Just days after oral argument, Unwritten Law hosts Mark Chenoweth and John Vecchione break down one of the most consequential separation-of-powers cases in decades: Trump v. Slaughter.

At stake is Humphrey’s Executor, the 1935 Supreme Court decision that allowed Congress to insulate powerful federal regulators from presidential control. If overturned, the ruling could fundamentally reshape the modern administrative state.

Mark and John walk through the justices’ questions, the strengths and weaknesses of the arguments on both sides, and why several members of the Court appear ready to rethink nearly a century of doctrine.

This episode offers a clear, candid look at how the Court may redraw the constitutional boundaries of executive power — and what that means for self-government in America.

Mark Chenoweth: If you think that unwritten law doesn’t affect you, think again. Whether you’re a business owner, a professional, or 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 just a couple of days after the oral arguments in the Trump v. Slaughter case at the U.S. Supreme Court.

John Vecchione: Yes. And also, multi-headed agencies, not single-headed agencies.

Mark Chenoweth: Yeah, absolutely. And so, the oral arguments was interesting and like I say, we’re a couple days past it, John. So, first impressions, what’s your big takeaway from the argument?

John Vecchione: Well, I think it’s pretty clear that Humphrey’s is going down. It isn’t totally clear yet, though, whether they’re just going to distinguish it because the FTC changed so much. But there weren’t that many questions on that.

Mark Chenoweth. Yeah. That would be the narrowest basis for overturn.

Mark Chenoweth: Yeah.

John Vecchione: But the – it was interesting to me because, obviously, John Sauer, for the administration, took a maximalist position. And he seemed to say that the ability to terminate comes from all three clauses in the Constitution: the vesting clause, the appointments clause, and the take care clause.

Mark Chenoweth: Right.

John Vecchione: And so, he wanted maximum power, and I think that the Justices they don’t wanna do that in this case. They wanna see case by case because I always use the example of the mailroom boy who’s dating Trump’s granddaughter, and he doesn’t like that he’s doing it. So, the guy’s just delivering the mail, he’s not making any policy, can he just be fired ‘cause Trump doesn’t like him, right?

Mark Chenoweth: Right. Right.

John Vecchione: And that type of question is still out there. That these are principal officers, it’s clear they’re principal officers. It’s clear the President’s gotta control them from the way the court was going. So, I really think that the principal officers will not – will have to be terminable at will. And I think that’s gonna be the upshot of this, however it comes out.

Mark Chenoweth: Yeah, I think you’re right. The sticking point for some of the justices seems to be this idea that, “Well, what about some of the Article One Courts?” The Tax Court, the Court of Federal Claims, and so forth?

John Vecchione: Social Security ALJ’s right?

Mark Chenoweth: Right. So, is there, if you were to decide that these principal officers at the FTC, for example, don’t have tenure protection, then do we have a problem with these Article One courts? And I did not see five justices interested in doing away with those courts.

John Vecchione: No. ‘Cause here’s the problem, and just so our listeners understand why that would be bad. You could have a President appointing people who only award Social Security Benefits to Republicans or to Democrats. That is what they’re really trying to avoid. They don’t want the partisan award of public goods that there’s a statute saying you get it if you meet these criteria, but by putting in an ALJ who’s just gonna be partisan, it will never find the criteria for the other side, that’s what they’re worried about.

Mark Chenoweth: Now we’re a Tax Court Judge, or –

John Vecchione: Oh, yeah. Or Tax Court, yeah, exactly.

Mark Chenoweth: Yeah. Yeah. Or those people would be removed. If they did the right thing and denied someone benefits, then if they were removed for partisan reasons. That could be troubling as well. So, yeah, there wasn’t an appetite for that, I didn’t hear –

John Vecchione: No. They’re kicking that down the road.

Mark Chenoweth: Right. The other thing they’re kicking down the road, and this was, I think, predicted ahead of time, was the Federal Reserve. Because there’s another case coming later in the term where they have an opportunity to look at the Federal Reserve, the Cook case, that’s ostensibly a for-cause termination, so they may not even reach the question there. But there was a question here, John, about does the length of the terms matter? So, they talked about five, 15, and 20-year terms. They never said 14-year terms.

