Long Live The King?

Summary

Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Episode: Long Live The King?
Release Date: February 22, 2025

Host: Dalia Lithwick
Guest: Deepak Gupta, Founding Principal at Gupta Wessler LLP and former Senior Counsel at the Consumer Financial Protection Bureau (CFPB)

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Introduction

In the episode titled "Long Live The King?" hosted by Dalia Lithwick, the discussion centers around the escalating conflicts between the executive branch and independent federal agencies, particularly focusing on the unitary executive theory. Joining Lithwick is Deepak Gupta, a seasoned attorney specializing in Supreme Court appellate and complex litigation, who provides expert insights into the legal battles unfolding within the current administration.

Understanding the Unitary Executive Theory

Dalia Lithwick sets the stage by introducing the concept of the unitary executive theory—a legal doctrine that posits the President holds comprehensive authority over the executive branch. This theory is pivotal to understanding the administration's recent maneuvers to consolidate power.

Deepak Gupta elaborates on the historical backdrop:

“Independent agencies go back over a hundred years... The idea really picked up steam around the time of the New Deal... It means that the President doesn't directly control the policy decisions of those agencies.”
(05:34)

He explains that independent agencies were designed to operate with a degree of autonomy to ensure expertise and stability, free from the fluctuating tides of political influence.

Historical Context: Humphreys Executor v. United

Lithwick requests Gupta to delve into the landmark 1935 case, Humphreys Executor v. United, which has long been a cornerstone in maintaining the independence of federal agencies.

Gupta provides a comprehensive overview:

“The case involved Humphrey’s Executor, whose family sought back pay after he was fired by President Roosevelt. The Supreme Court upheld that agencies like the Federal Trade Commission are insulated from direct presidential control, ensuring their decisions remain unbiased.”
(07:28)

He emphasizes the case’s enduring significance:

“Congress relied on that over and over again. All three branches have relied on that in structuring these agencies... And President Trump is pretty brazenly challenging it.”
(09:42)

Current Administration's Actions

The episode scrutinizes the current administration's aggressive attempts to undermine independent agencies, with a particular focus on the CFPB.

Gupta recounts the swift dismantling of the CFPB:

“President Trump ordered the CFO to stop investigations, defund the agency, and began firing employees—all within a week.”
(26:57)

He highlights the unprecedented nature of these actions:

“Congress creates agencies and decides when to abolish them. The President deciding unilaterally to dismantle an agency is an unprecedented violation of the separation of powers.”
(34:35)

Legal Challenges and Litigation

The discussion moves to the legal responses against these executive overreaches. Gupta details the lawsuit filed to halt the dismantling of the CFPB, emphasizing the tangible harm to both the agency's functionality and the individuals it serves.

“We filed a complaint and a motion for a temporary restraining order. Our clients include the National Treasury Employees Union and individuals like Pastor Eva, whose student loan discharge was jeopardized by the CFPB’s shutdown.”
(30:48)

Gupta also addresses the precariousness of court compliance:

“There have been cases where the administration has attempted to circumvent court orders, although actual defiance remains to be seen.”
(37:15)

Implications for Independent Agencies

Lithwick probes the broader implications of these actions on the regulatory state. Gupta warns of the long-term dangers:

“Eliminating agencies like the CFPB removes essential watchdogs that protect consumers from fraud and ensures fair financial practices.”
(29:20)

He underscores the importance of maintaining agency independence to prevent political favoritism and preserve expertise:

“Stability in government agencies supports consistent regulation and protects against the whims of any single administration.”
(49:38)

The Role of Legal Professionals

Addressing the role of the legal community in combating these executive overreaches, Gupta passionately advocates for active participation:

“If the legal profession doesn't stand up for the rule of law, who is going to? Fight back against what you know is wrong.”
(54:27)

He encourages lawyers and legal professionals to engage in litigation to uphold constitutional values, stressing that passive acceptance only facilitates the erosion of the rule of law.

Conclusion

As the episode wraps up, Lithwick and Gupta reflect on the critical juncture at which the American legal and political systems find themselves. The aggressive push to redefine executive power poses significant threats to institutional checks and balances. Gupta remains cautiously optimistic that judicial intervention will preserve the integrity of independent agencies, but he underscores the necessity for proactive legal resistance.

“There are shared constitutional values at stake. If the legal profession stands together, we can counteract these excesses.”
(54:27)

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Key Takeaways:

• The unitary executive theory is being leveraged to expand presidential control over independent agencies.
• Historically, cases like Humphreys Executor v. United have protected agency independence, but recent actions challenge these precedents.
• The dismantling of agencies like the CFPB threatens consumer protections and regulatory stability.
• Legal professionals play a crucial role in defending the rule of law against executive overreach.

Notable Quotes:

“The President shouldn't just decide if he doesn't like the laws, but rather, enforce them as Congress intended.” – Deepak Gupta (34:35)

“Focus on the concrete effects on real people's lives... courts will understand.” – Deepak Gupta (51:47)

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For listeners seeking to understand the ongoing legal struggles to maintain agency independence and the broader implications for the American legal system, this episode provides a thorough and insightful exploration of the critical issues at play.

Transcript

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[Deepak Gupta]

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[Dalia Lithwick]

Hi, I'm Dalia Lithwick and this is Amicus Slate's podcast about the courts and the law and the Supreme Court.

