← What Trump Can Teach Us About Con Law
What Trump Can Teach Us About Con Law
Constitutional Explosive Diarrhea
00:52:11
A Supreme Court decision about the administrative state went under the radar, but its implications have the potential to touch almost every aspect of modern life.
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A
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B
21. It is Tuesday, July 28th, at 1 o'. Clock. As we record this, what are we going to be talking about today?
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A
All right, well, let's go back in time, Roman.
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B
Okay.
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A
On Monday, March 6, 1973, Michigan Governor William Milliken delivered remarks on showing courage when faced with tragedy at a funeral held at a farm in osenek. The deceased 44,000 frozen mushroom pizzas.
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B
That was not what I was expecting. Okay.
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A
Now, overseeing the great Michigan Pizza funeral was Mario Fabrini, the owner of Papa Fabrini's Frozen Pizza. Fabrini decided to dump all 44,000 pizzas after he was notified by the Food and Drug Administration that his mushrooms might have been tainted by botulism. He was told that two mice died in a lab test after eating some of his pizza. Because, you see, employees at The United Canning Company of East Palestine, Ohio, had noticed that 16 pound, 9 ounce, number 10 can of canned mushrooms was swollen. The can tested positive for the botulinum type B toxin, which produces deadly botulism. The FDA raced to find where these canned mushrooms might have ended up and as they were distributed through the supply chain. And that's how they found Fabrini's frozen pizzas. The discovery of potentially deadly canned mushrooms led to the first major modern food recall by the Food and Drug administration. And over 75 million cans of mushrooms disappeared from store shelves. Now, under the Federal Food, Drug and Cosmetic Act, Congress has given the FDA the authority to promote the public health by taking appropriate action to ensure that foods are safe, wholesome and sanitary. Now, Roman, let's assume that the scientists who actually verified that botulism toxin did so on the basis of their expertise. But consider this. What if these kinds of food safety decisions were guided by other concerns? What if a mushroom company CEO was a pal of the president? We're not just talking about botulism and mushrooms. It could be salmonella and eggs or cyclospora and lettuce, just to give an example. And what if FDA staffers were afraid they'd be fired for identifying companies as a public health risk? Fired upon the President's orders? Would that be allowed? What does the Supreme Court have to say about it? Time to find out.
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B
Let's do it. This is what Trump can teach us about Con law. An ongoing series of indeterminate length and sporadic release where we look at what the removal power has to do with explosive diarrhea and use it to examine our Constitution like we never have before. Our music is from Doomtree Records. Our professor and neighbor is Elizabeth Jo, and I'm your fellow student and host, Roman Mars.
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A
So I thought today we'd talk about another blockbuster case from the Supreme Court's last term. It's called Trump vs. Slaughter. But in order to do so, we need a quick refresher on the administrative state, what the FDA is part of. Right? So within the executive branch, we have what you might call purely executive agencies. So think of agencies like the Justice Department or the Department of Labor. The people leading these agencies are in positions like the Attorney General or the Secretary of Labor, and those folks make up the President's cabinet, okay? But a very important part of modern government today are the dozens of so called independent agencies. Now, the very first regulatory agency like this was the Interstate Commerce commission established in 1887. And the purpose of the ICC was to stop unfair and monopolistic behavior among railroad companies. But the real expansion of the administrative state comes with Roosevelt's New Deal. And the basic idea here is that a way to solve social and economic problems is with expertise, professional experts. And no, workers don't have equal bargaining power. We can't let companies alone set whatever prices they want. And it's pretty bad to let monopolies take over the economy.
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B
Okay?
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A
So today these agencies cover all kinds of areas that are part of our daily lives. Labor relations, nuclear power, mine safety, the financial markets, consumer products. And when Congress creates these agencies by statute, and it's Congress that creates them, not the President, Congress often gives these independent agencies a broad set of powers. So as a result, many of these agencies can issue regulations. Think of them as finely tuned rules for the specific area the agency is charged with overseeing. And many can actually enforce their regulations against folks who have violated those regulations. And many agencies can also adjudicate or judge whether or not that person or company has violated these rules.
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B
Okay, got it.
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A
So the positive version of the story is that the moderate administrative state is the reason why our food's generally safe to eat, that the drugs we take are generally safe to consume, and the air and water around us is generally safe. Many workers in many different fields can unionize, things like that. It's not a perfect system. But without it, the general public would basically be at the mercy of everything, big companies, the marketplace.
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B
Yeah, yeah, yeah, yeah.
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A
But there has also been a decades long conservative war against the administrative state that comes from a coalition of businesses who want as little regulation as possible, and Republicans who ideologically oppose what they have sometimes called the headless fourth branch of government. Headless and fourth branch meaning no one's in charge of the administrative state and there isn't supposed to be a fourth branch of government. Of course.
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B
Got it, got it.
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A
So the conservative goal has been to eliminate the administrative state or hobble it in such a way that it's powerless or basically meaningless. And that's the whole key to the political dispute. The whole idea is that Congress has designed these agencies, these independent agencies to help regulate a lot of modern life, to keep them out of the direct day to day control from the President, in fact, even from Congress. Day to day control from Congress. And this allows these agencies to use their professional expertise, their experience to make rules and decisions that are for the public good rather than day to day partisan decision making.
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B
So how are they designed to be independent?
