Lawfare Daily: What the Supreme Court Said About the President's Power Over Independent Agencies

[Intro]

Nick Bednar: A central conclusion of unitary executive theory is that Humphrey's Executor is wrongly decided, that this insulation of commissioners on these multi-member commissions from removal prevents the president from adequately controlling them as is his constitutional duty.

Natalie Orpett: It's t\Yhe Lawfare Podcast. I'm Natalie Orpett, executive editor of Lawfare, with Nick Bednar, a professor at the University of Minnesota Law School.

Nick Bednar: And so I think the right way to read Slaughter and Cook is it's a battle between Congress and the president, and the, the Supreme Court has basically decided that the president has won the battle.

Natalie Orpett: Today we're talking about two Supreme Court decisions issued last week: Slaughter v. Trump and Cook v. Trump. Slaughter held that the president has the power to remove members of independent agencies who had previously been understood to have employment protections that forbade the president from firing them. Cook held that while that may be true for others, it's not true for the Fed. Both decisions have enormous implications both for presidential power and for the civil service. We talked about what the opinions say, what they fail to say, and what it means for the workforce that makes the federal government function.

[Main Podcast]

Natalie Orpett: Okay, Nick, so I have invited you as our resident person who knows all things relating to the federal civil service and employment protections to talk to us about two Supreme Court cases out this week relating to the president's authority to remove people who are members of independent agencies and that's Trump v. Slaughter and Trump v. Cook.

 But before we talk about the cases in particular, I want to zoom way out to remind our listeners what is the legal framework we're talking about, why are we talking about it. You know, we are not an administrative law publication, but this does, as we have been covering, much thanks to you, over the many, last many months, this does have quite a lot of implication for national security, for the separation of powers, for, especially contests over the extent of executive power. So to get us started, all of that said, what is an independent agency, and why are we talking about it?

Nick Bednar: So an independent agency… First, let me just say the definition of agency independence is really amorphous. There's a lot of different ways we could think about it. Some people say an independent agency is any agency that's not one of the 15 cabinet departments. So we can think about the cabinet departments like the Department of Veteran Affairs, Department of Defense, the Department of Homeland Security.

Contrast those with independent agencies. Independent agencies, for some reason, fall outside of those traditional 15 departments and the way most legal scholars think about independent agencies is in terms of whether the appointees to that agency are removable by the president or whether they are insulated from removal. Is there some statutory provision that says the president can only remove these individuals for cause?

So, some of the most prominent independent agencies we have the two we'll talk about today, the Federal Trade Commission and the Federal Reserve, but we also have a bunch of agencies that perform all sorts of other tasks. So, the Consumer Product Safety Commission plays a big part in issuing recalls for consumer goods. The Merit Systems Protection Board, which is an agency I have covered a lot at Lawfare, adjudicates the removal of civil servants and whether they've been lawfully removed. Federal Energy Regulatory Commission regulates electricity pricing. So there are a lot of different agencies that are considered independent agencies, and they have their hands in all sorts of major policy issues that we might care about.

Natalie Orpett: Okay, and so just to drill down a little bit on that distinction between independent agencies and departments, I mean, all of these agencies are established by Congress to one extent or another, but as you describe it, independent agencies are really defined by the nature of the president's authority over the leadership of the agency, which I, I suppose just clarify for me if that's, if that's correct because it does seem a little bit ironic with the outcome of the Slaughter case that we're gonna talk about in a little bit.

Nick Bednar: Yeah, so that's correct. So cabinet departments, usually headed by one person, Secretary of Commerce, Secretary of Defense, Secretary of State, the president can remove that person at will. There is no provision protecting that person.

Independent agencies typically have a unique structure that's defined by a couple different things. First, most of these agencies have multiple members. They are collective decision-making bodies, so they have somewhere between three and seven members. And second, a lot of those members enjoy removal protections, meaning the president cannot, as Congress has said, remove them for any reason other than for cause

And so, we're really distinguishing between those single-headed agencies and those kind of multi-member commissions in the cases we're talking about.

