SCOTUS Poised to Give Trump More Power

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1:39This is Bloomberg Law with June Grosso from Bloomberg Radio. The Supreme Court's conservatives appear poised to give the president control over potentially dozens of independent federal agencies, overturning or narrowing a 90-year-old precedent called Humphreys' executor that limits when presidents can fire agencies' board members. At oral arguments, they suggested they'll let President Trump fire Rebecca Kelly Slaughter from the Federal Trade Commission, despite a law that says commissioners can only be fired for specified reasons. The liberal justices expressed alarm at giving the president unchecked authority over about two dozen agencies that regulate areas like nuclear energy, product safety, and labor relations.

2:32Here are justices Sonia Sotomayor and Elena Kagan. 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. So the result of what you want is that the president is going to have massive, unchecked, uncontrolled power not only to do traditional execution, but to make law through legislative and adjudicative frameworks. But the conservative justices like Brett Kavanaugh say the real concern is Congress's creation of agencies that exercise executive power but aren't accountable.

3:24Independent agencies are not accountable to the people. They're not elected, as Congress and the president are, and are exercising massive power over individual liberty and billion-dollar industries, whether it's the FCC or the FTC or whatever it might be. My guest is constitutional law expert William Traynor, a professor at Georgetown Law. Bill, tell us about the issue in Kelly Slaughter's case against President Trump. The issue before the Supreme Court is that Congress puts limits on when the president can fire the heads of independent agencies. So an independent agency is like the Federal Trade Commission or the Federal Reserve.

4:09So really, since the start of the Constitution, Congress has imposed limits on when the president can fire these people. The question in the case is whether that's unconstitutional, whether the president can fire the head of an independent agency for any reason, even if Congress has said they can only fire them if they're engaged in bad behavior. So this is a very big deal. So much of the government structure that protects people in different ways or regulates the economy is done through independent agencies. Congress has wanted to insulate them from total executive control. And the Supreme Court is deciding right now whether, in fact, the president has the kind of control that comes with being able to fire the leaders of the agencies.

4:52In these oral arguments, you often hear the Supreme Court justices say, well, that's a job for Congress. You know, that's not something that we should be interfering in. So why are they interfering here where Congress has set up these agencies and the rules? That's a great question. There have been so many times in which the court is saying, this is a political matter. We shouldn't be deciding. But at the same time, the conservative justices of the court are very dedicated to what's called the unitary executive theory, which means that the president is in total charge of the executive branch. So what they're saying here is Congress doesn't get to be involved.

5:36The president is in total charge of the executive branch, including what have historically been things like the independent agency. That is kind of one of the core commitments that has really been at the basis of what Chief Justice Roberts has thought, really going back to when he was a young attorney. And that's the same thing for most of the members of the whole conservative wing. What kind of concerns did the conservative justices express during the oral arguments about this 90-year-old president, Humphrey's executor? There are two things that we're seeing the conservative wing of the court struggle with.

6:14One is they want the Federal Reserve to continue to be independent. They don't want the president to be able to fire the commissioners of the Federal Reserve. And they don't want that because, you know, that would be terrible for the economy. If the Federal Reserve is setting interest rates just in order to help the president rather than to help the economy, that would be a disaster, be a disaster for the market, it would be a disaster for the economy as a whole. So the conservative wing of the court, I think, wants to overturn Humphrey's executor, but they're trying to come up with some rationale in which they can say the president can fire somebody on the FTC, but he can't fire somebody on the Federal Reserve.

7:02And they're going to be looking at the Federal Reserve later in the term. That's a big concern for them. So I think that animates all of the conservative justices of the court. I think also, you know, what I'm hearing with the chief justices, what he's trying to do is to come up with some way in which there's some agencies where Congress can, in fact, limit the president's ability to fire people. And he's thinking about, you know, are there ones that are essentially kind of judicial in their function? And, you know, that may be an area in which Congress can establish requirements for when the president can terminate somebody.

7:42But that's not the Federal Trade Commission. Federal Trade Commission is not making judicial decisions. It's very much deciding executive-type rules. So I think we're seeing two things on the conservative wing of the court. One is they're trying to come up with some way in which they can say the president can fire somebody at the FTC but not at the Fed. And I think the chief is trying to come up with some way in which there's some type of agencies in which the president can be limited by Congress. But those would be ones that are really, really deciding kind of quasi-judicial matters, not the FTC.

