Subscribe
Share
Share
Embed
Journalist Nathan Stone and Producer Josh Carmody invite you to sit down for deep dives on the rapid changes happening in Trump’s new America.
00:02
The recent decision by the Supreme Court is setting the stage to give President Trump powerful new authority over federal agencies. The Court looks likely to grant Trump the ability to fire commissioners at independent federal agencies, effectively ending their independence and forcing those organizations to bow to the whims of the executive.
00:25
Welcome to the politics of New America. On the show today, the Supreme Court's shadow docket comes through for the president once again. We'll discuss the case and how it could end 90 years of protection for federal agencies. I'm your host, Nathan Stone. This is a bit of bonus episode this week. I just really wanted to get to this topic and it was one I couldn't fit in the previous episode, but it's somewhat connected to the executive gaining more and more power.
00:55
This one's a big one though, so it kind of deserves its own special little entry. Now, this is one that you could have missed in all of the crazy that's gone on in the last week. We'll definitely be looking at Trump and the UN in our next episode and discussing his performance at the General Assembly. But for now, this is one that kind of flew under the radar unless you're really into following federal news.
01:25
But it's very important, so we should really get to it. Past Monday, the Supreme Court basically cleared the deck for Trump to fire FTC Commissioner Rebecca Slaughter. And they did this through a brief unsigned order through the court's emergency docket, also known as Shadow Docket. We do actually have an episode on Shadow Dockets if you want to get into detail on it. But basically, it's a
01:55
special expedited ruling that the Supreme Court can do and they can be petitioned by the government or other organizations to rule on this in matters when time is of the essence and shadow docket rulings or emergency docket rulings aren't final decisions. What they are is usually stays of orders. So a lower court will
02:24
issue an order, either preventing something from happening or ordering something to happen, and a party, in this case the government, goes to the Supreme Court and petitions them to look at it on their shadow docket and the Supreme Court will either uphold that original order or strike it down. So what's happened in this case is a federal judge in Washington DC
02:52
had ordered the Trump administration to allow Rebecca Slaughter to return to office while she was challenging her termination in court. And if you don't remember exactly what was going on with Slaughter, she is a commissioner of the FTC. She was actually a Trump appointee from 2018 who was reappointed by Biden during his presidency. And because of that,
03:22
She can only be removed from her position for inefficiency, neglect of duty, or malfeasance in office. Those are pretty much it. So when Trump fired her, it was not clear that her firing met any of those conditions. Trump has given no cause for her dismissal. And so she launched a legal challenge because the president does not have the authority to fire
03:52
commissioners from independent federal agencies. Unless they've committed one of the offenses that I mentioned. Hence why they are independent. They do not answer directly to the president. So what happened this past week was that the Supreme Court took a look at this. They looked at the federal judge, the U.S. district judge, Lauren Ali Khan, who had reinstated
04:22
Slaughter and they basically nixed that so For Slaughter she was able to return to work for a while while this was getting sorted out now The Supreme Court has said actually no they can at least temporarily fire you so it doesn't sound all that awful just describing it, but because of this case and another similar case
04:51
The Supreme Court is going to rule on whether they should remove these protections for FTC commissioners and for other independent federal employees. And as I said in the intro, this rule around the president not being able to fire these people actually came about 90 years ago in a case called Humphrey's Executor versus the United States. So this was
05:20
back in the days of FDR and William E Humphrey was a commissioner of the Federal Trade Commission and Roosevelt fired him and he fired him over policy disagreements involving the economics of the New Deal and even at that time the Federal Trade Commission Act prohibited the firing of an FTC commissioner for any reason other than inefficiency, neglect of duty or malfeasance. The case went to the Supreme Court
05:50
where the chief justices of the day ruled against FDR. This set a legal precedent that has backstopped the independence of these federal agency executives. So that case really solidified the protections for these independent agencies and their employees. And it has come under scrutiny before saying essentially that it limits the power of the executive branch.
06:20
And it certainly does, but it is a limit that is there on purpose, right? So, the Supreme Court, in its December session, will hear this case. And, essentially what they'll do is they'll decide whether or not the rules that they created around Humphrey's executor, that case, still hold today. And if they overrule it, if they come to a new conclusion that
06:50
these commissioners do serve at the president's whim. Then it opens up so many different federal agencies to direct White House meddling. And there's some pretty big names here. So there's a lot of independent agencies in the federal government. Of course, we all know the FTC and everything that's happening around that. The FCC in the news a lot these days.
