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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: Oh, I'm a little crabby. How are you? Don't laugh at me being crabby. I'm a little crabby. I'm a little crabby because I am struggling with the SCOTUS and its relationship with Donald Trump right now. But that could be because I'm struggling with my relationship with Donald Trump right now, so it may be that I'm just having some carryover heat for the Scots.
J. Aughenbaugh: I mean, that feeling Nia is understandable because in many ways we have a president right now who is pushing the boundaries on a number of institutional norms.
N. Rodgers: No, see, I'm taking it more personally than that. It's like he's pushing my buttons.
J. Aughenbaugh: Oh, okay.
N. Rodgers: You're much more administratively careful, like, no, this is probably not personal. I'm like, it feels personal.
J. Aughenbaugh: Part of it is when you study something as long as I've studied, for instance, the interaction of federal government institutions, after a while, you just kind of sort of like, oh, this is intriguing.
N. Rodgers: It's kind of sort of like.
N. Rodgers: This is a slight change from what's normal.
J. Aughenbaugh: You're driving along the side of the road and then you look over to the shoulder and you see an 18 wheeler cab with the engine on fire, and there's nobody in the cab. But as you drive by because you've driven that road so many times, you're like, oh, I don't think I've ever seen that before. And then you just keep on driving, right?
N. Rodgers: Yeah. And that's what I'm experiencing now with Donald Trump is my regular reaction has been, can you do that?
J. Aughenbaugh: Yes.
N. Rodgers: Like, I find myself asking that question. We've now started this series, and side note for listeners, we know that a bunch of you have sent us a bunch of things that you think fall into this category, and one, you are correct. They do fall into this category. And two, we will get to things as we can. But right now, if we tried to do this, if we tried to get to everybody's ideas all at once, all you have to quit our regular jobs and just do this podcast full time like 10 hours a day to try to answer the question of, can he do that? We are not answering the question of can he do that? Because he's already done it. What we're answering the question of is, what are the ramifications of this and will it stick? At this point, I've stopped asking Aughie, can he do something, because Aughie is like, well, it's happened, Nia, right? Aughie's very practical. Will the sunrise this morning? I don't know. It's already in the sky, so I'm betting yes. How long will it last? What will it do? What will it change or not change? I think is really the question. But we've shortened that too. Can he do that?
J. Aughenbaugh: Yeah. So listeners, if you haven't picked up on it, notwithstanding Nia and my usual begin the podcast episode repartee, today's episode is another installment of the can he do that?
N. Rodgers: The ongoing Saga.
J. Aughenbaugh: The particular phenomenon or event that we are referencing is on Monday, September 22nd, the United States Supreme Court, basically, cleared the way for the Trump administration to fire Federal Trade Commissioner Rebecca Slaughter.
N. Rodgers: Name we like because we like lots of names.
J. Aughenbaugh: Yes.
N. Rodgers: First of all.
J. Aughenbaugh: The last is name is Slaughter?
J. Aughenbaugh: Yes. And for this particular case, it's got so much rich irony, but nevertheless.
N. Rodgers: Rebecca is a lovely biblical name, right?
J. Aughenbaugh: Yes. But the court also agreed to decide whether or not the president has the ability to fire the heads of independent regulatory commissions. Potentially, this case could dramatically overturn Supreme Court precedent and give the executive branch, particularly the president, much greater authority over that rather unique structure in the federal bureaucracy known as an independent regulatory commission.
N. Rodgers: We've talked about a few of those as we were talking about interesting agencies and interesting sort of things. And we will come back to those as we continue. If and when this ever normalizes back to a place where we can just talk about the boring stuff that we talk about normally with the government and how it works. Yes, because right now, Aughie and I are just like, what parts on fire today that we should talk about? We'll eventually come back to more of those independent agencies. But think in terms of the US Postal Service, which we get an episode on. Or those agencies where the head of that agency doesn't directly report to the federal government the way the secretaries of the different departments do. Like Marco Rubio works directly for Donald Trump. Kennedy works directly for Donald Trump.
J. Aughenbaugh: And with both of those examples listeners, the president could just go ahead this afternoon and fire Marco Rubio as the Secretary of State.