[Deepak Gupta]

Only the President or the Attorney General can speak for the United States when stating an opinion as to what the law is. It's a complete repudiation of 100 years of understanding about how the federal government works. Then I have an Article 2 where I have the right to do whatever I want as President. That's ultimately where this is all going is the Supreme Court. There's no question that the Court is going to have to weigh in on how far the unitary executive theory goes.

[Dalia Lithwick]

This past week, the President signed an executive order giving himself the power to decide what the law is. He sold out Ukraine to benefit Putin and crowned himself king in a tweet. Cool, cool, cool. Also this week, as Doge and Elon Musk continued to slash and burn their way through government agencies while gobbling up your personal data on the way, Justice Department lawyers averred before a court that they had no idea who's in charge of doge or really even what it's doing. One issue that bobs and weaves through a whole lot of the moves that are being made by the executive branch right now is a technical legal question about presidential power, the so called unitary executive theory, and a long standing fight against about independent agencies. Yes, it's a technical legal question, but the new regime is choosing a truly maximalist interpretation of that theory and that worldview is really essential to understanding what we are seeing unspooling right now. Deepak Gupta is founding principal at Gupta Wessler LLP and former senior counsel at the Consumer Financial Protection Bureau, or cfpb. At Gupta Wessler, his practice focuses on Supreme Court appellate and complex litigation on behalf of plaintiffs and public interest clients. He's also a lecturer at Harvard Law School, where he teaches the Harvard Supreme Court Litigation Clinic. Deepak represents Quinn A. Wilcox, a Biden appointee who was fired by way of late night email and what she claims was a violation of the National Labor Relations Act. He also represents the unions for the almost 200 CFPB employees who were recently fired. Deepak, I think the last time we had you on the show was around emoluments. Welcome back. But, oh my God, Emoluments. I mean, it seems like sofa cushion change compared to what we're looking at right now. Right.

[Deepak Gupta]

It seems almost quaint. Yeah. And I don't think any of us expected we'd be quite in the moment that we're in now.

[Dalia Lithwick]

I said I think the word complex maybe two, maybe three times in that introduction because I think that in order to understand a lot of these cases, you just have to understand what independent agencies are. We're talking here about the Federal Trade Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation. These are just letters, I think for some people and including, I think for me sometimes. Can you just start with how we think about independent agencies within this larger system of American government?

[Deepak Gupta]

Yeah. And I think, you know, independent agencies go back over a hundred years. We've had them for a long time. But they really, this, this idea of an independent agency really picked up steam around the time of the New Deal, when Franklin Delano Roosevelt was president. And there was an understanding that we needed people in government to solve big problems and we needed agencies with expertise and we needed people, government to sometimes be free of raw political kind of influence about the winds of politics of the day. And so for example, if you're doing something like setting interest rates or shaping monetary policy, if you're deciding who's going to regulate the communications frequencies and things like that, that you're going to want some independence for the people on those bodies. And what it means is often you'll have a multi member commission or sometimes a single director agency. And those people will be appointed by the President, of course, and confirmed by the Senate. But then importantly, they'll have some protection against being fired and they'll serve out a term of office. And so that creates some balance over time. And it means that the President doesn't directly control the policy decisions of those agencies.

[Dalia Lithwick]

I'm hearing you saying maybe this is a useful construct up until the existence of, you know, the notion that we had to have some kind of independence in agencies. These were jobs that were just doled out by patronage. Right. Like here's my brother in law, here's my brother in law's brother in Law. You know, here's my neighbor and the kid who mows his lawn, like, that's how we did it. And it seemed to be a good idea at the sort of input end to have professionalization and commitment to, you know, the Constitution and to science and expertise. And then on the output end, I think you're also saying this is the way to control for having outcomes that are not directed by the President or seeking to please the President. Right. It's at both ends.

[Deepak Gupta]

Yeah. Yeah, that's exactly right. If you remember from your American history class, the spoils system, like back in the 19th century, you know, it's just whoever was friends with the President would get these jobs. That's great. If you have a small agrarian economy and, you know, you don't have the kind of complex things that the federal government does today. But if you're dealing with nuclear safety, do we really want someone who just was buddies with the President to be dealing with the safety of nuclear power plants, or do we want what we have now, which is we have a Nuclear Regulatory Commission, and those people are appointed by the President, confirmed by the Senate, but they are understood to have some expertise and some protection from removal.

[Dalia Lithwick]

So I'm gonna ask you to make us all many IQ points smarter by explaining the case from 1935, Humphreys Executor v. United. This is a thing that everybody's throwing around like they're experts on what it is. And I would love for you to just by way of explaining to us what this case is, why it mattered, what it has held, and why it's been good law for so long.