John Vecchione: This was Alito, right?

Mark Chenoweth: Yeah. I think so.

John Vecchione: Alito was going on as long as it’s longer than a Presidential term, so he doesn’t get to fire them. And what if they make it so that it – everybody on the multi-headed board exists past the length of a Presidential term, then he’d never to appoint any of them. So, he was thinking of the Federal Reserve. ‘Cause they did 20 years and seven years, right? And they never did 14 for some reason.

Mark Chenoweth: Right, right, yeah. But that was my sense is that they were – the question was really about the federal reserve and I didn’t get a clear sense of where they were going on that except that I don’t think that they thought that there was necessarily a principal distinction between being able to fire people based on five or 15, or 20 that that shouldn’t be the thing.

John Vecchione: The thing. I think that’s right. And the other thing about it was on the Federal Reserve question, they did take both Slaughter and Cook, so they obviously think they’re different cases. And for Cook –

Mark Chenoweth: And they didn’t take some other cases, or at least they’re holding them back.

John Vecchione: And they didn’t take – correct. They’re gonna say, you know, remand in light of our decision in either Slaughter or Cook, I think.

Mark Chenoweth: I think so.

John Vecchione: But the – what I took away from that, from the argument, was that they do think the Federal Reserve might be different, but the problem with the Cook case is if they decide that the President can unilaterally decide what cause is, that’s not Judicial Terminant, that’s not the same, right?

Mark Chenoweth: Right.

John Vecchione: It would be the same.

Mark Chenoweth: Functionally.

John Vecchione: Functionally. It’s functionally the same if the President can say anything is cause, and there’s no judicial yardstick for what cause is. So, I do think that’s gonna be an issue in that case. And then the real question is, can the for-cause termination of the Federal Reserve be constitutional or not? And at least Barrett and, I think, Kavanaugh, were, I think that’s why there were a lot of questions about historical liquidation of –

Mark Chenoweth: Especially from Barrett.

John Vecchione: – of practice. Meaning that, this is what I always call the George Washington precedent. There’s a lot of things George Washington did, so that for hundreds of years, the court just always allows it if George Washington did it. Now, that’s simplifying it a little, but they’re saying that, “Look, if he was doing this when they just wrote the constitution, and he’s George Washington, then it’s very unlikely that it’s unconstitutional.” And that’s kind of the thinking.

Mark Chenoweth: ‘Cause he was such a great man, he wouldn’t have done something unconstitutional.

John Vecchione: He wouldn’t have done something unconstitutional, and even if he did, well, it’s baked in the cake now, because we’re not gonna change something after that happened from the very first Congress, from the very first administration till now. If it’s always been done, we aren’t – we have a very hard time changing it. That’s kinda it.

John Vecchione: Well, there’s no question that’s true. And the reason I bring up the sinking fund, it was in a lot of the briefs, basically, when the –

John Vecchione: It was ‘cause that’s – the argument was that the originalist argument for these independent agencies was that this fund, which was basically the Federal Government, took on the debts of all the states. And this was a compromise, and they put the capital in Washington. And then they had to pay the debts, but they had to – there was administrative questions about what the debts were and all that. So, the sinking fund was – the board that ran that money included the Vice President and the Chief Justice of the United States.

Mark Chenoweth: Not clear that would be constitutional today, by the way.

John Vecchione: Exactly. But you can’t fire them, right?

Mark Chenoweth: Right, right, right.

John Vecchione: The President can’t fire them. Maybe he could fire them as part of the board. I was thinking about this, what if Congress, tomorrow –

Mark Chenoweth: Oh, that’s interesting.

John Vecchione: – makes an agency that’s headed by the Vice-President of the United States, right? They say the President of the board of stuff will be the Vice President of the United States? And that’s just a job they give him. What happens then? I have no idea, but I had not thought of this ‘til I saw the sinking fund. And I’m like, “They probably had so few Federal Offices.”

Mark Chenoweth: I think that’s what it is.

John Vecchione: And they had to just, “Who do we got?” Well?

