SCOTUS Expands Presidential Power

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2:00This is Bloomberg Law with June Grosso from Bloomberg Radio. In a 6-3 decision down ideological lines, the Supreme Court expanded the president's power to fire top government officials at federal agencies for any reason. It's a blockbuster decision that puts the White House firmly in control of potentially dozens of agencies that have long operated independently, overturning a 90-year-old precedent in the process. But in a 5-4 decision, the court carved out an exception for the Federal Reserve, reinforcing the Fed's independence from the White House and protecting governors from being fired by the president without proof of wrongdoing.

2:49Chief Justice John Roberts and Justice Brett Kavanaugh joined with the court's three liberals to make up the majority in the case over the firing of Fed Governor Lisa Cook, an outcome closer than advocates of federal independence might have liked. Chief Justice John Roberts wrote the majority opinions in both cases. My guest is an expert in administrative and constitutional law, Jillian Metzger, a professor at Columbia Law School. Would you say that the court drastically expanded presidential power, even though he doesn't have the power right now to fire Lisa Cook? I think it did. I mean, whether this was the expansion or the recognition of what the court had done before, you might quibble on.

3:36I think the court had all but overturned Humphreys' executor in some of its earlier decisions. It's a little bit unclear to me exactly what Cook means in practice. You know, I read one thing where Trump is saying he's going to go ahead and do it again. We'll get a chance to see. But the court really does emphasize in Cook that the removal for cause would be judicially reviewable, rejects the idea that it can't be, and also has language that emphasizes the need for that review in order to protect the actual independence and goes out of its way to emphasize that notwithstanding slaughter, it sees the Federal Reserve as different.

4:14So I think it's unclear exactly whether in practice they would be willing to tolerate pretextual firings, you know, just because the president provides some notice and opportunity for hearing. And that said, what they specify as required is notice and opportunity for hearing are not that elaborate. My guess is that the protection will likely come from the judicial review afterwards rather than the procedures they outline. But I think, again, we have to see how that works in practice. The chief wrote the majority opinion in the Cook case as well as in the slaughter case. Explain his reasoning in the case of Fed Governor Lisa Cook.

4:53So Cook came up before the court on an emergency application for a stay. So the question the court focused on is whether or not the government was likely to succeed on the merits to justify granting a stay. The courts below had granted injunctive relief in Cook's favor against the government. And the government made a number of arguments of different degrees of radicalness. They argue that the president had found cause. They argue that the president's determinations were totally unreviewable. They suggested that requiring cause of review might be unconstitutional. So it's an argument that actually Thomas makes in his opinion, but the government itself didn't really push that argument.

5:32They accepted that the court had held and suggested, I think calling it a holding would be going too far, But it suggested in Wilcox that the Federal Reserve was different and you could have for-cause removal in the case of the Federal Reserve. So that issue was in the case, but not really addressed. And the majority does go ahead and sort of briefly address this and says that at least the Federal Reserve, as connected to its monetary policy functions, the precursors for which are the first and second bank of the United States, in its view, the Fed in that regard can be an independent agency with for-cause removal.

6:02And there's some debate among the justices about whether or not the court should do that. And you have Barrett dissenting, saying, hey, you know, on an application for stay, this is a tough issue. We've just done slaughter. We should think about it differently. But really animating the majority seemed to be a great deal of concern to not have questions about the independence of the Federal Reserve be lingering out there. I mean, so we don't know what they would consider for cause? They give us some description. They emphasize the common law basis for the protection that gives us some indication.

6:32They indicate that there's a procedural component to it as well, coming from the common law. The lower court had decided on other grounds, so they didn't have lower court decisions. The lower court had found that cause didn't include conduct taken before assuming office, and then also a due process violation. And the D.C. Circuit had kind of emphasized the due process violation. So you didn't have a lot of lower court opinions spelling it out in detail. And so the fact that the court remanded for that determination kind of makes sense, I think. That said, there's a tension between the court saying we don't want to leave open questions about protecting the Fed and the fact that all it specifies is fairly thin procedure, but then judicial review, which seems to be perfectly expectable that what's going to happen is the president is going to remove again.

7:19So we'll either get some elaboration and maybe this time the court won't review the lower court's granting of an injunction if they do, feeling like they've now opined on it. But we'll see. Trump said on social media, quote, We will take appropriate action immediately to make sure that someone who has committed wrongdoing will not be making vital decisions concerning the welfare of the United States of America. So is the court giving Trump leeway to fire Cook again, but giving her a notice and a hearing? Because the president didn't give any notice and any opportunity for hearing, the removal that was done seems not to meet the requirements of the decision in Cook, I would say, on the procedural grounds.

8:02That leaves the question of whether if you were to provide notice an opportunity to be heard as the court specifies, but to go ahead and remove nonetheless, what kind of substantive accounts would be considered to be caused and how strictly that would be reviewed. So, I mean, most likely, if the president goes forward with what he says, then this is going to end up at the court and wouldn't they have to take it? Usually, I would say this is the kind of thing that the court would take. But having taken it, and one of the things they also do is they do specify that they think that the threshold for what counts as cause, although not as high as Cook specified, is still fairly significant.