[Deepak Gupta]

Yeah. So this is, you know, the precedent in Roe v. Wade was pretty important. Right. But it was decided in many of our lifetimes. This is a precedent that goes back 90 years. And the federal government has very much been structured around it. And. And the case involved a guy named Humphrey. It's called Humphrey's Executor because he had died by the time the case came to the Supreme Court and it was his widow. His family was looking for back pay because they argued that President Roosevelt had improperly fired him because he was protected from removal by one of these laws that we've been talking about that insulates the independence of the agency. The agency in question was the Federal Trade Commission, which still, of course, exists today and is a really important, important agency that handles antitrust and consumer protection. And so the question before the Supreme Court was a question that we're now facing today, which is, does this infringe the executive power for Congress to design an agency that protects this person from removal. And the Constitution actually doesn't say anything about removal. It doesn't expressly say that the President has the ability to remove. That understanding that the President has some power to remove is itself sort of part of the tradition and understanding that has developed concerning the separation of powers over time. And similarly, what the Supreme Court said in that case, which is that when you have an agency like this that is doing things that are not purely executive but are quasi legislative and they're adjudicative, they're deciding cases, when you have a body like that and it's a multi member body, at least that this is constitutional, this is an arrangement that is consistent with the Constitution. And then importantly, Congress relied on that over and over again. All three branches have relied on that in structuring all these agencies, like the Nuclear Regulatory Commission, like the Federal Reserve Board that sets interest rates. And so that's the understanding that we have today and that President Trump is pretty brazenly challenging.

[Dalia Lithwick]

I guess it's worth noting that the Supreme Court has been kind of chomping away at Humphrey's executor in recent years. And can you give a sense of, you know, why that is and sort of based on the trajectory of these recent cases, how many Justices you think are ready to just overturn it outright tomorrow?

[Deepak Gupta]

It is accurate to say that the Court has been chipping away at the idea of independent agencies. And this has been a priority of the conservative legal movement to expand executive power. There was an important case involving the Consumer Financial Protection Bureau a few years ago where the Court said, basically, Humphrey's executor doesn't apply to the CFPB because it's a single director agency. But in doing that, the Court distinguished cases like Humphrey's executor where you have a multi member commission. So I think it's fair to say that Humphrey's executor is still good law. It's still the law of the land, it's still precedent. And I may well be in the position, Dalia, of having to get as many votes as possible to retain Humphrey's executor as precedent. So I don't want to do the vote counting, but I will say conventional wisdom out there is that a Humphreys executor as precedent is on life support. I have some optimism because I think that the prospect that the President could threaten to fire or fire the head of the Federal Reserve Board for political reasons is something that I think would give many of the justices, I think a majority of the justices pause. And that doesn't feel like a hypothetical now, does it? It feels like something that could happen.

[Dalia Lithwick]

No, that feels like next Tuesday, something that could happen. I mean, I think, as you noted at the beginning, this has all taken place really quickly. I want to talk about one oddity of how this is manifesting, which is we have had for many years individual judges and justices treating, you know, a lone Scalia dissent in a case that we can talk about or not talk about as though it's a majority opinion. And now we have Trump's DOJ treating Humphrey's executor as though it's already been overturned. And there is this weird, like, wishcasting jurisprudence that actually, like, we've seen this before. This is a way of, like, aggressively litigating. Right. We've seen it in multiple cases, including, you know, mifepristone, pretending the Comstock act is still good law. But I would just love your thoughts on that. Strikes me as deeply cynical and weird. But that's happening, right? I'm not imagining this?

[Deepak Gupta]

No, you're not imagining it. I think I have never seen the federal government do something like this to this degree. They sort of started off the administration by declaring that, yes, there are all these laws that prevent the, the President from removing these people, but we're just going to do it anyway. And that's what the letters that were sent, like the letter sent to my client, Gwynne Wilcox, it says, you know, we recognize there's a statute that says we can't do this in effect. But, you know, there's also, we think the vesting clause of the Constitution that vests the executive power in the President, allows us to do this. And so it invites test cases to challenge the validity of that precedent. And it puts people like my client Gwen Wilcox in a box. Because if everyone were to say, well, we don't want to walk into this trap, we don't want to challenge this, then the President would have accomplished the very thing he seeks, which is he would render Humphrey's executor a dead letter because he can just fire all these people, and he's continuing to fire people who have these protections across the government. And so it then requires us to essentially, whether we like it or not, set up potential test cases for the President.

[Dalia Lithwick]

What you're describing is a kind of a make me jurisprudence where you almost want to force the fight because you know you're going to fish your wish, but if you don't force the Fight, you get what you want anyway. It's hard to highlight how bizarre that is as a posture in a world of the rule of law, but that's kind of where we are, I guess. I would love you to do one more academic thing and then I want to talk about the cases. But how does all this dovetail with this long history of the thing we call the unitary executive theory, which you know, you and I know has been working its way through the legal academy for decades now. And maybe as part of that, if you could just explain, you know, there's sort of like a decaf unitary executive about the President's control over department and agencies, and then a half caf version about, you know, the President can break the law in some exigent national security moments. And then there's this like full on triple espresso one that's being advanced now. And I would love for you to just map this theory onto what we're seeing happening.

