someone's reinstatement, it is because you believe in the unitary executive. And so you've already answered then question one. Either the President has complete power over.
- [14:44]
Employees under his direction or he doesn't. Anyway, we'll get to all this in a second. Let's start with question one and walk through some of the history here. So I want to start with the Circuit Court's decision on the stay question that is was Rebecca Slaughter unlawfully removed from the beginning of Just like what happens while this litigation is pending? What's the likelihood of success on this question? And what should happen To Rebecca Slaughter. In the meantime, this was a two to one decision from the D.C. circuit. The government is not likely to succeed on appeal because any ruling in its favor from this court would have to defy binding on point and repeatedly preserved Supreme Court precedent. Bucking such precedent is not within this court's job Description. More than 100 years ago, Congress established the Federal Trade Commission. 1914. For those playing bingo at home, the Commission is led by a group of five commissioners, no more than three of whom may be members of the same political party. Once nominated by the President and confirmed by the Senate, Commissioners serve seven year terms. A duly appointed commissioner may be removed by the President only for inefficiency, neglect of duty or malfeasance in office. So these are the strings attached, right? Partisan makeup and the removal power. The key substantive question presented by the government's appeal is whether the statute providing the commissioners for cause removal protection unconstitutionally infringes on the President's article to power. The government is highly unlikely to succeed on appeal because that exact question was already asked and unanimously answered by the Supreme Court and adversely to the government's position 90 years ago in Humphrey's Executor. Since then, the Supreme Court has expressly refused five times to reconsider Humphrey's executor, including Weiner v. United States, 1958, Morrison v. Olson, 1988 Free Enterprise Fund 2010, Sela Law 2020 and Collins v. Yellen, 2021. Humphrey's executor controls this case and binds this court and recent developments on the Supreme Court's emergency docket do not permit this Court to do the Supreme Court's job of reconsidering that precedent. Okay, David, that's really the whole argument, right? Humphrey's Executor is good law. It was decided unanimously by the Supreme Court. The Supreme Court's had the chance to review it. So this isn't just like some old dusty thing we've dusted off. It's been reconsidered over and over again. And every time the Supreme Court has said this setup makes sense. But here we are. Okay, so big picture, David, anything about the statute or the language in it.
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This FTC versus that ftc, the emergency docket, all the ways in which we got here, before we start doing our march through precedent, if we're going to.
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C
Be looking at the factors that the current court rules, that a majority of the current court, I should say, is really looking to and making these decisions, given what we know about their legal philosophy, everything that's basically happened since Humphrey's executor undermines Humphrey's executor. So sort of the expansion and power of the ftc, for example, has moved it to a world where if you go back and you read the original Humphreys executor, it talks about the FTC as an almost entirely legislative and quasi judicial terms, not as, not in executive terms, but the current FTC has a considerable amount of undeniably executive power attached to it. So I think if you're going to look at the development of the FTC since Humphreys executor, to the extent things have changed, it is more clearly executive than it was in the 1930s. So that's sort of the only real factual evolution combined with the increasing number of these executive agencies that have been created since that time.
- [18:51]
A
And look, that's really going to be one of the narrow wins versus wide wins for the administration. I don't think anyone at this point thinks that the administration is going to lose this case. But there's big wins and little wins. You know, a smaller win would be we don't need to overturn any precedent because that FTC is different than this ftc. As you said, David, that FTC was supposed to be quasi legislative, quasi judicial. This FTC is clearly executive. So look, even under our current law, and particularly SELA law, you know, this FTC is under the direction of the President. It's not like Humphrey's executor. But the big win is actually maybe this FTC is different, maybe it's not. But actually that was just wrongly decided. Even that FTC shouldn't have been lawful because there is no such thing as quasi legislative, quasi judicial, but lives in the executive branch. What is this nonsense of which you speak? I'm paraphrasing here, Justice Thomas, and I have to say, David, we talk about which justice is our spirit animal in any given podcast when it comes to this conversation. I'll just lay my cards on the table. I have been fully CT radicalized on so many fronts, not just on the question of independent agencies. I've been radicalized on the severability question that again, if you remember Congress had, you know, Congress passes these independent agencies with the single House veto power and these, you know, unremovable people, you know, partisan makeup, et cetera. I don't see how you can keep scalpeling out these areas in which this was part of the compromise that Congress made to give this power to the presidency. So when we're talking about striking down the one House veto, but keeping all the laws in place. That seems insane to me because the President just gets this huge grant of power without any of what was supposed to be a check on that power. And then for the independent agencies, well, Congress meant to limit the President's power because he couldn't remove the people who were in there. So what, we're going to get rid of that but then leave the independent agencies in place? That seems absolutely insane to me. So again, cards on the table, I am Clarence Thomas on all of this, just screaming at the walls about severability.
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C
So can I ask you a reliance based question on that severability issue? So one of the things that we have talked about is the concept of stare decisis is at its strongest when there is extremely a high degree of reliance. Now we've also talked about the reliance can't really be the government has relied on it. In other words, that the government has really doubled down a lot on its unconstitutional structure. And because it's doubled down so much that then we can't do anything about it. But what if you have a labyrinthine legal and regulatory environment that the economy is centered around?
