Legal Docket: The power to fire

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NICK EICHER, HOST: Today is Monday, the 22nd of December. Glad to have you along for today’s edition of The World and Everything in It. Good morning. I’m Nick Eicher.

JENNY ROUGH, HOST: And I’m Jenny Rough. Time now for Legal Docket.

Last March, President Donald Trump fired two members of the Federal Trade Commission. One of them, Rebecca Slaughter, says she found out . while at a place married mothers of four often find themselves.

This is what she told CNBC:

CLIP: I was actually at our local elementary school when I found out I was fired. Almost immediately my devices stopped working. I was told my access to the building would be cut off.

EICHER: The White House said the President was simply doing his job as chief executive: to align the FTC with the priorities of the new administration.

LEAVITT: KL Go ahead.

REPORTER Thank you. On the FTC, two quick questions

This is a White House press briefing in March.

_{REPORTER: Can you explain the president’s thinking and his decision to fire the two Democratic commissioners, especially given that … there would be Republican majority. My biggest question is, why now?}

_{LEAVITT: Sure, because the time was right to let these people go, and the president absolutely has the authority to do it, and they were given ample notice in a letter that I believe your outlet reported on. So it pretty much explains exactly why this administration chose to let those individuals go …}

_{REPORTER … Is the ultimate goal to get this to the Supreme Court, to try to overturn the 1935 precedent?}

_{LEAVITT: The goal was to let these individuals go. If we have to fight it all the way to the Supreme Court, we certainly will.
Rachel}

_{REPORTER … back to those deportation flights to El Salvador.}

The administration certainly did … and that’s our Legal Docket case for today: Trump versus Slaughter. Only Rebecca Slaughter, because the other Democrat commissioner let go chose not to fight.

Slaughter, although locked out, is pressing on.

Narrowly, the case involves the president’s ability to direct the priorities of the Federal Trade Commission. The FTC regulates businesses as they relate to consumers. As Slaughter describes the task, the commission is to act as a watchdog against fraud and consumer scams. But FTC does much more than that: Just last year, for example, it blocked a merger of grocery giants Kroger and Albertsons. It goes to court, too, as she explained to CBS News:

CLIP: We’re currently suing pharmacy middlemen over the high price of drugs like insulin. We’ve passed rules to prevent junk fees and to make it easy as easy to cancel a subscription as it is to sign up for one, … Yeah, we're the cops on the beat for kids, privacy and on and on

ROUGH: Congress established the FTC in 1914 through the passage of the Federal Trade Commission Act. Congress designed the FTC to have five members serving staggered terms. No more than three members can be from the same political party. Slaughter is a Democrat.

EICHER: The FTC falls under the executive branch. But Congress designed it in a way that limits the president’s ability to remove commissioners. The law says a president can only fire a commissioner for “inefficiency, neglect of duty, or malfeasance.”

Because Trump didn’t fire her for one of those specific reasons, she had grounds to sue

ROUGH: Bob Pushaw is a constitutional law professor at Pepperdine Caruso School of Law. He phrases the driving question in the case like this:

PUSHAW: The overall question is: Can Congress create people in the executive branch who are independent of the control of the president, the chief executive officer?

EICHER: Said differently: Does a president that the voters elected have the authority to fire commissioners at will?

Slaughter says he doesn’t. Here’s why. Audio from CNBC.

CLIP: Because the laws of the United States say that he can’t. … The laws that were passed by Congress, signed by a president, have been in place for a century, have some limited protections on the president’s ability to control these independent agencies.

ROUGH: Ninety years ago, the Supreme Court heard Humphey’s Executor versus United States and found those laws constitutional.

In a very similar set of facts, President Franklin D. Roosevelt fired Federal Trade Commissioner William Humphrey because Humphrey didn’t agree with the president’s policies. The Supreme Court upheld the same federal statute here … saying a commissioner can only be fired for specific reasons.

But Trump says the law and the Humphrey’s Executor precedent violate his powers granted by the Constitution. Specifically, the part that says: “The executive power shall be vested in a President of the United States of America.”

EICHER: Trump argues the language of the Vesting Clause should be understood as giving the president unfettered discretion to control the entire executive branch, including independent agency officials. It’s known as the unitary executive theory.

Pushaw again:

PUSHAW: I mean essentially, Congress meets in sessions and has 535 members. …All legislative power is not vested in the Speaker of the House. … The Supreme Court meets in sessions, has nine members. … Like all judicial power is not vested in the chief justice. … So essentially, the unitary executive people are saying, read Article II. Executive power shall be vested in the President of the United States. Period.

At the Supreme Court, that’s exactly what Solicitor General John Sauer argued on behalf of the Trump administration.

SAUER: We think the text of the Constitution confers the executive power, all of it, on the president.

ROUGH: But Justice Elena Kagan wanted to unpack the way these independent agencies operate in the real world.

KAGAN: If there’s one thing we know about the founders, it’s that they wanted powers separated. … They didn’t want them all in one place. They wanted them separated across the government, across the different branches.