N. Rodgers: Yeah, thanks. It's been real see you. That's the end of that. There is no appeal. There is no question about whether he can do that or not. He put him up for appointment, and he can have him removed. I mean, he can remove him.
J. Aughenbaugh: With the Federal Trade Commission, the Federal Trade Commission was created in the 1930s, not the 1930s, actually in the 1920s, but the basic idea of the Federal Trade Commission is to ensure that companies are engaged in appropriate trade practices, that they're not lying to consumers. They're not unfairly besmirching the quality of their competitors' products.
N. Rodgers: Also that they're not joined together with making prices, but they're supposed to prevent that, aren't they that thing where they all say, we're going to all charge X thing for this product.
J. Aughenbaugh: Yeah, so what Nia is talking about the Federal Trade Commission is supposed to regulate and help avoid monopolies being created in the marketplace, so this case arose because earlier this year, Donald Trump went ahead and fired, Rebecca Slaughter from the Federal Trade Commission. It was basically the same week that he also fired a Cathy Harris from the Merit System Protection Board, which is the board that goes ahead and reviews all appeals of federal bureaucrats who believe they have been unfairly treated on the job, including illegal terminations, and Trump firing Gwen Wilcox, who was appointed to the National Labor Relations Board, which regulates labor conditions between workers and corporations in the private sector.
N. Rodgers: You've been too fine a point on it. All of these people are women, and all of these people were appointed by Democratic.
J. Aughenbaugh: President.
N. Rodgers: President.
J. Aughenbaugh: Yes.
N. Rodgers: Just saying there's a common thread.
J. Aughenbaugh: Yes. In the case of Slaughter, when Slaughter was terminated, she appealed because she said Trump did not follow the authorizing legislation for the Federal Trade Commission, which says you can only be fired for cause. A district court judge agreed and issued an injunction that stopped Slaughter from being removed from her position. The DC Circuit Court of Appeals agreed, which led the Trump administration to file an emergency appeal with the United States Supreme Court. We're once again talking about the Supreme Court's emergency or shadow docket.
N. Rodgers: This is the docket where they haven't told us ahead because they haven't taken the cases ahead. Like, the way their normal docket works is we find out what cases are going to be heard when and we kind of know what's coming up. And the shadow docket is, well, it's what it sounds like. It is not that. They don't have to announce it ahead. They don't have to tell you when they're going to come up with a ruling. Put out one day.
J. Aughenbaugh: It doesn't follow the court's normal process for the regular docket. Because as we've discussed in previous podcast episodes, if the Supreme Court takes an appeal, from a party in a legal dispute. Then the parties have a deadline to submit written briefs, and then the court schedules oral arguments. Then they take a vote in secret in their conference, and then they write opinions. The emergency or shadow docket, there's no oral arguments. They have received written legal briefs from both parties, but they have no oral arguments. They don't meet in conference, and typically the order in the emergency or shadow docket has no majority opinion explaining why they decided the way they decided.
N. Rodgers: It is often unsigned.
J. Aughenbaugh: That's right. When the court in late September issued its order, and I'm referring to Monday, November or excuse me, September 22nd, there was no explanation with the order. All the order said was the district court's injunction which stopped Slaughter from being removed, was overturned by the court. Now, what this means, Nia, is that there will still be a trial if Slaughter is still contesting her termination. But until that trial gets scheduled, Rebecca Slaughter no longer has an office or any authority related to the Federal Trade Commission.
N. Rodgers: I'm trying not to be angry about that.
J. Aughenbaugh: This is the part, listeners, that angers Nia and I think appropriately so because, again, by the time the district court hears the case, it will more than likely, has the trial, more than likely it won't be until next spring.
N. Rodgers: Right.
J. Aughenbaugh: The trial itself will probably take a week to 10 days. Then there will be at least 30 days for either losing party to file an appeal. In this instance, it will be with the DC Circuit Court of Appeals. That court, if it follows its normal, if you will, process, won't issue its decision until late summer.
J. Aughenbaugh: The losing party then can appeal to the United States Supreme Court. Now, the court can go ahead and decide not to take the case, so then the DC Circuit Court's ruling would stand, or if the Supreme Court takes the case, it won't occur until the fall 26 27 Supreme Court term.