[Deepak Gupta]

I mean, I don't know that I can do better than your typology there, but this is the apotheosis of the unitary executive theory, right? The idea that the Constitution vests the executive power in the President, which of course it does, but that, that the consequence of that is that means that the President can, regardless of what Congress has said, remove people who are insulated, disregard civil service norms, disregard arrangements with federal sector labor unions. All of that he can do. Because as I think Stephen Miller said the other day, you know, the whole of the democratic will is vested in the President alone and no one else. And so he has essentially boundless authority over anything that can be regarded as within the executive branch. The Constitution, Article 2 has a clause known as the vesting clause, and it says the executive power shall be vested in a President singular. The whole will of democracy is imbued into the elected President. That President then appoints staff to then impose that democratic will onto the government. And that really sheds, it sheds a whole lot of law. It also sheds a whole lot of norms. And I hate to be having a conversation about norms again. It brings me back eight years ago, but I think that's a lot of what's happening here, is that no one has quite been brazen enough to brandish this theory in this way before and it dares everyone to run into court to test what they're doing. So in a way, if you don't care about norms, it's a very clever strategy. It's kind of working and it's already straining the legal resources available to challenge it.

[Dalia Lithwick]

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[Deepak Gupta]

There are a lot of question marks as you alluded to about what DOGE is. It seems like what the President did is slap this label of DOGE on top of an existing office that did exist, which was the United States Digital Service, which was actually a great little agency that was designed to fix things. Like, do you remember when the Obamacare website went down? That's what USDS was supposed to do. They were these great sort of tech ninjas that would go across the government and help make sure that government was more effective through technology. And it was very clever of them to use the USDS as the launching pad for DOGE because it's within the executive office of the President. It's not like a separate agency. So they've been really inconsistent about what role Elon Musk has, whether he is, you know, a government employee, whether he's what they call a special government employee, which is a special status that's temporary. But nobody has ever wielded, nobody other than the president has ever wielded this kind of cross governmental power to kind of run into agencies with his army of people and kind of demolish things. And that, to me, seems like he's wielding the power of what you call under, in constitutional law terms, a principal officer. And if that's right, then he needs to be appointed by the President and confirmed by the Senate. So there is, I think, like a big looming appointments clause issue there. But it's really unclear what his status is and how that's working. And I think before the inauguration, it seemed like it was going to be a federal advisory committee that would just advise the President and be outside of the executive branch. And that's clearly not what's going on at this point.

[Dalia Lithwick]

And Deepak, I guess the obvious follow on to that is if your view of the unitary executive theory is, I'm just going to quote TRUMP from 2019. I have an article two where I have the right to do whatever I want as president. If that's the theory, I guess there's no problem just building a new agency, putting somebody at the head of IT declaring he's not really the head of it, giving him access to, you know, information for which he hasn't got clearances. Like that just comes under the kind of like I am king worldview. In some sense, that's just always going to be the answer to whatever constitutional or statutory issue you raise, right?

[Deepak Gupta]

I think that's right. I wonder if some of the people who are proponents of the unitary executive theory watch what he's doing and maybe they're not going to admit this, but are concerned that this is like the caricature of what opponents of the theory have always been concerned about. This is really the president is King, as you mentioned, they said that the other day, you know, an imperial presidency like no one has ever conceived as consistent with the American Constitution. And so the optimistic take is they're doing this in such an extreme fashion across the government in ways that have such obvious human consequences and are, frankly, scary, should be scary for everyone, that perhaps that will prompt some blowback, some backlash. And already, I think it is, at least from the judiciary. It remains to be seen how durable that is. But, you know, the judiciary has been issuing temporary restraining orders. We're only a month into this, so it's hard to know, you know, how this is going to play out. But I do think there's a version of this where we look back and we think, wow, they really overplayed their hand and delegitimized this version of what executive power means.

[Dalia Lithwick]

So what you just said about the hopes and dreams of the conservative legal movement and the sort of desire to have a broad view of, you know, a unitary executive actually leads me to the question that's been sort of plaguing us on the show, which is, how much is this John Roberts world? And, you know, Donald Trump and Elon Musk just took up residence in it, and how much is this. They're kind of just manifesting a cartoonish world. And I'm not asking you to sort of affix blame, but I would like, just as a sort of, like, proof text context here, if you were to look at the Roberts opinion in the immunity decision that came down in July. How much did John Roberts view of the unitary executive, which we know he's felt very strongly about for many decades, how much did that inform what we're seeing now? And I'm just flagging the line, the president is the only person who alone comprises a branch of government. He's building the bridge to where we are in that opinion, even though that's like criminal case, whatever, there's obvious distinctions, but he's building this world, right?

[Deepak Gupta]

It's a difficult and important question. I think what we're seeing is the convergence maybe of two kind of parallel lines. One line is a jurisprudential line, which dates back to the Reagan administration. It dates back to a time when John Roberts is in the White House. And there is a view that there ought to be a more expansive understanding of executive power, and that's a jurisprudential project that is built piece by piece in separation of powers jurisprudence, and that predates anyone's anticipation of a person like Trump. And I think if I want to be Fair to the architects of that jurisprudence. I don't think they're envisioning someone like Trump when they're building that. They're envisioning a more conventional president who adheres to norms, who's like a conventional Republican president, perhaps. And then there's a different line, which is a line of authoritarianism that leads us to Trump. And those two things aren't unrelated, but they're different projects. And the two things combined at this moment are deeply frightening to me.

[Dalia Lithwick]

So I want to give you a chance to explain what CFPB does. Does, you know, constructed in the wake of a huge financial crisis authorized by Congress under Dodd Frank. You were there. Can you just give people who are, I think, probably baffled by the number of agencies being dismantled what CFPB does and why it matters?

