# SCOTUS Expands Presidential Power

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 29 Jun 2026, 31 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/47880562-4ca3-4e5a-b181-b47801716d2c/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Constitutional law experts Gillian Metzger, a professor at Columbia Law School, and Harold Krent, a professor at the Chicago-Kent College of Law, discuss Supreme Court decisions expanding President Trump’s power to fire top federal regulators, but carving out an exception for the Federal Reserve. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:09] Speaker 1: In a six to three decision, down ideological lines, the
[0:13] Speaker 1: Supreme Court expanded the president's power to fire top government
[0:17] Speaker 1: officials at federal agencies for any reason. It's a blockbuster
[0:23] Speaker 1: decision that puts the White House firmly in control of
[0:26] Speaker 1: potentially dozens of agencies that have long operated independently, overturning
[0:32] Speaker 1: a ninety year old precedent in the process. But in
[0:36] Speaker 1: a five to four decision, the Court carved out an
[0:39] Speaker 1: exception for the Federal Reserve, reinforcing the Fed's independence from
[0:44] Speaker 1: the White House and protecting governors from being fired by
[0:48] Speaker 1: the president without proof of wrongdoing. Chief Justice John Roberts
[0:53] Speaker 1: and Justice Brett Cavanaugh joined with the Court's three liberals
[0:57] Speaker 1: to make up the majority in the case over the
[0:59] Speaker 1: fire of FED Governor Lisa Cook, an outcome closer than
[1:04] Speaker 1: advocates of federal independence might have liked. Chief Justice John
[1:08] Speaker 1: Roberts wrote the majority opinions in both cases. My guess
[1:13] Speaker 1: is an expert in administrative and constitutional law. Gillian Metzger,
[1:18] Speaker 1: a professor at Columbia Law School. Would you say that
[1:21] Speaker 1: the Court drastically expanded presidential power, even though he doesn't
[1:27] Speaker 1: have the power right now to fire Lisa Cook.
[1:30] Speaker 2: I think it did. I mean, whether this was the
[1:32] Speaker 2: expansion or the recognition of what the Court had done before,
[1:36] Speaker 2: you might quibble on. I think the Court had all
[1:39] Speaker 2: but overturned Humphy's executor in some of its earlier decisions.
[1:44] Speaker 2: It's a little bit unclear to me exactly what Cook
[1:47] Speaker 2: means in practice. You know, I read one thing where
[1:50] Speaker 2: Trump is saying he's going to go ahead and do
[1:51] Speaker 2: it again. We'll get a chance to see. But the
[1:54] Speaker 2: Court really does emphasize and Cook that the removal for
[1:58] Speaker 2: cause would be judicially viewable, rejects the idea that he
[2:02] Speaker 2: can't be, and also has language that emphasizes the need
[2:06] Speaker 2: for that review in order to protect the actual independence
[2:09] Speaker 2: and goes out of its way to emphasize it. Not
[2:13] Speaker 2: withstanding Slaughter, it sees the Federal Reserve is different. So
[2:17] Speaker 2: I think it's unclear exactly whether in practice they would
[2:20] Speaker 2: be willing to tolerate pretextual firings, you know, just because
[2:24] Speaker 2: of the present provides some notice and an opportunity for hearing,
[2:26] Speaker 2: and that said, what they specify as required is notice
[2:30] Speaker 2: that an opportunity for hearing are not that elaborate. My
[2:33] Speaker 2: guess is that the protection will likely come from the
[2:36] Speaker 2: judicial review afterwards rather than the procedures they outline. But
[2:40] Speaker 2: I think again, we have to see how that works
[2:42] Speaker 2: in practice.
[2:43] Speaker 1: The Chief wrote the majority opinion in the Cook case
[2:47] Speaker 1: as well as in the Slaughter case, explain his reasoning.
[2:51] Speaker 1: In the case of Fed Governor Lisa Cook.
[2:54] Speaker 2: So Cook came up before the court on an emergency
[2:58] Speaker 2: application for a stay. So the question with the court
[3:01] Speaker 2: focused on is whether or not the government was likely
[3:04] Speaker 2: to succeed on the merits to justify granting a stay.
[3:07] Speaker 2: The courts below had granted injunctive relief in Cook's favor
[3:10] Speaker 2: against the government, and the government made a number of
[3:15] Speaker 2: arguments of different degrees of radicalness. They argue that the
[3:19] Speaker 2: president had found cause. They argue that the president's determinations
[3:23] Speaker 2: were totally unreviewable. You suggested that requiring cause or review
[3:27] Speaker 2: might be unconstitutional. So it's an argument that actually Thomas
[3:30] Speaker 2: makes in his opinion. But the government itself didn't really
[3:32] Speaker 2: push that argument. They accepted that the court had held
[3:35] Speaker 2: had suggested. I think calling it a holding would be
[3:38] Speaker 2: going far, but it suggested in Wilcox that the Federal
[3:40] Speaker 2: Reserve was different and you could have four cause removal
[3:43] Speaker 2: and it gets to the Federal Reserve. So that issue
[3:45] Speaker 2: was in the case but not really addressed. And the
[3:47] Speaker 2: Majority does go ahead and sort of briefly address this
[3:51] Speaker 2: and says that at least the Federal Reserve, as connected
[3:54] Speaker 2: to its monetary policy functions, the precursors for which are
[3:58] Speaker 2: the First and Second Bank of the United States and idiots,
[4:01] Speaker 2: the Fed in that regard could be an independ agency
[4:03] Speaker 2: with four cause removal. And there's some debate among the
[4:06] Speaker 2: justices about whether or not the Court should do that.