Natalie Orpett: And am I right that at least for some independent agencies members are appointed for a term of years that might extend beyond a president's term? And so the, the sort of presumed theory with Congress having established the members’ terms in that sense was that they, they would in fact extend beyond or could in fact extend beyond one president’s term and into a president's of perhaps another party.

Nick Bednar: Yeah. So many of these members have fixed terms somewhere between five and seven years. And because it's five to seven years, that usually means there's some degree of turnover within a presidency, but some members are usually staying on after the new president's inauguration, and the president waits until that member's term expires before they get to appoint a new appointee.

And so you're right, the idea of independent agencies was always that presidents would appoint some number of commissioners during their term, but the commission would often be comprised of members appointed across multiple administrations, and it would prevent the president, any one president, from gaining substantial control over the decision-making of those bodies.

Natalie Orpett: Right. And that, that contrasts again with other departments in the sense that those political appointees, the secretaries of those departments, appointments expire, I believe, automatically with the end of a term. Or is that a, a formality along the lines of what U.S. attorneys do to the, just the, the regular practice of resigning at the end of a president's term?

Nick Bednar: So it's a formality. Usually most secretaries just tender their resignation, often several weeks before. The transition team has been building its portfolio of appointees that it is going to introduce on day one, but it's pretty common for all secretaries and more, you know, high-level officials who might be directly below the secretary to just tender their resignation.

There are some notable instances where individuals have not resigned following the inauguration, mostly because the president has asked them to stay on. So a good example of this in the Department of Defense is Secretary of Defense Gates stayed on during the first part of the Obama administration.

Natalie Orpett: Right. Okay, so I want to ask you to build a little bit more on, on something you said with respect to the protections and the way that these independent agencies have been structured. Can you just talk a little bit about what we know about the congressional intent behind the statutes that were creating these sort of unusual structures that differed so much from standard departments?

Nick Bednar: Yeah. So many of these agencies are created around the turn of the century. So you can think 1880s to 1930s is kind of the heyday of these multi-member commissions. And a lot of these agencies, like the Federal Reserve and the Federal Trade Commission, both of which date to this era, Congress was, acknowledged that these agencies would have a lot of power over really significant portions of the economy.

And so that meant several different things for Congress. First, Congress really wanted to ensure stability, so it didn't want these agencies to change with every incoming administration, and suddenly our entire monetary policy or economic policy has shifted overnight, right? And so the idea of these fixed terms that we talked about was that change would occur more gradually, right? The president would take time to appoint a majority of his people to the agency, and therefore regulation would be more stable.

The second thing that Congress really cared about was they wanted to remove politics as much as possible from these agencies. They really wanted the president to select people who were considered experts in these policy areas and would govern according to their expertise, not the president's wishes. And so they had a couple different institutional mechanisms that they sought to use to insulate these commissioners from the pressures of the president.

One is those fixed terms. Another is those for-cause removal protections we talked about. Two others we haven't talked about yet. One is that many of these agencies have some sort of appointment requirement. The person being appointed has to have expertise in a given area. Some of them have geographic limitations, so members of the Fed, they are distributed across the different Federal Reserve districts, and the Board of Governors has to have so many from the different districts.

And then the final kind of mechanism they used was they had these bipartisan appointment requirements where the president could only appoint so many people from his party to the commission, and the idea was this would help moderate the policy, but by insulating these members from presidential control more directly, then they would get expert and neutral opinions and regulations from these agencies.

Natalie Orpett: Okay. So spoiler alert, Slaughter seems to have completely eliminated the protections for members to not be removed by the president or to, you know, require the president to respect the term to which the person was originally appointed or any of those things, and we will talk about that more in a second, but I do want to acknowledge that the Supreme Court has been chipping away at those original protections as they were understood in the early days of those statutes. So this was not totally unexpected.

Can you tell us a little bit about that evolution? Why did the intended protections sort of get chipped away at over time? Why did they become less robust than it seems Congress originally intended in, you know, this heyday that you were describing?