[Deepak Gupta]

Yeah. So this is a great agency, I think, to make this conversation a little bit more concrete, because it's an agency that really directly affects so many Americans lives. And this was the brainchild of Elizabeth Warren. And I know, Dalio, you've had Elizabeth Warren on to talk about this. You know, she was a scholar before she was a senator. She was a law professor, and she studied consumer protection. And she realized that the financial crisis of 2008 was very much a result of some regulatory failures, that consumer protection was dispersed across a whole bunch of different parts of the government that had consumer protection as a secondary consideration, and that it would make a lot of sense to consolidate those functions into one agency that would be a watchdog for the American consumer, and that would have a bunch of different tools that would be able to enforce the law, that would be able to supervise financial institutions and not just banks, but entities like debt collectors or payday lenders that previously hadn't been supervised by the federal government and also be able to write rules and to do all that in one place. And there was some lessons from scholarship and from the past that were put into practice in designing the cfpb. And one was to insulate its funding from the appropriations process so that it wouldn't be a political football, so that the financial industry wouldn't be able to get its hooks in. And so instead, the funding comes from investments in the Federal Reserve. And then it also had a single director that, at least until the Supreme Court changed, it was insulated from removal, another protection. So that's the basic design of the cfpb. And I was really excited. I was an admirer of Elizabeth Warren back before she was a political figure. I was an admirer of her as a law professor and was excited to go there and work for her and try to build this agency to protect American consumers. I was there for the first year of that agency as the first appellate lawyer hired by the cfpb.

[Dalia Lithwick]

And I think worth saying, because we keep having this ridiculous, I think, substanceless conversation about fraud and waste and cutting the fat. This is an incredibly lean and effective dollar for dollar agency.

[Deepak Gupta]

Yeah, totally. I mean, the agency has less than 2,000 people. It's delivered more than $12 billion back to American people who have been defrauded. And it doesn't actually get appropriated money at all from the Treasury. As I said, it runs on investments from the Federal Reserve. So it's a deal. It's a great deal. And so it's really bizarre that the so called Department of Government Efficiency has targeted this agency. It's obviously not really about efficiency or fraud or waste. It's, I think, about, you know, an agenda that's driven by the people who will benefit from not having a watchdog on the beat. And that should frighten everyone because it's really kind of a green light to people who want to rip off American consumers that, you know, there's not going to be accountability when they do that.

[Dalia Lithwick]

Right. I mean, this is such a cliche of like decades of trying to explain deregulatory juggernaut when literally the things that they're seeking to deregulate are going to enable them to, you know, perpetrate fraud. Like, it's such a crystal clear explanation of who it is that wants to hollow out the regulatory state. But I would love for you to paint a picture, if you would, of what happened at the CFPB and who your plaintiffs are.

[Deepak Gupta]

I will say, like, I did not want to be here. I was not expecting to be involved in lots of litigation against the President. I was happy minding my own business, representing workers and consumers and plaintiffs. But then things really quickly changed. I think right after the inauguration, we saw President Trump said that he wanted to eliminate the cfpb. Elon Musk tweeted, this was less than two weeks ago, tweeted cfpb, rip. And then the next day, his folks were in the agency. They had ordered a bunch of burritos. They blacked out a Glaston conference room and they were looking into the servers. And they named Russell Vaught, who's the OMB director, as the head of the agency. He instructed the staff to immediately stop working on anything, investigations, supervision, litigation. He informed the Federal Reserve that the CFPB would not take any additional funding for its operations. He announced that the headquarters would be closed, announced that nobody could come into the office. He canceled $100 million worth of contracts and then he started firing people. He fired all of the probationary employees in the agency and then a couple days later fired all of the term employees. And so all of this happened within a week. I was actually on the west coast getting ready to argue a case in the Washington Supreme Court and trying to at the same time throw this lawsuit together. We paired up with Public Citizen and we ran into court last Thursday. We filed a complaint and also a motion for a temporary restraining order. And our clients are the National Treasury Employees Union, which is the union that represents CFPB employees, the National Consumer Law center, the naacp, the Virginia Poverty Law center, which is a legal aid group. Pastor Eva, who is my favorite client here, she is an 83 year old Lutheran pastor who has been diagnosed with a terminal illness. She has, according to her doctor, six months to live. And her dying wish was to discharge her student loans so her family wouldn't be saddled with that debt. She's eligible for public service loan forgiveness and the CFPB was helping her to do that. She had an appointment scheduled with them which had to be canceled because the CFPB isn't allowed to do any work. And so she's one of the plaintiffs and then an association of the CFPB employees. So we ran into court seeking a TRO and I have to say, like, you know, care about all my cases, but I've never done a case where so many of my friends were going to be immediately affected because we knew they were about to fire people, potentially the whole agency.

[Dalia Lithwick]

I actually wanna pause and just say, you are on the show with like the mother of all colds. And I just wanna, like, just say, like, this is you with the mother of all colds. Like I'm just like on my best day not able to do anything.

[Deepak Gupta]

Yeah, I kind of run. I kind of run myself ragged with all this litigation and it caught up to me. So that's why I sound a little stuffy. Sorry about that.