Mark Chenoweth: I know two people we got.

John Vecchione: I know, exactly.

Mark Chenoweth: Yeah. I think you’re right about that. So, and whether there’s constitutional significance in that. But I think what came up in oral argument was the fact, if I understood correctly, that the other three members of the sinking fund were terminable at will.

John Vecchione: Correct. And they were all appointed by the President.

Mark Chenoweth: Right, which makes it look like it actually is a precedent that goes the other way for those who say the President can fire at will.

John Vecchione: Yes. And it didn’t have really executive decision. It was making kind of investigatory judicial decisions; it seemed to me. I guess paying out the money might be executive, but it really looked like they were just making sure that the debts were real and that kind of thing.

Mark Chenoweth: Now, you mentioned, John, the sort of three textual hooks. And I wanted to just circle back to that for a second because Justice Barrett focused on this as well. And I guess my question to you is, does it matter whether the court reaches the decision based on the vesting clause, the appointments clause, or the take care clause? And maybe we should briefly, sort of talk about those three and sort of why – what the significance is of them or what the meaning is of them, and then do you think it matters if they do all three or one of the three or?

John Vecchione: I will be perfectly candid. I never thought of this question until the argument, okay? I saw a post tweet by Dan McLaughlin of National Review explaining this, and I had always, I guess, I knew it in the back of my mind, but I had never focused on this. And it appears, this argument, I’ll go into what each of those is in a minute, but this was the whole problem. And why Barrett was interested was because of these Article One judges and certain people who have always had some kind of independence since they’ve had ALJs. Since they’ve had public goods that they’re handing out, and they wanna hand them out without partisan interruption.

Mark Chenoweth: Right?

John Vecchione: Right? So, here’s what it is. Under the Appointments Clause, the President, with the advice and consent of the Senate, put in principal officers, but the other officers can be appointed in other ways by those principal officers. Can he directly fire them, for instance? So, ‘cause he doesn’t have the power to appoint them, can they be insulated, I think. So, then the –

Mark Chenoweth: The inferior officers?

John Vecchione: The inferior officers. And then, for the take care clause, because the President has to take care that the laws are faithfully executed, I think that would be the maximum. That would give him maximum power, because anyone who could interfere with the execution of the laws, which is everyone, even the mail boy, right? The mail boy doesn’t deliver the mail to somebody, then the laws aren’t being faithfully executed. So, I think that the take care clause, if that’s the source of the power to fire, I think that’s the maximum one.

Mark Chenoweth: Depends if it’s judicially reviewable or not, I think. ‘Cause you could imagine a situation where the court said, “Yes, we’re looking at the take care clause, but the President has to show that his will is being interfered with before he can fire someone.”

John Vecchione: I guess so. But whether or not the President is faithfully executed the laws has been a dead letter, judicially for all our history, right? They do not wanna get there.

Mark Chenoweth: I agree with that.

John Vecchione: But in this case, if this came up, like, let’s say someone’s firing you for following the law, right? You’re following the law, so you get fired. And so, then you say, “Well, you can’t do that firing ‘cause he’s not taking care of the laws if they’re faithfully executed. He’s trying not to execute the law.” Well, what happens then? I think that’s gonna be a rough day.

Mark Chenoweth: That’s interesting. Well, the other thing, so you mentioned the appointments clause, the other thing about the appointments clause is that it's silent about the removal power. And so, there’s a suggestion that the silence speaks volumes. That if they wanted to restrict it, they could have, and they didn’t.

Mark Chenoweth: And a little bit of a James Madison thing.

John Vecchione: And James Madison, yes.

Mark Chenoweth: It was a decision of the Congress.

John Vecchione: Correct. And so, but the one thing that bothers me, and I still don’t have a good explanation that I like about it, is the part of the Constitution that says that the President can order a cabinet member to give him their opinion in writing, right? Why? Of course he can. If that is something they think they had to put in there, I’m like, “Maybe his powers weren’t as great.” But since that was written, he’s done a lot more things. So, I do think that is one thing that might have been liquidated. Because why the heck is that in there? It’s like you tell the Secretary of the Treasury, “Could I have a report on the nation's finances?” “All right, but I’m only gonna give it to you orally.” “No, I want it in writing.” “Nope, not gonna do that.”