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A
Someone pointed out that, by the way, there have been findings of the government having a reliance interest. Although again, I think that's different than what you and I were talking about. For instance, they have found that the finality of convictions is a government reliance interest. I would argue that's a community reliance interest, sort of a health of the system reliance interest. But that sounds very similar to what you're talking about, David, which is a whole system reliance interest that is based on the government having this wildly unconstitutional power and building on it brick by brick by brick for 100 plus years. And so now we're talking about, you know, taking a wrecking ball to a whole edifice. Yes, and you know, I'm not for that. Generally speaking, I am a Burkean minimalist. No revolutions except this where I've been fully radicalized.
- [22:56]
C
So, you know, I guess a comparison would be a court. Imagine a court. Just hang with me here that there is a brilliant young scholar who starts to forge an idea that the entitlement state that the, the Social Security, Medicare, Medicaid, just absolutely not encompassed within the original public meaning of the Constitution. And 25 years from now, 30 years from now, young cohort of judges arises and says Social Security and Medicare unconstitutional. At what point, I mean, is there a point at which you essentially say, wait a minute, okay, the sheer inertia of the decades and the absence of sort of manifest injustice to individuals. Like, for example, in Dobbs. One of the things about stare decisis and dobbs that I think was very, very, very appropriately invoked by Alito was, hey, look, we have, you know, what states have recognized as human beings being killed as a result of the Roe precedent. The reliance interests don't cut exactly the way everyone's thinking. There's a lot of people who would maybe like to be alive here that, that art should be considered and that kind of consideration is not in play, say for, you know, a whole system of economic and social regulation. At what point is there a point where you say, hmm, it's just, we're just, it's too intertwined.
- [24:27]
A
So, David, my argument back to you would be that's fine, then you can't take away any of the sticks in the bundle, right? The one House veto, the removal power. Then you have to say that reliance interest is all of the edifice. What you can't do is take away stick by, you know, brick a couple bricks and then say, but we're leaving the rest of the edifice. It's either all or it's none. And instead we've done this Frankenstein hybrid with severability law. And I don't think there's a reliance interest or a stare decisis entrance in severability doctrine. A judge made doctrine on when you can use a scalpel to say that that was not that Congress would have passed the law anyway. I mean, talk about people who don't sound like they've ever worked in Congress. If you remove anything from that bill, it was not going to pass. That's how bills work. Every single piece of it was necessary to get the votes. And if it weren't necessary, it wouldn't be in there. So I think severability law is a fiction. I think the courts should, you know, if there's a piece of that law that's unconstitutional, unlawful, whatever, I think the whole thing's gotta go and then Congress has to repass it. I know that kind of sucks. But the alternative is where we are now, which again has now left the President, which, with huge swaths of, of broad and vague powers, with none of the checks that were originally in there. Congress never would have passed any of those things the way that the court has refashioned the law. Okay, when we get back, David, we start our long march through precedent with that oft forgotten decision. Myers.
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- [28:17]
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A
All right, David, we're back and we're starting with the Myers decision from 1926. I'm going to be reading liberally here from Justice Thomas's dissent in Seattle Zila Law, where he walks through a few of these precedents that I think are important. Myers involved a federal statute that prohibited the president from removing Certain postmasters, except by and with the advice and consent of the Senate. So, David, this actually goes back to the Tenure of Office act from President Johnson's time. This is how they impeached President Johnson. They passed this law that says, you know, remember, Lincoln's been assassinated. Johnson is drunk at his inauguration. It doesn't get better from there for Andrew Johnson. He's from a different political party. It was like this unity ticket where they replace Hannibal Hamlin. And then days into it, Lincoln is gone and now they're left with this jerk off. So they passed the Tenure of Office act so that he can't remove Lincoln's cabinet members without the advice and consent of the Senate. That is still under Republican control. Johnson, drunk or sober, then tries to remove Secretary of War Stanton. Stanton literally blockades himself in his office and lives there for a few weeks while they then impeach Johnson. The impeachment fails, as we know. Great book, Grand Inquest by William Rehnquist. Yes, that William Rehnquist, if you want to read more about this. But David, it takes another 70 years or so for the Tenure of Office act to actually be litigated. But it is here in Myers. Okay, so the question presented was whether under the Constitution, the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the senate. In a 70 page opinion by Chief Justice Taft, a former President.
- [30:46]
The Court held that the Constitution did vest such power in the President. No shock there. Former President Taft.
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C
How about that?
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A
Yeah, funny. Taft, by the way, is such a double dealer. Right. So on the one hand, he's deciding Myers about how much power the President should have. On the other hand, while he's President, he's also greenlighting the Supreme Court, getting a building which he's about to go, and be a part of that branch.
- [31:12]
C
I mean, what can you say, Sarah? Taft takes care of his bros like he's got their back.