N. Rodgers: That's if they took it immediately and dealt with it immediately, which they will not do because that is not how a supreme court works. Part of what makes me angry here, Aughie, is that you can't unring this bell. By that point, her job will be gone. Either it will be filled by someone else, he will appoint someone else, or unless she has incredible willpower and enough money to make it through that time without having a job, she will have moved on. She won't be employed anymore. She won't be employable in that job anymore. It infuriates me in a firing situation. Why they don't let the person stay in the job and make the whole thing play out? All he'd have to do is wait till we have a court, and they find out whether it was for cause or not. If it was for cause, he wins and he's done, but Donald Trump is a person who wants results yesterday.
J. Aughenbaugh: Yes.
N. Rodgers: I don't like that. I don't like that the Supreme Court enables that by saying, "Sure, we'll do this thing that you want to do because what we know is that in a year and a half, she will have moved on and he will win by default, if nothing else.
J. Aughenbaugh: Now, there's a larger issue here, listeners, and we intimated at this a few moments ago. Slaughter's case comes on the heels of Cathy Harris' case and Gwen Wilcox's case. Members of the Federal Trade Commission are like members of the Merit System Protection Board and the National Labor Relations Board, meaning they can only be removed upon notice and hearing for neglect of duty or malfeasance in office, but for no other cause. This is all rooted in a long standing Supreme Court decision from 1935.
N. Rodgers: He didn't have to prove that to the court in order to have her removed because of the way the supremes have allowed this to play out. I'm mad at Jay Robb.
J. Aughenbaugh: The court's decision in 1935 is entitled Humphreys Executor versus United States. Now, prior to Humphreys, the Supreme Court had held that presidents had unilateral authority to terminate executive branch officials. By the way, yet again, listeners, this is an example of something not covered in the US Constitution. It says the president can appoint people to executive branch positions, but they must be confirmed by the Senate, so the appointment process is clear; the termination process is not.
N. Rodgers: It's not spoken to at all, is it?
J. Aughenbaugh: No, it's not.
N. Rodgers: Seems like a detail you would want to cover.
J. Aughenbaugh: This first arose in a Supreme Court case in 1918, known as Myers versus United States. Myers was a postmaster general who got terminated by the Wilson administration. Myers argued that Congress had passed a law that restricted president's ability to fire postmaster generals because postmaster general positions were frequently used by Congress as patronage positions. Congress limited the president's ability to do this. Myers said, "Well, Mr. President, you don't have the authority to do this." The Wilson administration was just like, "Yeah, but that language in that law passed by Congress violates Article 2 of the Constitution. The logic is this: How can I, as required by Article 2 of the Constitution as president, take care to faithfully execute the law when I can't fire somebody who's not faithfully executing the law as a member of the executive branch?" The Supreme Court agreed with the Wilson administration, but then turned around in less than 20 years and issued Humphrey's. Humphrey was like Slaughter, a member of the Federal Trade Commission. President Franklin D. Eleanor Roosevelt comes into office, and he wanted to get rid of former members of independent regulatory commissions that had been appointed by Republicans because he wanted the independent regulatory commissions to do a lot of the heavy-lifting for his new deal. Humphreys made it very clear. He didn't agree with the president's, shall we say, paradigm shift in regards to the federal government regulating the economy. Roosevelt said, "I'm terminating you." Humphrey said, "You can't." By the way, postscript, the reason why the case is entitled Humphrey's executor is that by the time the case got to the Supreme Court, Humphreys had died.
N. Rodgers: It's not even about the job at that point. It's about the principal.
J. Aughenbaugh: But the executor of his will continued the lawsuit arguing that because he was terminated, he lost government pay and retirement benefits.
N. Rodgers: He was doing it for the family. Good for him.
J. Aughenbaugh: He had standing to sue because he had been injured by the Roosevelt administration. The case goes to the Supreme Court, and the Supreme Court said, "Well, we are distinguishing this case from Myers. The way we're distinguishing it is members of the Federal Trade Commission do more than just execute the law. They are also quasi-legislative because they can issue regulations that have the effect of law, just like Congress, and they're quasi-judicial, because the Federal Trade Commission holds hearings and their decisions and hearings are like decisions made by judges in the judicial branch." The court said, "In those instances, Congress has every authority to limit the president's ability to terminate members of independent regulatory commissions."