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A
Well, Congress has structured these agencies in ways that insulate them from day to day presidential control. That structure can have several features depending on the agency, but here are some common features. First, many of these independent agencies are led by commissions or boards with multiple members that are by law supposed to be from different parties. So not all Democrats, not all Republicans. Some of each.
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B
Oh yeah, right.
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A
A second common feature is that the members of these independent agencies are often required to serve staggered terms of longer than four years. And that's to make sure that no single president can, can replace the entire board at once. And a third feature, this is the one we're gonna focus on today, is limiting the ability of the President to fire these regulators. So in constitutional law, we talk about this as the power of removal. That's in contrast with the power of hiring or appointment. Now, the Constitution has some very specific things to say about the President's power to hire or appoint officials in the executive branch. There are a lot of Supreme Court cases on this subject, particularly during the era in which John Roberts has been Chief justice, which is 21 years at this point. And there's been a long running conservative strategy to use the appointments clause to attack the administrative state. But that's a story for a different episode.
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B
Okay, okay, so we'll table that. But what about the power of removal?
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A
Well, the Constitution unfortunately says absolutely nothing about it. Right.
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B
Classic.
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A
Right. And that's Part of the problem, because presidents, no matter what the Constitution says or doesn't say, presidents do fire important officials within the executive branch. The real constitutional question is whether Congress can do anything about that. So here's some important background about working for the federal government. The federal government employs a lot of people. Even after the Doge cuts, there are still more than 2 million civilian federal employees, meaning non military employees. And that, you know, if you think about it, it's not just people who sit at desks, right? This is a huge variety of people. Nurses working in VA hospitals, biologists who work for the US Forest Service, accident investigators for the National Transportation Safety Board. They don't just work in Washington, D.C. they work in offices all across the country. So for constitutional purposes, employees in the executive branch can be categorized into three groups. And this is based on a combination of what the Constitution specifically says and what the Supreme Court has decided over time. Okay, so the vast majority of these workers are what the Supreme Court has called mere employees, or we call them civil servants. Right. And ever since the pendleton act of 1883.
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B
Oh, yeah, it's one of my favorite acts.
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A
That's right. I mean, it gets rid of the spoil system, right?
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B
I know. I love it. I love it.
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A
I love it a lot.
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B
It's one of my favorites.
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A
So ever since then, we have civil servants who are hired based on merit, their qualifications, rather than who they know or how much they've contributed, let's say, to the President's party, right. You're supposed to take an exam or something like that, or you have some experience before you're hired. Now, because of that, today civil servants have a set of job protections, mainly under the Civil Service Reform act of 1978. But we're going to put that aside for a moment. For the Supreme Court has primarily focused on the smaller group of employees that we call principal and inferior officers of the United States.
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B
Okay, so who are they?
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A
Well, they're important terms because these are referred to in the Constitution and there isn't an absolute distinction, but one way to think about it is that it's clear that a member of the President's Cabinet, like the Secretary of Defense, is a principal officer. So a principal officer has a lot of executive authority. And. And if you answer directly to the President, that's a pretty good sign that you're a principal officer.
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B
Okay, so what makes you an inferior officer?
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A
Well, it's kind of. You can sort of guess, right? An inferior officer is exactly that. It's someone who has a lot of executive authority. But they still answer to somebody above them, somebody who isn't the president. So that's like the basic hierarchy. Now, the one thing under the Constitution that is absolutely clear is that principal officers, like members of the President's cabinet, they're always appointed by the President and confirmed by the Senate. Right now, let's say that the President wants to fire a Cabinet secretary. Maybe the Cabinet secretary and the President have some kind of policy disagreement. Or maybe the president just wakes up one day and says, I don't like you anymore. So every president has fired or removed some of their own officials. Trump has done this a lot, and particularly, you know, during the second term, we've seen a lot of this happening. So in April of this year, he fires his Attorney General, Pam Bondi. Now, Pam Bondi was the Attorney General, she's a member of the President's cabinet. So he doesn't need a reason. And everybody agrees that the President doesn't need one. That's a non controversial thing he can do. But in his second term, Trump also fired Gwen Wilcox, Kathy Harris, Mary Boyle, Rebecca Slaughter and Alvaro Bedoya. What do they have all in common? Well, they were all Democrats, but they were also all members of independent commissions. Wilcox was a member of the National Labor Relations Board. Harris was the chairwoman of the Merit Systems Protection Board. I'm sure you've never heard of that, right? Not many people have. But it's a very important agency designed to review the firings of federal employees, really powerful boards.
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B
So they fired the person in charge of evaluating if you can fire and hire. Okay, got it.
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A
Okay, now, now, Mary Boyle was a commissioner of the Consumer Product Safety Commission, you know, the agency that ensures, like, your kids pajamas don't burst into flames, things like that. Right? And Rebecca Slaughter and Alvaro Bedoya were commissioners of the Federal Trade Commission. Now, these positions, like many others in the federal government, are ones that Congress intended to make independent. And they did this through the structural features that I've mentioned. Staggered terms longer than four years, requirements that Democrats and Republicans serve together. And lastly, that the people in these positions can only be fired for specific reasons or what we would call for cause, in other words, can't be fired on a whim. The most common kind of language usually that we see in these statutes is that someone who serves in these independent agencies can be fired for. And here's the language that usually appears inefficiency, neglect of duty, or, or a malfeasance in office. So basically, you need a real reason. You can't just say, I don't like you or we don't agree anymore. Right? Now, Trump did not rely on any of these four cause reasons to fire any of the people in the group that I've just mentioned. He simply said, you're fired. I'm President. Article two, that was pretty much it. So all of these people filed lawsuits against Trump arguing that they were illegally fired. And all of them argued that a 1935 Supreme Court decision called Humphrey's Executor protected them.