[Dalia Lithwick]

You have now sort of dropped a lot of pieces of, you know, crazy conduct, right? So there's a ton of moving parts. We've got the firing of the director, we've got installing Russ Vote. We are telling people to stop work. You know, probationary employees being fired, like with these crazy emails, right, that don't even make sense, defunding the thing, you know, returning funding to the Federal Reserve. Like, I would love for you in the, in the fog of everything you've just described to crisply distill the legal argument that you're making.

[Deepak Gupta]

Yeah, sure. So the legal argument is pretty simple. And I think actually anyone who's taken kind of a high school social studies or American government class will understand that it's Congress that makes the laws. So it's Congress that decides that we have an agency and that it's supposed to do these things. And the President is supposed to enforce the laws. But the President can't just decide if he doesn't like the laws, that he is going to not enforce them or abolish an agency that Congress has created. In the case of the CFPB, there have been a lot of challenges to the CFPB. Just last year, the Supreme Court, 7 to 2, upheld the funding structure of the CFPB. So it is a remarkable thing from the perspective of the separation of powers in the American Constitution for the President to say, hey, I understand that you passed this law and you created this agency, and it's supposed to do things and enforce the law. But I've decided I don't like it. And so I'm not going to Congress to try to eliminate the agency. I'm just going to do it myself unilaterally. So that is the focus of the first and main claim in the case is just that simply, this is an unprecedented violation of the separation of powers for the President to decide unilaterally to dismantle an agency created by Congress. I would say it's entirely unprecedented, except we've seen it with USAID as well. But until January 20, 2025, we hadn't seen anything like that.

[Dalia Lithwick]

And here's the nut of it for me, right? You race into court on February 14, the judge issues a temporary restraining order that forbids the Trump administration from and forgives. Give me if I'm compressing this, deleting or destroying CFPB data, terminating CFPB employees unless they do it for cause, issuing reductions in force, taking any actions to reduce or relinquish the CFPB's reserve funding. And then we're sort of waiting on, you know, motion for a preliminary injunction in March. And we're seeing this in case after case after case, particularly in the last couple of days, Deepak, where we get the TRO that we want to see in the world, and then it's not at all clear that they're complying with it. And I guess this is the, like, sticky wicket for me right now. We would even know if they could comply with it because it's also presumes good faith.

[Deepak Gupta]

Look, this has been a big question mark. People have been very, very worried about this. You know, are they going to openly defy court orders? I think the USAID case is the case where the administration has come closest to that. And there was a contempt motion recently in one of those cases. The court stopped short of contempt because the administration said it was going to comply with the order. But I think what we are seeing there is they're certainly violating the spirit of the order. What they're doing is looking for other ways that they can justify the thing that the court enjoined. And what the judge there said, this is Judge Amir Ali of the US District Court. What he said is, look, I enjoined these things, and the order doesn't contemplate that. You can kind of go through various authorities and come up with post hoc justifications for those actions. So it was a pretty stern order. I don't think we have seen an example where the administration or the Justice Department has kind of done the Andrew Jackson thing, like the court has issued an order like, let them enforce it. I don't think we're there yet. I think people are right to be worried. But I also think we should be very careful not to declare that that has occurred before it actually occurs. And I think the Justice Department is caught in a really tough position because those lawyers, they want to be able to say to the court, we are complying with the court orders. So I have to trust and have faith that these court orders are going to be complied with. We're obviously going to be monitoring really carefully to make sure that that's the case. And we will let the court know if we see an example of outright non compliance.

[Dalia Lithwick]

We're going to take a short break. This episode is brought to you by PDS Debt.

[Deepak Gupta]

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This episode is brought to you by the ACLU. The Supreme Court case US vs. Scormetti could shape the future of transgender people's freedom and bodily autonomy for all Tennessee wants to take away transgender people's autonomy over their own bodies. They think the ruling that overturned Roe versus Wade allows them to do it. This would not only violate the promise we all deserve of equal justice under the law it earned that hurts everyone's freedom to control their bodies and lives. The case offers a critical opportunity to judicially check President Trump's sweeping efforts to control people's bodies, families and lives. The government has no right to deny a transgender person the health care they need, just as they have no right to tell someone if, when, or how they start a family. The ACLU is calling on the court to uphold constitutional guarantees for everyone, including trans people. Learn more at ACLU.

[Dalia Lithwick]

If you're constantly doom scrolling on Facebook, X and TikTok, you might need a break from news fatigue. Up first can free you from the all day scroll and tell you everything you need to know in an easy 15 minutes. NPR's Up first provides the top three news stories to start your day. And with digestible 10 to 15 minute episodes, it's all the news you need so you can get back to your day feeling informed while preserving your sanity. From the Trump administration to business and the economy to immigration policies, up first is the go to daily habit for news consumers who want to stay informed but are forever strapped for time. UpFirst's short format makes it easy to catch up on what's happening while you're making breakfast or getting ready for work. Each episode provides a 12 punch of being short and thorough, national and international, fact based and personable. With up first, you can start your day a little more in the know than when you went to sleep. Listen now to the up first podcast from npr and we are back in conversation with Deepak Gupta. I would like to drill down on just one piece of this that I think you can make concrete for listeners and I can't we which is the data piece of this? Because this is for reasons you're gonna explain. Like it's not just data. It's I think you said in a hearing last week there's an imminent risk that all of The CFPB data, 12 years of data from activities across the agency is at risk of being deleted. If it's deleted, it's irretrievable. You said and you know Charlie Warzel and other people are reporting at the Atlantic. Doge's team members have like what' called God mode unrestricted access to USAIDS digital infrastructure. I mean they're going to get that at other agencies. I feel like we're trying to catch up with something that has, like, so long ago left the building. This data. I'm asking you the same question I asked you before in a different way, but, like, explain to me why it matters, and then explain to me how we're ever even going to know if it's deleted or where it's gone.