[4:08] Speaker 2: And you have Barrett dissenting saying, hey, you know, on
[4:11] Speaker 2: an application for stay, this is a tough issue. We've
[4:13] Speaker 2: just done slaughter. We should think about differently. But really
[4:16] Speaker 2: animating the majority seemed to be a great deal of
[4:18] Speaker 2: concern to not have questions about the independence of the
[4:20] Speaker 2: Federal Reserve be lingering out there.
[4:23] Speaker 1: I mean, so we don't know what they would consider
[4:26] Speaker 1: for cause.
[4:27] Speaker 2: They give us some description. They emphasize the common law
[4:30] Speaker 2: basis for the protection that gives it some indication. They
[4:34] Speaker 2: indicate that there's a procedural component to it as well,
[4:38] Speaker 2: coming from the common law. The lower court had decided
[4:41] Speaker 2: on other grounds, so they didn't have lower court decisions
[4:44] Speaker 2: that lower court had found that cause didn't include conduct
[4:49] Speaker 2: taken before assuming office, and then also a due process violation,
[4:53] Speaker 2: and the DC Circuit had kind of emphasized the process violation,
[4:56] Speaker 2: so you didn't have a lot of lower court opinions
[4:59] Speaker 2: spelling it out detail. And so the fact that the
[5:02] Speaker 2: court remanded for that determination kind of makes sense. I
[5:05] Speaker 2: think that said, there's a tension between the court saying
[5:08] Speaker 2: we don't leave open questions about protecting the FED and
[5:12] Speaker 2: the fact that all it specifies this fairly thin procedure.
[5:15] Speaker 2: But then judicial review, which seems to be perfectly expectable
[5:19] Speaker 2: that what's going to happens to President's going to remove again.
[5:21] Speaker 2: So we'll either get some elaboration and maybe this time
[5:25] Speaker 2: the court won't review the lower court's granting of an
[5:27] Speaker 2: injunction that they do feeling like they've now a pined
[5:30] Speaker 2: on it. We'll see.
[5:31] Speaker 1: Trump said on social media quote, we will take appropriate
[5:35] Speaker 1: action immediately to make sure that someone who has committed
[5:39] Speaker 1: wrongdoing will not be making vital decisions concerning the welfare
[5:44] Speaker 1: of the United States of America. So is the Court
[5:47] Speaker 1: giving Trump leeway to Firecook again but giving her a
[5:50] Speaker 1: notice and a hearing.
[5:53] Speaker 2: Because the President didn't give any notice and any opportunity
[5:56] Speaker 2: for hearing, the removal that was done seems not to
[5:59] Speaker 2: me the requirements of the decision in Cook, I would say,
[6:03] Speaker 2: on the procedural grounds, that leaves the question of whether
[6:05] Speaker 2: if you were to provide notice an opportunity to be heard,
[6:08] Speaker 2: as the court specifies, but to go ahead and remove nonetheless,
[6:13] Speaker 2: what kind of subsistence accounts would be considered to be cause,
[6:16] Speaker 2: and how strictly that would be reviewed.
[6:18] Speaker 1: So I mean, most likely if the President goes forward
[6:21] Speaker 1: with what he says, then this is going to end
[6:23] Speaker 1: up at the court, And wouldn't they have to take it?
[6:26] Speaker 2: Usually I would say this is the kind of thing
[6:28] Speaker 2: that the court would take, but having taken it. And
[6:30] Speaker 2: one of the things they also do is they do
[6:32] Speaker 2: specify that they think that the threshold for what counts
[6:35] Speaker 2: has caused, although not as high as Cook specified, it's
[6:38] Speaker 2: still fairly significant. And they do emphasize the importance of
[6:42] Speaker 2: the Fed's independence, and they do say that whatever accounts
[6:45] Speaker 2: as cause has to be tied to the purposes of
[6:47] Speaker 2: the FED and its goals, and so those provide some
[6:51] Speaker 2: real basis to restrict to give cause some meaning. And
[6:55] Speaker 2: that's also some degree of guidance to the lower court.
[6:59] Speaker 2: So if the lower court apply that guidance, as the
[7:01] Speaker 2: Court and visions would happen, comes to the conclusion that
[7:04] Speaker 2: what the President has done is not cause, and that
[7:06] Speaker 2: gets affirmed by appellate Court. I'm not sure that the
[7:09] Speaker 2: Court would find it necessary to engage further on that.