- [31:18]
A
Chief Justice Roberts was once asked, like, who's the Chief justice you'd most like to have dinner with? Or something like that. And he said it was Taft. Why? Because you'd know you'd get a lot of food and it would be good. America's heaviest president and heaviest Chief Justice. Okay, back to Myers. The Court anchored its analysis and evidence from the founding era. It was acknowledged that the subject of removal was not discussed in the Constitutional Convention, but it reviewed in detail the first Congress's vigorous debate about their removal of executive officers in what is known as the decision of 1789. In the course of analyzing the decision of 1789, the court explained that Article 2 vests the executive power of the government in one person, the President, and that the executive power includes the authority to select those who are to act for him under his direction in the execution of the laws. By the way, love of course that Thomas is like basically trying to do some text, history and tradition but but 100 years ago and being like see even President Taft loved him. Some text, history and tradition.
- [32:21]
C
By the way, just a super quick aside. When you read a lot of early Supreme Court cases they are very text, history and tradition. I was just teaching a class on the foundations of religious freedom and the very first Supreme Court case they read is Reynolds vs United States which is the Mormon polygamy case. And if you go back and you read that you're like did Justice Gorsuch write that? Did Justice Thomas? Because it's a super originalist text, history and tradition. This is what was meant by free exercise at the ratification of the Bill of Rights. It's really interesting.
- [32:59]
A
So basically Myers ends with saying like hey, we know you did this to screw over Andrew Johnson, but this is not constitutional. And so Myers, the postmaster is fired and that firing is effective despite the Tenure of Office act which is found to be unconstitutional. All right, so you fast forward nine years. Not much David in the grand scheme of Supreme Court decisions. And now we're going to do Humphrey's executor. So again this is CT's history of Humphreys executor or William Humphrey as it were. And it's fun. In 1931, President Herbert Hoover appointed William Humphrey to serve a seven year term as one of the FTC's five commissioners. By all accounts, Humphrey proved to be a controversial figure. He reportedly vowed not to approve any Commission action that did not have as its goal to help business help itself threaten criminal prosecution against other Commissioners who publicly dissented with him and called his fellow Commissioners men drunk with their own greatness when they voted to initiate an investigation. Less than two years into Humphrey's term, newly inaugurated President Franklin Delano Roosevelt wrote Humphrey a letter asking for his resignation. The President explained that in his view, the aims and purposes of the administration with respect to the work of the commission could be carried out most effectively with personnel of his own selection.
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Yeah, you and I don't see eye to eye on this. Beat it. A little over a month after his first letter, President Roosevelt wrote Humphrey again to ask for his resignation. The letter stated, you will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the ftc. And frankly, I think it is best for the people of this country that I should have a full confidence. Humphrey declined to resign. So in October 1933, President Roosevelt informed Humphrey that he was removed. Humphrey did not comply, continuing to insist that he was still a member of the Commission, entitled to perform its duties and receive the compensation provided by law. Four months later, David, we all know what happened. Poor Mr. William Humphrey died, and the executor of his estate brought suit arguing that he was not lawfully removed. And this gets to both questions one and two. David, remember, this is just for back pay. Humphreys is dead. There is no reinstating Mr. Humphrey. So while Humphrey's executor is precedent that the FTC limitations on removal are constitutional, it is not precedent for reinstating someone who has been fired by a President. All right.
- [35:51]
So basically, David, in Humphrey's executor, as the D.C. circuit majority said, this was a unanimous decision upholding these limitations on the removal power because the construction of the act was clear from the face of the statute and the character of the commission, which the court described as a body of experts. So Progressive Era that operates independent of executive authority and free to exercise its judgment without the leave or hindrance of any other official. I mean, wow, it's almost like a.
- [36:28]
C
Touching level of trust, isn't it, in sort of like the ability of technocrats to rise above it all. I mean, you look back at it and you just almost want to say, oh, my sweet summer child, that is not how human beings work.
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A
Yeah, it really is. The distillation of the Progressive Era in that one sentence. We're going to have experts, and as long as they don't have to deal with the yucky, yucky politics, this is all going to turn out fine. Okay, so the court acknowledged that the recently decided Meyers decision had fully reviewed the general subject of the power of executive removal and examined at length the historical, legislative and judicial data bearing upon the question. And it conceded that executive officers are subject to to the exclusive and illimitable power of removal by the chief executive. The court, however, claimed that the office of a postmaster is so essentially unlike the office of an FTC commissioner that the decision in the Myers case could not be accepted as controlling. In this case, unlike the postmaster and Meyers, FTC commissioners did not qualify as purely executive officers. They said the FTC occupies no place in the executive department, exercises no part of the executive power vested by the Constitution in the President, rather by filling in and administering the details embodied by the Federal Trade Commission's acts general standard, the Commission acted in part quasi legislatively and in part quasi judicially. The Court stated that the FTC acted as a legislative agency by making investigations and reports thereon for the information of Congress and acted as an agency of the judiciary when performing its role as a master in chancery under the rules prescribed by the Court. Such a body, the Court explained, cannot in any proper sense be characterized as an arm or an eye of the executive.
