In this follow-up episode of Unwritten Law, Mark Chenoweth and John Vecchione continue their deep dive into the Supreme Court’s oral argument in Trump v. Slaughter, focusing on key issues that received less attention in Part I — but may prove just as consequential.

The conversation explores whether there is any meaningful constitutional distinction between criminal and civil enforcement, and why several justices appeared skeptical of claims that civil enforcement power is somehow “less executive.” The hosts explain why allowing independent agencies like the FTC and SEC to prosecute their own civil cases — outside the Department of Justice — raises serious accountability and separation-of-powers concerns.

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 have been talking in a recent episode about the oral argument at the US Supreme Court in the Humphrey’s Executor case, Trump v. Slaughter.

And there’s enough content there, John, for a couple episodes, so we wanted to dig into some of the other things that happened at the oral argument. I thought maybe one of the most significant things that we didn’t talk about the first time around here was all of the effort and time and attention that was devoted in the argument to this idea that there might be a difference between criminal enforcement and civil enforcement. That one of them might be executive power and one if them might not be. What did you make of that? Is that nonsense on stilts?

John Vecchione: Well, I certainly agreed with Gorsuch, who said, “Well, wait a minute. A misdemeanor prosecution is executive, but a civil multi-million-dollar civil case is not, is not executive?” And I think that’s the answer to it. Obviously, prosecuting the laws and taking care of the laws, you do it sometimes through criminal, sometimes through civil, but it has to be executive in either case because you’re using the civil or the criminal power to enforce the laws, that’s what you’re doing.

Mark Chenoweth: Right. And the take-care clause doesn’t make a distinction between the criminal laws and the civil laws, right?

John Vecchione: No. And so, it’s always been done – let’s put private attorneys generals aside, other than that, it’s always been done by the executive, so I think that there’s some suggestion in some Supreme Court cases that civil prosecution is somehow lesser. And Gorsuch was trying to stamp that out.

Mark Chenoweth: Well, and I think one of the reasons that they were trying to make that distinction is because a lot of what these independent agencies do is civil enforcement, right? Because if it’s criminal, it’s usually DOJ. But if it’s civil enforcement, that gets spread around a lot, and so they wanna make this distinction, I’m just not sure it's tenable.

John Vecchione: That’s why both the FTC and the SEC have their own lawyers, right? They don’t have to use Justice lawyers, and that’s an enormous power on their behalf because all the other agencies, Department of Energy, EPA, all of them have to use Justice Department guys who – we find this – you know what I think of? I think of the case we had on the Pell Grants. And they were being –

Mark Chenoweth: Oh, the Fulbright?

John Vecchione: The Fulbright, excuse me. And so they were deciding that if you were – if you had been raised in another language, then you couldn’t get the extra point on a test, even though the whole idea was, do you speak the language and English fluently, right?

Mark Chenoweth: Right. This was the Clinton administration that did this.

John Vecchione: Exactly. And so when we sued them, once it got outside the Department of Education, the Justice Department looked at it, they had never been shown this before, and they immediately went back to the client and said, “Look, you gotta change this.”

Mark Chenoweth: Yeah, we can’t defend this.

John Vecchione: But the internal lawyers at the FTC, they’re never gonna have that, right? They’re just gonna be – they’re in-house guys. Justice, like in that case that I just used, they see something the agency’s been doing, they didn’t know anything about it until the case came up, right? And when the case came up, they said, “I don’t think we should be litigating this. I think you should change this.” They went to their client and did that.

Mark Chenoweth: I think you should settle.

John Vecchione: And that happens more often; we don’t talk about it. That’s the example I always have because I just could hear in the Justice Department lawyers voice when he said, “Why don’t we slow this case down for a second?” And then that is – you have an outside lawyer look at it, and you get a different perspective. And none of these agencies that prosecute their own civil cases, they’re all underneath, they’re bosses, the guy upstairs, and they are – or the team upstairs, and that’s who they’re serving.

Mark Chenoweth: That’s such a point, John. And the other thing I would say about that, and this comes from my experience in-house at the Consumer Product Safety Commission, the particular lawyers that they have at these agencies are subject-matter specialists, right? They’re product safety lawyers. By and large, they’re not appellate lawyers, they’re not litigators, necessarily. And so they don’t necessarily have a good sense of how this argument would stand up in court or how a judge might look at this.

And more than once, I was in a conversation with a lawyer at the agency, sometimes the general counsel, and I would just say, “You’re gonna lose this in court on a slam dunk argument. And the fact that you don’t see this, you’re just a little too close to the situation.” And I think that it’s exactly what you say, that having this outside perspective, I think is so important. And then, part of that too, the Department of Justice has that wider, multi-agency perspective, right?

