Supreme Court Considers Vastly Expanding The President’s Powers

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Hey there, it's the NPR Politics Podcast. I'm Sarah McCammon.
I cover politics. And I'm Mara Lyasson, Senior National Political Correspondent.
And we also have NPR's Andrea Hsu with us today.

Welcome back, Andrea. Thanks for having me.
And today on the show, the Supreme Court is considering whether President Trump has broad authority to fire independent agency heads without cause.

Andrea, you've been following this case. It was brought by a woman named Rebecca Slaughter.
Who is Rebecca Slaughter and what is she arguing?

Yeah, so she was a commissioner on the Federal Trade Commission, and actually she was President Trump's pick to fill a Democratic seat back in 2018.

And then she was renominated by former President Biden. And she was supposed to serve until 2029.
But then President Trump fired her in the middle of March this year.

He told her her continued service would be inconsistent with his priorities. And she sued, saying that was illegal.

She pointed out that when Congress created the FTC, it said that commissioners could only be fired for cause for things like neglect of duty and malfeasance.

And the administration isn't saying that there was some neglect of duty in this case. Aaron Powell, that's right.
The president didn't give her any such reason.

So what is the Trump administration's argument in this case? In a nutshell, that Congress never should have put restrictions on the president's power to remove officials like Rebecca Slaughter.

That all executive power rests with the president. It's what the founders wanted, they say, and that's how they read the Constitution.
And here's how they explain it.

They say, you know, the people elected the president, but he is just one person, so he can't do everything everything himself.

So he delegates his executive power to others who help him with his duties.

And if they refuse to help him carry out his vision, then he must be able to remove them because otherwise, how can he accomplish the things that he promised to the people?

You know, the buck stops with him. That's the administration's argument.

You know, what's so interesting about this case is this is about something very big, and it's something that predates Donald Trump.

And for a very long time, conservatives, especially a lot of them who are on the Supreme Court today, believe in something called the unitary executive theory, that the president should have powers at the expense of Congress to control everything in the executive branch.

And we really are undergoing... a change in our system of government before our very eyes that is making the executive branch more powerful at the expense of Congress.

In this case, Congress created these agencies, gave them a certain amount of independence. They thought that would be better to shield them from political influence.

But conservatives think that's just wrong. And that guardrail of democracy is being demolished by the unitary executive theory.

And also what that means is that the professional civil service, which is also a guardrail, is also being demolished.

Because if the president can fire the heads of these agencies, he certainly can fire all the people who work in them. Yeah, and I want to talk a little bit more about what these agencies do.

This case is about agencies and boards, as you noted, Mura, created by Congress to be somewhat independent from politics.

Andrea, what kinds of agencies are we talking about and why are they important? Yeah, well, let's start with the Federal Trade Commission.

You know, Congress tasked the FTC with protecting American consumers and businesses from unfair competitions.

So its commissioners oversee, you know, investigations into the practices of big companies, including big tech companies like Amazon and X. They can make rules and issue fines.

And then there's the Consumer Product Safety Commission, which is supposed to protect Americans from faulty products and unsafe products. You know, they issue recalls.

And then there are also a couple independent agencies that enforce labor laws and ensure that workers get due process.

These are, you know, the National Labor Relations Board and the Merit Systems Protection Board. There's a couple dozen of these independent agencies.

And Andrea, do you think that this is signaling a return to the kind of system we had like over 150 years ago where government jobs were handed out as patronage, not to experts and professionals.

Is that where this is going? This is what a lot of critics of the administration are concerned about. And, you know, I've had a lot of people explain it to me this way.

You know, there was a shift away from the patronage system in order to ensure that the people got the best services.

And the best services would be provided by people who were hired for their skills, for their expertise, not based on who they voted for.

And, you know, people raise examples like, do you want your air traffic controllers or your food safety inspectors to be hired because of their skills or because they support the president?

So in more recent history, I mean, how does the Trump administration's approach to these independent agencies compare with that of past presidents?

Have other presidents decided that they had this kind of latitude to fire agency heads? No other president has wanted to destroy the administrative state in the way that the Trump administration does.

Other presidents might have been frustrated by some of these independent agency heads, but nobody has ever tried to fire tens of thousands of civil servants, say that they can fire heads of agencies, not for cause, but just because, as the Trump administration has said, they don't align with the administration's priorities.

And what's really interesting about this is that the Supreme Court, and Andrea can correct me here, it sounds like they are ready to overturn this president, that they are ready to side with the administration.

They weren't ready during the Biden administration. They ruled against Biden time and time again on the vaccine mandates, on student loan forgiveness.

They ruled against him when he tried to expand the powers of the executive. But they seem much more willing to expand the powers of the executive when it has to do with Donald Trump.

I mean, Andrea, you were listening to these arguments before the Supreme Court. What did you notice?

The thing that really stood out to me is that the two sides disagree fundamentally on what the founders envisioned when creating the three branches of government.

You know, the administration, as Mara says, argues for a far more powerful executive branch with all of the power vested in the president and him alone.

And they argue that Congress is encroaching on that power with these independent agencies. Several of the conservative justices seemed really worried about this power that Congress has now.

Several of the justices asked questions about this, including Justice Kavanaugh. Let's listen.