That’s why the founding fathers divided the national government into three branches.

KAGAN: They wanted the executive—

to enforce the laws—

KAGAN: the legislative—

to make the laws—

KAGAN: the judicial—

to interpret the laws.

EICHER: You may notice something missing: Independent agencies. Where do they fit in this constitutional framework?

And things get enormously complicated fast because agencies like the FTC perform functions of all three branches. The FTC creates trade regulations … it makes laws. It enforces the law by investigating consumer fraud and preventing what it sees as unfair competition. Additionally, it has a specialized tribunal where administrative law judges hold hearings and issue binding rulings.

Justice Kagan affirmed that many people think that’s a real distortion from what the founders intended.

ROUGH: But, for better or worse, our government did go down that path. Justice Kagan said we need to deal with the government as it has evolved. Otherwise—

KAGAN: You end up with massive, uncontrolled, unchecked power in the hands of the President. … Not only to do traditional execution but to make law through legislative and adjudicative frameworks.

Amit Agarwal represented Slaughter. He relied on the long history of government agencies and Humphrey’s Executor.

AGARWAL: Multi-member commissions with members enjoying some kind of removal protection have been part of our story since 1790. So if Petitioners are right, all three branches of government have been wrong from the start. … And this Court was wrong to repeatedly bless those laws and to unanimously uphold the exact same removal provision at issue here in Humphrey’s Executor almost a century ago.

EICHER: Sauer for the Trump administration pointed out the court has chipped away at Humphrey's Executor over the years, including a recent case from 2020.

SAUER: Humphrey’s must be overruled. It has become a decaying husk with bold and particularly dangerous pretensions. It was grievously wrong when decided. … It continues to tempt Congress to erect at the heart of our government a headless fourth branch insulated from political accountability and democratic control.

Justice Sonia Sotomayor said overturning it would have seismic effects.

SOTOMAYOR: You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent. … Where else have we so fundamentally altered the structure of government?

Sauer said it was Humphrey’s Executor that ushered in the alteration. Agencies grew under President Woodrow Wilson and, later, the New Dealers and Congress ran with it. In Sauer’s telling, They were the ones who destroyed separation of powers as classically understood.

ROUGH: Justice Ketanji Brown Jackson conceded that the Constitution gives the president broad powers. But it does the same for Congress.

JACKSON: The text of the Constitution includes the Necessary and Proper Clause, which gives Congress the authority to determine, set up, et cetera, these agencies to protect the will, the interests, of the people. So we have a conflict, I guess, and I’m just wondering why the president’s interests, in the way that you describe them, win.

Bob Pushaw, the con law expert, says this is worth thinking about.

PUSHAW: The idea, and I think what Jackson’s point was, which is a very sound point, is why can’t Congress decide that it is necessary and proper to have certain agencies be independent of the President when dependence on the President might screw up the policy and the statute Congress is enacting.

Justice Jackson also expressed concern about hampering the design of Congress to leave certain matters to nonpartisan experts.

JACKSON: So having a president come in and fire all the scientists and the doctors and the economists and the Ph.D.s and replacing them with loyalists and people who don’t know anything is actually not in the best interest of the citizens of the United States.

Justice Brett Kavanaugh wanted to confirm that a decision in favor of Trump would be a limited cut to the way our government operates:

KAVANAUGH: I want to make it crystal-clear, that over-ruling or narrowing Humphrey’s Executor would not threaten the existence of these agencies but only would alter how the heads of those agencies can be removed, correct?

SAUER: Correct.

EICHER: The justices asked both sides where to draw the line.

If the president can fire FTC Commissioners at will, logic would say he could do so with other agencies.

If the president cannot fire agency leaders at will, could Congress convert cabinet posts into agencies in order to shield them from presidential control?

ROUGH: Quickly, two more things: Justice Neil Gorsuch suggested it’s time for the court to reinvigorate doctrines that limit the ability of Congress to delegate its legislative authority.

And Justice Samuel Alito made this remark:

ALITO: It certainly is an interesting argument. It’s an interesting constitutional argument. It’s an interesting political science argument about the advantages and disadvantages of allowing Congress to impose removal restrictions on executive branch officers.

I asked Professor Pushaw his take.

PUSHAW: I’m an originalist. I think the unitary executive theory is correct. And I think that what we have is an unaccountable blob of administrative agency bureaucrats. I mean, if you read the Constitution, I think the language is pretty clear. The executive power of the United States shall be vested in the President of the United States, not the President of the United States comma, and a bunch of independent agencies and people outside his—that’s not what it says. And the President has a duty to take care of the laws, be faithfully executed, and he can’t faithfully execute the laws if he can’t control people who are underneath him.

But where will all of this lead?

Next month, the court is scheduled to hear Trump versus Cook, about the president’s attempt to fire Federal Reserve Governor Lisa Cook. A ruling here that favors Trump should logically extend to the Fed. And that could give the president the power to control monetary policy. But the court is going to take up a question of whether an exception applies. We’ll have that for you in the coming weeks.

And that’s this week’s Legal Docket.

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