So, where are we going to spend our enforcement resources as a federal government? Well, within a particular agency, you might think that something is the most important thing out there, but from the President’s perspective or the Department of Justice’s perspective, they might say, “Well, gosh, the game isn’t worth the candle for this thing that you happen to have a burr under your saddle about.”

John Vecchione: Yeah, that’s true. So, I don’t think that’s going anywhere. I thought it was interesting how many of them spoke about it because I don’t think it’s a hard question.

Mark Chenoweth: That’s right. I thought the same thing. I was surprised that it took up as much time at the oral argument as it did. One of the other things, John, that came up a lot was the tariffs case.

John Vecchione: Yes.

Mark Chenoweth: What did you make of that? Did that surprise you?

John Vecchione: So, here’s what I love. So, it did surprise me they talked about it as much. Barrett was interested in it. Kavanaugh was interested – they were all talking about the IEEPA case, and the thing that I loved most was Jack Goldsmith, who has been adamant that the IEEPA tariffs are fine, and the President can do them. He tweeted out after the argument, “Well, the IEEPA tariffs are going down.” I was so happy to see that because – but I thought the same thing.

What was going on here is if we’re gonna give – and this really goes to Gorsuch’s non-delegation, if we’re gonna give the President the power of all these agencies that – when Congress put them in, there was Pre-Chadha. They had a legislative veto, so if they didn’t like something the president was doing, they could stop it with a legislative veto, that was unconstitutional, because you need President and signing by the President.

Mark Chenoweth: Right. Bicameralism and presentment.

John Vecchione: Bicameralism and presentment. So they had cut off that control by Congress, and now, they’re gonna cut off this other control; it's obvious. So, it even had occurred, Kagan was very blunt about it that we’re giving the President an enormous amount of power and I think that Barrett and the rest of them and maybe even it’s horse trading, for all I know behind the scenes, but certainly conceptually and as an idea, they do not wanna then grant the President power that isn’t clear Congress has done by statute.

That was really coming across. If he’s gonna claim all this power on tariffs, on ambiguous language like this, and we’re giving full control of everything, then we can’t just say, “Oh, now he has the maximum power we could possibly think of out of that statute.”

Mark Chenoweth: And I don’t know if there’s any horse trading going on, but think about how powerful it would be, John, if these two decisions in the tariffs case and this case came down on the same day and were both unanimous. Imagine that would really, I don’t think it’s gonna happen.

John Vecchione: I think it can’t happen. ‘Cause they’re gonna get the tariff case out early. I think because all the tariffs are piling up, right? So, I think, unless they’re gonna rule against us, I think they’re gonna get it out early. And they’ll get it out early, and they won’t get Slaughter out until later, I think. ‘Cause they just argued it, right? So, how are they gonna –

Mark Chenoweth: It’s not that hard.

John Vecchione: We all think IEEPA’s coming out in January or at least early February, I don’t think the Slaughter case is.

Mark Chenoweth: It would be hard. They’d have to work extra hard to make that happen.

John Vecchione: Correct. Over Christmas, I don’t see that happening.

Mark Chenoweth: But to your point, John, that reminds me of this piece in the New York Times that Sarah Isgur had, that actually the Supreme Court has a plan. This was in the December 5th New York Times. And she suggests something somewhat similar that these cases, I don’t remember that she talks about the tariffs case in particular, but she’s talking from a broader perspective, all these different doctrines that the court might be giving more executive power or restoring more executive power to the President in some ways, but that’s not gonna happen without pulling back in some other areas. That there is sort of a plan here that the court has.

John Vecchione: And I hope whoever wrote this article forgives me, but I forgot, and I read so much that I forget who wrote it. But there was another article, and it might have been Adam White, but it was the who, what distinction. Who runs the executive is gonna be the President, and he’s gonna have a lot of power over personnel. But through Loper Bright and other cases, the what of what power has been granted to him, there the court is willing to limit and not go as expansionist as they did in the 30s to the 70s, right?

So, they are not – unless Congress is clear that it’s handing over power, and this is major questions doctrine, it’s a number of things. The court is allowing the President a lot more power than we’ve been used to over the last 100 years to appoint and to fire and all that. But they’re giving him a lot less power to make up what power Congress gave him.

Mark Chenoweth: Right. That’s right. That’s right. There has to be – it has to begin with Congress passing a statute.

John Vecchione: And they have to really be able to discern whatever the President says he can do under that statute; it’s discernible to people who aren’t the President.

Mark Chenoweth: Yeah. Well, we were talking a bit ago about the scope of the executive power. One of the things that came up that I think is a pretty quintessential executive power is the ability to enter foreign agreements. And that’s something else that the FTC does from time to time. And we mentioned in NCLA’s amicus brief that this is a quintessential executive power, and it’s another reason why the President needs to be able to terminate these commissioners.

