This Week at the Supreme Court

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2:40At oral arguments on Monday, they suggested they will allow President Trump to fire Rebecca Kelly Slaughter from the Federal Trade Commission, despite a law that says commissioners can only be fired for specific reasons. The liberal justices like Sonia Sotomayor and Elena Kagan expressed alarm at giving the president such unchecked authority over agencies that overlook crucial areas like nuclear energy, consumer product safety and labor relations. 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.

3:32So 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. But the conservative justices like Brett Kavanaugh and Neil Gorsuch say the real concern is Congress's creation of agencies that exercise executive power but can't be held accountable. Independent 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.

4:17Tomorrow we could have the Labor Commission, the Education Commission, the Environmental Commission, rather than Departments of Interior and so forth. In allowing the president to fire the heads of independent agencies, the court would be overturning a 90-year-old president called Humphrey's executor that protects their independence. My guest is constitutional law expert William Traynor, a professor at Georgetown Law. Bill, tell us about the issues in Rebecca Slaughter's case against Trump for firing her. The issue before the Supreme Court is that Congress puts limits on when the president can fire the heads of independent agencies.

5:03So an independent agency is like the Federal Trade Commission or the Federal Reserve. So 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.

5:38Congress 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. In 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.

6:12We 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. The 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.

6:53What kind of concerns did the conservative justices express during the oral arguments about this 90-year-old president, Humphreys' executor? There are two things that we're seeing the conservative wing of the court struggle with. One is they want the Federal Reserve to continue to be independent. They don't want the president to be able to fire somebody on 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.

7:34It 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. And 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.

8:16And 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. But 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.

8:57But those would be ones that are really deciding kind of quasi-judicial matters, not the FTC. 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. You know, and they've been in place really for 100 years. And the idea is that these should be basically bipartisan or apolitical. They should not just be tools of the president.

9:36So what the court is considering right now is whether that whole kind of structure gets gutted. So the stakes on this are huge. While 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. 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.

10:30You 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. You know, if Humphrey's executor had been overturned 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.

11:07They'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 the three liberal justices were questioning. You know, the other thing that they really are focusing in on, 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 FTC. They can't fire at will the heads of the Fed. And I can't think of any kind of coherent way to distinguish those two cases.

11:49And that's one of the things that the liberals were pressing on. You know, 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. It 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, kind of what was analogous to modern agencies at the time. So I think what the liberals on the court are focusing on are 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.

12:30I 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. You know, and then how does a conservative court say, well, you know, Humphrey executors is back. Once you establish a rule, you know, it applies to everybody.

13:06And 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, you know, with limiting a Democratic president after they allow President Trump to fire people whenever he wants. So then you think this is the end of 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.

13:44But, you know, the basic point is I think they're going to overturn Humphrey's executor. So I think what the court will try to do is to say the president can't fire Jerome Powell or can't fire Lisa Cook. But, you know, I don't think that that is a coherent approach, you know, because I think it would be based on history, but the history doesn't support it. Well, we often see some strained interpretations of history from this court. Thanks so much, Bill. That's Georgetown Law Professor William Traynor. Coming up next, the court grapples with caps on campaign spending. I'm June Grosso, and you're listening to Bloomberg.

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18:02This time, the federal caps that limit how much political parties can spend in coordination with candidates. It's the latest in a line of cases where the conservative majority has upended congressionally enacted limits on raising and spending money to influence elections. And two hours of arguments on Tuesday showed the entrenched divisions between the liberal and conservative justices over campaign finance restrictions. Liberal Justice Sonia Sotomayor said that every time the court interferes, weakening campaign finance rules, it makes matters worse. While Conservative Justice Brett Kavanaugh said that spending limits have hurt political parties in an era of unlimited spending by other organizations.

18:51You're telling us that Citizens United and McCutcheon ended up, yes, in amplifying the voice of corporations, but diminishing another voice, that of the party. Now you want to now tinker some more and try to raise the voice of one party. Our tinkering causes more harm than it does good. That's the real source of the disadvantage, right? You can give huge money to the outside group, but you can't give huge money to the party, and so the parties are very much weakened compared to the outside groups. Chief Justice John Roberts, a potentially pivotal vote, said he didn't see much difference between contribution limits, which the court has long upheld, and the caps on coordinated expenditures.

19:39It seems to me that that's kind of a fiction that, you know, they're just coordinating expenditures. They're not making direct contributions. I don't know in substance what the difference is. Doing away with the caps would overturn a quarter century old precedent. In the same week, the court appears ready to overturn a 90 year old precedent and allow President Trump to fire the heads of independent agencies. Joining me is an expert on campaign finance reform, Richard Brafalt, a professor at Columbia Law School. Rich, will you start by explaining the federal caps on spending by political parties in coordination with candidates?