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B
Okay, so what does Humphrey's Executor, what does that say?
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A
So in 1925, William Humphrey was appointed as a commissioner to the Federal Trade Commission, which had been created by Congress in 1914. And then, like now, the FTC had a broad mandate from Congress. It's supposed to investigate and go after unfair or deceptive practices in commerce. Now, unfortunately for Humphrey, the Democrats won in a landslide in 1932, and FDR fired him. And not for any substantive reason, just didn't want him in office anymore. So in 1935, the Supreme Court ruled against FDR, FDR. You can't just fire him. And what you need to know about the case of Humphrey's executor versus the United States is that the Supreme Court acknowledged that the presumption is that the President usually can fire executive branch officials for any reason at all. But when you have an independent agency like the ftc, there are important reasons to have these commissioners insulated from politics. So basically, the Supreme Court carves out an exception for FTC commissioners. FDR could not lawfully fire Humphrey just over political differences. Now, since that time, the principle of Humphrey's executor, the decision has led to this general assumption that Congress can decide, look for certain kinds of agencies within the executive branch. If we want them to be independent, and they're supposed to be independent, we can do things like have these staggered terms, have bipartisan membership, and also limit the reasons as to why the President is allowed to fire these people at all. Okay, so as you can see, because of that 1935 case, these officials fired by Trump felt like they had the law on their side. And the lower courts generally agreed that these firings seemed illegal. Except.
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B
Right. Except.
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A
Except for the rise of what's called the Unitary Executive theory. Maybe you've heard of it?
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B
I have, but please explain.
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A
Well, the Unitary Executive theory is kind of easy to summarize. It's basically, well, the President has to have the authority to control everything and everybody within the executive branch.
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B
So where does this idea come from?
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A
Well, it's not mentioned in the Constitution at all. And conservatives like to say that the idea originates from the founding. That's kind of a matter of debate. But as an idea, its modern version emerges during the Reagan era. Young conservative lawyers join the Reagan administration, and they helped develop this idea. And it kind of goes like this. The Constitution's vesting clause, that's the one that gives power to the President. It gives all of the executive power to the President. And the take care clause of the Constitution imposes on the President a duty to take care that the laws are faithfully executed. In other words, these folks would say, look, all of these commands and responsibilities and powers are focused on one person. And so for these conservatives, that means that everything has to be controlled by the President personally. So anything inside of the executive branch that is outside the control of the President is inherently unconstitutional. That's the idea behind the unitary executive.
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B
Okay, okay.
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A
Two young lawyers who were part of the Reagan Justice Department, Samuel Alito and John Roberts.
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B
Oh, my God.
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A
And so the Roberts Court brings the unitary executive theory from kind of an outlier, fringe idea, academic idea to the core.
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B
Yeah, yeah. And so what decisions have made us believe that the conservative majority is in favor of the unitary executive theory, beyond the fact that the authors of it are prominent Supreme Court Justices?
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A
Well, you know, there's been, like, a general trend in favor of more and more executive power being granted or recognized for the President. That's certainly true. And that's been true over the course of the time that Chief Justice Roberts has been Chief justice. And you only have to look at what they say. So if you go back to the Trump immunity case, Trump versus the United States, the Supreme Court just says it. The Constitution vests the entirety of the executive power in the President. And unlike anyone else, the Court said the President is a branch of government, and that was why we apparently couldn't prosecute Trump for crimes.
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B
Right.
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A
Because he was the entire executive branch.
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B
I see, I see.
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A
So there are at least five justices who embrace this idea of the Unitarian executive. Roberts, Thomas, Alito, Gorsuch, and Kavanaugh. Some people call them Unitarians, but I think that gives Unitarians a really bad name. So I'm not going to call them.
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B
Unitarians are great. Don't ever besmirch the Unitarians in my presence.
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A
So we won't call them that. Barrett. It's not as clear, but it doesn't really matter because 5 would be enough to change the law. Right. So during the time that Roberts has been Chief justice, the Court has spent a lot of time focusing on the constitutionality of how Congress has structured independent agencies. Some of these cases have focused on whether members of these different agencies were lawfully hired or appointed. But a lot of cases have also focused on how much Congress can limit the President's ability to fire people in these independent agencies. And so the Supreme Court has been increasingly skeptical about limiting the president's power to fire executive officials because that wouldn't line up with the unitary executive theory. And so the death of Humphrey's executor, as a decision, has been predicted forever. So when it finally died, people were like, oh, we knew it was gonna die. And you can see this in the lower court opinions where these folks who had been fired by Trump were trying to say, hey, Trump couldn't fire me. Right? Because many of the judges say, well, Trump isn't allowed to do this for now. And they were right, because on June 29, 2026, the Supreme Court decided that Trump did in fact, have the constitutional authority to fire Rebecca Slaughter from her job as FTC commissioner, no matter what Congress had said about restricting his ability to do so.
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B
And so what do they describe as their reasoning?
