David French: Happy holidays, Emily! I suspect that our conversation this month may feature more disagreement than our previous chats. Trump has brought us together, and now my originalism might drive us apart. Specifically we’re going to start off by talking about Trump v. Slaughter, a case argued before the Supreme Court on Monday. It’s about the limits of a president’s authority — if there are any — to fire a member of the Federal Trade Commission, an independent executive agency created by Congress.
Congress created the F.T.C. in 1914 and limited the power of the president to fire its commissioners. In a 1935 case called Humphrey’s Executor v. United States, the Supreme Court upheld this arrangement. Now the court appears ready either to strike down Humphrey’s Executor or limit it so much that it basically becomes a zombie precedent — not exactly alive, but not totally dead, either.
So, Emily, what’s your beef with the president’s argument in Slaughter?
Emily Bazelon: Hi David! I’ve really been looking forward to talking about this with you.
A couple of months after President Trump took office in January, he fired the two F.T.C. commissioners appointed by Democrats — not for doing the job poorly, but because they don’t align with his politics. One of them, Rebecca Slaughter, is suing. That’s because, after Humphrey’s Executor, presidents had to have cause to fire officers of independent agencies, which generally has meant neglect of duty or malfeasance. The Supreme Court took a bite out of that ruling in 2020, holding that the president could fire the director of the Consumer Financial Protection Bureau without cause because the director alone headed the agency, which meant the structure Congress established for the C.F.P.B. violated the separation of powers. But agencies headed by multimember commissions weren’t affected by that ruling. And there are around two dozen of those, including the National Labor Relations Board and the Federal Communications Commission — not to mention the Federal Reserve, though the justices, Brett Kavanaugh for one, signaled on Monday, as they have before, that they think the Fed is a special case (even if the principled rationale is not clear for why that’s true as a matter of law and history, as opposed to their preference for policy reasons).
Trump v. Slaughter is a big deal even though it probably won’t affect the Fed. The structure of the federal government is at stake. Congress set up the agencies we’re talking about to be somewhat independent, meaning insulated from partisan politics, at least to a degree. For 90 years, no president has controlled all the seats on these commissions.
In practice, that has meant more expert, technocratic leadership. It has meant more corporate regulation than Republicans tend to like. And it has meant that agencies like the F.T.C. and the F.C.C. don’t enact the president’s personal agenda. That is, until now.
Now the F.T.C.’s chair, Andrew Ferguson, calls the agency the “Trump-Vance F.T.C.” and Trump says he will be personally involved as Netflix tries to buy Warner Brothers and Paramount swoops in with a hostile takeover bid, which his son-in-law, Jared Kushner, has a stake in. Over at the F.C.C., Commissioner Brendan Carr threatened ABC’s broadcast license in September after Jimmy Kimmel said things the Trump administration didn’t like. Carr pulled back when rebuking Kimmel proved seriously unpopular. But the idea that agencies now make regulatory decisions to please the president and his base rather than for nonpartisan reasons rooted in legal standards — that is not good for America, right?
For sure, government can be sclerotic and creaky. I’m all for making it better. Who isn’t? But will this more politicized era of federal government that the Supreme Court is piloting us toward be an improvement? As an originalist, why do you think it’s necessary — required by history and precedent? Caleb Nelson, a law professor at the University of Virginia and an esteemed originalist, published a much-discussed piece in September arguing that originalism does not dictate the result the conservative majority on the court will surely reach. “It is true that Article II vests the executive power in the president,” he says. “But Congress is in charge of creating offices within the executive branch, and the Constitution does not give the President unilateral power to dictate who will fill those offices or what their authorities and duties will be.”
David: Bear with me for a moment, but when I think about the Slaughter case, I’m reminded of the opening montage of the old ABC show, “Wide World of Sports,” in which Jim McKay invokes “the thrill of victory and the agony of defeat.”
If the Supreme Court is going where I think it’s going, then I think it’s going to help us recover our democracy. If not, then the parade of horribles could get quite extreme, quite fast.
