In this episode of Unwritten Law, Mark Chenoweth and John Vecchione welcome Margot Cleveland to unpack the Supreme Court case Trump v. Slaughter, a historic challenge to whether the President can remove commissioners of the Federal Trade Commission at will.

They walk through the key amicus briefs, Professor Caleb Nelson’s arguments, and Philip Hamburger’s response in the Yale Journal on Regulation emphasizing the Constitution’s unitary executive structure. The trio also discuss the foreign-policy powers exercised by modern independent agencies and why the Court may finally be ready to overturn Humphrey’s Executor. A deep dive into one of the most important separation-of-powers cases of the term.

Mark Chenoweth: If you think that unwritten law doesn't affect you, think again. Whether you're a business owner, a professional, just an average citizen, you are unknowingly going to fall under vague and unofficial rules. And when bureaucrats act like lawmakers, they're really restricting your liberty without the consent of the government.

Welcome to Unwritten Law with Mark Chenoweth and John Vecchione. We are delighted to be joined by our colleague here at the New Civil Liberties Alliance, Margot Cleveland. Fresh off of a victory – well, maybe victory is the wrong word – off of a celebration, an award last night here in DC for the investigative journalism hat that you wear with The Federalist. So, congratulations on that.

Margot Cleveland: Thanks so much, Mark.

Mark Chenoweth: I’m so impressed with the fact that you are such a great investigative journalist and can also turn around and work on such interesting legal matters for NCLA. And one that you've been talking about before is the Trump v. Slaughter case at the US Supreme Court. And this has to do with whether or not President Trump can fire people from independent commissions or not.

So, we've now had a series of amicus briefs that have come in from the folks who are supporting Slaughter, who was the commissioner at the Federal Trade Commission. And then there's a particular issue that Professor Caleb Nelson from UVA, I think, last I checked, has sort of thrown into the mix here. And so, I wanted to get to both of those things. But maybe before we do that, we could just very quick reminder to folks of what the Trump v. Slaughter case is about and sort of what the argument is on Slaughter's side that sort of, I guess, what current law is on her side.

And there, the Supreme Court said that "No, the president doesn't have this unlimited right to fire the commissioners of the FTC." So, Slaughter is obviously arguing this decision exists. You should follow it. We've got stare decisis. Of course, Trump is presenting several other arguments that we've talked about at length before.

Mark Chenoweth: That's right. Folks should go find our previous episodes of the show.

John Vecchione: And I'll just add, they've taken to this one's interesting because it's the FTC, and Roosevelt was prevented from doing this in the 30s. But the other one is Cook. But that is for cause for the Federal Reserve. These are the two big removal cases this year. And Cook was removed for cause. And the question is, he hasn't struck at the Federal Reserve the way he's striking at the FTC now, but –

Mark Chenoweth: The other interesting difference between the two cases is that Slaughter is not serving on the FTC now because her effort to get reinstated has been stayed. But Cook is still serving as a governor on the Federal Reserve because they didn't allow that firing to take effect.

John Vecchione: Right. So, there's a lot going on here, but that's the facts of this case.

Mark Chenoweth: Yeah. So, John, I know you mentioned that you had looked at some of these amicus briefs that were lodged on Slaughter's side. Was there one that jumped out at you as...

John Vecchione: So, what you just mentioned jumped out at me. The former federal judges have hit hard at the idea that they don't have power to reinstate by judicial power. And they go back to a bunch of King's Bench cases. Then they find they hit on Marbury, and they say that back wages isn't the only thing you're allowed to do. But I will say this. I thought their case citations were not thick.

But what they were doing was an originalist argument that, in fact, the judicial power allows reinstatement for wrongful terminations by the executive. And they were really focused on that because that's something we've gone back and forth on because what's the remedy? And the remedy, I think, that both Slaughter and this brief by the former federal judges tee up is not only what the executive power is, but what the judicial power is and where it comes in these sorts of things.

And they also talk about inferior officers. And they seem to me to be on stronger ground on inferior officers because the president may want to get rid of them, but you can have layers of people between them. So, they really, I think, because they have a stronger argument, they focus more on that. But I think the court's going to have to or should demarc those things in this case.