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A
Well, Chief Justice Roberts authors the majority opinion, and, you know, the Court simply overrules Humphrey's executor because, you know, it's the same situation. Right?
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B
Yeah, yeah, totally.
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A
An FTC commissioner who's fired by the President for political reasons. This time, however, the Court says in a 6, 3 majority that Trump is allowed to. Well, where do they go? They say, look, the vesting clause, the one that gives the president all of the executive power, means that, and I'm quoting, there is a unity. Get it? Of executive power in a single person. So there's no guessing here as to whether or not the majority embraces the unitary executive theory. They just say it. In order for Trump to exercise all of the executive power, any executive official must be potentially removable or fireable by the president, with just a few narrow exceptions. Actually, as an aside, the Court spends a lot of time on historical analysis, and they mention that some members of the Constitutional Convention were worried that that unity in the executive would be. Wait for it. The fetus of monarchy. You repeat that twice. The fetus of monarchy. I don't know if I read about the unitary executive, and I think, yeah, that kind of sounds like the fetus of monarchy doesn't bother the majority. So if the unitary executive theory demands that the President can fire officials who wield executive power, the question is, does that describe Rebecca Slaughter's job at The FTC and the Supreme Court says, yes, an FTC commissioner wields significant executive authority. And that's important because in the Humphreys case from the 1930s, the Supreme Court suggested that when you have these independent agencies, they were very different than the Department of Labor or the Justice Department. Everybody agrees that those are purely executive departments. They're right under the President's thumb. You simply do the President's bidding. But. But no, in Slaughter's case, the Supreme Court said the FTC falls squarely within the, what they call the heartland of executive power. Therefore, her firing or removal was legal. She's out. So Trump versus Slaughter is a very important decision. But on the very same day, the Supreme Court also decided that, no, Trump also cannot simply fire Lisa Cook, a democratically appointed member of the Federal Reserve. So to keep things straight, we were just talking about the ftc. The Federal Reserve is the entity that sets national monetary policy. Right. It's the central bank of the United States. And most people are kind of aware of it because you hear that the Fed raises or lowers interest rates.
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B
Right.
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A
So the Fed is actually a system of 12 regional banks, plus the Board of Governors, which oversees the entire system. And this is a system where you really want it to be independent. Other countries that have politicized their central banks, this hasn't worked out so well for them. We don't want that to be political. And so Congress's response or their concerns about independence has been reflected in the statutes. They try to insulate the Board of Governors by assigning them 14 year terms, long time, and by requiring that they can be removed by or fired only for cause. So Lisa Cook was initially appointed to the Fed in 2022 by President Biden. She was in an interim spot, but then she was formally nominated to a full term in 2023. So if everything works the way that we would have expected, she would still have her job until 2038. This is well beyond Trump. Long after Trump.
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B
Yes. Yes.
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A
But In August of 2025, Trump notified Lisa Cook. Well, we're gonna fire you. And why? Well, it appears that the allegation here is that Cook had engaged in some kind of mortgage fraud when she applied for a loan for a second home. But the general consensus is, look, this is pretty politically motivated. He's just trying to get rid of her. So Cook filed a lawsuit arguing that Trump illegally fired her. Now, Cook's case is a little bit different than the FTC case because it doesn't come up as what we call it a merits case, meaning it's been filed, fully decided by the lower courts, with a final review by the Supreme Court. Here. Lisa Cook filed a lawsuit. She said, Trump shouldn't have fired me in this way. There wasn't a good, real reason for firing me other than a political one. And the federal trial court issued a preliminary injunction that's essentially putting a pause on Cook's firing, which the Trump administration appealed all the way to the Supreme Court. So not everything is fully developed in the way that Slaughter's case was. But here's what matters. The Trump administration says that even if Congress could put limitations on Cook's firing, it's such a low bar that Trump can meet it in any way he wants. It's kind of like, I can do whatever I want, still. See, but the Supreme Court says no. Congress's restrictions on firing a member of the Fed means that there has to be a real substantiated reason. So that's a loss for Trump. And the Trump administration also failed to give Lisa Cook the. The notice and procedures she was entitled to before any kind of allegation that she was involved in some potentially criminal wrongdoing that might lead to removal. And then the majority turned to an argument raised by Justice Thomas that, look, what about these restrictions that Congress has placed on firings of members of the Fed by the President? Well, these are actually constitutional. Thomas had said, you know, unitary executive theory. Why can't Trump just fire Lisa Cook? Now, here, the Supreme Court says, no, historically, the Fed has always been independent and has to remain so. So that means that the pause on Lisa Cook's firing stays in place while the case keeps going forward, and the Court, on the same day, decided in Slaughter, the Slaughter could be fired as a member of the ftc.
- [26:58]
B
Okay, so what's the difference between these two?
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A
Well, that's the thing, right? I mean, the joke circulating among lawyers is like, well, I hope the author of the Cook decision doesn't run into the author of Slaughter. It's the same person. Chief Justice Roberts writes both. It's really strange. This time, however, he's aligned with the three liberal justices and Justice Kavanaugh saying, we gotta have some limits here when it comes to firing members of the Fed. And the Supreme Court never really explains why the Fed is different, except, you know, it's just different. And ultimately, it kind of feels very much like a don't crash the economy exception.
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B
Yeah, yeah. They can predict a sort of catastrophic consequence of this. The way they can't do that with the ftc.