[7:12] Speaker 1: Then we had this six to three decision down ideological
[7:16] Speaker 1: lines in the Slaughter case. How did they distinguish just that, Well,
[7:20] Speaker 1: the FED is different from all these other agencies.
[7:23] Speaker 2: Honestly, I think it is. I have to say that,
[7:25] Speaker 2: you know, the decision in both these cases, how they
[7:27] Speaker 2: came out was expected. I found Slaughter really disappointing in
[7:31] Speaker 2: its reason, in its thinness. I mean, a lot of
[7:34] Speaker 2: the Court's recent decisions have been thin the majorities, and
[7:38] Speaker 2: one of the things that they just don't deal with
[7:41] Speaker 2: in any fair way is the historical evidence and this opinion.
[7:45] Speaker 2: You know, there was great briefing on this or is
[7:46] Speaker 2: it now at this point? A substantial amount of historical
[7:49] Speaker 2: evidence and debates, historical debates to be sure about the
[7:53] Speaker 2: extent to which you had removal protections or the extent
[7:56] Speaker 2: to which it was clear that the president had at
[7:57] Speaker 2: will removable power at the time of the serious historians
[8:02] Speaker 2: have engaged and studied this, and I certainly think the
[8:04] Speaker 2: balance of that evidence pretty significantly does favor the idea
[8:08] Speaker 2: that there were number of different kinds of controls that
[8:11] Speaker 2: we're imposed, and that the historical record is not at
[8:14] Speaker 2: all that the country had come to agreement that the
[8:16] Speaker 2: president at will removal power in seventeen eighty nine. And
[8:19] Speaker 2: the Court references some of that in taking on the dissent,
[8:23] Speaker 2: But really it's treatment of the history is so pathetic,
[8:26] Speaker 2: it's so thin, it's so unseerious in this matter, and
[8:29] Speaker 2: we're talking about the structure of our government and president
[8:32] Speaker 2: of the Court that Congress has relied on, the country
[8:35] Speaker 2: has relied on, and it really it's such a one
[8:37] Speaker 2: sided treatment, citing only a couple of scholarship. At the
[8:41] Speaker 2: point when the opinion discusses the history and claims that
[8:43] Speaker 2: this is all decided in seventeen eighty nine, you know,
[8:46] Speaker 2: just sites one side of the debate. No academic would
[8:48] Speaker 2: ever do that. No serious treatment of the issue should
[8:51] Speaker 2: ever do that. And then when they the Court does
[8:53] Speaker 2: engage with some of the counterhistory, it's just dismissive of it.
[8:57] Speaker 2: The way it sets it up and treating the descent,
[8:59] Speaker 2: it doesn't really take seriously the actually the historical record
[9:01] Speaker 2: here is really not in its favor, but certainly at
[9:04] Speaker 2: a minimum unclear, as people scholars on both sides have acknowledged,
[9:08] Speaker 2: and that does really, I think affect the strength of
[9:11] Speaker 2: the majority's argument. I mean, the majority's argument has been
[9:14] Speaker 2: as it has been in all these cases. It's the
[9:16] Speaker 2: Constitution vests the executive power in a president, and that
[9:20] Speaker 2: means all the executive power in the president. And they
[9:23] Speaker 2: gave up and didn't want to have any kind of
[9:26] Speaker 2: board that would beyond a single person in order to
[9:28] Speaker 2: preserve energy and effectiveness, and that that therefore means the
[9:31] Speaker 2: president has to have removal power. It will as a
[9:33] Speaker 2: structural inference. There are huge leaps there. It doesn't follow
[9:36] Speaker 2: from the fact that the Constitution vests the executive power
[9:39] Speaker 2: in the president that Congress can impose any limits on
[9:42] Speaker 2: that removal power. Some moments might go too far, but
[9:44] Speaker 2: the Court just says the two are the same. They're not.
[9:46] Speaker 2: They're logically not the same thing. And there's a very
[9:50] Speaker 2: interesting bit where the Court also just rejects out of
[9:52] Speaker 2: hand the historical the fact for the last hundred plus years,
[9:56] Speaker 2: one hundred and fifty years now, we've had independent agencies vice,
[10:01] Speaker 2: you know, suggesting that just because we've deviated from the
[10:04] Speaker 2: true path of the meaning of the Constitution, the Court's
[10:07] Speaker 2: obligations to go back to it. But what's fascinating is
[10:09] Speaker 2: that the unitary executive theory is itself a modern day creation.
[10:14] Speaker 2: The Court is giving voice to a theory and understanding
[10:17] Speaker 2: of the structure of the Constitution that really took hold
[10:20] Speaker 2: in the nineteen eighties with the Reagan administration. And so
[10:24] Speaker 2: it's just a deep kind of tragic irony that it
[10:27] Speaker 2: can't see that what it's doing is exactly and in
[10:30] Speaker 2: some sense to my mind, you want to give a
[10:31] Speaker 2: good argument for the unitary executive, it would be that
[10:34] Speaker 2: we have through that constructed an argument for presidential control
[10:38] Speaker 2: and for presidential centrality over the administrative state that didn't
[10:42] Speaker 2: previously exist. You could make that argument, but the Court
[10:44] Speaker 2: doesn't make that. It just makes this incredibly thin argument
[10:47] Speaker 2: based on its own structural inferences, claims about the text,
[10:51] Speaker 2: ignoring the historical evidence.