- [38:24]
What the good golly nonsense is this? I mean, again, set aside the current ftc, David, which I get the argument that the current FTC is different than this ftc. Let's just look at Humphrey's executor. When Humphrey's executor is decided, but with our sort of modern eyes about the structural Constitution and stuff.
- [38:47]
What are they saying it is? It's definitely not executive.
- [38:53]
Where is it then? They're saying it's quasi legislative and quasi judicial. This is like substantive due process. Those words literally don't make sense to me.
- [39:02]
C
Yeah, you know, and one thing that is interesting to me here is the context, as you said, is so specific to this kind of progressive era view that what if you're going to take the position, and I think this is a fair criticism, you know, as we sort of walked by back through the philosophical history and now we're walking through the presidential history, if you're going to say, wait a minute, this unitary executive theory thing that you're talking about and the whole reasoning behind all of this, this is like a new thing. I mean, let's go back. Morrison v. Olson wasn't that long ago and you were down 7:1. I mean, are we really kind of at the whim of these evolving judicial philosophies? Oh, yes, we are. Yes, we are. Because that's what Humphrey's executor was. That is, it was an evolution from Myers with a really weird way of like straining, you know, gosh, straining, trying to put a, like a camel through an eye of a needle. And what we ended up with was, I think, as you said very well, Sarah, was a, a creation of a particular kind of bureaucracy as a result of what turns out to be a really kind of trendy here today, gone tomorrow political theory, but then put its roots deep into American soil to such an extent that, you know, a lot of folks just sort of see things as this is just the way things are. And, you know, I think the most persuasive part of your radicalization point is the point that you make that this was originally all put together as a package deal. It was never, ever, ever intended to be this giant grant of authority to a president. And if you think it was meant to be, read Humphrey's executor for what they thought this was, right? And so I do think there's a very strong argument. I would not necessarily say that that means that there has to be a reversal of an unwinding the whole ftc. I think you can reverse Humphrey's executor without unwinding the whole ftc, but it's a compelling reason for Congress to step in and reimagine the whole thing.
- [41:18]
A
Okay, so we talked about the more recent precedents. Morrison v. Olson, as you said, 7:1 where the majority says that, sure, there can be an independent counsel that doesn't report to the Executive and then SELA law which challenges the cfpb. Okay, all of this to me comes down to SILA law now because you've got SILA law on the one hand and Humphreys executor on the other hand, and they are in a lot of tension with each other. And people have tried to resolve that tension by saying, well, in sila, it was all about how the CFPB is a single director. It is clearly executive power. So, you know, it didn't overrule Humphreys executor. It's just making the distinction, distinction between the FTC and the CFPB as Congress created them. And in fact, here's this paragraph and the opinion's a little bit not a mess in the traditional sense that I can't understand how it's written. I do try to point that out when it's the case, but in terms of who joins what.
- [42:23]
Basically the Chief justice wrote the opinion with respects to Parts 1, 2 and 3, in which Thomas, Alito, Gorsuch and Kavanaugh joined and an opinion with respect to part four in which Alito and Kavanaugh joined. Thomas has it a concurring and dissenting opinion in which Gorsuch joined. Kagan filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which Ginsburg, Breyer and Sotomayor joined. Okay, so David, I'm about to read you super crystal clear of who, how many votes there are for every single part of this.
- [42:56]
I'm going to read you a part of the Chief's opinion in which only Alito and Kavanaugh join. And that's going to be really relevant when I read it to you. Okay, here we go. As in every severability case, there may be means of remedying the defect in the CFPB structure that the Court lacks the authority to provide. Our severability analysis does not foreclose Congress from pursuing alternative responses to the problem. For example, converting the CFPB into a multi member agency like the FTC is what's implied there. David, Basically, like this is the line people point to to say it clearly doesn't overturn Humphrey's executor. They're just saying that you would need to turn the CFPB into the ftc, which was upheld in Humphrey's executor. Now, again, only three Justices join that. Although I think it's interesting that, that you have the Chief, Kavanaugh and Alito join for that because again, I think you're getting Justices from various parts of the executive power spectrum there on the conservative side. And this of course comes in response to Justice Thomas and me. Justice Thomas would have us junk our settled severability doctrine and start afresh, even though no party has asked us to do so. Among other things, he objects that it is sheer speculation that Congress would prefer that its consumer protection laws be enforced by a Director accountable to the President rather than not at all. We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect we identify today. And such an approach by this Court can come as no surprise to Congress, which was on notice of constitutional objections to single director agencies by multiple past Presidents from both political parties and enacted Dodd Frank against the background of our established severability doctrine. Okay, so David, for those who are feeling like they're on Team Sarah, team Thomas, when it comes to my severability, you've got to be kidding me. The Chief's point here is not stupid, which is basically Congress can act either way, but either we say. I mean, I actually think he puts it well, now that we found that the single director is unconstitutional, would Congress prefer us get rid of the whole law and then they can pass a new law which we all know they're not going to pass, or would they prefer that its consumer protection laws be enforced by a Director accountable to the President? Thomas would say that's not your call to make. You only get to say the law is constitutional or not constitutional. There's no scalpel option. And what the Chief is saying is if Congress doesn't like our scalpel option. They can repeal the law. Also as in your whole point about Congress can do this. Well then Congress can do. Congress can answer this decision regardless. So why don't we scalpel and let them answer it rather than bulldozer and let them answer it. That is the best argument. But it is bad. A bad, bad, bad, bad argument. And Justice Thomas is right.