Mark Chenoweth: Yeah, I don’t know. And Caleb Nelson made a big deal out of that in his explanation for why some of the other textual arguments aren’t as broad as other believe them to be. I think it’s a belt and suspenders situation. I don’t put much stock in that. I do think the arguments around the vesting clause are important because it’s pretty clear that it was a deliberate decision on the part of the founders to put the executive power in the hands of a president of the United States, right?

And so, there’s only one person who has executive power, and there seemed to be a suggestion at oral argument, at least by Justice Jackson, maybe a couple of others, that either there was executive power that Congress could assign to somebody else other than the President, or that this executive power could somehow be either separated or spread –

John Vecchione: Or spread. They’re mixing legislative and judicial powers. Why does he have to have all the power? Because he has to have all of the executive power is the answer, but that was the suggestion. I think that there – the vesting clause, but what the executive power is has never been clearly defined. You go back to the mail room, well, is the executive power the mail room boy, and it becomes, you have to actually define what executive power is. And if you go back to Humphrey’s, they’re saying it’s quasi-judicial, quasi-legislative.

Mark Chenoweth: Right. But if you go pre-constitution, removal of power was certainly a quintessential executive power.

Joh Vecchione: I think that’s right. And the one that always strikes me is investigating. Every one of the branches investigates, right? It doesn’t seem to me that Congress has investigations; the judiciary can, through discovery and stuff, investigate, and obviously, the President has investigatory powers. So, what is investigation? And we always say that the punishment is the process, right?

The process of investigation can really impinge on our liberty and on your life, but it appears to be in all three branches. So, I am – I wonder if some day, they’re not gonna have to say, “Well, what is that?” Because they do allow anybody to investigate, even private parties. The President can have – like the Pinkertons’ right? He can have just non-government people investigate you. So, and I think that’s an enormous power.

Mark Chenoweth: I’m not sure that it’s true that he can have non-government people investigate. I think we’ve got a case on that right now that Russ Ryan does, I think that’s unconstitutional, we’re gonna try to show that that’s unconstitutional. I agree with you that it’s happened.

John Vecchione: Yeah, it’s happened.

Mark Chenoweth: Historically, but I don’t think that’s on safe ground.

John Vecchione: I think you’re right about that. But it’s done.

Mark Chenoweth: Yeah. That’s right. Another thing that came up at oral argument, John, was as they were putting out their parade of horribles, “Oh, if the President can do this then,” and I thought it was really interesting that some of the conservative justices sort of tried to march the parade of horribles in the opposite direction and they said, “Well, wait a minute. Now, what’s Mr. Agarwal?

He was arguing for Commissioner Slaughter, former Commissioner Slaughter. What’s the logic of your position, or what are the ultimate consequences of your decision? Could Congress take an existing cabinet position like the Secretary of the Treasury and turn it into a multi-member commission?” I didn’t think he had a good answer for that.

John Vecchione: He didn’t. And the other thing about that, he didn’t – he was relying on cases, not on a mental construct of how the Constitution works. And I always think that once you’re up in front of the Supreme Court, you'd better have a theory of that. Because they’re gonna be asking those questions of limiting principals. Everyone knew they were gonna ask it, and he didn’t have a limiting principle except for the background cases of the Supreme Court. He said, Well, you did this in this case, you did this in this case. I don’t think he gave them an answer they liked. Because really, if the Congress was mad at the President, and they had enough votes, they could, make every cabinet office a multi-member thing, and then what’s the President do? He sits around twiddling his thumbs.

Mark Chenoweth: That’s right. And yeah, I don’t think he had that, and his answer seemed to be, “Well, we don’t have to worry about Congress doing that.” Well, really?

John Vecchione: ‘Cause they never have.

Mark Chenoweth: ‘Cause they never have, except that they’ve done very odd things even within the last 15 or 20 years with the Consumer Financial Protection Bureau, for example.