- [27:45]
A
Yeah, it's like well, deceptive practices and online advertising, sure, the President can fire people who want to put that into place, but no, you can't crash the economy. And if that's really the reason, then the decision making seems pretty partisan.
- [27:59]
B
Yeah. And arbitrary. And so what are the implications of these two decisions?
- [28:05]
A
Well, I'm going to try and convince you, Roman, that this is actually a bit of an earthquake. Right. What Slaughter represents. Because Slaughter is not just a decision about the ftc. The court's decision in the Slaughter case suggests that any member of an formerly independent commission or board is now vulnerable to firing by the President at any time and for any reason, or basically no reason at all. So one way to think about Slaughter is as a vast expansion of presidential authority. The Slaughter case doesn't get rid of the administrative state. It just puts it all within the power of the President. Because the power to fire is really about the power to control. Right. That's a really big deal in practice.
- [28:49]
B
Is there really a change here? Isn't there always kind of politics with firing and hiring?
- [28:53]
A
Well, certainly with hiring, politics plays a key role because in most cases the President gets to nominate who leads these agencies or play some kind of a huge amount of influence in making sure that at least for their party members, they get to choose, right?
- [29:08]
B
Yeah, that's right.
- [29:09]
A
But in theory, once these people are nominated and then confirmed by the Senate, then they're supposed to have some kind of day to day insulation from the President. We kind of go forward on the assumption that they're going to make these good faith decisions, whether it's about the safety of prescription drugs or the kinds of fees that credit card companies can charge you, whatever the issue is. And that's because we know that Congress has even entrusted these commissioners with these broad mandates like to regulate in the public interest, not to serve the President's will. Right. The Congress actually has these big mandates for the public interest. Then there's the scope of the Slaughter decision. How far does it go? Potentially very, very far. What I mean by this is, well, who is subject to this new decision? Now, let's go back to the beginning. Remember I talked a little bit with you about the differences between principal and inferior officers and inferior officers and civil servants, regular old employees. Everyone agrees that a commissioner of the FTC is a so called principal officer, formerly of an independent commission. Not anymore. Does Slaughter the case mean that the President should be able to fire any principal officer who exercises what the court calls executive authority? Yes, that by itself is a lot of people. Yeah, but the problem in the Slaughter case is that the Supreme Court does not use the distinctions that I've just mentioned. Instead, Roberts, who writes the majority opinion, frequently refers to the President's ability to fire what he calls the President's subordinates. Roberts could have said, look, we're deciding about principal officers here, and we're only talking about principal officers. That would still be really significant. But he doesn't say that. So does the decision also apply to people we call inferior officers? The people who are also political appointees but are kind of one level below? That's even more people, some of whom have job protections, too.
- [31:06]
B
And what about the mere employees?
- [31:08]
A
Right, right. So does subordinate mean any civil service employee who engages in some kind of executive function? So the court in Slaughter says to execute means to execute a congressional mandate against private parties. So applying the law to private companies and individuals as an executive function. Now we're talking potentially about a huge swath of the federal workforce. Because, remember, it's not just like you can't just say, well, the law says I'm protected because that's what Rebecca Slaughter said. She said, Trump can't just fire me because he feels like it. The law protects me. And the court said, no, that law is unconstitutional. So Slaughter, the decision gives us an enormous amount of uncertainty because the majority is just not clear about what are the parameters of this, what are the boundaries of this decision. Yeah. And I think the reason to worry about this is that the majority in Slaughter is always, you know, it's sort of like these other presidential power cases. They're always interested in this very abstract president, the president who is not before us now. Yeah, some abstract president. But Trump is a very personalist president. Right. The whole world for him is friends or enemies. Right? Yeah. So if you're an inspector, let's say, for the Food and Drug Administration, or let's say you're a scientist with the Environmental Protection Agency and Slaughter applies to your job, wouldn't you possibly be afraid you'd be fired for reaching conclusions that are, let's say, based on evidence, but maybe it would give a company favored by Trump some bad publicity.
- [32:39]
B
Absolutely.
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A
And that's the whole point of having limitations on firing by the President and civil service protections to make sure that the decisions that impact all of us on a day to day basis for the things we eat, the air we breathe, whatever, that these are done in evidence based, expert based ways that aren't driven by the fear of political retaliation. Right?
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B
Yeah.
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A
So all of that is kind of in question because of the Slaughter decision. Then there's Justice Gorsuch. So Justice Gorsuch, he agrees that Trump can fire Slaughter for any reason, but he writes separately, well, we may have unleashed a small problem.
- [33:17]
B
Yeah.
- [33:18]
A
And the small problem is this. We may have given Trump all of the tools to use the administrative state as his own personal weapon. Okay. So he makes this larger observation that, look, okay, so the President can fire the commissioner of the ftc. Right. But Gorsuch says this isn't just about the President's power to control one agency. It's about the ability to control all of the agencies. And let's say you have a company or a corporation that the President doesn't like. So imagine that Trump launches an FCC investigation against a media company. Right. Because he doesn't like him. And then the administration's FTC comes up with a regulation that happens to punish some long standing practice of that same corporation. It's decided that it's unlawfully behaving in some way. Then let's say the Occupational Safety and Health Administration launches an investigation, coincidentally, into the same company's workplace practices. That's also an administrative agency. Then let's imagine, coincidentally, the securities and Exchange Commission comes up with a new rule that happens to be the basis of a new prosecution of that same company. Just coincidentally, that could happen. Right. Well, this isn't just my hypothetical. This is Gorsuch's hypothetical. This is one of the justices who joins the majority in the Slaughter case. He just says, look, I want to point out that these powers might be used in the wrong way.