- [45:55]
C
This is going to be interesting. Let's think this through. You have six to overturn Humphrey's executor. How many to get rid of the FTC entirely? 1, but. So I can easily imagine a 6, 3 with a concurrence. But does a Gorsuch or an Alito join the concurrence but making clear that they're for the majority to the extent that they're going to get rid of. They're going to allow the Commissioner to be removed. But not for the majority. It's just very strange to sort of walk through this. But the question I have is do we add an asterisk that whatever number is on the side of just blowing up the whole thing? We add the Isger number to it as well.
- [46:44]
A
Me? Yeah. As the tenth Justice. Yeah. Look, I'm going to read from C T's dissent in SELA again because it's a. Sorry, it's a concurrence dissent. I think I misstated that earlier. The problem is that the Court's premise in Humphreys was entirely wrong. The Constitution does not prevent the creation of officers exercising quasi legislative quasi judicial powers in quasi legislative and quasi judicial agencies. No such powers or agencies exist. Congress lacks the authority to delegate its legislative power. Non delegation doctrine. What?
- [47:20]
C
What?
- [47:21]
A
And it cannot authorize the use of judicial power by officers acting outside of the bounds of Article 3. My bankruptcy judges you hear in that. Nor can Congress create agencies that straddle multiple branches of government. The Constitution sets out three branches of government and provides each with a different form of power. Legislative, executive and judicial. Free floating agencies simply do not comport with this constitutional structure. All right, David, that answers question one. When we come back, question two. Let's say that the President unlawfully removed Slaughter or someone else from his executive position. What can the Court do about that? We'll be right back.
- [48:08]
C
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- [48:37]
B
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- [49:11]
A
Okay, David, I mentioned that D.C. circuit decision was two one, Judge Rao, Naomi Rao was in dissent, and it was really a lot about this remedial question. Fine. Let's even assume that Rebecca Slaughter was unlawfully removed. Rao was saying, you can't reinstate her. That's not a thing. A power that judges have. She says. There's no statute that provides for this power. And under the court's equitable powers here, reading from her, the District Court purported to order the reinstatement of Slaughter and to bar the other FTC commissioners from removing her from office or interfering with her right to perform her lawful duties as an FTC commissioner. Such injunctive relief is unprecedented and creates a direct confrontation with the President over his Core Article 2 powers. Second of all, she points out, what exactly is Rebecca Slaughter's injury here? The District Court concluded that Slaughter's removal destroys the independence of the FTC in a way that injures Ms. Slaughter, the FTC, and Congress. The loss of the ability to influence FTC policies or to participate in decision making is not a personal injury to Slaughter. She has no private right to the powers of an FTC commissioner's office. Okay, so two problems here, David. One, bringing the lawsuit in the first place, your injury is monetary. It's your salary. You don't have some free floating My job was really fun injury that allows you to be reinstated. I find that persuasive all on its own. So two, even if there were an injury, what is the court's power to do something about that? The court can't enjoin a president, and we don't need to get into all the law behind that. But just take my word for it, at this point, in this circumstance, at least, it can enjoin officers in the executive branch. Which is why you see the District Court not prevent President Trump from firing her, but instead say that other FTC commissioners have to allow her into the building and treat her as if she were an FTC commissioner and setting up this direct conflict, as Rao said, with a core presidential function like he's now fired someone, but he has to allow them to continue working in the executive branch, acting under their duties. And again, David, this is where I think it is relevant that it says a person, not just an FTC commissioner or an independent agency commissioner or whatever. The phrasing that could have narrowed it because you are saying that a court could have the power to make the president delegate power, his executive power, to someone that he doesn't want to delegate that power to. And my point about that being circular is you have to believe it's his executive power, which goes to the whole question in the first place.
- [51:56]
C
Well, yeah, okay. So here's what really bothers me about this. The comparison of say, a federal, a public employee to a private sector employee, where your general remedy is monetary for you when you lose a job, I think is, I don't know if it's downtown Bonkerstown, but it's like burbs. It's the burbs of Bonkerstown. Because.
- [52:21]
What'S at issue here isn't just the financial interest of the employee, but the structure of the government itself. In other words, the, the pat. The raw power of the President itself. Now why I don't think it's circular to the FTC context is that my understanding is that of, of unitary executive theory is not that the President has the power, but inherent in unitary executive theory to hire and fire all public employees in the executive branch at will. That's a very big, big, big, big version of unitary executive one that says, for example, civil service, this, you know, civil service reforms are unconstitutional, that there's sort of a constitutional ability of a president to use the spoil system, for example, that the spoil system, we may not love the motives, but it's constitutionally protected. That's a very big version of unitary executive theory. The version of unitary executive theory I'm much more willing to join and I think that is much closer to original public meaning is policy making positions and policymaking professionals.