Could Congress

convert all these

departments into multi-member commissions, the Commerce, EPA, Department of Homeland Security, Department of State, convert them all into multi-member commissions and make them removable only for cause.

Now, the other side, the attorney representing the fired FTC commissioner, argued that there's a rich history and tradition of independent agencies from the start of the Republic, and that clearly Congress thought that the people would be better served by agencies that are free from politics and free from presidential control.

Justice Sotomayor sounded really alarmed by what the Trump administration has asked the court to do. You're asking us to destroy

the structure of government and to take away from Congress its ability to protect

its idea that the government is better structured with some agencies that are independent. So you heard Justice Kavanaugh there concerned about the Congress essentially overreaching.

Others are concerned about executive overreach. I mean, what has the court said in the past about the limits of executive power when it comes to these kinds of independent agencies?

Yeah, well, the famous decision that has been quoted repeatedly this year is called Humphrey's Executor.

You know, in that case, from 1935, the Supreme Court ruled unanimously that Congress could limit the president's power to remove officers of the Federal Trade Commission.

This is the precedent that the Trump administration has now asked the court to overturn.

And, you know, already in recent years, the court has chipped away at that 1935 decision, saying, for example, it doesn't apply to independent agencies that only have one person at the head rather than a board or a commission.

And then this year, the Supreme Court issued a shadow docket order that had a very brief mention of another independent agency, the Federal Reserve.

You know, legal scholars and economists have been warning if the court decides the president can fire FTC commissioners, that there would be nothing to stop him from firing members of the Fed, and that would be disastrous for the economy.

So what the conservative majority on the Supreme Court, you know,

said in the shadow docket order was kind of like a carve-out for the Fed. It said, you know, the Fed is a uniquely structured, quasi-private entity that follows in this distinct historical tradition.

And so this is a real question. Are they going to make an exception for the Fed?

Do you think it sounds like some of the justices do think there shouldn't be an exception made for the Fed, which is pretty interesting.

In other words, are they worried about a president, Trump, or another president having the control over interest rates that could hurt the economy?

Why wouldn't the Fed be included and treated just like all these other agencies?

I mean, absolutely, there are concerns that, you know, in the run-up to the election, if the president wants to boost the economy, he could order, if he had control over the Fed, he could order the Fed to lower lower interest rates.

I mean, there's a lot of concerns that that would just undermine the country's economy. All right, we're going to take a quick break.
We'll have more in just a moment.

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And we're back. We've been talking about the case the Supreme Court is considering that looks at whether the president should be able to fire the heads of independent agencies without cause.

This case is about the head of the Federal Trade Commission, as you said, Andrea. Who else has Trump fired or tried to fire?

Lots of people. So, you know, Democratic members of the Merit Systems Protection Board, the National Labor Relations Board.

We talked about the Consumer Product Safety Commission, also the Equal Employment Opportunity Commission, the Federal Election Commission, the Surface Transportation Board, and many more.

So lots and lots of members fired. And what do these firings mean for federal workers or for Americans more broadly?

Well, I think it really throws it to question whether the decisions made by these agencies, the rules they make or the companies they go after, or whether those are really in the best interests of the American people or whether those decisions are influenced by politics.

And for federal workers specifically, Trump has fired a lot of federal workers.

And

normally the normal process for them would they could appeal their firings to the Merit Systems Protection Board.

But Trump did fire the sole Democrat left on that board and he has appointed a Republican.

So it's not to say that those Republican board members that are seated now wouldn't treat the cases fairly, but if the president can fire them for any reason, you can see how there could be doubts about how they might approach any case.

And Mara, I mean, what would it mean if the president could fire these agency leaders for any reason at all? It means that the executive branch power becomes more personalized.

In other words, this is about the president and what he wants on a given day.

If his powers are expanded and the checks and balances of independent agency heads are taken away, it means that he can govern on a whim.

And you have seen this president change his mind from day to day on various things. But this really becomes a kind of throwback to the kind of government we had when we had a patronage system.

And the government hired people who were supporters of the president or relatives of the president, and they didn't necessarily get the most professional, expert people.

And also, you will hear critics of this move say that a patronage system was much more susceptible to corruption. corruption.

Whatever happens with this case before the Supreme Court, it obviously will have major implications for presidential power going forward for this president and for others.

All right, we're going to leave it there for today. Thank you so much for being with us, Andrea.
Thanks for having me. I'm Sarah McCammon.
I cover politics.

And I'm Mara Lyasson, Senior National Political Correspondent. And thank you for listening to the NPR Politics Podcast.

This message comes from Vital Farms, who works with small American farms to bring you pastor-raised eggs.

Farmer Tanner Pace shares why he believes it's important to care for his land and how he hopes to pass the opportunity to farm onto his sons. We are paving the way for a future.

We only have one earth and we have to make it count. Like my boys, I want to see them taking care of the land for them to be able to farm and then generations to come.

I really enjoy seeing, especially my whole family up there, working with me, and to be able to instill the things that my father, mother, and then grandparents instilled in me that I can instill in the boys.

That's just the most rewarding thing that there could ever be.

Vital Farms, they're motivated for the well-being of the animals, for the well-being of the land, the whole grand scope of things, they care about it all. You know, and that means a lot to me.

To learn more about how Vital Farms farmers care care for their hens, visit vitalfarms.com.