8:19And, you know, he's going back. There's a case from the 1950s involving something. There was the War Commission. It was basically, you know, making judicial type decisions involving people. He's trying to preserve that line of precedent, you know, even as he overturns Humphrey's executor. The liberals painted a dire picture of what would happen if Trump wins here. Justice Sotomayor said to the Solicitor General, you're asking us to destroy the structure of government. Do you think it's that serious? I think that's absolutely right. You know, we have had independent agencies, which largely exist to protect people of limited power.

8:58You know, and they've been in place really for 100 years. You know, and the idea is that these should be basically bipartisan or apolitical. They should not just be tools of the president. So, you know, what the court is considering right now is whether that whole kind of structure gets gutted. So the stakes on this are huge. Well, President Trump wasn't specifically mentioned by name. two of the liberal justices, Elena Kagan and Ketanji Brown-Jackson, did make broad references to his firing of experts and dismantling of the Department of Education. That the more realistic danger here is that we'll have an education department as authorized by Congress by law that won't have any employees in it.

9:48Congress is saying that expertise matters with respect to aspects of the economy and transportation and the various independent agencies that we have. So having a president come in and fire all the scientists and the doctors and the economists and the PhDs 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. This is what I think Congress's policy decision is. Do you think they were trying to remind their conservative colleagues about some of the actions he's taken? So the approach to the unitary executive, you know, what's motivating the court is pretty longstanding.

10:33So people like the chief have for a long time believed that the president should be able to fire the people who run independent agencies. So, you know, for Chief Justice Roberts or for Justice Kavanaugh, the basic legal principle is one that they believed for a long time, long before Trump. You know, at the same time, you know, what we're seeing right now is that in the Trump administration, you know, the independent agencies and all of the government watchdogs, there's an attempt to politicize them in a way that, you know, we've never seen before. So the stakes are very different and they're much higher.

11:13You know, if Humphrey's executor had been overturned, you know, in President Bush 43's administration, the stakes would have been very different because President Bush was not focused on making independent agencies kind of the tool for his politics. But that's what we're seeing with President Trump, and that's why the stakes are so high. They've always been big, but in this administration, where there's such an attempt to kind of move away from scientific expertise and neutral decision-making to control every part of the executive branch, the stakes are huge. And that's really a part of what those three liberal justices were questioning about.

11:58You know, at the same time, I think, you know, the other thing that they really are focusing in on are, first of all, it's very, very hard to come up with some line where you can say Congress can limit the president's ability to fire the heads of the FCC. They can't fire at will the heads of the Fed. You know, it's very hard to come up, and I can't think of any kind of coherent way to distinguish those two cases. And that's one of the things that the liberals were pressing on. I think they're also pressing on the history. If you look at the Constitution, the text of the Constitution doesn't say that the president gets to fire people in the executive branch.

12:39It doesn't deal with removal at all. So there's not a text that really helps the conservative way of the court. and Congress really starting in the Washington administration limited the president's ability to fire people running agencies or kind of what was analogous to modern agencies at the time. So I think what the liberals on the court are focusing on are, first of all, on the text, the original understanding, as well as the huge consequences of essentially giving the president the power to politicize all of the independent agencies. So there's a lot of noise about AI, But time's too tight for more promises.

13:18So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business. IBM. Support for the show comes from Publix. Publix is an investing platform that offers access to stocks, options, bonds, and crypto. And they've also integrated AI with tools that can assist investors in building customized portfolios.

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14:35That's public.com slash market. Ad paid for by Public Holdings. Brokered services by Public Investing, member FINRA SIPC. Advisory services by Public Advisors, SEC Registered Advisor. Crypto services by ZeroHash. Sample prompts are for illustrative purposes only, not investment advice. All investing involves risk of loss. See complete disclosures at public.com slash disclosures. This message is brought to you by Apple Card. Apple Card is designed with your iPhone in mind, making it easy to get started and even easier to use. Apple Card is a no-fee credit card you can apply for right from the Wallet app on your iPhone.