[10:53] Speaker 1: This law passed by Congress right nineteen fourteen perm it's
[10:56] Speaker 1: a present to remove FTC commissioners only for cause. And
[11:00] Speaker 1: this Court has repeatedly said that this or that is
[11:04] Speaker 1: up to Congress. But here Congress said something, Congress did something,
[11:08] Speaker 1: and they're saying, no, it's up to us.
[11:12] Speaker 2: Yeah, I mean that actually is one of the important
[11:14] Speaker 2: points here is, you know, the way the separation of powers,
[11:16] Speaker 2: and this is the point that dissent makes, is that
[11:18] Speaker 2: the separation of powers for much of our history has
[11:21] Speaker 2: been something that the political branches have worked out, They've
[11:24] Speaker 2: hashed it out. It has not been something that the
[11:27] Speaker 2: Court has been the The Court certainly has had decisions,
[11:29] Speaker 2: you know, making important points Marble versus Madisine and the
[11:33] Speaker 2: importance of independent judicial review, you know, in eighteen oh three,
[11:36] Speaker 2: But the separation of powers and the sort of balance
[11:39] Speaker 2: between the executive branch and the legislative branch has really
[11:41] Speaker 2: been left to the political powers to work out for
[11:43] Speaker 2: long swaths of that period. And this Court has really
[11:47] Speaker 2: discharged up the separation of powers on steroids, and the
[11:51] Speaker 2: net effect has been that. I mean, it empowers the
[11:53] Speaker 2: executive branch for sure, but it really empowers the judiciary.
[11:57] Speaker 2: It's the judiciary that makes the determinations and has the
[12:00] Speaker 2: power to say, basically, you know, we're going to cast
[12:04] Speaker 2: aside one hundred and fifty years of governance in this
[12:08] Speaker 2: country and the political compromises that result in that.
[12:11] Speaker 1: So there are more than two dozen agencies, and they
[12:13] Speaker 1: deal with everything from nuclear safety and air traffic safety
[12:17] Speaker 1: to labor relations and the environment. Dissent that this ruling
[12:22] Speaker 1: will engulf the government in confusion. I mean, with Trump
[12:26] Speaker 1: at the helm, do you think that we're going to
[12:28] Speaker 1: see confused political decisions now? Or I mean, how do
[12:33] Speaker 1: you think this will work on the ground.
[12:36] Speaker 2: So on the ground, he's already transformed a lot of
[12:38] Speaker 2: these agencies because he's just gone ahead and fired them,
[12:40] Speaker 2: even though and he's not been vindicated by the court
[12:43] Speaker 2: and Slaughter. So in that sense, at the top of
[12:46] Speaker 2: these agencies, of the independent agencies, Slaughter is reinforcing what
[12:50] Speaker 2: the president has been doing. I think the critical questions,
[12:53] Speaker 2: and I think they're really really core questions, are how
[12:57] Speaker 2: broad is the import of the course dicis? Are we
[13:00] Speaker 2: talking about principal officers at the top of independent agencies.
[13:04] Speaker 2: All of the recent decisions sale of law involving the CFPB,
[13:08] Speaker 2: Collins versus cl and the Free Enterprise Fund, all of
[13:12] Speaker 2: those dealt with the members of a body that was
[13:16] Speaker 2: the governing body, not in particular the officers below them
[13:19] Speaker 2: or the employees below them. In other words, are we talking,
[13:22] Speaker 2: and this is one thing that so stresses in her descent,
[13:26] Speaker 2: Are we talking about the constitutionality of the civil service?
[13:29] Speaker 2: You look at the language of the majority opinion where
[13:33] Speaker 2: it says what text, history and structure settle our president
[13:36] Speaker 2: confirms the president may remove his subordinates at will. Well,
[13:41] Speaker 2: employees and inferior officers are the president's subordinates under the
[13:44] Speaker 2: unitary executive theory. And if you take that logic seriously,
[13:47] Speaker 2: then this isn't just about principal officers. This is all
[13:50] Speaker 2: the way down, and that is transformative beyond belief. That
[13:53] Speaker 2: is chaos, beyond belief, that is just a fundamental redoing
[13:57] Speaker 2: of how our government has operated ever since Spoil system
[14:00] Speaker 2: of the eighteen thirties. There is precedent. The court doesn't
[14:04] Speaker 2: really address it. All the Perkins decisions, so it could
[14:07] Speaker 2: distinguish it's not Meyers, the case Humphrey's executive the case
[14:10] Speaker 2: that it overturns here that's critical for inferior officers and
[14:15] Speaker 2: the civil services. A case called the United States versus
[14:17] Speaker 2: Perkins goes back to eighteen eighty five, but its logic
[14:20] Speaker 2: and reasoning can really be read that broadly. And so
[14:24] Speaker 2: that to me is the big thing to pay attention to.