John Vecchione: So, Barrett specifically said that the FTC enters foreign agreements, and that was in our brief, and I did think Agarwal had a decent answer to that, which he cited that the State Department can veto it or sign off. But it’s proforma. That’s the real problem, but it was a good answer. I just think that that isn’t enough because, and you know, I have a hobby horse about this. The idea that the FTC goes to Europe and goes to Japan, and hurts companies for their speech that they couldn’t do here by saying, “We can’t do it, but you can do it to them.” That’s awful, and that’s what the FTC does, and it’s just outrageous.

Mark Chenoweth: It’s really going against Congress.

John Vecchione: Yes. Yes. And the Constitution. They shouldn’t be able to use one word out of their mouths to violate the First Amendment, even in foreign policy. And so yes, Barrett is on that. She knows. She’s read that. She understands that these agencies, these independent agencies, are doing foreign policy. And I think she’s doing that to get Kavanaugh, right? Because what does Kavanaugh think about foreign policy and the President’s power there? He doesn’t think it should be diluted one bit. And if these independent agencies are diluting the President’s power in foreign policy, that goes right up Kavanaugh’s nose. That is not his thing.

Mark Chenoweth: Oh, that’s very interesting. And some of these agencies, you might be surprised that the Consumer Products Safety Commission is involved in foreign policy as well. We entered Memorandums of Understanding with the product safety folks in Canada, the EU, or Japan, what have you, from time to time as well. So, it’s not as though, and the only time I’ve been to China was as a government employee at the Consumer Products Safety Commission. So, there can be foreign policy implications with some of these independent agencies. So, she was right to mention that.

John Vecchione: Yeah. And I think that’s a very good point.

Mark Chenoweth: The other case of ours that came up at oral argument, John, was the Axon case. Now, we were the companion case to Axon, much John as you’re relentless case was companion to Loper Bright, we had the Cochran case that was the companion to Axon. And I thought Agarwal was trying to make that case stand for something that it doesn’t stand for. He was saying that –

John Vecchione: I didn’t know what he was doing.

Mark Chenoweth: He was trying to say that Axon meant that the FTC could stand in the shoes of the district court or something like that. I thought, well, that’s sort of the opposite of what that said. It said that these agencies aren’t competent to decide these Constitutional questions. And that’s why you can go directly to Federal District Court to raise these structural, Constitutional objections. And that was a weird –

John Vecchione: And they didn’t buy it. When he asked that, they didn’t buy it.

Mark Chenoweth: No, they didn’t. They didn’t. Which I was glad. They know what they wrote.

John Vecchione: Right. Exactly.

Mark Chenoweth: It was pretty recent; it was them, they know. The other thing that came up, John, Agarwal, and some of the justices kept asking, I think it might have been Sotomayor or Jackson, why has no one raised these concerns for 90 years? And my tongue-in-cheek answer is, “Well, the NCLA’s only been around for eight years, so you know, give us a chance. We’ve been raising them from day one.”

John Vecchione: Well, I’ll tell you this. Jackson was all about the President will get rid of these experts, then just appoint people who will do anything. And I thought – the only agency I know that you can accuse anyone of doing that is health right now, right? RFK supposedly is putting in people who don’t know what they’re doing and all that. And I know that that’s top of mind, but that’s an agency completely controlled by the President as it is. I don’t see, and I see no hint that there’s any movement to get rid of experts.

Just they don’t have independent executive power, right? That’s what this is. So, even if you like experts, the idea that they can act without democratic approval by the President or somebody in the elected government seems very odd to me because the President relies on experts all the time. But they’ve gotta be under control of the polity, right?

Mark Chenoweth: Well, and she’s just betraying a lack of understanding of these independent agencies as well. And I – Justice Jackson wasn’t on the DC Circuit for very long, but she was on the DC District Court for a decent period of time. I would have thought she would have seen some of these cases. The idea that these folks are experts may be at the Nuclear Regulatory Commission. I don’t know that commission very well, but I know the Consumer Product Safety Commission very well, and I have to say, the folks appointed as commissioners there, they’re not appointed because they have consumer product safety expertise.

Occasionally, you might get one person appointed that way, but mostly it’s former members of Congress, or it’s actually like Peter Feldman, the current acting chairman of the CPSC, a former Congressional aide to a member of the Senate who had oversight at the CPSC. That doesn’t mean he's an expert on consumer product safety; it means that he was a favorite of the person whom the President consulted for the appointment.

John Vecchione: So, Eli Nachmany, I was talking to him about this the other day, and I haven’t looked it up on my own; this is his idea. But I trust that he’s right about this. He says that the expertise at the dawn of the progressive era, when they were doing this, was meant to mean expertise in administration.

Mark Chenoweth: Oh, interesting.