15:10Apple Card has no annual fee, no late fees, and no foreign transaction fees. No fees, period. Every credit card should be this easy. Get started in the Wallet app today. Subject to credit approval, variable APRs for Apple Card range from 17.49 % to 27.74 % based on credit worthiness. Rates as of January 1, 2026. Existing customers can view their variable APR in the Wallet app or at card.apple.com. Apple Card is issued by Goldman Sachs Bank USA, Salt Lake City Branch. Terms and more at applecard.com. I've been talking to constitutional law professor William Traynor of Georgetown Law. Bill, did you sense that any of the conservative justices might vote against Trump here?

15:51I think that the chief may come up with, you know, an attempt to limit the ruling. but, you know, would align with Trump. The only one who I think is at all, you know, based on what I heard, who may vote against Trump is Justice Gorsuch. And I think what he's really struggling with is, you know, he really thinks there are constitutional problems with the whole administrative state. So kind of thinking through how you feel about Humphrey's executor in that context, I think is complicated. So based on what I was hearing yesterday, day. I think he is the only one who I think there's some chance that would rule against the president.

16:32But I think at the end of the day, he probably would rule in the way the president wants. I wonder what happens when there is a Democratic president. Do the conservatives then try to limit the ruling they're expected to make here? You know, one of the reasons why I think that the court should not overturn Humphrey's executor is to the extent that you have any kind of political concerns, you're giving a Democratic president the power to do exactly what President Trump is doing, to politicize every independent agency in the way that that president wants. And then how does a conservative court say, well, Humphrey's executors is back.

17:13Once you establish a rule, it applies to everybody. And that's something that they really have to think through because of the long term consequences, because I don't think they would feel comfortable with limiting a Democratic president after they allow President Trump to fire people whenever he wants. So you think that they will completely overrule Humphrey's executor? You know, I think they will completely overrule Humphrey's executor. I think the one question for me is whether the chief comes up with some limiting principle in which if there are quasi-judicial independent agencies, then Congress can put limitations on the president's ability to fire.

18:00But I think, you know, the basic point is I think they're going to overturn Humphrey's executor. You know, and they've been going in that way for some time. If slaughter is fired, that leaves the FTC without any Democratic commissioners. So then does that mean that you'll have these commissions where when there's a Republican in power, it will be all Republicans on the commission? And when there's a Democrat in power, there'll be all Democrats on the commission? I think that's right. I think that's right. You know, because a Democratic president is going to say, you know, I'm not going to have a bipartisan agency if, you know, in Republican administrations, it's all Republican.

18:44You are setting up something which is new, which is that, you know, independent agencies are not independent. And they just follow what the president wants. That's empowering Trump, but it's also going to empower Democratic presidents in the future. You know, in these areas where you really want nonpartisan, where you want kind of balanced decision making, that's going to go out the window. The court in May called the Fed a uniquely structured quasi-private entity, unlike other independent agencies. And here's what Justice Brett Kavanaugh said during the oral arguments. The Federal Reserve, the other side, says that your position would undermine the independence of the Federal Reserve, and they have concerns about that, and I share those concerns.

19:34So how would you distinguish the Federal Reserve from agencies such as the Federal Trade Commission? And just how would they do that? Again, I think the thing that the conservative wing of the court is grappling with is what's the rationale for saying that Congress can't limit the president's ability to fire the heads of the FTC, but can limit his ability to hire the heads of the Fed? That's what they're struggling with because it would be a disaster economically if the president could fire Jerome Powell. And so, you know, they're struggling. They're trying to thread the needle so that the president can fire somebody at the FTC for any reason but not do the same with the Fed.

20:26And, you know, I think the historical examples to say that the first bank and the second bank of the United States, going back to the origins of the country, that those were areas in which there was a kind of autonomy that the president didn't control. But, you know, there were also examples outside of the first bank and the second bank where the president's authority was limited. So I think what the court will try to do is to say the president can't fire Jerome Powell, can't fire Lisa Cook. But I don't think that that is kind of a coherent approach, you know, because I think it would be based on history, but the history doesn't support it.

21:05A lot of times they seem to pick and choose the history that's useful. It's been great talking to you, Bill. Thank you. That's Professor William Traynor of Georgetown Law. Support for the show comes from Public. Public is an investing platform that offers access to stocks, options, bonds, and crypto. And they've also integrated AI with tools that can assist investors in building customized portfolios. One of these tools is called Generated Assets. It allows you to turn your ideas into investable indexes. So let's say you're interested in something specific like biotech companies with high R &D spend, small cap stocks with improving operating margins, or the S &P 500 minus high debt companies.