- [34:51]
B
Why does that concern not make you vote against it? Like, why, if you have all those concerns, do you just go, no, because the implications here are too broad and too scary?
- [35:04]
A
Well, I think the answer has to be that you have five committed justices to this abstract idea of the unitary executive, and it's more important to them in terms of an abstract presidential power than the literal president who is in the office right now.
- [35:20]
B
Yeah.
- [35:20]
A
And, you know, remember, they've been pursuing this idea even before Trump took office.
- [35:25]
B
Right. But doesn't the empirical evidence of what this leads to in sort of the existence of Trump, doesn't that somehow put, like, chinks in the armor of your, like, worldview? I mean, I just don't get it. I don't get people who don't, like, live in the world we live in?
- [35:39]
A
I think that's right. But it's kind of like when we talked about the immunity decision, Trump versus the United States. I mean, you could have said, well, look at the President who's actually being accused of these crimes, who's facing these criminal charges? Doesn't that bother the justices? And remember, the opinion itself in the immunity case is written in very broad, abstract terms. It's almost like they're not talking about Trump at all. And so you have this institution that thinks of themselves as sort of like the oracle. It's sort of timeless and will reach across time, whereas the rest of us are thinking, well, what about the flames that are erupting right now?
- [36:10]
B
But I guess it's not just talking about Trump specifically. But doesn't your abstract model of what an executive is get modified by this person who is Trump? Not like that. We have to convict Trump in this very moment. But doesn't it begin to change your model of how the world should work when you see an example of someone who would take advantage of it? A pretty, I don't know, just conservative in the small C sense of conservative like Gorsuch can spin this hypothetical of a weaponized executive branch. And you know he's thinking of that because of Trump. And why doesn't that example affect their model of how the world should work?
- [36:50]
A
It doesn't. I guess because the ideological commitment to the unitary executive theory is so strong.
- [36:55]
B
It's just too great. Yeah.
- [36:56]
A
Yeah, it's too attractive. I'm Hannah. I've lost 75 pounds in 20 months with GLP1s/ diet and exercise on ROE. I've gone from struggling to run a mile to running farther every day. You can access FDA approved GLP1s online, get the support you need to reach your weight loss goals. Go to ROE Co Weight to see if you qualify. I'm a paid ROE partner. 20% average weight loss in one year in non diabetics with obesity or overweight with a weight related medical condition versus 3.1% in placebo arm Rx only to stay informed about serious side effects, go to ROE Co Safety.
- [37:34]
B
So since Congress created these agencies, can Congress do something about this? Make them more independent, ultra super independent? I don't even know.
- [37:43]
A
Yeah, I mean, so the decision suggests that Congress can't try to just impose the same restrictions because they would be struck down as unconstitutional. You could imagine a scenario in which now Congress says, oh, we actually don't like it that these agencies are really powerful and they're under direct day to day control of the President. So Congress could go in the opposite direction and try to reduce agency power.
- [38:05]
B
Interesting.
- [38:06]
A
They could pass a law saying let's shrink the agencies, which would also happen to coincide with the conservative goals. But Gorsuch also has an answer for this too. He says, well, what if you're the President and you say, oh, I like all this power, right. And Congress passes a law that tries to shrink the size and scope of agency authority? Well, Gorsuch says, well, won't he veto that legislation? And is it likely that Congress, today's real Congress, that they would have a veto proof super majority in today's politics? Not a chance.
- [38:40]
B
Yeah, yeah, yeah.
- [38:41]
A
So we've kind of hardwired this problem into the structure of we kind of let everything play out in the way it did without any checks or balances.
- [38:49]
B
Yeah, yeah. Okay. So given that the unitary executive applies to whatever abstract executive that's there, if there becomes a person who's a Democrat in office, who's completely different than Trump and is fantastic in lots of ways, maybe even a Republican who's fantastic in a lot of ways, I'm not trying to say otherwise.
- [39:06]
A
I'd like to see that.
- [39:07]
B
Yeah, but can't they just undo all this sort of stuff? And so the power, like taking away that power from Trump is actually given the power to the next person to undo the Trump stuff?
- [39:19]
A
Well, it is true that the power now belongs to the president of any party. So a Democratic president can presumably do the same thing. But I actually think it's much more complicated than that. Right. It's true that the next Democratic president can say, well, if Trump can fire every regulator, then I will also fire every existing regulator. I'll just clean house. Right. But there are other larger dynamics that are important here too. And first of all, start with this idea about the views the two parties have on the administrative state. They're polar opposites. Right. Democrats are generally in favor of regulatory protections for labor, the environment, consumer protection, you know, consumer products, health care. And Republicans generally just don't want the administrative state to exist at all. Or they just want a very tiny, not, you know, virtually non existent one. So in Trump's second term, we can see that he wants to exert maximum presidential power. And he's done that in part by firing the regulators, even when the law has said you can't do that. And that was the right bet for Trump because the Supreme Court now has agreed. What that means is that Trump can now bend regulators to his will. This is kind of crony politics. Right? And enforcement for enemies and favors for friends. But the other way to think about the removal power is tool to kneecap the agencies, period. Right. Like you fire regulators and then you replace them with Nothing. Right. Like, you don't need a hypothetical here, because right after the Slaughter decision, Trump fired three members of the Election Assistance Commission. This is probably another commission that people have not heard of. This is or was an independent bipartisan commission that was designed to help the states as they administer their elections. And remember, states in our system have the primary responsibility for administering elections, including the upcoming midterms.