8:38And they do emphasize the importance of the Fed's independence. And they do say that whatever counts as cause has to be tied to the purposes of the Fed and its goals. And so those provide some real basis to restrict, to give cause some meaning. And that's also some degree of guidance to the lower court. So if a lower court applying that guidance, as the court envisions what happened, comes to the conclusion that what the president has done is not cause, and that gets affirmed by an appellate court, I'm not sure that the court would find it necessary to engage further on that. Then we had this six to three decision down ideological lines in the slaughter case.

9:16How did they distinguish this? Is it, well, the Fed is different from all these other agencies? Honestly, I think it is. I have to say that the decision in both these cases, how they came out, was expected. I found slaughter really disappointing in its reasoning, in its thinness. I mean, a lot of the court's recent decisions have been thin, the majorities. And one of the things that they just don't deal with in any fair way is the historical evidence. And this opinion, you know, there was great briefing on this. Or is it now at this point a substantial amount of historical evidence and debates, historical debates, to be sure, about the extent to which you had removal protections, or the extent to which it was clear that the president had at will removal power at the time of the founding.

9:59Serious historians have engaged and studied this. And I certainly think the balance of that evidence pretty significantly does favor the idea that there were a number of different kinds of controls that were imposed, and that the historical record is not at all that the country had come to agreement that the president had at will removal power in 1789. And the court, you know, references some of that in taking on the dissent. But really, its treatment of the history is so pathetic. It's so thin. It's so unserious. This matter, and we're talking about the structure of our government and precedent of the court that Congress has relied on and the country has relied on.

10:34And it really, it's such a one-sided treatment, citing only a couple of scholarship at the point when the opinion discusses the history and claims that this was all decided in 1789, you know, just cites one side of the debate. No academic would ever do that. No serious treatment of the issue should ever do that. And then when the court does engage with some of the counter history, it's just dismissive of it, the way it sets it up in treating the dissent. It doesn't really take seriously. Actually, the historical record here is really not in its favor, but certainly at a minimum, unclear, as people, scholars of both sides have acknowledged.

11:07And that does really, I think, affect the strength of the majority's argument. I mean, the majority's argument has been, as it has been in all these cases, it's the constitution vests the executive power in a president. And that means all the executive power in the president. And they gave up and didn't want to have any kind of board that wouldn't be on a single person in order to preserve energy and effectiveness. And that therefore means the president has to have removal power at will. As a structural inference, there are huge leaps there. It doesn't follow from the fact that the Constitution vests the executive power in the president, that Congress can't impose any limits on that removal power.

11:41Some of this might go too far, but the court just says the two are the same. They're not. They're logically not the same thing. And there's a very interesting bit where the court also just rejects out of hand the historical, in fact, for the last 100 plus years, 150 years now, we've had independent agencies by suggesting that just because we've deviated from the true path the meaning of the Constitution, the court's obligation is to go back to it. But what's fascinating is that the unitary executive theory is itself a modern day creation. The court is giving voice to a theory and understanding of the structure of the Constitution that really took hold in the 1980s with the Reagan administration.

12:22And so it's just a deep kind of tragic irony that it can't see that what it's doing is exactly... And in some sense, to my mind, if you want to give a good argument for the unitary executive, it would be that we have through that constructed an argument for presidential control and for presidential centrality over the administrative state that didn't previously exist. You could make that argument, but the court doesn't make that argument. It just makes this incredibly thin argument based on its own structural inferences, claims about the text, ignoring the historical evidence. This law passed by Congress right in 1914 permits a president to remove FTC commissioners only for cause.

12:58And this court has repeatedly said that this or that is up to Congress. But here Congress said something, Congress did something, and they're saying, no, it's up to us. Yeah, I mean, that actually is one of the important points here. The way the separation of powers, and this is a point that dissent makes, is that the separation of powers for much of our history has been something that the political branches have worked out. They've hashed it out. It has not been something that the court has been. The court certainly has had decisions making important points, Marbury versus Madison and the importance of independent judicial review in 1803.

13:35But the separation of powers and the sort of balance between the executive branch and the legislative branch has really been left to the political powers to work out for long swaths of that period. And this court has really just charged up the separation of powers on steroids. And the net effect has been that, I mean, it empowers the executive branch for sure, but it really empowers the judiciary. It's the judiciary that makes the determinations and has the power to say basically, you know, we're going to cast aside 150 years of governance in this country and the political compromises that result in that.

14:09So there are more than two dozen agencies and they deal with everything from nuclear safety and air traffic safety to labor relations and the environment dissent that this ruling will engulf the government in confusion. I mean, with Trump at the helm, do you think that we're going to see confused political decisions now? Or I mean, how do you think this will work on the ground? So on the ground, he's already transformed a lot of these agencies because he's just gone ahead and fired them, even though, and he's now been vindicated by the court in slaughter. So in that sense, at the top of these agencies, of the independent agencies, slaughter is reinforcing what the president has been doing.