- [53:41]
In the federal government, in the executive branch, it's the policy making people who are the ones that the President has that ability to hire and fire, not the entire executive branch workforce because there are strong public interests in protecting the stability of the federal workforce. And that if you transform it into, well, we'll just pay out some damages here with you having the requirement to mitigate, you got to go find another job, et cetera, then essentially what you've done is You've just said, well, without even necessarily effectively ruling that way explicitly about the extent of the unitary executive, that this whole federal workforce is now back under the spoil system and you're.
- [54:28]
A
Paying the damages with not your money, but with our money.
- [54:31]
C
And to me you're really far afield of original public meaning at that point. I would really, it would be. There's some very interesting scholars who have said that there is a very strong originalist argument against this unitary executive theory. I would love to have that conversation. But I think we should be clear that if you're saying the president can hire and fire everybody up and down the chain without the ability to get injunctive relief to block it, then what we're dealing with here is not. That is a very strong version of unitary executive. And the consequences of that are just think, you know, spoil system.
- [55:09]
A
Well, we did get that email from a listener defending the spoil system that it actually can lead to moderation and compromise. And I was a bit persuaded at least that like, you know, using spoil system as a stand in for the word bad isn't quite true. That basically each system has its benefits and its downsides. Life is trade offs. Don't assume that like they were just morons and that we're so enlightened with our non spoil system.
- [55:34]
C
Well, although I would say that, you know, we actually tried a spoil system and by the late 19th century found it like very, very wanting and that was in a even much less complex administrative state than we have now. I would find it. I read the same email. I admired the effort, I really did. That was good spoil system defense effort.
- [55:58]
A
His point, by the way, for those who didn't listen to this one, was that in fact you could use patronage to buy off your political opponents and bring them into the fold and that that led to more incentives to work together, to compromise, etc. Because you had carrots and sticks that we've removed from the president now. But. Okay, David, we need to leave time for first choice. Women's Resources center versus Plotkin. This case was argued this week. David, when the opinion comes out, we're going to have to spend some real time on this. But I thought you could sort of set up for us why this is actually a really interesting case, even though on first blush it's about whether you can challenge a state subpoena in federal court, which is not a question we would normally cover on this podcast.
- [56:47]
C
Yeah, I think the only reason that it's a very interesting case and it's a very important case for Reasons totally unrelated to abortion. So this is one of those cases where you need to, I know everyone listening here, or almost everyone, has very, very strong feelings about abortion. And so you're going to filter that through this case, through that prism. Don't do that. The question here is, let's just put it like this. A state subpoenas, state law enforcement subpoena a nonprofit. And they subpoena the nonprofit in part because they have an ideological beef with the nonprofit. And one of the things that they want to do when they subpoena is they want to get the donors of the nonprofit. They want to get the idea, they want to know who the donors are. So you get the subpoena. But this subpoena may or may not be, quote, self executing. In other words, to enforce the subpoena, it's not just a matter of delivering it to you. The law enforcement also has to go to the state court and get an order from the state court to produce the documents. So the question is, when does nonprofit have the opportunity to sue in federal court to try to block a subpoena that is seeking information that the state is not entitled to constitutionally, information that decades of Supreme Court precedent, which had been recently reaffirmed, by the way, so we're not in a Humphreys executor situation, but decades of precedent across multiple judicial philosophies has said, hey, you know what state? You can't really go grab the identities of donors and supporters of nonprofits you don't like. And so that's the circumstance. It's a, it's a really narrow and interesting question. But why it's so important, Sarah, is that the, the growth of the state attorney general as sort of an instrument of.
- [58:49]
Popular resistance to, and legal resistance to ideological opponents of the attorney general or of the state, is a pretty interesting and in some ways really dangerous modern development that's very thoroughly bipartisan to where.
- [59:08]
If you are an institution that is in, say you're a red institution in a blue state or a blue institution in a red state, there's. You have real vulnerabilities for, in the face of activist attorneys general. And so the question is here, sort of how much mischief can they make before you can go run to mommy and daddy in the federal judiciary? And that was the issue here. And I gotta say, the argument did not go well. For New Jersey, I can't count to five. For New Jersey, I can't even necessarily count to three. Sarah, Justice Jackson came in sort of there and basically threw some cold water on New Jersey as well. So it was very interesting. It's one of these cases that I think private citizens and nonprofits should be happy about if First Choice, which is a pro life women's pregnancy center, crisis pregnancy center wins. All nonprofits win if this crisis pregnancy center wins. And so I think that with a lot of these, a lot of these issues, the underlying fact scenario, do I like the ideological perspective of the nonprofit, colors the analysis way too much. Way too much. This is about state hyper aggressive state law enforcement against ideological foes within states. When can federal courts intervene? Not can they, but when can they?