- [41:14]
B
Right, yeah.
- [41:15]
A
This commission was created by Congress after all of the problems in Florida during the 2000 presidential election. Remember the hanging chats and all that stuff. Yeah. So the commission is supposed to act as a check for fair elections around the country. But what has Trump done? He fired everybody. Right. That was there on the board, and as a result, the board has no members, period. He's not going to put his own people in. He just has kneecapped the board by eliminating everybody. So now it has no members. It can't do anything. So the newly expanded power of the president to fire regulators isn't just to bring regulators under Trump's direct control. It also allows him to completely hollow out these agencies. You don't even have to fire everybody if you fire enough people. So there isn't enough of what we call a quorum or a legally required minimum, then the people on the board or a commission also can't do anything by law. So you can also kill the agency through neglect. So the Slaughter decision is much broader in its consequences than just, I don't like you, I want somebody else of my own choosing.
- [42:22]
B
Right, Right. And that, presumably that's a little harder to undo later on.
- [42:27]
A
Right?
- [42:27]
B
Yeah.
- [42:28]
A
And then there's a second aspect of partisanship, and that comes from the Supreme Court. So Slaughter might seem like a green light from the Supreme Court for any president of either party to use agency power really aggressively. Right. That would be the unitary executive theory. In theory. Right. But you know what? If a Democratic president wanted to use agencies in a maximalist way, it's a pretty good bet that the Supreme Court would find a way to stop it. How do we know? From experience. Right. Because with the Biden administration, the Supreme Court suddenly acquired an extreme dislike for aggressive presidential use of agency power. So, remember during the pandemic, the Biden administration announced in 2021 it would impose a workplace vaccine mandate. And when Congress created the Occupational Health and safety administration in 1970, it said to the agency, make rules that are reasonably necessary or appropriate to provide safe or healthful employment. Isn't that what a vaccine mandate does? Is not the president using his subordinates to execute policy well, as you remember, the Supreme Court said, no, this is such a big step that Congress specifically in somehow in 1970 would have anticipated there would be a pandemic in 2020 and would say that vaccine mandates like, were exactly what they wanted. It was a so called major question that Congress didn't specify and that's why the agency couldn't do it. No vaccine requirement in workplaces. Then in 2022, remember, Biden announced a major student loan forgiveness program and that was supposed to be administered through the Department of Education. Now, Congress had given the Secretary of education after 9, 11 the power to waive or modify. That's pretty broad, right? State student debt in the case of emergencies. What was the Supreme Court's response to Biden? No, that's such a big step. You can't do that unless Congress specifically said in the statute that you're allowed to do this end of major student loan forgiveness. So the Supreme Court definitely supports the idea of a unitary executive, but it appears only of a certain kind.
- [44:35]
B
I think I could have guessed that.
- [44:37]
A
Right. So the other thing to keep in mind is that these are not just abstract cases about presidential power. You might remember that when I originally introduced the case, Trump fired two commissioners of the ftc, Rebecca Slaughter and Alvaro Bedoya. Two people. You'll notice that only Slaughter's name lives on forever in the caption. Right?
- [44:57]
B
Yeah. Why is that?
- [44:58]
A
Well, after filing a lawsuit against the Trump administration with Rebecca Slaughter, Bedoya notified the federal district court that, well, I continue to believe I was unlawfully fired, so I really, I'm not going to take it on another job because I should have this job. Right. But three months later, after his firing, he informed the court that he could no longer be part of the lawsuit because he could no longer go without any source of income to support his family. And so he was compelled to formally resign from the ftc. And so the district court then dismissed his claims as moot. So these are never just about principles. Right. They're about people who actually lose their jobs and have to support their families.
- [45:37]
B
Why can't you just take another job while you hold the job at the FTC that you've been. You know what I mean? Like, is that possible?
- [45:42]
A
I guess under the regulations, he's just supposed to be a full time FTC commissioner.
- [45:47]
B
Amazing. Amazing.
- [45:48]
A
Yeah. As a mess. You know, it allows only people who can afford to go through this really protracted lawsuit and litigation with very expensive lawyers to try and see if they can win. Of course, Slaughter did not win and
- [46:00]
B
abuse and Harassment and being brought up by candidy or whatever the fuck, you know, it's like just. It's just. It's misery to go into one of these things. No one does it for fun, you know?
- [46:11]
A
Right. And, you know, if. If we're now in a post slaughter world, and that means that there's a lot of vulnerability. I think the main thing is in the midst of all this uncertainty, there will be even more cases where for the federal courts, including the Supreme Court, to try and decide and refine what they left up for questions in the Slaughter case. But in the meantime, I think that what that means is a lot of people who feel like, I cannot lose this job in the federal government totally. They will be restrained in ways that we would not want them to be when it comes to doing their jobs.