Nick Bednar: So let me start a bit at the heyday with a decision that we're gonna talk about with Slaughter, which is Humphrey's Executor. So there's this case United States v. Humphrey's Executor, that's decided in 1935. It involves the Federal Trade Commission. President Roosevelt removes a member of the Federal Trade Commission, and the Federal Trade Commission has for-cause removal protections. So these individuals cannot be removed for any reason. They do not serve at will.

And Humphrey's Executor upholds those removal protections for members of the Federal Trade Commission, and it says that Congress is free to protect members of multi-member commissions who exercise quasi-judicial and quasi-legislative authority as they see fit.

So fast-forward 45 years. Around the time of the Reagan administration, the conservative legal movement starts really embracing a theory called unitary executive theory. Unitary executive theory, you can find traces of the theory throughout history, but it basically stands for the proposition that all executive power must be exercised by the president, and therefore, anyone exercising executive power on behalf of the president must be subject to the president's control.

And a central conclusion of unitary executive theory is that Humphrey's Executor is wrongly decided, that this insulation of commissioners on these multi-member commissions from removal prevents the president from adequately controlling them, as is his constitutional duty.

So we see hints of unitary executive theory in the '80s. There's a very important dissent by Justice Scalia in a case called Morrison v. Olson, and we start to see kind of more and more judges being appointed who, to adhere to this theory that the president must have the power of removal over all principal officers. And with the appointment of John Roberts and Justice Alito, people who worked in the Reagan administration, slowly they start chipping away at Humphrey's Executor.

The biggest pivot point comes in this case called Seila Law, and Seila Law concerned the Consumer Financial Protection Bureau, which was created by the Dodd-Frank Act. So the Consumer Financial Protection Bureau was designed to regulate financial goods for consumers following the 2008 financial crash, and Congress created it with a single member or a single appointee who would direct the activities of the agency, but that director enjoyed removal protections.

And in Seila Law, the Supreme Court struck down those removal protections, but it acknowledged two exceptions, two exceptions where Congress could continue to insulate officials from removal. The first is inferior officers and employees of the United States. The second is Humphrey's Executor. So the court said Humphrey's Executor holds that Congress can protect members of multi-member commissions who exercise quasi-judicial and quasi-legislative authority, and it said it was not deciding whether to overrule Humphrey's in Seila Law.

The court decides another case called Collins v. Yellen that effectively just applies Seila Law to another single director agency. And by Collins v. Yellen, we know for the most part that Congress cannot protect appointees in single director agencies from removal. But up until then, and up until yesterday, Humphrey's Executor was alive and well, meaning Congress could continue to protect the members of these multi-member commissions.

Natalie Orpett: Okay, so I think that brings us to Slaughter. Let us start with just remind us what the case was, who was Slaughter, what were the claims, and then we will move on to what the court held.

Nick Bednar: Yeah. So Rebecca Slaughter was a commissioner of the Federal Trade Commission. It is notable that the Federal Trade Commission is the exact agency in Humphrey's Executor. So the Supreme Court has already said that the removal protections for Federal Trade commissioners like Rebecca Slaughter are constitutional in 1935.

President Trump removes Rebecca Slaughter from her position, and Rebecca Slaughter files a lawsuit saying, "I cannot be removed from my position. I am entitled to remain here because I enjoy for-cause removal protections, and President Trump has not cited any cause for removing me." So, the case works its way through the federal courts, and the Supreme Court ultimately takes it, and the question presented to the court is, should we overrule Humphrey’s Executor and get rid of Congress’s ability to insulate members of multi-member commissions from removal?

Natalie Orpett: And to understand a little bit, so you mentioned President Trump did not give any reason indicating, for example, that the firing was for any particular perceived malfeasance or anything like that, for example. Do we know anything about why the firing occurred, or would that all be speculative?

Nick Bednar: It would be speculative, but I have a pretty good guess, which is President Trump removed quite a few people at the start of his second term in office who enjoyed removal protections, and it has been very clear from the beginning that what President Trump and the Trump administration more broadly have been trying to press is an expansion of unitary executive theory, and they saw the window to challenge Humphrey's Executor.