[14:27] Speaker 1: I often wonder, you know, with this unitary executive's theory,
[14:31] Speaker 1: which they've been expanding Chrump's authority or the presidential authority,
[14:35] Speaker 1: but what happens when a democratic president comes in? Do
[14:38] Speaker 1: these six conservatives then rethink what they've been saying.
[14:43] Speaker 2: Well, they've been doing two separate things when it comes
[14:45] Speaker 2: to executive power, right. So, on the one hand, they
[14:47] Speaker 2: have been in decisions like Slaughter affirming the president has
[14:52] Speaker 2: this single handed control over all the executive branch. On
[14:55] Speaker 2: the other hand, they have been insisting on narrow readings
[15:01] Speaker 2: of regulatory authority by administrative agencies. They have been drawing
[15:05] Speaker 2: distinctions between in that sense, what you could call administrative
[15:08] Speaker 2: power and this kind of presidential removal power. So take
[15:12] Speaker 2: the Major Questions doctrine, right, which has developed at the
[15:15] Speaker 2: same time as the Court has been doing this restrictiveness
[15:19] Speaker 2: un removal. Well, what is major question major questions limits
[15:22] Speaker 2: the ability of agencies to regulate, and so the president
[15:26] Speaker 2: has more power and agencies can do less. Now, if
[15:29] Speaker 2: you're an anti regulatory court, which I think this court
[15:31] Speaker 2: fundamentally is, that's just fine. And one advantage of that
[15:35] Speaker 2: approach is if you're an antiregulatory court and a democratic
[15:38] Speaker 2: president comes in, the democratic president can still be constrained
[15:41] Speaker 2: in terms of the ability to exercise administrative power. Justice Gorsich,
[15:46] Speaker 2: you know, he has always been expressing concerns about sort
[15:50] Speaker 2: of the delegation of broad regulatory power. Who's been quite
[15:52] Speaker 2: consistent in that, and he has a concurrence which you know,
[15:56] Speaker 2: addresses much more honestly than the majority does. That The
[15:59] Speaker 2: effect and this decision is to grant the president tremendous
[16:02] Speaker 2: control over not just executive power, but also a bunch
[16:05] Speaker 2: of regulatory and judicatory kinds of actions that agencies do.
[16:10] Speaker 2: And that's a significant expansion of presidential power. But his
[16:14] Speaker 2: suggestion is to pull back on the ability to delegate
[16:16] Speaker 2: those powers to agencies at all. So again it's very
[16:19] Speaker 2: anti regulatory.
[16:20] Speaker 1: Well, the administrative state took another massive hit today from
[16:24] Speaker 1: the Supreme Court. Thanks so much for your insights, Jillian.
[16:28] Speaker 1: That's Professor Gillian Metzger of Columbia Law School. Today, the
[16:35] Speaker 1: Supreme Court dramatically expanded presidential power, upholding President Donald Trump's
[16:42] Speaker 1: firings of the heads of independent federal agencies, with one
[16:47] Speaker 1: critical exception the Federal Reserve, but other than at the
[16:51] Speaker 1: nation's Central Bank, with its role of setting interest rates,
[16:55] Speaker 1: The Court held that presidents have free reign to fire
[16:58] Speaker 1: agency heads at will, despite federal laws that require a
[17:03] Speaker 1: cause for such dismissals and a ninety one year old
[17:06] Speaker 1: decision that has limited executive authority. That ruling came in
[17:10] Speaker 1: the case of former Federal Trade Commission member Rebecca Slaughter,
[17:15] Speaker 1: whom Trump fired without cause despite a provision of federal
[17:19] Speaker 1: law that requires a reason. In the Oval office, Today,
[17:22] Speaker 1: a reporter asked President Trump what effect the Slaughter decision
[17:26] Speaker 1: would have on the Slaughter case.
[17:29] Speaker 3: The Supreme Court just affirmed your right to fire the
[17:31] Speaker 3: heads of independent agencies.
[17:33] Speaker 2: Should we expect more firings as a result of the
[17:35] Speaker 2: floor I don't think so.
[17:36] Speaker 4: It gives me the right, and that me it gives
[17:38] Speaker 4: a president the right to do what the president should
[17:41] Speaker 4: have the right to do.
[17:42] Speaker 5: And it's very interesting.
[17:44] Speaker 4: It's a big ruling that's been going on for almost
[17:46] Speaker 4: one hundred years.
[17:48] Speaker 5: They've been working.
[17:49] Speaker 4: On this, and you know that it comes down at
[17:51] Speaker 4: my term, is a very great honor, but it bestows
[17:55] Speaker 4: additional powers or maybe the same power on the president.
[17:58] Speaker 4: The president has the right to do this, and that
[18:00] Speaker 4: has to do with a lot of agencies all throughout
[18:03] Speaker 4: the system. So it's considered, you know, the biggest of
[18:07] Speaker 4: the group. And I can understand that this has been
[18:10] Speaker 4: going on for almost one hundred years.
[18:12] Speaker 5: They've been waiting for this.
