Everyone’s fired now

0:01There are many people who President Trump can fire, and with a little help from his friends, he did. But even Elon's time ran out. Would you do Doge again, knowing what you know now? Instead of doing Doge, I would have worked on my companies, essentially. And they wouldn't have been burning the cars. As many as 300 ,000 federal workers got Doge this year in various ways. Trump also fired, among others, the inspector generals of the EPA, the Department of Education, the Defense Department, the commissioner of the BLS, the chair of the FEC, the commissioner of the EEOC, and so much more. All of those were probably legal firings.

0:36But can Trump fire Rebecca Slaughter, a commissioner at the Federal Trade Commission? This is the agency that oversees consumer protections and fights monopolies. Trump says yes, Slaughter says no. She took him to Supreme Court. Supreme Court is going to rule. And when they do, it'll have big, big implications for the president's power. That's coming up on Today Explained.

1:07We'll see you next time.

1:51Today! Today explained! I'm Ian Millhiser and I cover the Supreme Court. The Supreme Court is hearing oral arguments this week. for a case that involves President Trump and someone that President Trump fired. Yes. Who is this person? This person is Rebecca Slaughter. She is a commissioner of the Federal Trade Commission. I am deeply honored and grateful to lead the FTC at this critical time. And the reason why her job matters is that there are many federal agencies. They are called independent agencies where the leaders of those agencies cannot be fired for any reason at all. They can only be fired for cause.

2:40The statute for the Federal Trade Commission says they could be fired for neglect or malfeasance or reasons like that. And Trump doesn't claim that she was neglectful or malfeasant. You know, Trump just claims that, like, look, you want to do things that I don't agree with. And since I disagree with your politics, I'm going to fire you. I was at my daughter's elementary school when I checked my email and saw this email from the White House presidential personnel office purporting to fire us or fire me specifically. And the statute says he's not allowed to do that. They gave no cause. And I think it's really important to note because there is no cause to fire us.

3:24But Trump says that as the president, he, under the Constitution, can fire virtually any agency leader he wants. What is that called? What is the power here that the president is claiming and why is he claiming that he has it? If the rules are written, you can't go ahead and fire Ms. Slaughter. What is his team arguing? So, you know, just to set a baseline, the president can fire most government officials, like all of the secretaries of the various cabinet departments, their deputies, all of those presidential appointees. He can fire whatever he wants. It's only when Congress writes a special law saying this agency is going to be structured differently.

4:05Typically, they have multi-member boards. So there's actually five commissioners who run the FTC and not just one person. And then the statute says that those are the only people that are protected. Trump's theory or his lawyer's theory is something called the unitary executive. The constitutional design sets up three branches of government. It forbids Congress from controlling what the executive branch does. And it also forbids Congress from shaving away the president's control. And the idea behind the unitary executive, there is a provision of the Constitution which says that the executive power is vested in the president of the United States.

4:47And so if there is something that some government official is doing that is executive in nature, then that person must be under the full control of the president and the president must have the power to fire them at will. All right. So that's what the president has to say. Rebecca Slaughter's team is saying you don't have the right to fire her. And they are citing what exactly? The most important thing that they have on their side is a Supreme Court decision from 90 years ago called Humphreys Executor v. United States. We know that, for example, from this court's unanimous decision and Humphreys Executor.

5:20And Humphreys Executor v. United States also involved the Federal Trade Commission. President Roosevelt wanted to fire someone on the FTC. The Supreme Court said, no, Congress is allowed to create this independent agency to insulate its members from being fired. The Supreme Court of late, as you have as you have written time and again for Vox, has been siding with President Trump. Yes. What do you think is going to happen here? I am certain that Trump is going to win this case. This unitary executive theory and, you know, Republicans generally have taken a shining to this theory. There are six Republicans on the Supreme Court.

5:59It has been the dominant theory of how the president works amongst Republicans for the last four decades or so. Like, I don't even think that this is a the Supreme Court being sycophantic to Trump case. This is a Republicans really, really believe in this thing case. They really believe that the universe, the universal executive is the correct way of reading the Constitution. I think this case would have come down the exact same way if President Marco Rubio had fired Rebecca Slaughter or for that matter, if President Joe Biden had fired Rebecca Slaughter. Like the Republican justices just really believe in this thing.

6:36All right. So let's say the Supreme Court, these are nine of the smartest people in the country. What are they failing to see here? What are the potential problems as you see them? So there are lots of reasons why Congress creates independent agencies. Sometimes they make the agency independent because they want it to exercise technocratic expertise and they don't want politics to come into it. So like think of an agency like the Nuclear Regulatory Commission, whose job is to make sure that nuclear plants are operated safely, that they don't melt down, that the waste is stored safely. It's stored away from people who could be poisoned by it.

7:15You want an agency like that to be independent because you want it to make technocratic decisions. You don't want it to make political decisions. That's one reason why you have independent agencies. A second reason is that sometimes there's a conflict of interest. And then sometimes it is dangerous if an agency is controlled by political figures. And the quintessential example of this is the Federal Reserve. Yes. President Trump has made very clear that he wants the chairman of the Federal Reserve, Jerome Powell, out. Jerome Powell has pointed to the fact that President Trump cannot simply fire him.