Mark Chenoweth: Well, it could be that both of those things are true, right? It could be both that the judges have the power to reinstate someone, but they don't have the power. Well, what's the right way to say it? They have the power to potentially reinstate someone, but it could also be that that would be stayed or that that ability wouldn't be allowed under the equitable circumstances of the case. You could still have a higher court say there's going to be more destruction than help that comes from this.

John Vecchione: And that's what happened in this case, right? They said that the balance of harms meant, I think, they found we're bound by Humphreys, but this equitable power, we think, that the harm to the president is greater than the harm to Slaughter not being able to fulfill her duties. So, that's the read they made below. So, there was that one, which I think is interesting. I do think it could have been thicker with cases if they're there.

And then the other was by a number of congressmen who said that they are allowed and they should be allowed to determine for cause for certain agencies. And that was a straight-out congressional. We define the agency, and we define the power, not the president of what that agency is going to be. I think they're out of luck with this court, but that's what they're making.

Mark Chenoweth: So, they're trying to hold on to the ability of the legislative branch to have these four cause restrictions on termination.

John Vecchione: They say that the agencies are a complete creature of Congress, which is true as far as its creation goes. But they say because we're the creator, we get to determine how the executive runs it. So, that's a little harder, I think, for them.

Mark Chenoweth: Yeah, I think that runs into something James Madison said, which is that the Constitution says, "That in appointing to office, the Senate shall be associated with the president, unless in the case of inferior officers when the law shall direct. Have we a right to extend this exception to removals? I believe not. If the Constitution invested all executive power in the president, I venture to assert that legislature has no right to diminish or modify his executive authority." So, Madison looks at the Constitution as maybe not giving Congress the kind of power that it frankly has been exerting over the last 100 years.

John Vecchione: And Margo, I haven't seen any argument. There's no argument that these FTC commissioners are inferior officers at all, right? They can't be.

Margot Cleveland: They haven't made that argument. I haven't seen that. What I think is interesting here is that if the court does say that Trump has this unlimited right to remove him, we're not going to get to the reinstatement issue, at least in the Slaughter case. So, it'll be interesting to see what happens in the Cook case, which again, we have different facts. It's a question of was there grounds for cause removal. And I just see it being very difficult for the judiciary to come in and say, "We're going to have some sort of oversight on whether or not the president's judgment in that case is subject to review. How much review is it subject to?"

Mark Chenoweth: How much due process does the president have to give someone before firing them, that kind of thing?

Margot Cleveland: Exactly.

Mark Chenoweth: Yeah. Well, so that's an interesting point that we wouldn't... So, what the judges are saying is that we have the right to reinstate someone who's been unlawfully fired. But what Margo is saying is, if they decide to overturn Humphrey's executor, then the firing here won't be unlawful. And therefore, there wouldn't be a power to reinstate someone because the firing was a lawful firing.

Margot Cleveland: So, they won't need to even get to the issue, which would be interesting because we still have these kinds of unique Federal Reserve banking-type issues, which might still be distinguishable, which we are not sure where that's going to go.

Mark Chenoweth: Well, we had the Office of Special Counsel case earlier this year. We had the NLRB case, the CPSC case; there's a lot of these floating out there.

John Vecchione: Yeah. And they love to dodge things that don't have to answer, but I think it would be bad for them not to tell the... Because it's really unfair to these lower courts. I think this whole Humphrey executor thing has been really unfair to the lower courts because they're bound by Humphrey's executor. They're not given any direction on this. The court's been reversing them and saying... And they have taken up this equitable thing that you've mentioned. But come on, you're the Supreme Court. Just tell them. Do they have it or not?

Margot Cleveland: Well, yes and no. The lower courts, in some cases – I think Slaughter is one because they are bound by Humphrey's. But you're also seeing the lower courts saying that Humphrey's said something that it didn't say. They're overreading it. And they're using Humphrey's as an excuse to restrain what Trump does. And I think that's where the Supreme Court is striking them down and saying, "No, you got it wrong." But I absolutely agree. We need to have the Supreme Court declare Humphrey's fully dead, none of this partially dead.

Mark Chenoweth: Yeah. And partly that's because if they don't, then the lower courts may continue to misapply it.