I don’t think you can analyze Slaughter without thinking of the court’s larger separation of powers jurisprudence, which can be summarized (at least so far) as follows: The president’s executive power doesn’t include lawmaking, and Congress’s legislative power doesn’t include execution. And much mischief has occurred because Congress has delegated so much of its lawmaking power to the executive, while clinging to various ineffective checks, such as creating multimember commissions.
The result has been less democracy and more entrenched power in the executive branch, with much of that power immune from political accountability. The idea of technocratic expertise divorced or insulated from political considerations is a bit of a fiction. What’s the line between technocratic expertise and an entrenched bureaucracy?
In fact, if Humphrey’s Executor is affirmed, then the next Democratic president would be saddled with a host of unqualified, corrupt Trump nominees in independent agencies. Don’t we want a president who possesses integrity to clean out the clowns?
Here’s where I think the court is headed.: The president is going to have more power over a less-powerful executive branch, and if we want laws to change, look to Congress, not the president. That’s why I expect the court to strike down Trump’s tariffs and Trump’s birthright citizenship executive order at the same time that it either overrules Humphrey’s Executor or narrows it into irrelevance.
It has been dreadful for America to see so much lawmaking power concentrated in the presidency, and many of our worst fears regarding presidential power are rooted in decisions taken by Congress over many years to punt lawmaking to the presidency. The end result has been less democracy, less political accountability, and a greater sense of frustration as more power is located in bureaucrats who are never truly accountable to the voters for their decisions.
So I see us at a fork in the road. If the Supreme Court enhances the power of the president over the executive branch while also upholding presidential power grabs over tariffs and citizenship, we’re in a terrible place. That’s the agony of defeat.
But if the Supreme Court applies its Biden-era precedents to Trump and strips out more of his lawmaking power while placing more political accountability in a diminished executive branch, then that’s the thrill of victory.
I should note, however, that I do not believe that the unitary executive theory extends to civil service-protected employees. Agency heads should be removable at will, not assistant U.S. attorneys (to give just one example).
Emily: Agree on civil service protections!
I take your point about cleaning house. But if Trump doesn’t have the power to remove all these agency commissioners right now, then the next president has a lot fewer to replace later, and can appoint controlling majorities over time.
I’m less convinced than you are that there’s a clear line between legislative and executive power. I’m wary of the court taking a wrecking ball to the governance structure Congress created nearly a century ago. Why do the justices get to do that, especially if Nelson is right and the originalist case is questionable at best?
Nelson also argues that the strong version of unitary executive theory, which holds that Congress is powerless to impose any conditions on how the president controls executive branch agencies, would give the president “more power, I think, than any sensible person should want anyone to have, and more power than any member of the founding generation could have anticipated.”
If you’re right about the court ruling against Trump’s unilateral tariffs and his order ending birthright citizenship, then that will offer some reassurance. But I don’t think those two rulings will be enough to solve the problems the court is creating. That’s not only because of the seemingly inevitable outcome in Slaughter (where the question is not whether the conservatives maintain the status quo of Humphrey’s Executor, but how far they go to change it). There is also the court’s extremely pro-Trump record on the emergency docket — since he retook office in January, they have wholly ruled against him in exactly one of the administration’s 32 petitions from the administration, and then later they reversed that decision. And the worst ruling on executive power of the Trump era is still probably last year’s decision granting presidents broad immunity from future prosecution for most of their official acts.
To reset the balance of power toward Congress, I think the court has to do more. For one thing, they would have to think hard about changing or overturning INS v. Chadha, which held in 1983 that a one-chamber veto (House or Senate, not both) of executive actions violated the separations of powers. The justice I’ve heard criticizing Chadha is Elena Kagan, which suggests that this is not part of the conservative project.
The argument for your model of government, I think, is that the president comes into office, makes the federal government execute his or her policy agenda, for good or ill or corrupt ends, and then voters can judge for themselves and express their views at the ballot box. I hope you’re right that this is a good mechanism! But it is a giant break from how the federal government has been running for decades, and in this moment of Trumpian chaos, that makes me nervous. Beyond cleaning house, if we get a next president who does that — no guarantees there — do you really think the government will work better that way? And why do you think originalism dictates this result?