7:57And these two men have enjoyed going at each other in the past couple of months. You just added in a third building is what that is. That's a third building. It's a building that's being built. No, it was built five years ago. If the Supreme Court in this case rules in favor of the president and his argument, does that mean that tomorrow Donald Trump can turn around and fire Jerome Powell? So the answer to that is probably no. And the reason why, I mean, there isn't really a principled reason why, but the Supreme Court handed down a case called Trump v. Wilcox. And Trump v. Wilcox essentially said that the Federal Reserve is special and is not subject to this unitary executive rule.

8:39I'll read you what they said. They only gave a one sentence explanation of why the Federal Reserve is special. And that sentence is the Federal Reserve is a uniquely structured quasi private entity that follows in the distinct historical tradition of the first and second banks of the United States.

9:03Now, I'm a fluent English speaker. I recognize that every one of those words are English. I know what they all mean. I even know a lot about the history of the first and second banks of the United States because there's a lot of constitutional litigation over it. And I read those cases in law school. I have no idea what that sentence means. It is gibberish. It's clear that a majority of the justices want the Fed to be treated differently. And there's a good reason why. The reason why is because the Federal Reserve essentially has the power to inject cocaine into the economy. The Federal Reserve, if it wants, can lower interest rates as low as it can go, open up the spigot of the money supply.

9:47And what that will do is in the short term, it'll stimulate the economy and things will be great. And then sometime down the road, months or years down the road, you'll have a crazy amount of inflation and things will be much, much worse. And so the reason why you don't want the president to control the Federal Reserve or be able to pressure its governors by threatening to fire them is a president is likely to say in an election year, I want you to use that cocaine power fed. I want you to stimulate the economy during this election year because I want my party to win. And so I think that the justices recognize the policy reasons why it's a bad idea for the president to control the Federal Reserve.

10:29But there isn't really a principled legal argument for why the Fed should be treated differently than, say, the FTC. So they give us this gobbledygook about quasi-private entities. And like I said, I don't know what that means. It strikes me that in Washington, power is a zero-sum game. So if President Trump, if the court sides with him and he gets more power, somebody in Washington gets less power. Who is that? Congress is the answer to that question. Like the constitutional provision that proponents of the unitary executive rely on is very vague. It just says the executive power shall be vested in the president of the United States.

11:08It doesn't define the term executive. So like we don't actually know which things that the government does are executive in nature and which things are not executive in nature. And so historically, since Humphrey's executive, the rule has been that Congress has broad leeway to decide which agencies are independent and which agencies are not. And if the slaughter case comes down the way that I think it's going to come down, it's going to mean that Congress is going to lose somewhere between some and all of that power. and instead the court is going to decide which agencies can be independent and which agencies cannot.

11:46Now, earlier you said that the Supreme Court is not siding with Donald Trump and they are not siding with Republicans. They are siding with the president of the United States, which means in 2028, if a Democrat is elected president, the Supreme Court's ruling also applies to that Democrat. that Democratic president then gets to fire whoever he or she wants. Is that what we're looking at here? Yes, but I will add one additional caveat to this. And here is where the partisanship comes in. Justices appointed by Republican presidents, Republican justices, and justices appointed by Democratic presidents, Democratic justices, tend to have very different views about the separation of powers.

12:30The Democrats view is that generally we want these decisions to be decided by Congress. We want Congress to decide which agencies are independent. We also want Congress to be able to decide how much power is delegated to an agency. The Democratic Party's vision is more democratic. You know, it tends to place power in the people's representatives in Congress, whereas the Republican Party's vision really concentrates power in the judiciary. It gives the judiciary the final word on which agencies can be independent and not Congress. But then it does still check that age those agencies power because it also gives the justices a veto power over the substantive actions that those agencies take.

13:20OK, everything you've just said makes me think and I didn't go in thinking this. The Supreme Court actually wants more power for the Supreme Court. Yes, that is the takeaway. here.

13:37That was Vox's Ian Millhiser coming up next. Who is this Humphreys? What is this executor?

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18:05Oh, yay. Oh, yay. Oh, yay. Oh, yay. This is Today Explained. I'm Noelle King with Noah Rosenblum. He's a legal historian at NYU Law School. All right, Noah, you were one of a number of historians who sent in amicus briefs to the court on Trump v. Slaughter. Why is that? What is your position here? The big question in Trump v. Slaughter is whether this old case called Humphreys Executor should be overruled. I work on the legal history of the 1930s. And so that's a case that I know a little bit about.

18:41So the case has its origins in this conflict between Franklin Roosevelt, the New Deal president of the United States, and one of the commissioners for the Federal Trade Commission, this guy Commissioner Humphreys. Humphreys had been appointed by the Republicans. He'd actually been reappointed to a term by the time Roosevelt got there. And there was a real difference of policy opinion between what Roosevelt wanted to do with the FTC and what Humphreys understood his responsibilities as a commissioner to entail. What was the disagreement? At its core, it was a fight over how the government should relate to what Roosevelt would call the malefactors of great wealth.