[Deepak Gupta]

I mean, I found this truly alarming, this issue. We went into court last Thursday. We filed our complaint last Thursday, and the TRO motion last Thursday. I did not learn about this problem until Friday morning. And I learned about it from the outgoing chief Technology officer of the agency, Erie Meyer, who explained to me how serious a problem this was. If you think about what an agency is, it's basically the people and it's the information, the records of the agency. And so the idea that they would take steps to delete 12 years worth of records across all of the things that the Bureau has done, the records of its enforcement actions, the records of its interpretations and opinions, all of the collective wisdom of this agency, that would be one way of deleting the agency, making sure that it really doesn't exist. It was the institutional memory that so many people contributed to in building this thing. So I recognized immediately how alarming that was. And we filed a declaration from Erie Meyer explaining to the court what was at stake. And I kind of immediately knew there's no way for the Justice Department to defend this. It would be irreparable harm in legal terms, and there's no real reason that the government needs to do that. You know, we had a hearing in court later that afternoon, and as I suspected, the government was not able to defend it. And they ultimately had to agree, you know, to an order that prevented the deletion of all of that data. But it's pretty scary. And I wonder whether similar things are happening in other places in the government that we don't know about. And then Doge, also, the data problem runs in the other direction, which is the access to data and the privacy concerns that that creates. That's not the subject of the lawsuit that we have about the cfpb, but there are other lawsuits that focus on that issue as well.

[Dalia Lithwick]

Yeah, I mean, I think that you just led right to my next question, which is, is some of the information that is no longer secure, information that would help a theoretical Elon Musk in his theoretical ambitions toward payment systems or whatever he's building next?

[Deepak Gupta]

Yeah, I mean, that's a real concern here, is that the CFPB was in the process of regulating payments. And the whole point of the CFPB is to ensure a level playing field, to ensure that, you know, traditional payments services providers are not at a competitive disadvantage relative to someone like Elon Musk, who's doing it on a different platform. So the idea that he has this kind of unrestrained access to information about how this stuff is being regulated is alarming. But there are lots of other alarming things happening where Doge seems to have access to people's student loan data, potentially taxpayer data, which is really pretty terrifying sensitive payments data at the Treasury. So all of this is happening very, very quickly, and it's very hard to keep track of it all. But there is pending litigation about that as well.

[Dalia Lithwick]

I'm gonna ask you to pop your professor hat on again for me for one minute because you alluded to this earlier. On Tuesday night, there was an announcement of a new executive order. White House Secretary Will Scharf announcing at a press conference standing next to Trump at Mar a Lago, that Trump was essentially about to bring all independent agencies under the control of the White House with increased supervision and also reestablishes the.

[Deepak Gupta]

Longstanding norm that only the president or the attorney general can speak for the United States, whether when stating an opinion as to what the law is.

[Dalia Lithwick]

I guess this is right. The super on steroids unitary executive theory. And as I understand it, again, I'm trying to parse this. It doesn't just require that independent agencies serve at the pleasure of the president. They have to submit their work for his approval. And the tie goes to the runner. If the president says, my read of the law, law is authoritative, it's over. Again, I think this is. It happened. It seemed very inchoate. This is a huge deal to announce something like this.

[Deepak Gupta]

It's a huge deal. Yeah. And it subjects all of the people don't know about the omb. It's this very powerful agency that the average American doesn't know about, the Office of Management and Budget. It subjects all of the independent agencies to review of the Office of Management and Budget. And as you say, it means that the view of an independent agency on what the law is can be overridden entirely by the president. So it's a complete repudiation of 100 years of understanding about how the federal government works. It's quite aggressive. This is what I was alluding to earlier when I said that I think that this kind of aggressive omnibus approach might actually cause some backlash and give the Supreme Court pause, because that's ultimately where this is all going, is the Supreme Court. There's no question that the court is going to have to weigh in on how far the unitary executive theory goes.

[Dalia Lithwick]

Earlier, we're like, here's the optimistic take. And then, like, said something that twisted my guts into a knot. But but one optimistic take I keep hearing from people, quote, unquote, is that this is all great because it means that someday a future president can, you know, fire all of the Trump employee, you know, do the kind of thing that was kind of challenging for Biden to do, get all the regulatory agencies back into shape. That in some sense, you know, this was the joke after the immunity decision was like, cool, cool, cool. Like, right now, President Kamala Harris will be immune from all things. Is that a way you think about this massive expansion of executive power?