- [60:41]
A
There are two different paths. So I think this will be a unanimous decision. But the question of which path the court takes is pretty interesting because on the one hand, the question was basically, what is the injury that gets you into federal court? Is it the subpoena itself, which you know has ramifications if you don't comply with it? Now, New Jersey claims that weirdly, this is not a self executing subpoena. You have to go into state court and have the state court basically issue the subpoenas. Like you get something called a subpoena that says there will be penalties if you don't comply with it. But actually none of that can happen until a state court reissues or issues for the first time a real subpoena. And that therefore they're saying just getting the initial subpoena from the attorney general's office was not an injury that can get you into federal court because it hadn't been issued by the state judge yet. But then once it's issued by the state judge, now you're in state court and you're not going to be able to bop out into federal court. Okay, so that's question number one. Is the subpoena itself enough? Is this a self executing subpoena? Isn't it? There was maybe a lot on that that didn't matter for our purposes. But the second question is really interesting. Does receiving a letter from the government saying, we want your donors their names, their addresses, their phone numbers, is that in and of itself chilling your associational rights so that donors are not going to want to give you money for fear that you're going to turn over their names and email addresses, et cetera, and that they're going to be harassed by the state again if they go down the subpoena route? This is not that interesting of a case, except that, as you say, David, it's good for nonprofits and it's bad for states that want to bully ideologically. Disfavored groups. But the chilling avenue would be really fascinating. Now, the Solicitor US Solicitor General's office came in and said, don't go the chilling route. That's a merits question. And if you mix it up with the Article 3 standing injury question, you're going to basically have this two tiered chilling thing. Like, okay, you were chilled a little bit and that's enough to get you into federal court. And now the question is, were you chilled a lot so that it's a First Amendment violation? And he's like, don't mix up these two. Keep them separated like the offspring taught us. Did you all get that reference? I hope everyone did. If you're millennial or Gen X, you better have gotten that. Okay. And the federal government also said, yeah, yeah, we like the subpoena route because also, this can't affect the federal government at all because you can't challenge a federal subpoena until basically the end of the litigation.
- [63:27]
And you saw Justice Gorsuch and Justice Kavanaugh jump in on that and be like, hey, wait, what now? And they were like, yeah, yeah, definitely do the subpoena thing. Definitely F up the state's world because it can never affect the federal government. It was like such a clear case of the Solicitor General's office bopping in to make an executive branch point. But, David, to your point, this is about this Red State vs Blue State legal weaponization, whether you want to call it lawfare or something else that we've seen where Congress doesn't make laws anymore. The president does everything through executive order. It pulls the courts into our fights. And now everyone has learned that this is a fun place to fight the other side because it's a win win. You get to say that, you know, you're doing this thing. For instance, I mean, Justice Thomas brought out this point. They had not received a single complaint against this crisis pregnancy center, but they sent this subpoena saying, well, we wanted to go call those donors to see if any of them had been misled in donating. And it's like, did you have any reason to think they'd been misled? Do you think their website's misleading? Because you can't just bring a lawsuit if someone has a misleading website. But you didn't do that. I mean, basically New Jersey, for all intents and purposes, stood up there and said, yeah, we were trying to punish them and chill their donor base. Too bad that didn't work out the way that we wanted. Our bad. And so anyway, you have the one side saying, aha, we've sent them subpoenas, we're gonna punish them. We've had operations shut down these things, whatever they called it in this case, where they've made it like a huge policy and political stand that they were trying to take against faith based pregnancy centers. And on the other hand, the other side gets to be like, we're fighting them, we're standing up for whatever donations come rolling into every side, votes come rolling in, everyone gets partisanized, which is my new word that I just made up. And it's a win win for everyone except the courts who are then villainized when they referee these fights over really nerdy legal questions. Like when you can get into federal court to challenge a state subpoena. But I promise you the headlines will say win for anti abortion groups.
- [65:39]
C
Yeah, of course. Now one thing I do want to say, and because before we get emails from people saying, but don't you know, David, that pro life pregnancy centers are sort of uniquely bad. They're these deceptive institutions that mislead and lead women astray and coerce women. Okay. On an individualized deter, you know, if you're going to make that case there, it better be based on an individualized determination. But one thing that I would, would say is that I've heard this a lot. And if you go back though and you read, I think it's very, it's very useful to go back and read the Supreme Court crisis pregnancy center case from a few terms ago involving California's requirement that crisis pregnancy centers advertise the state's offer of free and low cost abortions. The opinion actually goes into this allegation that these pro life pregnancy centers are out just, they're just sort of vacuuming up vulnerable women and misleading them and coercing them, that there just wasn't record evidence of this. This was, this is, was something that sort of had become a talking point, but the actual underlying evidence of it was really missing. And a lot of times when you get into partisan bubbles, you start to have knowledge, that sort of background knowledge that everyone shares in your partisan bubble that often isn't actually true. It's just not actually true. And I have found that to be the case time and time again with these crisis pregnancy centers is that there's sort of this background understanding in parts of America that they're inherently deceptive and coercive. But then when you actually dig into the question, there's just no there there. But it's still kind of common knowledge. And I think there's a lot of things like that, red and blue, that is, that are common knowledge, that when you sort of actually dig into it, they're in. There's not much to it.