David: As an initial matter, I don’t see the court as overturning a nearly century-old structure of government. When you go back and read Humphrey’s Executor, it’s striking how limited the F.T.C.’s power was compared with a modern independent agency. Instead, we’re dealing with a structure of government that has metastasized over the last century into something that would be unrecognizable even to New Deal-era reformers.
While I agree that there are circumstances where the line between executive and legislative actions is blurred, there are bright lines as well. For example, trying to obliterate birthright citizenship by executive order or assuming Congress’s taxing power by imposing worldwide tariffs, or — to go back an administration — drafting sweeping student loan forgiveness rules in the absence of new legislation.
This new structure just isn’t working. Congress is basically inert to the point of irrelevance, public confidence in government is collapsing, and there is a real sense that ordinary citizens have very little say in the decisions that have influence over their lives.
How do we change that? Well, we’ve got to return to the founders’ vision for the balance of power. It’s just wrong to say that we’re supposed to have coequal branches of government. Yes, each branch can check the others, but the legislature is in Article I for a reason — it’s the branch of government closest to the people. The House of Representatives is the most purely democratic part of the American government.
That’s why I think the most important aspect of the Slaughter oral argument came from Justice Neil Gorsuch, when he said, “Is the answer perhaps to reinvigorate the intelligible principle doctrine and recognize that Congress cannot delegate its legislative authority?”
Not to get too deep into the weeds, but that’s Gorsuch telling the solicitor general, D. John Sauer, that he wants to really pare back all these legislative delegations of authority to the executive. At the same time, the idea that the legislature could delegate lawmaking to the president but somehow make it OK by creating these multimember commissions has proved to be part of the problem.
Jam the president back into his box, which does grant him authority over the executive branch, but then tell Congress that if there is going to be enduring legal change, it has to come through them. I want the president’s agenda to be much less important (we’re not supposed to be electing kings, after all). And I want each of the elected branches of government more accountable to the people.
I just don’t see how hybrid, independent agencies fit into that equation. Technocracy isn’t democracy, and we’re supposed to be a democracy.
In fact, there’s relatively recent precedent for Congress creating a legislative agency as part of its own efforts to check the presidency. Near the end of the Richard Nixon era, Congress created the Congressional Budget Office as part of the Congressional Budget and Impoundment Control Act of 1974. As the C.B.O.’s website explains, the Act was passed to empower Congress to reassert its “constitutional control over the budget.”
Emily: I co-sign Congress coming first for a reason. I’m just not sure how giving the president more power over the agencies is going to revive Congress. And I’m not confident that the court is in fact going where you think it’s going. Or maybe we disagree about what it would take to shift the balance of power back to Congress, and what I’m not confident about is that there’s a majority on the court for doing that. Gorsuch’s theory of the case is not the same as Kagan’s and also I’m not sure he has five votes.
My next question for you is about the campaign finance case the court heard on Tuesday. (It’s a big week for the regular old merits docket, which seemed nearly irrelevant for a while there.) This one is about how much money political parties can spend in coordination with candidates. Congress formed the Federal Election Commission to enact caps. That means a ton of soft money — donations that don’t go directly to candidates because those are also capped — goes to super PACs and other outside groups.
It’s hard to defend the current system. I won’t try. I think Citizens United, the 2010 decision that struck down limits on political spending by corporations and unions, thus flooding the zone with money, was a huge mistake. (Also an example of the Supreme Court thwarting the will of Congress.) It’s not clear that voters know what outside groups stand for exactly (their names often include words like “America” or “freedom”) and they are awash in soft money that is also often dark money, given by secret donors. My choice would be to reverse Citizens United and return to a world in which Congress can meaningfully limit political donations and spending.
That is not happening, however. In the absence of that, maybe funneling more of these funds to the parties would be better than the current situation. In the abstract, the case for more party control is that maybe the parties could rein in the dynamics that incentivize candidates to take extreme positions to appeal to hyper-engaged donors and thus win primaries.
What do you think?
David: To tell you the truth, l really don’t understand the hate against Citizens United. I think it’s one of the most misunderstood cases of the 21st century. The core issue was whether campaign finance laws could be used to block the distribution of a movie critical of Hillary Clinton as an “electioneering communication.” The court found that the relevant law was an unconstitutional “outright ban” on speech, “backed by criminal sanctions.”