14:49I think the critical questions, and I think they're really, really core questions, are how broad is the import of the court's decision? Are we talking about principal officers at the top of independent agencies? All of the recent decisions, Sela law involving the CFPB, Collins versus Yellen, the Free Enterprise Fund, all of those dealt with the members of a body that was the governing body, not in particular the officers below them or the employees below them. In other words, are we talking, and this is one thing that Sotomayor stresses in her dissent, are we talking about the constitutionality of the civil service?

15:27You look at the language of the majority opinion, where it says, what text, history and structure settle our precedent confirms, the president may remove his subordinates at will. Well, employees and inferior officers are the president's subordinates under the unitary executive theory. And if you take that logic seriously, then this isn't just about principal officers. This is all the way down. And that is transformative beyond belief. That is chaos beyond belief. That is just a fundamental redoing of how our government has operated ever since the spoil system of the 1830s. There is precedent.

16:02The court doesn't really address at all the Perkins decision. So it could distinguish. It's not Myers, the case Humphreys executive, the case that it overturns here. That's critical for inferior officers. And the civil service is a case called the United States versus Perkins goes back to 1885. But its logic and reasoning can really be read that broadly. And so that to me is the big thing to pay attention to. I often wonder, you know, with this unitary executive theory, which they've been expanding Trump's authority or the presidential authority, but what happens when a Democratic president comes in?

16:37Do these six conservatives then rethink what they've been saying? Well, they've been doing two separate things when it comes to executive power, right? So on the one hand, they have been in decisions like slaughter, affirming the president has, you know, this single handed control over all the executive branch. On the other hand, they have been insisting on narrow readings of regulatory authority by administrative agencies. They have been drawing distinctions between in that sense, what you could call administrative power and this kind of presidential removal power. So take the major questions doctrine, right, which has developed at the same time as the court has been doing this restrictiveness on removal.

17:18Well, what is major question? Major questions limits the ability of agencies to regulate. And so the president has more power and agencies can do less. Now, if you're an anti-regulatory court, which I think this court fundamentally is, that's just fine. And one advantage of that approach is if you're an anti-regulatory court and a Democratic president comes in, the Democratic president can still be constrained in terms of the ability to exercise administrative power. Justice Gorsuch, he has always been expressing concerns about sort of the delegation of broad regulatory power. He's been quite consistent in that.

17:52And he has a concurrence which addresses much more honestly than the majority does, that the effect of this decision is to grant the president tremendous control over not just executive power, but also a bunch of regulatory and adjudicatory kinds of actions that agencies do. and that's a significant expansion of presidential power. But his suggestion is to pull back on the ability to delegate those powers to agencies at all. So again, it's very anti-regulatory. Well, the administrative state took another massive hit today from the Supreme Court. Thanks so much for your insights, Jillian. That's Professor Jillian Metzger of Columbia Law School.

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21:14Today, the Supreme Court dramatically expanded presidential power upholding President Donald Trump's firings of the heads of independent federal agencies with one critical exception, the Federal Reserve. But other than at the nation's central bank with its role of setting interest rates, the court held that presidents have free reign to fire agency heads at will, despite federal laws that require a cause for such dismissals and a 91-year-old decision that has limited executive authority. That ruling came in the case of former Federal Trade Commission member Rebecca Slaughter, whom Trump fired without cause, despite a provision of federal law that requires a reason.

22:00In the Oval Office today, a reporter asked President Trump what effect the Slaughter decision would have. The question on the Slaughter case, the Supreme Court just affirmed your right to fire the heads of independent agencies. Should we expect more fire as a result of this rule? I don't think so. It gives me the right. And not me. It gives a president the right to do what the president should have the right to do. And it's very interesting. It's a big ruling. It's been going on for almost 100 years. They've been working on this and, you know, that it comes down at my term is a very great honor.

22:33But it bestows additional powers or maybe the same power on the president. The president has the right to do this. And that has to do with a lot of agencies all throughout the system. So it's considered the biggest of the group. And I can understand that this has been going on for almost 100 years. They've been waiting for this. My guest is constitutional law expert Harold Krent, a professor at the Chicago-Kent College of Law. Hal, did President Trump and future presidents gain power today from the Supreme Court's decisions? The Supreme Court, through the slaughter case, considerably augmented presidential power.

23:12And it has done so consistently over the last generation. And it's now presidential power really is at its zenith. And we've seen that by the courts basically disabling Congress from creating independent agencies. So the slaughter case is six to three down ideological lines. So now there are no restrictions on the president's ability to fire federal officials or federal officials at the helm of these agencies? Where does it end? I'm not sure where it ends. I mean, one of the two question marks that arise, one the court addressed, one that didn't, is, you know, what about the civil service laws?

23:52Are we next going to expand this and say that the president should be able to fire all federal employees or only those who are at least superior officers, as was the case in the slaughter case itself? So we don't know where the line jar will be. Certainly, President Trump has said that the president's removal authority should not stop with the superior office, should also be extended to inferior office, should also be extended to civil service employees. But whether the court will take that step is unclear based on this decision alone. But the second issue is that the court did say that not all offices created by Congress contemplate the exercise of executive power.