- [46:44]
B
Yeah, yeah. The fish scientists are nervous, and you don't want them to be nervous. They do good work. Let them count their fish in peace.
- [46:53]
A
Oh, I have a postscript for you.
- [46:54]
B
Oh, yeah, please.
- [46:56]
A
So remember Mario Fabrini, right?
- [46:58]
B
Yeah. Yeah.
- [46:58]
A
His business never really recovered from the mushroom recall. And the lab mice who died after eating his pizza, well, tests later showed that they actually didn't die from botulism. Fabrini told a reporter, I think it was indigestion. Maybe they did not like my pizzas.
- [47:19]
B
Wow. Wow. It's like. It's so funny that, I mean, in this specific case, you know, the administrative state was wrong, but does that mean that they were wrong at all?
- [47:30]
A
You know, the intention was good and for Brini wasn't actually required to destroy his pizzas in the great Michigan mushroom funeral, but, you know, he was trying to be safe and do the right thing? And. Yeah, these kinds of mistakes do happen.
- [47:42]
B
Yeah. Is the Supreme Court, like, anticipating or picturing a world in which the constant threat of explosive diarrhea just makes people vote differently? You know what I'm saying? Like, they're trying to find a democratic outcome for this in some way that you just. That you would tie the lack of regulation to your vote and therefore vote differently and therefore have different outcomes. Is this a part of their worldview, is that there's just democratic solutions to all these things? Small D democratic solutions to all these things?
- [48:15]
A
I think so. Although they never really specify how that's supposed to work, given with, you know, if that's their suggestion, they're not doing a good job in their decisions on gerrymandering and their other election politics. I guess we're supposed to figure out who's responsible. We can Blame the President, I guess. But since we only vote for President every four years and the social economic problems we have happen kind of on a daily basis, I mean, that's really hard for people to do anything about. And, you know, ultimately, I'm not even sure in a way that Republicans want the total destruction of the administrative state because it's been such a helpful boogeyman to attack for all these years. What if there is no administrative state? Then are we going to have the President personally do everything? No.
- [49:01]
B
Yeah. Yeah. It's the weirdest thing. It's the weirdest worldview, and I don't understand it. I don't understand why people don't appreciate clean water and food without diseases in it and all these things. Like what world do they really want? It confounds me.
- [49:19]
A
Yeah. I mean, I think it's a world in which ultimately the regulations help the people who are least able to advocate for themselves and the people who, certainly the rich don't have to care about a lot of these regulations. They don't often apply to them, and they can insulate themselves in all kinds of ways by purchasing the things that are safe and good for them while the rest of us kind of live in an entirely different environment.
- [49:45]
B
Right. I don't even know what to do. It doesn't sound like it's any chance of changing at all. This is really the path that we're on. A non Humphreys executive world is kind of where we're set for a while.
- [49:58]
A
I think. That's right. A lot of our assumptions about the Progressive Era view of experts for the public good, it definitely has eroded.
- [50:07]
B
We're doing a piece on the Hundred Objects series about the Pendleton Act. It comes up as a thing. And I make the case that the Pendleton act is the reason why the 20th century is the American century. Like a competent government was the reason why we could fight and win wars and everyone didn't die in depressions and things like this. But those things, those notions are so just separate and discreet for people. The idea of what regulation, the idea of what federal bureaucracy, incompetency, what we get out of that. I think people have just lost all touch of reality with what that gave us in terms of the 20th century.
- [50:48]
A
Yeah. And part of the administrative state, what it does is it offloads on those agencies are the overwhelming responsibilities of living a modern life. If you didn't have those agencies, how could we know that anything is safe? You know, the minute we step out the door or feed our families? I mean, that offloading has led people to prosperity. Right. I don't have to worry. I can eat my salad and think, I'm not gonna die.
- [51:12]
B
Yeah. Yeah. For real. I just don't get it. I don't get how we could lose touch with this and not recognize what competency gives us. It gives us so much, and it just kind of blows my mind, I think.
- [51:28]
A
It's not just competency. It's been a successful selling of this idea of, like, that the modern world is really about totally pure individualism. Right. That there is no public good that you need to be aware of or that you need to contribute to.
- [51:41]
B
Right. But they think that through the safety of federal bureaucracy, incompetency, like, the reason why they feel so safe and that they could take on the world by themselves is because the roads have been paid, the food is clean, the water is clean, the air won't kill you when you breathe it like that. That's what affords them this fantasy land that they could survive on their own. But it's just absolutely insane to think so.
- [52:03]
A
Right? It's a version of, like, why should I pay for the fire department? I don't see any fires.
- [52:07]
B
Exactly. Anyway, it is my goal to, like, to champion the administrative state from here on out. I'm just. This is the. This is. This is the corner I'm going to stand on and fight for. Thank you so much, Elizabeth. I appreciate it.
- [52:20]
A
Thanks, Roman.
- [52:26]
B
This show is produced by Elizabeth, Jo, Isabel angel and me, Roman Mars. It's mixed by Martin Gonzalez. Our executive producer is Kathy Tu. You can find us online@TrumpConLaw.com all the Music and what Trump can teach us about Con Law is provided by Doomtree Records, the Midwest hip hop collective. You can find out more about Doomtree Records, get merch and and learn about who's on tour@doomtree.net we are part of the SiriusXM podcast family.
- [53:12]
A
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- [53:41]
B
21.