[18:13] Speaker 1: My guest is constitutional law expert Harold Krant, a professor
[18:17] Speaker 1: at the Chicago Kent College of Law. How did President
[18:21] Speaker 1: Trump and future presidents gain power today from the Supreme
[18:26] Speaker 1: Court's decisions?
[18:28] Speaker 3: The Supreme Court, through the Slaughter Case, considerably augmented presidential power,
[18:33] Speaker 3: and it has done so consistently over the last generation.
[18:37] Speaker 3: And it's now presidential power really is at its zenith.
[18:40] Speaker 3: And we've seen that by the Court basically disabling Congress
[18:45] Speaker 3: from creating independent agencies.
[18:48] Speaker 1: So the Slaughter case is six to three down ideological lines.
[18:53] Speaker 1: So now there are no restrictions on the president's ability
[18:57] Speaker 1: to fire federal officials or federal officials at the helm
[19:01] Speaker 1: of these agencies. Where does it end?
[19:03] Speaker 5: I'm not sure where it ends.
[19:05] Speaker 3: I mean, what are the two question marks that arise
[19:08] Speaker 3: won The court addressed one that didn't is you know
[19:11] Speaker 3: what about the civil service laws? Are we next going
[19:13] Speaker 3: to expand this and say that the president should be
[19:16] Speaker 3: able to fire all federal unemployees or only those who
[19:21] Speaker 3: are at least superior officers, as was the case in
[19:24] Speaker 3: the Slaughter case itself.
[19:26] Speaker 5: So we don't know where the line drive will be.
[19:28] Speaker 3: Certainly, President Trump has said that the president's removal authorities
[19:31] Speaker 3: should not stop with the superior officers, should also be
[19:34] Speaker 3: extended to inferior office should also be extended to civil
[19:37] Speaker 3: service employees, but whether the Court will take that step
[19:40] Speaker 3: is unclear based on this decision. Loan. But the second
[19:44] Speaker 3: issue is that the court did say that not all
[19:47] Speaker 3: offices created by Congress contemplate the exercise of executive power.
[19:52] Speaker 3: So the court gave itself an out and said that
[19:55] Speaker 3: maybe with some kind of investigative authority, some officers with authority,
[20:00] Speaker 3: maybe some officers with judicial authority, could be protected from
[20:04] Speaker 3: that will discharge because they're not exercising purely executive authority.
[20:09] Speaker 3: So those cases remain to be seen, such as the
[20:12] Speaker 3: Mayor Systems Protection Board case is a good example of that,
[20:16] Speaker 3: and there will be others that are aligning up in
[20:18] Speaker 3: the queue. So that is the remaining issues about how
[20:22] Speaker 3: far this blinary removal authority will extend.
[20:25] Speaker 1: Well, how did the court explain there was a ninety
[20:28] Speaker 1: two year old president Humphrey's executor and the case echoes
[20:33] Speaker 1: what's happening in slaughter? How did they explain away just
[20:38] Speaker 1: you know, dumping that case.
[20:40] Speaker 3: They said that Humprey's no longer as a viable president,
[20:43] Speaker 3: and the Chief Justice cited the Chief Justice's former decisions,
[20:47] Speaker 3: saying that those decisions had destabilized Humphreys and really relegated
[20:52] Speaker 3: something of a dead letter. So it used these sort
[20:55] Speaker 3: of prior decisions to suggest that the Humphrey's case, which
[20:59] Speaker 3: is precedent name.
[21:00] Speaker 1: Only, are they looking to history to find that a
[21:05] Speaker 1: president can remove agency heads at will.
[21:09] Speaker 3: So the Court did discuss history to some extent, it
[21:14] Speaker 3: was a very particular history.
[21:16] Speaker 5: It left out large swaths of our past.
[21:19] Speaker 3: I mean, for instance, they never discussed the fact that
[21:22] Speaker 3: Congress is delegated to private individuals, the responsibility to file lawsuits,
[21:27] Speaker 3: the responsibility to enforce some aspects of civil and criminal laws.
[21:32] Speaker 3: It just ignores all that. And they did address some
[21:35] Speaker 3: historical examples, but said the weight of history was on
[21:39] Speaker 3: the court side, and of course the Chief Justice's recent
[21:42] Speaker 3: opinions were on the court side as well. And you know,
[21:45] Speaker 3: they had already press edged what this decision would be.
[21:48] Speaker 3: And I think doesn't take a lot to retee leaves
[21:51] Speaker 3: to know that the Court was moving to dismantle the regime.
[21:55] Speaker 1: And Hupper's executor, do you think that this will lead
[21:59] Speaker 1: to you know, confusion, chaos, problems in federal agencies?
[22:05] Speaker 3: Now, I think the result was preordained because of the
[22:10] Speaker 3: prior decisions. I think everybody is learning that the president's
[22:15] Speaker 3: is the boss and his words must be respected if
[22:19] Speaker 3: you're on an agency. So presidential interference is fine according
[22:23] Speaker 3: to the court. And so members of the inner circle
[22:28] Speaker 3: of executive branch officers understand that they serve at the
[22:33] Speaker 3: pleasure of the president, and so if they don't like
[22:35] Speaker 3: something the president is doing, they have to resign.