N. Rodgers: When they say terminate for cause, by the way, a cause of you don't agree with me is not a cause.
J. Aughenbaugh: That's right.
N. Rodgers: It's not considered cause. I know Donald Trump considers that cause, and I know Richard Nixon considered that cause, but that is not actual what for cause means in the legal system. In the legal system, for cause would mean that you had in some way not performed the job the way you were supposed to perform the job.
J. Aughenbaugh: In the way it's been included in the authorizing legislation for independent regulatory commissions, there are three for cause reasons" inefficiency, meaning basically you don't do your job very well, so poor performance; neglect of duty, you just don't show up, or malfeasance in office.
N. Rodgers: You steal office stuff.
J. Aughenbaugh: Malfeasance in [inaudible] is actually defined in the authorizing legislation for the Merit System Protection Board. These are all clearly well-established legal concepts, but listeners to Nia's point, policy disagreement is not a for-cause reason that allows the president to terminate you for your position in an independent regulatory commission.
N. Rodgers: Specifically because of the word Aughie just said, independent. They are supposed to be independent of the president that appoints them and of any president that comes afterwards. The point of those organizations is that because they are independent, your politics don't matter. If you are a lefty woke company that's being a monopoly, you can't do that. If you're a right conservative company, you can't have a monopoly. It doesn't matter what your politics are. What matters is that they prove that you've tried to monopolize a given part of the economy, and they say, "No, you can't do that." That's the whole point of an independent commissioner or an independent agency, is that they are not tied to either side and they're not tied to a political whim.
J. Aughenbaugh: Listeners, as Nia just described, the basic idea of creating independent regulatory commissions was that they were supposed to be free from political influence, influenced by either the Congress or the president. And one of the great ironies of this case, Nia, and I don't know if you picked up on this in the research notes I provided, Donald Trump appointed Slaughter to the Federal Trade Commission originally, and then her appointment was reupped by President Biden.
N. Rodgers: Which made her Democrat.
J. Aughenbaugh: Yes.
N. Rodgers: You can't see me listeners, but I just put that in quotes. That's because Donald Trump, I think, has forgotten that he had a first presidency and that he appointed a bunch of people, because now sometimes when those people come up, he's like, "That guy doesn't know anything. I don't know." Jerome Powell, who I believe was appointed by Donald Trump, hello, at some point you thought he was good at his job, and now you don't. What changed?
J. Aughenbaugh: Nia, what you're pointing to here is there are market differences between Trump's first term in office and his second term, but one of the clearest examples is how unwilling Donald Trump is in his second term, to do what he occasionally did in his first term, which was to play ball with the opposition party and with Congress because in my research, the Slaughter appointment was done as a way to appease the Democrats in the Senate. If I appoint Slaughter, then you guys won't push back as much for some of my other appointments, which is the way things are typically done in Washington, DC; you have to compromise to get things done.
N. Rodgers: Little push, pull.
J. Aughenbaugh: He's not compromising.
N. Rodgers: He's not. Maybe it's because he knows he can't be president again, or I don't know. Maybe he's just decided to go for broke.
J. Aughenbaugh: Well, but again, we talked about this previously, Nia, on this podcast. One of the biggest differences with Trump's second term as president is that many of the establishment Republicans, people like Vice President Pence or other individuals whose bona fides were in previous Republican presidential administrations, they have no access to the current Trump administration. He has people who were as recently as 5, 10, 15 years ago, were considered on the fringe of conservative ideology and Republican Party politics. These are the people who believe in the unitary theory of the office of President. Congress passes laws, but once Congress passes laws, who and only who is responsible for implementation?
N. Rodgers: The executive.
J. Aughenbaugh: The executive. Who is in charge of the executive?
N. Rodgers: Donald Trump.
J. Aughenbaugh: President. Therefore, Congress. When you put restrictions on my ability to terminate people who implement policy, you are violating Article II of the US Constitution.