John Veccchione: I think that’s in the background of everything because they’ve had a lot of cases with that single-member board. And the fact that the Humphreys’ Executor was out there, and a lot of these cases that allowed this blurring of what the President can do and what everyone else, that blurring was taken to its maximum extent on purpose by Congress to create the CPS.

And I think if that organization had not been created with all these cases in mind, they – Elizabeth Warren and everyone knew what these cases were and designed the CPSC on these cases. And if they hadn’t done that, I don’t think it would have sharpened the divergence from the Constitution as much as it now is in the Justice’s mind. ‘Cause now they’ve seen the CPSC a number of times.

Mark Chenoweth: CFPB, yeah.

John Vecchione: They’ve seen it a number of times, and they’ve seen the problems with it. It’s gone up there a lot, and it’s gone up there a lot because it was designed to maximize every one of these Humphrey’s Executor type decisions of theirs.

Mark Chenoweth: Well, and to reduce the power of the President, initially.

John Vecchione: Right. Correct.

Mark Chenoweth: Except that then when they severed the removal power in a, say, a law, then all of a sudden, the President has all of that power that Congress put in that –

John Vecchione: Right.

Mark Chenoweth: – position, which I wrote an article saying, “Out of the frying pan and into the fire” on that one. But, they’re stuck with that decision now, and so that’s gonna inform what they’re doing here, I think, as well. And I think, by the way, the parade of horribles that they were marching out, I think they’re gonna have a hard time scaring the Justices with that because the President can already fire all of those cabinet positions without any – he’s always been able to do that.

Secretary of the Treasury, head of the EPA, whatever, he can also now, post-fire the head of these single-member agencies like the Consumer Financial Protection Bureau. So, why is the FTC so special or the FCC so special? Is it gonna be that different to the ordinary American if the President can fire folks at these commissions? It’s just gonna be like the cabinet secretaries, isn’t it?

John Vecchione: Yeah, I would think, here’s the problem for the FTC. The FTC does all this merger stuff and all this antitrust stuff. And the President now is saying he’s personally getting involved in whether Netflix or who’s gonna buy Paramount, right? So, he could be personally involved in those types of transactions. But I think that Gorsuch really got there.

Mark Chenoweth: But that’s no different than him being involved with the DOJ and the anti-trust, right?

John Vecchione: That’s exactly right. But the thing is –

Mark Chenoweth: I’m not saying he should be, I’m just saying it’s –

John Vecchione: As I always say, the FTC has the – they’re allowed to stop any unfair practice, right? And that should have been struck down under the non-delegation doctrine 100 years ago. That is the real problem with the FTC: anything they decide in unfairness suddenly becomes unfair, right? Non-compete clauses have been part of contractual law forever. I don’t like them; I’ve never liked them. I’ve litigated them a million times, but they’re part of the law. And they didn’t suddenly become unfair because the FTC said they were unfair, right? So, the real problem with the FTC is that Congress has given it too much power, and this is what Gorsuch was getting to. Is the water warm, which is an odd way to do it. I don’t think Sauer knew what he was saying.

Mark Chenoweth: I don’t think so either.

John Vecchione: I was like, “I understand what he’s –” Sauer’s all for the non-delegation doctrine, I can tell you that, Justice Gorsuch. But he was saying –

Mark Chenoweth: I don’t think that’s the metaphor he was going for.

John Vecchione: Exactly. So, I guess he means, he wants, obviously, Gorsuch wants to reinvigorate the non-delegation doctrine. And he was using the questions of the democratic appointees to point out that they never, never help him on non-delegation, but they’re really, really upset that the President’s gonna get all this power. And Randy Barnett, he said, “Everyone’s worried about the President getting this power. Well, who has it now?”

Mark Chenoweth: Oh, that’s a great question.

John Vecchione: Right?

Mark Chenoweth: That’s a great question, yeah.

John Vecchione: Yeah. And I said, “And who are they responsible to?” Right?

Mark Chenoweth: Right.

John Vecchione: That’s what’s going on here. So, these people, I guess –

Mark Chenoweth: ‘Cause it’s not Congress.