And the cleanest way to challenge Humphrey's Executor is to go after the agency that Humphrey's Executor itself decided, right? So if you wanna challenge Humphrey's Executor, the best way to ensure the Supreme Court can't easily distinguish your case is to just remove a member of the Federal Trade Commission. And so I really think this was just a legal play. This was the best way they could tee it up so that the president could seek an expansive understanding of unitary executive theory.

Natalie Orpett: Okay, and so just to give some a little bit more flesh on the bones of unitary executive theory and the creation of these agencies, the natural conclusion here is that although Congress has the authority under the Constitution to create agencies, so long as it chooses to create those agencies housed in the executive branch, it then effectively relinquishes any authority to affect the manner in which the president can run the executive branch, which now controls an agency that Congress has created in that category. Is that right?

Nick Bednar: I think that's the broadest possible interpretation. Okay? So there's different flavors of unitary executive theory. One is what you just described, which is the broadest possible interpretation to say that Congress places an agency in the executive branch, the president needs to be able to control everyone within that agency, and control must be defined by the power to remove. And the idea here is if you give the president the power to remove, he'll scare these people into basically complying with his wishes, otherwise they're gonna lose their jobs, right?

The broadest possible interpretation traditionally hasn't been endorsed by a lot of people in the unitary executive theory camp. The more common interpretation, and the one that we saw the Roberts Court moving toward, we can debate whether this is where they're at right now, but the more moderate version of unitary executive theory has traditionally relied on the Appointments Clause.

And the Appointments Clause says that the president shall appoint principal officers with the “advice and consent of the Senate.” And there's a bunch of precedent that says the power to remove comes with the power to appoint, and therefore the president appoints principal officers, ergo president removes principal officers. Congress can't interfere.

There's a different reading though for inferior officers because the Appointments Clause says, “Congress by law may vest the appointment of inferior officers in the president, the heads of the departments, or the courts.” And the court has long interpreted that provision as applied to inferior officers to say Congress holds the power of appointment and who gets to exercise that power, and therefore, Congress also holds the ability to restrict the removal of those inferior officers. But as we'll talk about with Slaughter, it's unclear which of those camps we're in and whether the Roberts Court is moving towards that more aggressive interpretation of unitary executive theory that I began with.

Natalie Orpett: Right. So just one point of clarification, can you remind people how we distinguish between principal officers, inferior officers, and employees, which are the sort of three different categories that the Supreme Court has used in its jurisprudence in the past because obviously, given what you're describing, it can't be solely defined by the manner in which someone can be removed because there would be a certain circularity to that.

Nick Bednar: Yeah.

Natalie Orpett: So how has the court articulated the difference between those three categories and the significance of them?

Nick Bednar: Yeah. So principal officers are officials who exercise significant authority of the United States and are otherwise not supervised by a principal officer. Okay, so they are at the top of the food chain, and they exercise significant authority. Inferior officers also exercise significant authority, but they are subordinate and supervised by a principal officer, so they're kind of the mid-level. And employees are individuals who do not exercise significant authority.

Now, the Supreme Court has always been kind of mushy on these categories. We know what happens once an individual is within one of the categories, but delineating whether they're inferior officers or employees or principal officers or inferior officers has always been a little tricky with the court.

And so generally, principal officers have to be appointed by the president with the advice and consent of the Senate. That is the core requirement for principal officers. Inferior officers, again, the Appointments Clause says they can be appointed by the president, the heads of the department, or the courts of law. Just a reality check here, most of them are appointed by the heads of the departments. Okay? The secretary of state picks his inferior officers. Usually the president doesn't wanna be involved in that personnel decision, right? And Congress has typically said the secretary of state is going to pick those inferior officers by law.

Employees and the selection of them is governed by the civil service laws and the merit system that Congress has set up to examine these employees and determine which ones are qualified to work in the federal government.

Natalie Orpett: So is it the case, though, that the distinction between principal and inferior officers in terms of practical effect may be a little bit of a distinction without a difference in the sense that, I mean, setting aside the court involvement with an appointment, that if an inferior officer can be fired, for example, by the secretary of a department, the president can just order the secretary of the department to fire the inferior officer?

