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)

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)

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)

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.