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22:22All investing involves risk of loss. See complete disclosures at public.com slash disclosures. Apple Vacations, where your story starts. The Splash into Savings event from Apple Vacations is here. Now through June 25th, save up to$150 on vacation packages, plus instant savings at select resorts in Mexico, the Caribbean, Central America, and top U.S. destinations. Use promo code JUNE26 for these limited-time offers. Start planning today at AppleVacations.com or contact your travel advisor. Apple Vacations, where your story starts. Bro, from the show last night to this drive, why is it never chill?

23:01Because this is our life. Backstage, on the road, it's loud, messy, real. And that's the best part. Whole crew, no plan, just moving. Good thing Nissan builds for that kind of chaos. Not just test tracks, real life scenes. Late nights, road trips, all of it. That's why it holds up. Nissan was ranked number one in initial quality among mainstream brands by J.D. Power. Yeah, you can tell. 2026 Nissan Rogue built for what really happens. For J.D. Power 2025 U.S. Initial Quality Study Award information, visit jdpower.com slash awards. Awards based on 2025 model year, newer models may be shown. The Supreme Court heard arguments on Monday on whether President Trump has the authority to make hiring and firing decisions for independent government agencies like the FTC or the Federal Reserve.

23:54The case was brought to the court by former FTC Commissioner Rebecca Kelly Slaughter, who was fired by the Trump administration because they said her appointment was, quote, inconsistent with the administration's policies. She told ABC News that if the justices side with the Trump administration, independent government agencies from the National Weather Service to the Federal Reserve could be stacked with loyalists to the president. Congress decided that when it set up these agencies like the FTC and like the Federal Reserve and about two dozen others, that there should be some checks and balances and how the powers that those agencies have are used to avoid political interference.

24:40I've said from the beginning that this isn't about me or my job and that was very much on display at the arguments yesterday. It is about not just the agency I serve, the FTC, but a whole host of federal agencies. And it was clear that it's really difficult to come up with any principled distinction between the FTC and, for example, the Fed. Joining me now is constitutional law expert Jillian Metzger, a professor at Columbia Law School. Jillian, in your view, what's at stake in this case? Well, there's a lot potentially at stake in this case. The specific issue in the slaughter case itself has to do with the ability of the president to remove a member of the Federal Trade Commission without cause.

25:26But the logic of the Solicitor General's argument. And the argument that many of the conservative justices seem to be embracing is considerably broader than that. It would not just extend to other independent agencies that have similar kinds of authorities as the FTC, adjudicatory and regulatory. It would extend to what are called non-article-free courts, entities that really function as courts but don't operate with the Article III protection. So the Court of Federal Claims, for example, was one that came up in the oral argument. And, you know, those are also entities that would, if you focus on the breadth of the Solicitor General's argument and the kind of claims of really unlimited removal power in the president over executive officers, it would encompass those, it would encompass the Fed.

26:19And of particular concern, it wouldn't just be limited to principal officers, it would be also encompassing inferior officers and in particular employees and the civil service. And one of the interesting aspects of the oral argument was there were definitely some justices who were concerned about the potential implications of their holding and of the government's argument and trying to find ways that they could decide more minimalistically and still hold for the government here without adopting all of these implications. And they were particularly concerned about the non-Article 3 courts and also the Fed, but it was only Justice Kagan who really pushed on how this would also apply to the civil service, and the conservative justices didn't refer to that.

27:03And that would be really quite extraordinary if it turns out that removal protections for the civil service, which are such a critical piece of our administrative state, are under this decision on Constitution. Jillian, I've asked this question more than once. Why do the conservatives embrace this unitary executive theory that gives so much power to the president, to another branch of government? You know, it's interesting. This is a received conservative legal idea and principle that the president has unlimited control over the executive branch of the Constitution divides the authority between executive, legislative and judicial.

27:45And the vesting clause means the president is vested with all the executive power. And when I say conservative, I mean conservative in the political sense. This goes back to the Reagan administration, the birth of the conservative legal movement. And this was one of their kind of founding principles as a way of pushing back on administrative government and the administrative state. I think that still actually underlies a lot of this, that kind of resistance and suspicion of administrative power. What's interesting is other principles of that conservative legal movement are actually in tension with the unitary executive idea in this way.