[Deepak Gupta]

This is a question of what world do you want? Do you want a world where there are wild swings every time there's an election, or do you want a world where there's a little bit more stability, particularly when it comes to the regulation of important and complex things like health and safety in the environment and financial markets? And I think the judgment, the accumulated wisdom of the last 100 years is some stability is better that you don't want, as we were talking about earlier, just the cronies of the president, whether that person is a Democrat or a Republican or some other political party that might arise, that it makes sense to have a stable government. It makes sense to have a role for expertise. It makes sense to insulate certain kinds of functions from the passion and winds of the day. And no, I don't think that just the idea that your preferred political party comes into power and fixes things, I don't think that's really an answer to this question.

[Dalia Lithwick]

I've made you switch hats twice. But as a litigator for one last b to, it seems to me that the chaos is always the point. Right. The ambiguity is the point. These executive orders are unfathomable. And courts we're seeing, like, making good faith efforts to parse them. The Justice Departments can't explain them. The answer keeps circling back to only Donald Trump knows. And then that with the echo of, you know, Trump declaring himself king. How do you think through making your best possible case to a judge who wants this to map onto something he or she understands from before about, you know, how we do this. And we're seeing judges clawing their way to trying to figure this out. But it seems as though the deliberate infusion of chaos, Deepak, is kind of the thing that keeps getting them off the hook.

[Deepak Gupta]

Yeah, I Mean, I do think, right, if you flood enough stuff into the zone, it can be hard to catch all of it. And I do think we're seeing that some things are going to get through. But I also think one way to think about this is just to focus on the concrete effects that this is having on real people's lives. And that's what we've tried to do. So, you know, the NLRB and the cfpb, these are really important agencies that protect workers and consumers. And so if you focus on how these actions are having an effect on real people, I think that's something that courts will understand. And we've built our lawsuits around those things. And so that means that there's standing, there's irreparable harm. Those are legal concepts we all understand. And then, yes, we're a little bit interra incognita when you get to the question of what does it mean to dismantle a federal agency. But because their actions have been so extreme and because everyone understands that the Congress creates agencies and decides when to abolish them, I'm somewhat optimistic that the federal courts are going to restrain the greatest excesses that we're seeing right now. And I have no choice but to be optimistic.

[Dalia Lithwick]

I kind of love what you're saying because what you're saying is if the answer to every question is the king will let you know that's not a regime that any judge wants to sign off on. Right. Like this is hard to approve under any legal theory. Let's end here with this question that I feel like we've been asking all of our guests, but I have been wanting to bring it to your door all week, which is, you know, lawyers, the legal academy, the aba, everybody's trying to figure out how much skin to put in the game. And we're seeing blatant efforts to intimidate big law firms that have jumped in. We're seeing blatant efforts to intimidate legal groups and to sort of churn up public sentiment in ways that if you're a risk averse law firm, you might not want to jump in. And I would just like I'm asking for your Saint Crispin's Day speech with a cold. But like, help me think through this question of how we, as the most risk averse profession in the world, have a role to play in all this and that the sort of like the judges are gonna fix everything, so we're just gonna plow forward and hope for the best may not get us out of this.

[Deepak Gupta]

It's such an important question. And I have been a little dismayed to see already that, you know, some people that could have stepped up are not stepping up and that our legal resources are taxed. But I think it becomes a self fulfilling prophecy. I mean, I think of Tim Snyder, who tells us not to obey in advance. Right. If the legal profession doesn't stand up for the rule of law, who is going to? What I would tell people who are waffling about this is it makes you feel less helpless if you can fight back against what you know is wrong. And there are some shared constitutional values. This isn't, you know, Democrat or Republican. There are shared constitutional values that are at stake. And I think we'll all look back on this moment as a hinge point in history. And I don't know, I mean, I think large law firms, I think all of the associates and partners at these firms want to do the right thing. They're just, you know, they're worried about losing clients here or there. But if they all start doing it, that's not gonna be a problem. So I would encourage people who are listening to this and who are in the legal profession or even if you're not lawyers, you know, to get involved and not give in to a kind of passivity because that's sort of how they win, is when people give up.

[Dalia Lithwick]

Deepak Gupta is founding principal of Gupta Wessler LLP and former senior counselor at the cfpb. At Gupta Wessler, the practice focuses on Supreme Court appellate and complex litigation on behalf of plaintiffs and public interest clients. As we've discussed in the show, he represents Gwen Wilcox in the NLRB suit and he represents the unions in the CFPB suit. And oh dear, I hope you are not representing all of us in everything. I hope that you can take the weekend and shake off your cold. But thank you for making time. You have actually, like, made that, which was like, very, very murky to me, incredibly clear. So thanks again.

[Deepak Gupta]

Thanks so much for having me.

[Dalia Lithwick]

That is all for this episode. Thank you so much for listening and thank you so much for your letters and your questions. You can keep in [e-mail] you can find [e-mail] amicus podcast and you can find me on On Blue Sky. Up next is our Amicus plus episode. I'm talking Schrodinger's Doge with Mark Joseph Stern and just how close we are creeping to a judge imposing actual sanctions on the Trump administration for playing a constitutional game of chicken with the various restraining orders. You can subscribe to Slate plus directly from the Amicus show page on Apple, Apple Podcasts and Spotify, or visit slate.comamicusplus to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus's senior producer. Our producer is Patrick Fort, Hilary Frey is Slate's editor in chief, Susan Matthews is executive editor, and Ben Richmond is our senior director of operations. Operations. We'll be back with another episode of Amicus next week.