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- [00:01]
Michael Popak
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Michael Popak
We got two District Court cases on a rocket ship to the United States Supreme Court and they have to do with Donald Trump's attempts to fire independent watchdogs who were created by Congress in the 1970s in order to order to make sure that federal workers weren't retaliated against for political or partisan reasons. I spoke to you the other day about Hampton Dellinger, who's the head of the Special Counsel's office, which is part of protecting federal workers who have whistleblower issues or other issues to make sure they don't get summarily fired. And now we've got a new decision that just came out on the heels of one from yesterday by Amy Berman Jackson. We have a new decision by a Federal judge in D.C. named Rudy Contreras in favor of Kathy Harris, who is the head of the Companion of the Office of Special Counsel, the, the, the head of the Merit Systems Protection Board, the little known, little referred to but very important mspb created by Congress as a bipartisan entity with staggered terms to make sure that no one party can control this particular watchdog. And when the watchdog gets fired, it's up to the federal courts to step in. And that's what Rudy Contreras has done with a new opinion granting summary judgment and putting Kathy Harris back in her seat. That along with Hampton Dellinger's case are going to go fast track to the United States Supreme Court. I'm Michael Popak. You're on Legal AF and on the Midas Touch Network. Let's break it down for you. This new 35 page order. You are going to learn more about a little known 1935 case, case known as Humphrey's Executor than you ever thought you wanted to, along with a 2020 case called Celia Law. It stands for those cases stand for the proposition that a president in the case of Humphrey's executor, Franklin Delano Roosevelt can't fire an independent head of an independent body or board created by Congress without cause. Has to be for cause. Can't be on a whim, can't. Because they don't like the political stripes of the person just because in the executive branch they were created by Congress usually in a bipartisan way with the then President in order to, in the case of the Merit Service Protection Board to reform the civil servants civil service and to make sure that they were protected from ultimately retaliation by whoever was president at the time. And so in Humphrey's executor the Supreme Court said that when it related to the Federal Trade Commission, the ftc, that Franklin Delano Roosevelt couldn't dismiss the independent head without cause. Even though generally if there is an executive branch member who's part of the executive branch that's exercising executive power in general, the President As Article 2 officer, the only Article 2 officer can get rid of that person without cause. You know, they, they're not forced to work with people they don't want to work with who are exercising executive power. But here when you have what Judge Contreras refers to as an inward looking board that's just looking at federal workers that doesn't interact with the greater economy or the world at large. It's just about the federal, the beehive of federal workers and how they're treated then. And the Congress desired that be independent then. The very independent nature of the position requires that they only be fired for cause. And everybody agrees that there's absolutely no cause for Kathy Harris to be fired. She got into that. Listen to these numbers. They fired her with a one liner. Thank you for your service. I'm not making this up. It's almost like a joke. Thank you for your service. She was so successful that she took a backlog of tens of thousands of cases and got rid of 99% of that backlog in just a couple of years. I mean by any measure she's a sterling example of government service. So you don't just fire her. So what I find remarkable is when you lay Judge Contreras new decision and his reliance on Humphrey's executor, the case from the Supreme Court in 1935 and then Judge Amy Berman Jackson's decision to keep the two sides of the coin here, the Office of Special Counsel, who's the advocate for federal workers as well, when you keep those two sides together, when you, when you put the two cases together and the reliance on A Celia Law case which relied on Humphrey's executor from from a more recent vintage of the Supreme Court in 2020 is how similar Contreras decision and Amy Berman Jackson's decision are. I mean Contreras had the benefit of Amy Berman Jackson having just issued hers about 48 hours ago, but it's remarkable in structure and an argument and analysis. Let me read to you from some of the pages so you see what I mean. I mean not the compare or contrast, but just what this case is all about. Harris claims that her termination was ultra varies. That's a fancy legal term for outside and irregular outside the strictures of law, in violation of statutory authority, violated the separation of powers between Congress and the President and was contrary to law under the Administrative Procedures Act. She argues that this case falls squarely within the heartland of Humphrey's executor versus the United States for 1935 and its progeny, meaning the cases that followed after it and that the Board is a traditional multi member body that does not wield traditional executive power. In Humphreys executor, Judge Contreras continues on page 7 the Supreme Court upheld a statutory provision identical to the one at issue here restricting removal of the FTC members the Federal Trade Commission, because they were confirmed by the Senate and they're supposed to be bipartisan. In this case it was actually Hoover, not Roosevelt. I'm sorry. It was the Great Depression right before FDR came in. 