[22:38] Speaker 5: The message is.
[22:38] Speaker 1: Clear, and how clear is the message in the cookcase?
[22:42] Speaker 3: So the accord in the Cook case took a very
[22:45] Speaker 3: different position, one which also many people were predicting because
[22:51] Speaker 3: they believe that the FED is so important to the
[22:53] Speaker 3: nation's economics system that independence for a federal Trading Commission
[22:59] Speaker 3: is not so important, federal Communications Commission is not so important,
[23:03] Speaker 3: but independence for the FED stabilize the markets, give money
[23:07] Speaker 3: to interest something to rely upon, and we don't want
[23:10] Speaker 3: to have our money system being operated just because of politics.
[23:15] Speaker 3: And so the court crafted an exception out of thin
[23:18] Speaker 3: air to the FED. And then the majority of the
[23:21] Speaker 3: court said that with respect to the FED, we do
[23:25] Speaker 3: have the ability to have some independence, and that the
[23:30] Speaker 3: President violated that pledge in the Cook case by not
[23:34] Speaker 3: giving a Governor Cook an opportunity to explain her side
[23:38] Speaker 3: of the story and contest what President Trump had.
[23:41] Speaker 5: Alleged was the mortgage fraud.
[23:44] Speaker 3: Therefore, the majority of the court decided okay, based upon
[23:48] Speaker 3: what for cause means in the statute, which is permissible.
[23:50] Speaker 3: In the case of the FED, there was not any
[23:52] Speaker 3: kind of notice and opportunity to be heard. Therefore, they
[23:56] Speaker 3: voted that Governor Cook could be reinstated.
[24:00] Speaker 1: You surprised that it was a five to floor decision
[24:03] Speaker 1: in the Cook case. Did it seem during oral arguments
[24:06] Speaker 1: like it might be, you know, more in the majority.
[24:09] Speaker 5: Yeah, No, I am surprised.
[24:11] Speaker 3: And again, what's interesting about it is that the descent
[24:15] Speaker 3: didn't really say that, at least not clearly, that Humphrey's
[24:21] Speaker 3: objector has gone everywhere for the FED as well as
[24:24] Speaker 3: as other agencies as well. Instead, they really looked at
[24:28] Speaker 3: the question about whether the courts could interfere with presidential
[24:32] Speaker 3: discretion in terms of how to handle matters with the
[24:36] Speaker 3: officers of the United States.
[24:38] Speaker 5: So it was surprising. I'm surprised how close.
[24:41] Speaker 3: The next case we'll talk about as well, in terms
[24:44] Speaker 3: of the Mississippi boning case was also a five four case,
[24:46] Speaker 3: which I wasn't anticipating.
[24:48] Speaker 5: So the court is somewhat conflicted here.
[24:52] Speaker 1: President Trump has said, you know, we're going forward basically,
[24:56] Speaker 1: so if they give Lisa Cook notice and an opportunity
[25:00] Speaker 1: to be heard, can they fire her?
[25:04] Speaker 3: So the court addresses that, and the Court suggests that
[25:09] Speaker 3: the president still has the option if he wants to
[25:12] Speaker 3: to give Lisa Cook notice and an opportunity to be heard.
[25:16] Speaker 3: But they did suggest as well that she would have
[25:19] Speaker 3: judicial review options available to her issue were in fact
[25:22] Speaker 3: or removed from the governorship. So it's really the ball
[25:26] Speaker 3: is in President Trump's court. I'm sure he could use
[25:29] Speaker 3: the same information. She would then respond to it, and
[25:32] Speaker 3: if he decides to fire her, she would then, again
[25:35] Speaker 3: as she did before, run to court and say there
[25:38] Speaker 3: is absolutely no cause for this dismission. One other note
[25:41] Speaker 3: with respect to this case, Justice Corsuch's concurrence was sort
[25:46] Speaker 3: of eye opening. He voted, obviously to get rid of
[25:52] Speaker 3: I mean in the slaughter case itself, he voted to
[25:54] Speaker 3: get rid of for cost protection, but said this puts
[25:58] Speaker 3: an onus on or the courts or Congress to make
[26:03] Speaker 3: sure that the president and these bureaucratic entities don't run
[26:08] Speaker 3: rough shot over the American public. So he's suggesting that
[26:12] Speaker 3: the Supreme Court sort of turnback delegation and limit how
[26:17] Speaker 3: much authority is given to these agencies at the same
[26:19] Speaker 3: time while he's voting to give the president more and
[26:22] Speaker 3: more authority. So it's a very odd and view that
[26:26] Speaker 3: was rejected by the rest of the court, and I
[26:28] Speaker 3: think for good reason.