Margot Cleveland: Absolutely.

Mark Chenoweth: I think that's the risk. Well, Margo, are there any other issues or arguments that are being made on behalf of Ms. Slaughter that you think are going to get the judge's attention or have a chance of carrying the day?

Margot Cleveland: I think that some of the justices are going to look at the argument that the executive power is much more restricted than we argued in our amicus brief. I think our amicus brief makes the better point that the executive power: it's not merely executing the law. It is, as the founder of NCLA, Philip Hamburger, said, "It is the strength and the power and the force of the government." And we see that with the foreign relations that the president engages in.

And here, I think we see with the Federal Trade Commission, it's almost a double reason that Trump should be able to fire them. Not only is this organization or this agency executing the law, but they're actually entering into agreements on our behalf with foreign countries on how they're going to cooperate with the foreign countries. And that is part of the executive power, the relations with foreign nations. And you're seeing arguments to say no, that the executive power is actually much more constrained than that. And I think that some justices will find that persuasive, but I don't think a majority will.

John Vecchione: And I'm wondering if any of them will, because this foreign policy issue with the FTC is really top of mind, because in the last administration, they used the FTCs. So, we had the first FTC. All the countries of the world looked to our FTC. So, if our FTC does something to a company, then you get these follow-on cases in Korea, in Japan, every place like that, Britain.

And so, not only is it powerful that way, but they can also make deals with other countries, making them do things that would be – or agreeing – that they will do things that would be – illegal to do in the United States because of the First Amendment. So, the FTC has used this foreign power to really go after companies, which they couldn't do in the United States. And I think that's a huge issue. And I think, I certainly think, Kagan's gonna see it. And I think Sotomayor are too. But the fact of the matter is, I think it's such a strong argument, and they all know this has happened. It's published, and it's not a secret. They bragged about it. So, it's gotta be addressed.

Mark Chenoweth: The FTC has bragged about the fact that they have sicked foreign countries' antitrust authorities on American companies, which I think is outrageous behavior, but it certainly has happened.

Margot Cleveland: I do think it's rather interesting that the Trump administration, at least in their briefing, didn't seem to focus so much on the foreign affairs. And it was one of those in drafting the amicus that I was looking at, okay, what is the power? And they noted that there's this power out there, and further research showed that they're really entering into these pretty strong agreements with foreign countries.

John Vecchione: Yeah. And the thing is, I thought the brief was excellent. Our brief was excellent on that point. And I did think the government, certainly in the tariff cases, where I don't think it's foreign policy, they went all out, right? And then here, where the FTC is known to basically do this with their other numbers in these other countries, and they didn't say, "Look, the FTC has foreign policy power here. Here's the agreement, here's the agreement, here's the agreement, here's the agreement, we're done."

Mark Chenoweth: And well, in my experience at the Consumer Product Safety Commission, it was the same, that we entered into agreements with the consumer product safety authorities in other countries to try to standardize what was going on with safety requirements and those sorts of things. The only trip abroad I have taken as a government employee was as a CPSC employee going to China to do – in theory, we were doing inspections of factories and taking a look at what was going on in some of their facilities where they were testing, the testing labs that they had overseas, and that kind of thing.

So, some of these independent agents, not all of them, but some of these independent agencies certainly have a foreign policy component to them. And the other thing that the FTC does that not all of these other agencies do is that it litigates. And so, the idea that in the... I mean, that's literally the execution of law when you're bringing charges in court.

John Vecchione: With its own lawyers, not just the department.

Mark Chenoweth: Yeah, that's right. With its own lawyers in court, the idea that the president can't superintend that, I think, is going to be hard for the justices to accept.

Margot Cleveland: Absolutely. I was just going to bring that up that we've got this foreign affair activity, which shows executive power is much broader; they're engaging in it. But even if you're going to look narrowly at what the executive power is, executing the law, and what the FTC is doing by filing these lawsuits, that's pure, simple executive function. So, I have a hard time seeing how even narrowing what the executive power is helps in this case.

Mark Chenoweth: Yeah, I do too. And you mentioned Professor Hamburger earlier. He has a brand new piece at yalejreg.com. This is the notice and comments blog that Yale has on administrative law questions. And the name of the piece is Removal of Response to Professor Nelson by Philip Hamburger. And this gets into what you were just talking about, Margot, that Nelson is trying to defend this narrower conception of what is entailed by executive power.