John Vecchione: Right. I think the answer would be that you don’t – because it takes a number of administrations to change all this if they have these terms and stuff that you’re not gonna get quick switches and everybody’ll get their guy in there at some point. But you won’t have direct control, and somehow that’s better. But I don’t see that it's better, and I think it really creates sclerosis of government. You point out a million times about the agencies that were in total democratic control when there are Republican administrations, and it could happen the other way, too. And well, who do you blame for anything when that happens?

Mark Chenoweth: Yeah. You’ve got that problem, and then I thought it was Justice Sotomayor, I think it was, who was coming at this from the remedies standpoint. She’s like, “Okay, well, fine if that’s the situation. But why do take away the tenure protection? Why don’t we just take away the executive power that the FTC has?” And I just had to laugh when she said that because she must be in favor, John, of taking away massive power from the FTC, because most of what it does today is executive.

John Vecchione: There’s no question. And actually, I thought it was funny that both Sauer and Agarwal were like, “No. That is not it. You can’t just destroy the agencies. It’s all about who controls them, not whether they exist.” And I did think it was funny that neither of them bit at that, ’cause they were both asked about that and they were, “No, no, no. This is severable, completely severable.”

Mark Chenoweth: I didn’t hear a single other justice buy into that either.

John Vecchione: No.

Mark Chenoweth: So, I think she might have been on her own there. But, I do think there’s a question as to what they’re gonna do here in terms of remedy. I guess severing is the logical, severing the tenure protection is the logical thing. Is there anything else that they might do? They’re not gonna take executive power away from the FTC.

John Vecchione: Nope.

Mark Chenoweth: They’re not gonna do that, I don’t think.

John Vecchione: No. And also, it’s more difficult. They don’t like to do anything that’s more messy, ‘cause then they’re gonna have to decide what the executive power is, and I see no appetite for them. Obviously, termination of officers is an executive power, as we’ve discussed; they’re comfortable with that. But, in one case, deciding what the bounds of what executive power is? There’s no appetite to do that.

Mark Chenoweth: Well, no. Although I will say that maybe one of the most shocking moments for me, at least, in the oral argument was when Agarwal, again, arguing for former commissioner Slaughter, was asked whether the President can control the priorities of the independent agencies, and he said no. And I’ve went okay, so much for self-government. Really? I would think the core power of the President would be to set priorities, the budget, for example.

John Vecchione: Right. Well, Congress, but you’re right.

Mark Chenoweth: Well, I mean, submits the budget. Let me put it this way, maybe Congress could do something different with an agency budget that the President wants them to do, and he has to decide whether he’s gonna sign that or not. But the budget that gets submitted from the White House to Congress, the President has control over what the amounts are that the agencies are asking for. They don’t get to write their own ticket on that.

John Vecchione: No, and the other thing, his argument was slightly more sophisticated than that. He said that the President doesn’t have to have direct control of those things. And I was like, “Well, what’s his indirect control if he can’t fire these people?” I don’t know. What, he yells at them?

Mark Chenoweth: Well, and I thought he gave away the game there, John. Because at one point, he conceded, Agarwal conceded that the President had to have under the care clause, had to have the ability to adequately supervise all of these commissioners. But, John, how do you adequately supervise someone if you can’t remove them if they’re – you’ve heard me call it the stubborn subordinate problem, if you can’t remove them –

John Vecchione: They won’t give him a written report.

Mark Chenoweth: So, I just thought he lost the case basically by that concession.

John Vecchione: So do I.

Mark Chenoweth: Because you can’t – at least under the take care clause, the President has to have the removal power if he needs to be able to supervise.

John Vecchione: And he didn’t substitute some other idea for it. That’s what I’m talking about. He had no theory because if you’re gonna say that, you then have to have the theory of here’s the ways he supervises them without firing them, right? And you have to have a list. And you have to tell them that this is adequate or not adequate, but I didn’t hear any of that, and I didn’t see it in the briefs either.

Mark Chenoweth: No. I didn’t see it in the briefs either. And I think there’s probably a couple of other things that we wanna get to, but maybe we should leave it there for now, and we’ll talk about some other aspects of the oral argument on the next episode of 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: 28 minutes