Nick Bednar: I think that's true, but inferior officers can be protected with removal protections, and they are.

Natalie Orpett: By Congress.

Nick Bednar: The categories that are less distinguishable from each other are inferior officers and employees. So the Constitution speaks of principal officers and inferior officers, doesn't talk about employees.

The civil service laws talk about officers appointed by the president with the advice and consent of the Senate and employees. And it is generally agreed upon that most inferior officers are employees who would be subject to the removal protections of the civil service laws. And so, you know, under the current rule, because Congress can protect inferior officers, it doesn't really matter whether someone's an inferior officer or an employee, but it does matter a lot as to whether they're a principal officer or an inferior officer for both the appointment reasons that I talked about, but also now the removal reasons, which is, as we'll talk about, Slaughter is basically gonna hold if you're a principal officer, you are subject to removal by the president.

Natalie Orpett: Right. Okay, so I do wanna get to Slaughter and as we have published a very useful piece for you describing and analyzing that case. I wanna talk about the implications for everything we just described, but I think before we do that, we have to do a little detour into the other case that the Supreme Court issued an opinion on this week which was Cook because it also had quite a lot to do with an independent agency and whether a member of the board could be removed, but it came out differently, didn't it? Tell us about that case.

Nick Bednar: Yeah. So Slaughter holds that the president may remove principal officers and Humphrey's Executor is overturned, and therefore, what you'd presume from this holding is that there are no multi-member commissions that can be protected by Congress anymore… except for the Fed?

So in Trump v. Cook, the Supreme Court effectively holds that Congress can provide for-cause protections for members of the Federal Reserve. There are two reasons for this, maybe three. The first reason is the government didn't contest the constitutionality of the Federal Reserve's removal protections. Now, part of the reason it didn't contest the constitutionality of the removal protections is that in a separate case called Trump v. Wilcox that was decided in May of last year, it was, it was a shadow docket case, so, like, it's not a merits decision, but the court included about a paragraph saying, "well, there's clearly an exception if we overrule Humphrey's executor for the Fed." And we didn't really know why, and now we sort of know why.

So one possible reason is historical. So, the court traces the historic lineage of the Federal Reserve to the First and Second Bank of the United States. It basically says, "Hey, we had these two central bank-like entities at the founding. They were structurally very bizarre. They were quasi-private entities, and therefore we can kind of just think of the Fed as a continuation of that practice and say these removal protections are rooted in this historical precedent."

There's a lot of research to suggest actually that analogy doesn't work very well. Lev Menand has a great article talking about how the banks of the United States actually don't look anything like the Fed in the way it was governed. They were mostly private entities. They were governed by private shareholders, which is not how the Fed is governed. And so the, the, yes, they both engaged in some form of monetary policy, but they're structurally very different from each other.

The third reason we might protect the Fed kinda comes out in Kavanaugh's concurrence in this case, which is it's the Fed. If we create instability in the Fed, like the economy's gonna crash. Like, we're not that crazy. So, you know, the, the Fed exception, does it follow from Slaughter? No. Like, like the court says there's this like historic analog, but there are a lot of researchers who did history and found other historic analogs that the dissent in Slaughter cites, and the court doesn't really pick up on those threads at all in Slaughter. It is, as far as we can tell, literally an exception for the Federal Reserve, and it is unclear what other agencies, if any, might fall into that exception.

Natalie Orpett: So, it's, it's not stated as a consciously prudential decision to sort of protect the economy from gross instability. It's, it's just sort of vague as to why the Fed should be any different other than perhaps these historical analogs?

Nick Bednar: I mean, it, it's pretty clearly stated that it, it's a prudential decision.

Natalie Orpett: Oh, okay.

Nick Bednar: But they tie it back to the founding. Like Roberts says, the founders knew monetary policy like would cause economic instability if placed in the hands of, you know, political actors. And so they're trying to draw that prudential connection through history, but they're pretty clear that like the economic significance of what it would mean to have a central bank entirely subject to the president's authority

Natalie Orpett: Okay, so taking these two cases together, we have a rule, and I want to obviously dig in further to what exactly Slaughter said and what uncertainties remain, because it's not exactly clear what Slaughter said.