Yet political speech is absolutely core speech protected by the Constitution. If the First Amendment means anything, it means that the government is extremely limited in what it can do to regulate political speech, and of course corporations have their own free speech rights. As employees of The New York Times, we’re very grateful! New York Times Company v. Sullivan is one of the most important free speech precedents in American history.
I stand with you in your frustration over campaign finance laws. They’re an absolute mess, and in their well-intentioned efforts to diminish the possibility of quid pro quo corruption, they’ve created layers of complexity that can render political participation legally risky unless you also have the resources to hire specialized lawyers. We need more liberty and more simplicity.
We also need to stop romanticizing small-dollar donors. The explosive growth in small dollar fund-raising has helped radicalize our parties. As Richard H. Pildes, a professor of constitutional law at New York University and an expert on campaign finance wrote in a 2020 research paper, “One of the most robust findings in the empirical campaign-finance literature is that individual donors are the most ideological and polarizing sources of money flowing to campaigns.”
It’s no coincidence that the most radical president of my lifetime, Donald Trump, does so well with small-dollar donors that he’s been called “Small-Dollar Don.” If you read your typical small-dollar donor pitch, it’s almost always rooted in hysterical, misleading fear mongering.
I’m not sure that 10,000 people giving $100 dollars based on an email that says something like, “This is your last chance to save America! We have five more hours left in our matching challenge. Donald Trump wants you on his list of patriots!” represents an improvement over a system that would permit bigger direct donations while also mandating transparency.
The present system is absurdly complex, diminishes the power of parties, creates legal risks for ordinary citizens and has contributed to political radicalization — all without really diminishing the power of billionaires to influence our politics in the slightest.
I can’t forget one of the indelible images from Trump’s inauguration: A billionaire president took the oath of office in the company of a squadron of billionaires. Congratulations everyone, our campaign finance system is working just fine.
Emily: Yes, protecting free speech is core to democracy. I just don’t think that means the courts have to equate money with speech. The effect is to increase the reach of the speech of wealthy people and companies at the expense of the reach of everyone else’s speech. Let Congress find the balance.
You know what else is not helping me feel better about the state of our democracy? Watching the TV series “Pluribus,” which I’m convinced is about A.I. taking over the world even though its creator, Vince Gilligan of “Breaking Bad” and “Better Call Saul,” says he conceived of it before the rise of ChatGPT and its competitors and friends.
Have you seen it? The interesting thing about the show is that the apocalypse (a virus) knocked out only part of humanity and the new society that has emerged is unshakably pleasant on the surface as well as communitarian, or so it seems. But it’s also super creepy and not free or the least bit individualistic, and I can’t handle it.
I need something more escapist for the holidays. Got anything for me?
David: I’m the wrong person to ask about escapism! Everything I’m watching is dark, dark, dark. “Pluribus” is the funniest show in the bunch (and I do laugh out loud about five times per episode). If you want to see Claire Danes in “Homeland” levels of distress, I highly recommend “The Beast in Me.” If you want a story about the dastardly, murderous (thankfully fictitious) deeds of the British government, watch “Down Cemetery Road.”
I could go on, but our family’s tastes veer a bit toward the bleak.
I do, however, have a holiday movie recommendation! It’s called “Spirited,” and it’s a Will Ferrell and Ryan Reynolds musical update of “A Christmas Carol.” It came out on Apple TV a few years ago, and lots of people missed it. But it’s delightful and heartwarming and funny and really sweet and meaningful by the end. We used to watch “Elf” every Christmas Eve. Now it’s “Spirited” — with an occasional supplemental viewing of “Die Hard,” the greatest Christmas movie of them all.
Emily: OK, I love the Dickens original of “A Christmas Carol” and a Will Ferrell update sounds like a good thing to bring to Jewish Christmas in Vermont, which is our plan. David, I wish you and Nancy and your family a ton of merriment and some respite from the cares of the world!
David: Happy holidays and Happy New Year to you and your family, Emily. See you next month! Jewish Christmas in Vermont sounds delightful.
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