19:22Famously, when Franklin Roosevelt is running for re-election in 19, I think it's 36, he gives this speech where he says, We know now that government by organized money is just as dangerous as government by organized mob. So when Roosevelt comes in, a key part of his agenda is cleaning up these financial improprieties. People might remember deep in the recesses of their mind from U.S. history the PCORA hearings in which these bankers and other corporate executives are dragged in front of Congress for their misdeeds. That's just one part of this broader remaking of America's financial system that Roosevelt is a key part of.

20:06So, of course, as a result of the new dealers, we get the Securities and Exchange Act, which requires companies to file these prospectuses and disclose things about how they're actually run. We get the Federal Deposit Insurance Corporation to protect retail banking. And Roosevelt wants to use the Federal Trade Commission to go after some of these corporate malefactors, to take on some of these consolidations and really bring the kind of, you know, middle class economic populism that is characteristic of the New Deal to federal policy. OK, so FDR wants to fire Mr. Humphreys. Why? Was Mr. Humphrey's like, oh, I actually love the rich and complicated holding companies?

20:50I am not sure if Humphrey is on the record saying that he loves the rich, but he certainly hates the New Deal. Humphrey really embodies the pre-New Deal conservative tradition. So as I mentioned before, he's put on the court by the Republican Party that's dominant in the 1920s. Humphrey embodies the older laissez-faire tradition that had dominated American conservative politics before Roosevelt. He, to put it mildly, just does not want to use the FTC to realize the progressive policy goals that are at the core of Roosevelt's electoral promise. Okay, so we understand why FDR wants him out. It goes before the Supreme Court, as it has done again in 2025.

21:35And the Supreme Court says what exactly? So even though there was a statute on the books that made it clear that Roosevelt could not remove commissioners of the Federal Trade Commission, the Roosevelt administration was optimistic that it would be able to fire Humphrey anyway. And that has to do with this earlier case from 1926 called Myers in which the Supreme Court had held that the Senate could not interpose itself in the president's removal of purely executive officers. And so Roosevelt, I think, had good reason to think he was going to win that case. It thus came as a tremendous surprise when the court unanimously went against the Roosevelt administration and said, actually, no, the FTC is different from the underlying officer who was at issue in the Myers case, a postman.

22:23And in this case, you can have a statute that limits the president's ability to remove. All right. And so there we sit until when? When does someone seriously challenge Humphrey's executor? It remains in place basically unchallenged for the next 90 years. There's a moment in the 1980s when the Reagan administration pushes back on it. And there's a big case, Morrison v. Olson, featuring a young Justice Scalia. I know. He anticipating what's going to come. He writes an opinion that says, The Constitution did not leave the president's powers at our mercy. It says that the executive power, not some executive power, shall be vested in a president of the United States, not a president of the United States and others.

23:08His position is unbelievably fringe. So when Scalia writes that opinion in Morrison v. Olson, it's a solo dissent. And William Rehnquist, the conservative chief judge of the court, no lefty, he writes in the opinion for the majority that my brother Scalia is trying to put more weight than the words will bear. So that's a gentlemanly way of saying, Scalia, you're out of your mind. So really, there are these momentary challenges, but it's not until the Roberts Court and really until the Roberts Court consolidates its conservative majority that we see a full-on challenge to Humphreys. And does that bring us to the present day?

23:49More or less. There's that decision in 2020 called Sela Law, which had to do with the single-headed leader of the Consumer Financial Protection Bureau. then rising conservative judge named Brett Kavanaugh came up with a new theory in which he said, you know, it's okay to have independence for multi-member agencies like the Federal Trade Commission. But when an agency has a single person at its head, well, then it would be unconstitutional for that person to serve independent of the president because it would be just too much of an interference with presidential power. And I remember reading that opinion just thinking to myself, God, this theory, it's kind of wild, but there's no foundation for it in the Constitution.

24:39He just like kind of came up with it. And judges occasionally do that, but that's not often how you make constitutional law. And then the case goes up to the Supreme Court. And John Roberts, who of course had served alongside Kavanaugh on the D.C. Circuit, took Kavanaugh's theory and wrote it into law. And so in Sela Law, you saw this direct attack in which the logic of Humphreys was totally transformed. All right. So Humphreys has set a very long precedent here. We learned in the first half of the show from Ian Milhiser that the Supreme Court looks poised to overturn Humphreys. And if it does, what happens?

25:18What are the stakes here? Well, so this is why I filed an amicus brief on behalf of Slaughter, saying that I don't think the court should overrule Humphreys. Because depending on if and how it overrules Humphreys, it could be making both a terrible mistake as a matter of jurisprudence and history and creating totally intractable problems for itself. So there are lots of things the government does where, just as a matter of common sense, you want some independence between the person making the decision on behalf of the government and the particular political will of the president. One example I sometimes use with my students, I'm from New York, you know, you don't want the next mayor or you don't want whether the sewer system works to turn on what the mayor's political preferences are.