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So when I'm trying to eat healthier, I'm not just guessing anymore. This new year, fast track your way to eating well with Marley spoon. Head to marleyspoon.com offer legalaf and use code legal af for up to 27 free meals. That's right. Up to 27 free meals with Marley Spoon. One last time. That's Marley Spoon.com offer legalaf for up to 27 free meals. And make sure you use my promo code Legal AF so they know I sent you. In the more recent on page nine, the judge said in the more recent cases, the Supreme Court ruled that four cause removal provisions applying to independent agencies with a single director violated the separation of power. Okay, well we don't have a single director in that way. The judge went on to say that neither of these cases is related to a multi member body of experts heading an independent agency. Here you have multiple experts. No two can be from any one party. They serve staggered seven year terms to insulate them from political retribution. And that's exactly what Donald Trump has done. He's just walked right into the trap. On page 11 of his order, Judge Contreras says Humphrey's executor, that case we've talked about remains alive and well and it dictates the outcome here. The mspb, the Merit Service Protection Board, is a traditional independent agency headed by a multi member board or commission. It is a multi member body of experts that is balanced along partisan lines. It is supposed to be nonpartisan. Its board members serve on overlapping staggered seven year terms, meaning that the President will have the opportunity to shape its leadership and therefore influence its activities over time. It does not wield substantial executive power. On the bottom of page 12, here's what else the judge said on the bottom of page 13 which is the heart of his decision, though we call it the ratio of his decision. The MSPB's mission and purpose require independence. This is almost exactly the language out of Amy Berman Jackson's decision about Hampton Dellinger, the Companion Federal Special Counsel's Office in enacting the Civil Service Reform Act, Congress exercised its power to regulate the Civil Service, defining certain prohibited personnel pract to include discrimination or loyalty oaths. Is that all about Donald Trump? Loyalty oaths, coercion to engage in political activity and retaliation against whistleblowers. Direct political control over that board would have limited effect on the President's implementation of his policy agenda. In other words, he doesn't need to control this board in order to implement the will of the people or what he interprets it to be. It would instead neuter the statutory scheme by allowing high ranking government officials to engage in prohibited practices and then pressure the Marriage Service Protection Board into inaction. So the judge has granted the summary judgment, has granted the preliminary injunction and has ordered as followed. Here's the conclusion, declared this on page 34 that plaintiff Kathy A. Harris remains a member of the Merit Systems Protection Board having been confirmed by the Senate in May of 2022 and she may be removed by the President prior to the expiration of her term only for inefficiency, neglect of duty or malfeasance in office pursuant to a certain statute. And everybody conceded that she's doing a fantastic bang up job. Further ordered that the plaintiff shall continue to serve as a member of the board until her term expires unless she is earlier removed for those cause reasons. Defendant Secretaries Besent and others are enjoined for removing her from office without cause. And it is further ordered that the court's temporary restraining order is vacated because he is issuing this summary judgment being granted without trial and therefore the permanent injunction is in place. This will now join together like a conjoined twin to go to the United States Supreme Court with the Hampton Dellinger case. The Hampton Dellinger case is already kind of primed and idling on the rocket pad for the United States Supreme Court. Justice Roberts. Chief Justice Roberts already stepping in a little toe, a little pinky toe into the case about a week or so ago saying why don't we just wait for all the preliminary injunctions to happen so this court has jurisdiction. We don't want to get involved with temporary restraining orders, but let us know when it's all done. It's all done. It's all done. Chief Justice Roberts. And so now this will go on Fast Track together about the fundamental question about whether Donald Trump has the power as president under Article 2 to fire somebody, even though the statute says by Congress it has to be independent and the person has to be fired for cause. When you fire the watchdogs who were looking over a partisanship and whistleblower, you might end up in the United States Supreme Court. Let's hope they do the right thing. I'll certainly cover it right here on Legal af and on the Midas Touch Network we've got a podcast. Hopefully you've heard about it after five years. It's called the Midas Touch Legal af. If you didn't know why we called it that, now you know. It's every Wednesday and Saturday at 8pm Eastern Time right here on this YouTube channel. And then on audio podcast platforms of your choice, we have a channel devoted to Legal af. It's called Legal afmtn. Help us continue our march to half a million. We're at 490,000 as of this recording. Help us get to 500,000 subscribers. And then I've got a new show called Popoc Live right here on the Midas Touch Network, a new podcast devoted to me speaking about law and politics and other things unfiltered, unhinged, at times completely uncensored. Popoc Live Tuesday nights on the Midas Touch Network. So until my next reporting, this is Michael Popak. In collaboration with the Midas Touch Network, we just launched the Legal AF YouTube channel. Help us build this pro democracy channel where I'll be curating the top stories the intersection of law and Politics. Go to YouTube now and free subscribe at legal a FMTN that's @legal AFMTN.
- [14:57]
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