N. Rodgers: This to me, is similar to the argument Nixon made. If the president does it, it's not illegal. That's not how it works, except it seems to be that this group of people believes that if the president wants it, it must be a good idea. I can point to many ideas that Donald Trump has had that were not good ideas. Trump [inaudible] comes to mind. Other things like that. Not so great an idea.
J. Aughenbaugh: I'm not entirely sure it's similar to Nixon's claim that if the president does it, it's not illegal. This has more to do with how do you conceive separation of powers? There are two standard conceptions of separation of powers. One is a very strict interpretation, which is what we see with the Trump administration. Congress, you're the legislative branch. I'm the executive, and Jay Robb and his robed colleagues are the judiciary. You stay in your lane, and I do my stuff, and I stay in my lane. The other version is checks and balances, which you hinted at, just a few seconds ago, which is, we have separation of powers, but it's separate and shared power. What Trump and the proponents of the unitary executive theory frequently forget is that we don't get executive branch departments unless who passes laws that create them?
N. Rodgers: Congress.
J. Aughenbaugh: Congress. Might Congress go ahead and put conditions, on those positions?
N. Rodgers: Well, clearly, they have. The firing of those positions, there are conditions. Sorry. What you just heard is me and Aughie having a minor disagreement.
J. Aughenbaugh: Sure.
N. Rodgers: I'm going to respond to him with this. Which is not civil discourse. I understand that blowing a raspberry at somebody is not civil discourse, but I feel the need to do that, anyway. I do understand what you're saying, and the perception that the president has of the office drives his behaviors.
J. Aughenbaugh: Yes.
N. Rodgers: In this instance, one would argue, I think, fairly correctly, even though it might kill me to do so, is that Donald Trump is relatively consistent in his world view. His world view is that the president is on top of this pile. We might have a more or less equal pile, but not really, because the president's always just slightly on top of the pile.
J. Aughenbaugh: Nia, I would go even further. You and I have talked about in previous podcast episodes that while Trump probably isn't all that familiar with the minute details of the unitary executive theory in terms of constitutional law. You know what he is very familiar with?
N. Rodgers: Being an executive.
J. Aughenbaugh: There you go.
N. Rodgers: Being an executive. He is very familiar with being in charge.
J. Aughenbaugh: His private sector experience.
N. Rodgers: In charge of companies where what he says actually goes. His whole media career was built on firing people and his ability to do that.
J. Aughenbaugh: If you think about, for instance, how the companies he's been in charge of, in the private sector, if the CEO has a bad idea, and you as a subordinate, have the audacity to go ahead and say, Mr. CEO or Madam CEO, you have a bad idea. The CEO in the private sector can go ahead and say, I don't care, I'm terminating you, and you have no legal recourse. But in government, and Trump struggled with this in his first term. He oftentimes complained, that his subordinates weren't doing their job. Congress was unresponsive and he couldn't understand why the federal courts could go ahead and check many of his policy initiatives.
N. Rodgers: He's blowing though all that. He's like, I don't care that that may be what you think is going to happen. It's not going to happen because I'm going to use the system. He's a much better grasp of how to use the system and do what he wants to do.
J. Aughenbaugh: He surrounded himself in the executive branch with people who are like, "Yes, Mr. President, and by the way, we can go ahead and make legal and constitutional law arguments in court." Trump's like, "Well, get it done." He's got a very compliant Congress.
N. Rodgers: One way to put it.
J. Aughenbaugh: Many of our listeners are probably tired of me railing about the fact that the United States Congress, whether it's controlled by the president's party or the opposition party, the Congress needs to push back. Not necessarily because of policy reasons. Heck, they may even agree with Trump's policies.
N. Rodgers: It's not about that. It's about carving out your own balance to the check and balances so that it can change this to work.
J. Aughenbaugh: That's right. You have authority institutionally, and you're basically going ahead and saying, go ahead and take.
N. Rodgers: You know what you're saying? You're saying, "It's hard. I don't want to do it. I just want to sit here and take a nap." That's what you're saying, Congress. Aughie and I are calling you out on.