- [67:31]
A
All right, David, last thing before we go. I wanted to revisit the boat strike question because we got a few interesting questions from folks. Question number one. How is something like this to be prosecuted if the political leadership of the military maintains that it was not a crime? Isn't military justice prosecuted within the military? So all it takes is Secretary of Defense Hegses saying, we aren't prosecuting this and it isn't prosecuted. I guess then it's the job of Congress to decide if it's worth impeaching him over that choice. Okay, so what's the consequences of this whole conversation that we had, David? What is. How do you even. Who cares?
- [68:07]
C
Yeah. So if you're talking about military justice, military justice system is different from civilian justice. It is ultimately a command authority and a command responsibility. There are mis, there are a lot of misconceptions people have about the JAG Corps. For example, they think of us as like US Attorneys, where, you know, an office, a JAG office independently can bring prosecutions against service members. The reality is there's a court martial convening authority that is placed in the hands of a, of a commander, not in the hands of a JAG officer. The JAG officer is the legal advisor to the command. Now, we do prosecutions once you get to a court martial, but the decision to convene a court martial is a command decision. And so it's a very fair notion that what's the court martial convening authority that would, for example, court martial Admiral Bradley.
- [69:01]
A
Right.
- [69:01]
C
Who Hegseth has very helpfully pinned as the one completely responsible for this action, though he has his back. What a bold act of leadership. And so.
- [69:16]
It is absolutely correct that there is. It would. This military is not going to convene a court martial to court martial Admiral Bradley. Just not going to happen under this Secretary of defense, under this president. The question, though, would be, what happens when you have a different command authority? What happens when the command authority changes? Is there going to be the ability, you know, could charges be filed later? Would be a question. Could there be civilian prosecution here? Well, again, who's going to do that? The Trump Department of Justice? Is the Trump Department of Justice going to do that? Well, no, of course not. Even, even if it was possible in some way. But the question then, though, is the Trump Department of Justice or the Trump Pentagon is not here forever. And that led to another question. Well, what about the pardon power? I think it's absolutely true that the pardon power would extend to a court martial, a, a court marshalable offense, because it extends to federal offenses. And this would be under an offense under federal law, Uniform Code of Military Justice. And so in the short term, a lot of what we're talking about is academic. There's no way the Pentagon or the DOJ is going to bring charges here. But over the longer term, it really does matter. And then that of course brings us back to our long running discussion of the pardon power. But the reality is that in the short term, at present, while it is vitally important to understand exactly what happened, there is as a practical matter, if, even if the worst story is true, even if the worst version of the story is true, there's no path in the short term to prosecution here. One other thing that I want to highlight about the boat strike, because we emphasized in the first podcast that we're there's a lot we don't know that this absolutely, positively needs to be investigated. And it may turn out that the Washington Post story is either wrong entirely or wrong in some material respects. But I think, Sarah, we really got to see sort of what is the administration's viable defense to sort of the Washington Post account in a follow up New York Times account. And in the follow up New York Times account, which was written in a very different way, but when you read it really mirrored a lot of the Post reporting, except for one element. You really did see the outlines of what the administration's defense would be to multiple strikes. They acknowledged the existence of multiple strikes now, but you began to see the defense and the defense is not, was not we get to blow up survivors in the water. The defense is we get to sink the boat. And if the boat sinks and in the process of sinking the boat, that blows up the survivors in the water, that's just unfortunate collateral damage. But the target was not the survivors. The target was the boat. And as the Times analysis talked rather about rather helpfully, the law of war actually covers a disabled boat as well. And the law of war says that when a disabled boat has surrendered, struck its colors would be a old way of saying it, that then you don't have that unfettered ability to just continue to fire until it sinks. But here's the problem. What if you're attacking somebody who has no idea they're at war?
- [72:55]
So you blow up the boat in the shock and horror and confusion, you don't have a member of the crew sitting there saying, we've been attacked, boys, lower the colors. That is not the way that that would work in any reasonable format. So you're back to sort of a Russian nesting doll of problems here. One of the core problems was the initiating strike to begin with. If it is an unlawful, unconstitutional strike to begin with against an opponent that doesn't know it's at war with us, how does all of this play out? So there's just so many layers of problems here.
- [73:36]
A
Well, this wraps up part two of our three part slaughter segment here. Next up on Advisory Opinions, we will be live after the SCOTUS blog. Live blog starts at 9:30am Eastern on Monday. The argument will start at 10:05 Eastern from the Supreme Court and we will start whenever that finishes, probably around noonish. So join us and we will see you next time. Okay David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes. Two gift memberships to give away access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us@advisoryopinionsedispatch.com we read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.
- [75:23]
C
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- [75:45]
A
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