07:19
but also organizations like the ITC International Trade Commission, the National Aeronautics and Space Administration, NASA, the Nuclear Regulatory Commission, the National Labor Relations Board, oh and the Federal Reserve System, otherwise known as the Fed. And you can probably bet that over at the Fed they will be watching this case very closely because they might lose some sleep and some jobs over it.
07:49
if it doesn't go their way. All of this is to say that if the White House wins this case, if Trump wins this case, what we'll see is an absolute chilling effect, I think, on these federal agencies. And there's so many of them. And they do really important things like administer social security and run federal elections. These aren't the types of positions that you want.
08:19
a lot of partisan appointments for. You want the best people for the job. You want the bureaucrats, the people who spend 20, 30 years in the federal government and see administrations come and go and just do their jobs. Those are the people you want in these independent agencies because they are the gears, right, that make everything work. And if you can be fired by a partisan president,
08:49
at whim because they don't like the results of something, for example, maybe economic data. Then what you get is a ever-growing dysfunction, but one that's also masked by the need to keep the executive happy. What we've also seen, of course, and the FCC has been the perfect microcosm of this, is the weaponization of federal agencies. And
09:18
This administration in particular has been very quick to do that. We talked about the Brendan Carr situation and imagine dozens and dozens of agencies being run by guys like Brendan Carr. Guys that are true believers, right? True mega. And everything that they could do to punish the people they don't agree with. The people who step out of line.
09:49
Federal agencies, these institutions, are used by everyone, from the largest corporations to, you know, everyday people. And what they do is so important to just keep the United States functioning. There is so much havoc that could be carried out here if this is allowed to happen, if the Trump administration wins this argument. The other thing to consider
10:17
is future administrations and the vicious cycle that could emerge as each incoming administration purges the top level of these government agencies to get rid of the last administration's appointees. It would cause a huge amount of dysfunction and really lessen the effectiveness and credibility of those federal agencies. Now, we have a pretty good idea of how the
10:47
three liberal justices will vote. Because they dissented in the shadow docket as well here. The question is, will the Supreme Court go this far? And it seems like the conservative justices are kind of willing to go here and take this on. We have to remember too that this is a loss for Congress.
11:16
as well if Trump is able to gain this new sweeping power because Congress is the mechanism, they are the force that brings these agencies into being. And these independent agencies are basically enacting Congress's will. And so if the president can hijack them by firing any commissioner that refuses
11:44
to what the president wants them to do, then effectively, Congress can still create these organizations, but as soon as they're created, they fall under the executive just by the sheer fact that if they don't cater to the executive, then the president can just dismiss the heads of these organizations. And again, we see the ceding of power from Congress.
12:14
to the executive. And it's happening over and over again and I keep feeling like such a broken record on this show. But it needs to be repeated that this is happening very quickly. And the office of the president, which traditionally was very limited and was designed to be very limited, is just expanding at a breakneck pace.
12:42
between national emergencies, between just an absolutely subordinate Congress that will not defend its own interests, and a Supreme Court that is actively turning over vast swaths of power and putting it all in the hands of the President. I think it's really summed up best by one of the dissenting judges in this shadow docket ruling, Justice Elena Kagan, and she
13:12
Of course she was joined by Sotomayor and Brown Jackson. She wrote that her conservative colleagues had allowed Trump to remove, contrary to law, and I quote, any member he wishes for any reason or no reason at all. And he may thereby extinguish the agency's bipartisanship and independence. And that's really what's at stake here come December.
13:40
is the bipartisanship and independence of not just one independent federal agency, but all of them. And if it should come to pass that these protections no longer apply, I would expect a pretty severe response from the Trump administration. I expect there will be mass firings throughout these agencies and the installation of much more pliant commissioners that will
14:09
acquiesce to the president's many, many demands. That's gonna do it for this one. I just wanted to make sure that we covered it on the show because it's very important. Keep an eye out for this in December. We will certainly cover this when the Supreme Court makes up its mind. And we will see how this affects the state of the federal government. It's a doozy, folks. But thanks for listening.
14:39
and be sure to tune into next episode when we are going to talk about Trump versus the United Nations. That'll be a nice big juicy episode for you. See you next time. Thanks for listening. If you enjoy the show, please subscribe. Give us a five star rating on your podcast platform of choice and tell all your friends. The Politics of New America is hosted by Nathan Stone and produced by Josh Carmody. You can follow us on Blue Sky at Politics New America.