And Philip really goes through chapter and verse. And I invite our listeners to go and find this piece that he's written and go through it. And he talks about the Take Care duty, and how can the president take care that the laws are faithfully executed if he can't fire people? And Professor Nelson says, "Well, if the president believes his subordinates are not faithfully executing the laws, the president could alert Congress and recommend their impeachment." And I think Philip thinks, "I mean, for starters, Congress might be in control of the other party."

So, they might be perfectly happy to have the president being undermined by people in these independent agencies. But even if you assume that Congress is under control of the same party as the president, that's awfully cumbersome. I mean, the executive power is supposed to be something that's done with dispatch. And the idea that you would give this over to Congress to decide whether or not to relieve someone of their duties seems odd.

John Vecchione: But I will say the reason he's responding to Caleb Nelson is he's an originalist who has put together an originalist argument.

Mark Chenoweth: That's right. Correct.

John Vecchione: This isn't some guy making like, "I just said the Congress." Their brief is like, "We deserve this power." It's not the same. The reason I think you have to respond to Nelson is because he's not a guy you'd expect to be on that side.

Mark Chenoweth: That's right.

Margot Cleveland: And on the point that you just made about acting with dispatch, from the founding documents, we know that's why they had one person as the executive. There's language from that from the conventions and the founding era where they purposely decided we're going to have one executive because we need them to be able to act with dispatch. And the idea that it's the person has to be impeached – that just is not something that you can reconcile with it. I do still wonder, though, how this narrow view can possibly be reconciled with the idea that the FTC is actually executing the law in this case. To me, it doesn't matter how narrow you put it. We have the FTC doing that.

I do think part of the concern also might be that it's Trump, and we don't want that executive having too much power. Well, that goes to the problem of the courts allowing these so-called independent agencies to act like Congress, to act like the judiciary. If you're going to kind of turn a blind eye to agencies passing laws and then actually interpreting them and applying to individuals as opposed to the court, then of course you're going to be afraid that the executive is too strong. But the answer is not to...

Mark Chenoweth: Take away executive power.

Margot Cleveland: Exactly.

Mark Chenoweth: It's to take away the legislative and the judicial power.

Margot Cleveland: Right, because the Constitution purposely divided it and separated it between the three branches. There was no extra power to be created for this fourth headless branch of the government.

Mark Chenoweth: Yeah, and Philip ends his article with that exact point, saying the president's executive power embraces the authority to fire those who exercise executive power. And this removal authority won't be particularly worrisome. Indeed, it will be valuable when his subordinates exercise only executive power. But there's another nice textualist point that Philip makes in this argument. He talks about the unitary executive and the fact that, to the point you were making a minute ago, the Constitution only has one executive. It's just the president. All the power is put in the president.

But he also points out that it's the executive power. So, there's only one source of executive power. So, it's not just that there's one person. It's also that the power itself, the executive power itself, is not divided into different executive authorities. It all adheres in one. And so, you can't have separate bases of executive power when Congress creates these executive agencies. It can't create agencies that have separate sources of executive power outside of the president.

John Vecchione: So, if Congress wanted to do this, if they wanted to make an independent agency with terms, like six-year terms, could they say that if the FTC chairman is removed with or without cause, without congressional approval, all power is removed from the FTC as soon as he's removed?

Mark Chenoweth: Now I feel like I'm in a law school exam again. Well, maybe. I mean, I'd have to think about that, John. But I take your point that if what Congress is saying is we only want this power to exist if it's being exercised somewhat independently. And if that independence is negated by a firing, then so is the power. Or maybe so is the power until we approve someone else. I just don't know that Congress wants that because even with the CPSC recently has only had Peter Feldman in charge. If you say that he can't do anything, that's not better because then you don't have any regulatory authority.

John Vecchione: I was thinking the CFPB is what I was thinking because they designed that thing all the way from Sunday.

Mark Chenoweth: A little too cute.

John Vecchione: Exactly. And the reason I thought of this is because I'm thinking, what are they going to do next when they have 60 votes and something? That's all I could think of.