J. Aughenbaugh: To a certain extent, listeners, Nia is calling out a majority on the Supreme Court who's basically going ahead and saying, "We're going to use our normal process. The judicial branch will use its normal process to go ahead and respond to what Trump is doing."
N. Rodgers: To what I think of as abnormal behaviors.
J. Aughenbaugh: Yes, abnormal behaviors. These are envelope pushing nor busting behaviors.
N. Rodgers: Which you can't say, well, we'll just fall back on what we always do. I'm giving you a little side eye, Jay Robb. I love you, but, man, you're going to have to step up your game a little bit here.
J. Aughenbaugh: Again, listeners, as we conclude this episode, this is an in the news episode, and we try to go ahead and keep these two short little ditties.
N. Rodgers: I know, half an hour. We're not really short. That's our version of short, y'all.
J. Aughenbaugh: Sure.
N. Rodgers: Just in case you were wondering. Because Aughie and I can talk about this for about six hours, but nobody wants to listen to that.
J. Aughenbaugh: Again, unless you've got a sleep disorder and you need something to go ahead and cure your insomnia.
N. Rodgers: Exactly.
J. Aughenbaugh: The federal judiciary here particularly the justices on the conservative side are basically throwing the ball back at Congress. Because they're basically saying, "We're going to follow our normal process, so Congress, if you got a problem with the other elected branch of the federal government, you need to step up your game." The problem is they aren't, so somebody has to.
N. Rodgers: We should side note that Kagan wrote a dissent to this particular case, just a couple of paragraphs, basically saying what Aughie and I were saying about her termination will mean that even if she wins in the end a court case, she will not have a job, she will not. It's a greater effect of letting the court system play out at its normal speed.
J. Aughenbaugh: Yes.
N. Rodgers: When a person's livelihood is at the crux of the issue.
J. Aughenbaugh: Because as Kagan's dissent points out, Congress's intent in creating independent regulatory commissions is pretty clearly stated in their authorizing legislation. This isn't a bunch of liberal loose constructionist federal judges who are making this stuff up. This is one of those rare times where Congress clearly stated they wanted the independent regulatory commission members to be free from the kinds of terminations that we're seeing here.
N. Rodgers: The majority opinion side note also talks about the functions of those agencies as executive agencies that if they function heavily in the executive world, then Donald Trump or the executive, the president, not just Donald Trump.
J. Aughenbaugh: Whoever is president.
N. Rodgers: Should have the power to have more removal or more discipline power than they have been given. That's the crux of the argument. But what we're saying is, however this argument plays out, Miss Slaughter is not likely to be on the FTC anymore.
J. Aughenbaugh: Yes. That's correct.
N. Rodgers: I find that personally frustrating. I understand why we need to have this legal argument because we do need to settle this question. That's what the justices are saying is we might settle this. They might take it, or they might not.
J. Aughenbaugh: Well, they are going to go ahead and take this. The Supreme court.
N. Rodgers: Did they already say they were going to take this one?
J. Aughenbaugh: Yeah. When they issued the order staying the injunction of the district court, they also went ahead and said, "By the way, since both parties specifically ask us to state whether Humphrey's executor is still good case law, we're taking this case to decide that question.
N. Rodgers: We are going to get an answer in this particular instance.
J. Aughenbaugh: Yes.
N. Rodgers: Because I think sometimes Donald Trump just runs out of the clock on some of these questions, which I suppose that's one way to do things.
J. Aughenbaugh: A little bit of foreshadowing here, listeners, a little teaser, if you will, our next in the news will be about whether or not Donald Trump can terminate a governor from the Federal Reserve Board.
N. Rodgers: That'll be our next, Can he do that?
J. Aughenbaugh: Yes.
N. Rodgers: At some point, we will probably also have to do in the news on the goings on of basic government because we haven't done one of those in a very long time. We will get back to that series. Thank you, Aughie, I appreciate it, and I appreciate you talking to me about this. It is a layered question. Where does the executives power end? Where does the legislation creation of an agency, if it's clear, is it clear? There's a lot of questions involved in this. Thank you.
J. Aughenbaugh: Thank you, Nia.