John Vecchione: So, he says that it wasn’t like they were scientists or things like this, but they were people who had run, for instance, large manufacturing outfits, or that the expertise the progressives were looking for was administrative expertise. And they were gonna hand over to these administrators, who were non-partisan or something, all this power. I don’t think that’s how Jackson was using it, though. She meant –

Mark Chenoweth: Scientific.

John Vecchione: She meant that. So, but if that’s true, and it seems plausible to me, certainly from Wilson, that sounds like Wilson, right up his line. So, I have to think about that a little bit more. But that’s what expertise meant when they were doing this.

Mark Chenoweth: That’s very interesting. And it’s not that there isn’t some expertise at the agency. They have scientists, but the –

John Vecchione: And experience.

Mark Chenoweth: And experience. But the politician bureaucrats at the top are the decision makers, and they frequently overrule the decisions of the so-called experts. The other thing I would say is there’s not a lot of expertise about what it’s like to run a business. And I was flabbergasted routinely by the things that the supposed experts were saying in-house at the CPSC about how business would respond to various regulations that they wanted to promulgate. And it's just like, “You guys have never spent a day on a factory floor. This is just an idiotic idea that you’re coming up with.” And so that was instructed that she wanted to put as much emphasis on expertise as she did. We said this, John, in the very first amicus brief that NCLA filed before you had even joined us. This was when Peggy was our only litigator. I think it was in the Lucia case, and we were talking about the SEC, and we said that the emperor has no clothes because the SEC ALJs were –

John Vecchione: Don’t even have to be security lawyers.

Mark Chenoweth: No, they weren’t securities lawyers; they came over from the Social Security Administration in many cases. So I think that the expertise thing is overblown by Justice Jackson in this case. But also by others from time to time. Any final thoughts, John, about the argument?

John Vecchione: I – what I’m gonna look for now, which I wouldn’t have looked for before the argument, is whether or not they say where the power to fire comes from. Whether those three clauses, I had never focused on that in all the years I’ve been doing this, and I think it’s an interesting question now.

Mark Chenoweth: Whether it matters?

John Vecchione: Yeah.

Mark Chenoweth: Which one – whether it’s one or two or all three.

John Vecchione: Yeah. Or they may not mention it at all. I think that’s really what’s gonna happen. But it’s an interesting question.

Mark Chenoweth: It is interesting and I think for me it’s – Justice Kagan tried to say that the bargain, and I don’t know who’s bargain this is, I think what she was really saying is the decisions the Supreme Court has made over time, ‘cause I don’t think this was a two-sided negotiation kind of bargain was that they’ve given legislative and judicial power to these agencies already and so we can’t let the President control them.

But I think that the majority on today’s Supreme Court thinks that the answer isn’t to take away legitimate executive power from the President, it’s to take away legislative and judicial power from the agencies, and we’ve already seen that in the Jarkesy case decided the day before Loper Bright where they said, “No, you have to be in an Article Three tribunal, you have a jury trial,” getting away from this sort of public rights doctrine of the 70s. Loosey goosey idea that administrative agencies can do a lot of this administrative enforcement. And I think what we haven’t seen yet from the court is are they willing – is there going to be a Jarkesy of legislative power? Is there gonna be a case where they say, “Oh, no, you can’t have all this legislative power at these agencies.” And Gorsuch is clearly ready for that.

John Vecchione: The water’s warm.

Mark Chenoweth: The water’s warm, but will anyone else come in the water and join him, I guess, and make a majority for that? I think that if we’re right about this case, if we’re right, that Humphrey’s Executor is going down and that the President will have removal power, I think that’ll put a spur to the need to reduce the legislative power at these agencies, don’t you?

John Vecchione: I do. The whole argument was suddenly like light going on in the democratic appointee’s eyes that maybe there’s something to this non-delegation doctrine. So, I do think that if they’re gonna see more, it’ll appear to them that the parade of horribles has arrived. So, I think you will see some reinvigoration of the non-delegation doctrine if they can figure out what it is. I’ve always said the real problem with it is how do you make a rule on non-delegation that the district court judges can follow?

I think that’s the problem for them. And I think that’s why it’s been – someone’s gotta come up with something, and I’ve seen Professor Hamburger’s, I’ve seen other people’s. I still don’t have a paragraph you can tell the district courts about non-delegation that they’ll follow. And that’s the problem. I think they’re now all realizing it's not just Gorsuch; they all know this now, I think.

Mark Chenoweth: I think that’s right. And so we’ll stay tuned, and that’ll be something to watch for from this decision to see if there’s, first of all, who writes it?

John Vecchione: Yes.

Mark Chenoweth: And then is there any hint that now they think they’re gonna have to do more?

John Vecchione: And I assume it’ll be the Chief, don’t you?

Mark Chenoweth: I think so. But if they’re trying to get both of them out quickly, it might be that they have to divide and conquer here. But it remains to be seen. Thank you for tuning in 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: 21 minutes