Margot Cleveland: Well, I also wonder how much the president can do as the executive without the agency. So, if Congress did that, it doesn't take away the president's executive authority.

Mark Chenoweth: He can still make sure the laws are faithfully executed. He just would be doing it with somebody other than with people at the White House or something like that.

Margot Cleveland: Exactly. Right, which I again think shows that this is part of the executive power. He can still do this. And the bigger problem is when Congress creates these other duties, these kind of quasi-legislative, quasi-judicial authorities of the agencies; that's where we get a little bit kind of concerned about whether or not the executive has too much power.

So, there was another point that Professor Nelson made that I thought was worth talking about, which is he claimed that the constitution's provision that the president may require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices that somehow limits what the president's authority is over those folks, that he can basically only ask for their opinion. He can't fire them. And I think Philip makes the correct point that, well, wait a minute, that doesn't necessarily follow that.

Just because the president can ask for their opinion doesn't mean that he can't fire them. I mean, what if he doesn't like their opinion? What if he thinks that their opinions are not well-reasoned? Certainly, if you think of going back to foreign policy or say as the commander-in-chief, I mean, if the president doesn't like something a general does, he can cashier the general, right? I mean, he's not stuck with that person's advice.

Margot Cleveland: And tying off of the take care to faithfully execute, the agency head could very well say, "This is my opinion," and still not be able to execute on what his opinion is. And someone who is incompetent needs to be removed just as much as someone who has a different policy perspective for it.

Mark Chenoweth: And Alexander Hamilton, Philip quotes Alexander Hamilton from Federalist 74, saying that the opinion's provision is "a mere redundancy, as the right for which it provides would result of itself from the office," which sounds right to me.

John Vecchione: That was my thought. I said, "So why is it in there?" I thought the reason Nelson brings this up is, well, if they put that in there, they must think that the executive power is less vast than we do. Because, of course, you can ask for the written opinion if you're the president. So, I think Hamilton is right to say that with Hamilton's views of the presidency. But it struck me as really odd. Because I'm just seeing all these guys. I would like your opinion of what's happening at the State Department.

Mark Chenoweth: No, sir.

John Vecchione: No.

Mark Chenoweth: You're out of luck.

John Vecchione: I'll only give it to you verbally.

Mark Chenoweth: Well, that'd be like Thomas Jefferson. I'll only give it to you in writing. There's no State of the Union speech for me.

John Vecchione: It's just odd. It's an odd thing.

And I think Philip is more inclined to Madison's position, which, look, there may not have been a consensus in the sense that everybody came to the same point of view, but they did, I mean, they did act, they did pass a law, right? So, Madison reported to Jefferson that, quote, well, that the leading position was, "the executive power being generally vested in the president and the executive function of removal not expressly taken away, it remained with the president."

And so, I suppose we could call Madison's call into question whether Madison was genuinely reporting what took place. But I think that most folks have historically viewed Madison's notes from the Constitutional Convention, for example, as a very good source of authority on what happened there.

Margot Cleveland: Absolutely. And it also is different than the Constitution. The Constitution specifically referenced the appointment. It was silent on the removal. So, if you're going to say, "We don't know what the consensus is," you still have to go look at the text and what they actually agreed to. They knew they were putting the appointment in there. They obviously knew they didn't say anything about removal.

Mark Chenoweth: Yeah, that's right. And so, I think that when the Supreme Court is looking at these arguments, I think, to your point earlier, John, I mean, I think Caleb Nelson's a respected scholar, but so is Philip Hamburger. And I think that they're going to look at all of this material that's in front of them and sort of the history of how this has been treated. And I suspect that Humphrey's executor is still on the chopping block. I don't think these originalist arguments – are the ones that you mentioned from Congress or from the retired federal judges are going to carry the day. But we'll have to wait and see. And we'll certainly report back. And, Margo, we appreciate your being with us to give us the latest on the Trump v. Slaughter case.

Margot Cleveland: Thanks so much for having me.

Mark Chenoweth: You've been listening to Unwritten Law. As we like to say here at NCLA, "Let judges judge, let legislators legislate, and stop bureaucrats from doing either."

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Duration: 29 minutes