[26:30] Speaker 1: And in another decision which you mentioned, the Court ruled
[26:33] Speaker 1: that federal law permits mail in ballots to arrive after
[26:37] Speaker 1: election day in a decision that preserves grace periods in
[26:41] Speaker 1: some thirty states. In a five to four vote, that
[26:45] Speaker 1: Justice is rejected Republican and Libertarian party arguments and upheld
[26:50] Speaker 1: the Mississippi law that allows mail in ballots to be
[26:53] Speaker 1: counted as long as they're postmarked by election day and
[26:57] Speaker 1: arrive within five business days. The decision gives Democrats a
[27:02] Speaker 1: rare victory at the conservative controlled court, and it was
[27:06] Speaker 1: Justice Amy Coney Barrett and Chief Justice John Roberts who
[27:10] Speaker 1: joined the court's liberals to make up the majority there.
[27:14] Speaker 1: Barrett wrote the majority opinion that as long as voters
[27:17] Speaker 1: cast their ballots on election day, US law did not
[27:21] Speaker 1: set a deadline for when those ballots have to arrive.
[27:25] Speaker 1: As you know, President Trump has opposed mail in voting,
[27:29] Speaker 1: claiming without evidence that it encourages election fraud, even though
[27:33] Speaker 1: he himself has voted by mail and in the Oval
[27:37] Speaker 1: office today, the President told reporters that the ruling endangers
[27:41] Speaker 1: election security.
[27:43] Speaker 4: The ruling, which a lot of people were waiting for,
[27:46] Speaker 4: that was a ruling that was I think it was
[27:49] Speaker 4: very detrimental to honest elections.
[27:52] Speaker 1: I was surprised by this ruling actually, I'm.
[27:56] Speaker 3: Not surprised that the Trump administration want I'm actually surprised
[28:00] Speaker 3: was a five to four decision. I mean, obviously, the
[28:02] Speaker 3: question turns on what is the meaning of election day
[28:05] Speaker 3: under the federal statutes and does that take out under
[28:10] Speaker 3: federalism precepts?
[28:11] Speaker 5: Is that deny the ability of.
[28:12] Speaker 3: A state such as Mississippi in this case, to decide
[28:15] Speaker 3: whether to have early voting, decide whether to count the.
[28:17] Speaker 5: Ballots after election day?
[28:20] Speaker 3: Or does election day mean that every vote has to
[28:23] Speaker 3: be cast on election day? Does election day mean that
[28:25] Speaker 3: they have to be halling by election day? There as
[28:28] Speaker 3: all sorts of various possible meanings in the federal statutes.
[28:32] Speaker 3: In the Court here again in a narrow five to
[28:35] Speaker 3: four decision, simply stated that it is up to the
[28:38] Speaker 3: states to apply the term election in the election statutes
[28:43] Speaker 3: in whatever way they think is important, subject of course
[28:47] Speaker 3: to Congress coming back and saying that we have a
[28:49] Speaker 3: different view. And obviously people have voted absentee and military
[28:54] Speaker 3: is voted from abroad and those votes to generally been
[28:58] Speaker 3: counted after election.
[29:00] Speaker 5: So this is consistent with at least the recent precedent.
[29:03] Speaker 5: And the court said.
[29:05] Speaker 3: That's really all that we can infer from the term election,
[29:09] Speaker 3: and therefore Mississippihich is within its rights, as are roughly
[29:13] Speaker 3: twenty eight other states in saying that some kind of
[29:16] Speaker 3: votes can be tallied and counted after election day without
[29:19] Speaker 3: running a foul of the federal statute.
[29:21] Speaker 1: Did Congress lose today? I mean with the Slaughter decision
[29:26] Speaker 1: basically finding that a condition that Congress put in the
[29:30] Speaker 1: law isn't valid, so Congress doesn't have the power to
[29:35] Speaker 1: enact this law and other laws like it.
[29:38] Speaker 5: Oh, Congress totally lost the Slaughter case.
[29:40] Speaker 3: The Court intervened on the side of the president and
[29:43] Speaker 3: said that Congress was disabled from even deciding to insulate
[29:49] Speaker 3: some officials within the executive branch from presidential medlin.
[29:53] Speaker 5: Again, the court thankfully let opened.
[29:55] Speaker 3: A couple of caveats, a couple of scenarios in which
[29:59] Speaker 3: they might not extent the Slaughter principles principally to the
[30:03] Speaker 3: Tax Court Court of Federal Claims on maybe some other
[30:07] Speaker 3: kind of adjudication within the executive branch. But it's a
[30:09] Speaker 3: sweeping decision and one that leaves Comma's powerless to overrule.
[30:14] Speaker 1: Another victory for the unitary executive principle. Thanks so much Hal.
[30:19] Speaker 1: That's Professor Harold Krent of the Chicago Kent College of Law.
[30:23] Speaker 1: And that's it for this edition of The Bloomberg Law Show.
[30:26] Speaker 1: Remember you can always get the latest legal news on
[30:28] Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
[30:32] Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law,
[30:38] Speaker 1: And remember to tune into The Bloomberg Law Show every
[30:40] Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso
[30:45] Speaker 1: and you're listening to Bloomberg

Shows are listed from Apple Podcasts' charts and directory, and Podcast Index where it is used. Every show and episode belongs to its publisher and plays from the publisher's own feed; this site hosts none of them.