20:18So the Federal Election Campaign Act, going back to the 1970s, when it was enacted in the aftermath of Watergate, places limits on donations to candidates. And it also places limits on donations to parties. It does something else. It places limits on how much parties can give to candidates on the theory that donors, once they max out on how much the donor can give directly to a candidate, would then just give to a party to channel the money to a candidate. So there's a limit on how much the parties can give to their candidates. And that comes up in two ways. One is a literal limit on contributions, actually writing a check.

20:53But the parties are also allowed to engage in their own spending in support of candidates. And that's called coordinated expenditures. In other words, the party does the spending. They don't give the candidate a check, but they do spending to promote the candidate. Parties are allowed to do that, but the law places a limit on how much money they can spend supporting candidates. And again, for the same idea that if there was no limit on how much they could support candidates through spending, once again, donors who once they max out on the direct donation to the candidate would then just give to the parties and the parties could then use that money to basically support their candidates.

21:29But parties are allowed to do this in a way that other organizations are not. PACs are not allowed to coordinate at all with candidates. So parties get this extra permission to support the candidates directly, but with a cap on it. And it varies from state to state based on the population of the state. And what's going on in this case is the National Republican Senate Campaign Committee and J.D. Vance, who when this case began was a senator and a congressman from Ohio who has since retired, have all brought suit challenging this limit on the ability of parties to coordinate their spending with candidates.

22:03And there's a longstanding precedent here. Almost 25 years ago, the Supreme Court upheld this limit in a case called Colorado Republican, decided in 2001. And the court said, yes, because of the danger of conduits, of parties serving as conduits for donor support. These limits make sense and are constitutional. What the Supreme Court is being asked basically now is to overturn that decision. One of the concerns of the liberal justices was that lifting the limits on party spending would lead to quid pro quo bribery. So wealthy donors could bypass the individual contribution limits by donating through parties instead.

22:43I mean, that is the major concern of the liberal justices and of the campaign finance reform community as a whole, is that this will put another hole in the campaign finance laws and make it easier for wealthy donors to channel money to candidates. There's still limits on their ability to give directly, but this would enable them to give through the parties. And so that money would still get to candidates. So, yeah, that is the core concern. A second concern is, depending on how the court writes this decision, it could be the green light for further challenges to other aspects of the campaign finance laws, depending on exactly how they write this.

23:19So it's both up front, making it easier to channel money from donors to candidates, and also yet one more case eroding Congress's ability to place limits on campaign money. The administration and the Republicans' argument centers on free speech right, as these campaign finance cases since Citizens United have done. The essential argument is that this is a limit on the ability of parties to speak and that you don't need it. That the combination of disclosure laws, anti-bribery laws, and limits on literally earmarking, and that's the term that's used, a donation that a donor gives to a party to be used for a candidate, that that's enough.

24:02That those three things, banning bribes, requiring disclosure, and saying when a donor gives a party a donation, they can't literally say this is going to candidate so-and-so, that that's enough. And that to go beyond that is to constrain the ability of parties as free speech actors, as First Amendment actors, to participate in political process. Justice Brett Kavanaugh said, you can give huge money to the outside group, but you can't give huge money to the party. And so the parties are very much weakened compared to the outside group. So you're talking about super PACs. And indeed, that is an argument that many people have raised who don't like this law, including people who like liberals or reformers who say this law might have made some sense when it was first adopted.

24:41But given the proliferation of super PACs and other outside groups, we'd be better off if parties actually had a bigger voice, that parties can play a coordination function, that parties maybe can be a little less extreme than some outside groups, that parties have more of an interest in governance rather than being single issue. And that actually, if we could start all over now that the outside groups have kind of unlimited voice, that anything that strengthens the parties is actually a good thing. And you see many people who are not conservatives who are taking that position, who are not First Amendment absolutists, but think that, in fact, the campaign finance system has gotten unbalanced and it would actually be good to strengthen the role of parties.

25:20And this could do that. There was also an argument about standing made by those defending the caps, that J.D. Vance, who's no longer a Senate candidate, doesn't have a stake in the case, and thus there's no standing. And then there was a lot of discussion about, well, is he going to run for president? I don't think this standing argument is going anywhere, but it's interesting. So tell us about it. So Ramon Martinez was the man appointed by the court to defend the law when the government declined to do so. And he opened by saying, this case is a big deal. Anytime you're being asked to overturn a precedent that's 25 years old, you should be very hesitant.

26:00You should make sure that this is a case that's jurisdictionally sound. And he basically said, it's not. So this case was brought by some individuals, J.D. Vance and Congressman Chabot from Ohio, and also by the National Public and Senate Committee. With respect to the two individuals, one of them is actually retired and no longer in politics. So that gets it down to Vance. And Vance has pretty clearly said, I don't know if I'm running. Or more than point, I don't currently have a plan to run. Saying, I might run, I might not run. So Mr. Martinez's argument was, well, this case isn't right. We don't know if he's running.