But the rule seems to be that for independent agencies, certainly no doubt whatsoever with respect to the FTC, which was Humphrey's executor, now gone, but likely as it's written with respect to other independent agencies with multi-member boards or leadership, no protections, Congress can't do anything. The president has full power to remove, at least with respect to principal officers, except, footnote, Cook because the Fed because we don't think that it is prudential to, or perhaps historically, based to apply that rule to the Fed.

Setting aside the discrepancies there, except I'd be interested in so far as it affects your reading of Slaughter, what exactly are the contours of what the majority opinion said on the extent of the executive power here, right? This is the area where, you know, I want to underscore again that for, for Lawfare's purposes, we're interested in the way in which this presidency has been asserting really expansive interpretations of presidential authority, Article II authority in all sorts of realms. We've talked in a number of ways about why the federal civil service and the executive branch departments and institutions and the people that make them up have quite a lot to do with democratic norms, with the national security apparatus and how it functions and all of that.

But, there's sort of a larger theme as well here with respect to exploring the boundaries of executive power vis-a-vis especially here, Congress, which, as we understood it before, was entitled to create these agencies, house them in the executive branch, and include some protections for the leadership so that those agencies could be, quote-unquote, independent.

So all of that as context, what does Slaughter say about the president's authority under the Constitution or elsewhere with respect to executive agencies, with respect to independent agencies, and the relative f- power vis-a-vis Congress?

Nick Bednar: Slaughter stands for the proposition that the president has to control any subordinates who exercise executive power. And the way it conceives of control in this case is through removal. So, the president is gonna control subordinates through removal. But this ruling begs two questions. First, what is executive power? And second, who is a subordinate?

So what is executive power? Well, the court says it doesn't have to give us a comprehensive definition in this case because whatever it is, the Federal Trade Commission exercises it, and it gives us some examples of things the Federal Trade Commission does that it perceives as executive power.

So, the Federal Trade Commission has the power to promulgate substantive rules that carry the force of law, so it engages in rulemaking. Second, the FTC investigates businesses and enforces statutes and rules against those businesses, so executive power is enforcement. Third, FTC files civil suits on behalf of the United States in federal court. So, FTC engages in litigation. Fourth, FTC also engages in adjudication. So the four items of executive power the court identifies in this case are: rulemaking, enforcement, adjudication, and filing lawsuits, litigation. And so because the FTC exercises all of those powers, its members engage in the use of executive power, and therefore the president must control them.

It's hard to think of an agency that doesn't perform one of those functions. There are examples. There are several agencies that are purely advisory in nature, and the Supreme Court suggests that agencies that don't exercise any executive power may still be subject to removal protections, but it doesn't say much, and it's very hard to come up with agencies that satisfy that prong. Most agencies engage in rulemaking, adjudication, enforcement, or litigation. Right.

Second thing I said about the holding that you need to figure out is, what is a subordinate? So, we began this podcast by talking about principal officers and inferior officers and mere employees, and I had to walk through what's the distinction between all those, and boy, it'd be helpful if we had this really complicated framework that the court choose to use in its decision so that we would know exactly who this decision applies to.

But it didn't. It refers to subordinates, and it talks about how the president needs to control any subordinates. And it doesn't put any contours on who those subordinates are, so it doesn't use the phrase principal officer outside of quotes. It doesn't talk about inferior officers, never mentions employees so it's not using the traditional framework the court has used in these cases, and that makes the opinion terribly confusing and probably broader than what Justice Roberts might have wanted it to read.

Now, Justice Gorsuch's concurrence basically begins with a statement that says, "Today the court holds that Congress cannot restrict the removal of principal officers." And so there's at least some hint here that this decision is only meant to apply to principal officers, and that makes sense when you consider that all the court is doing is overruling Humphrey's Executor, and Humphrey's Executor is a decision about whether Congress can protect members of multi-member commissions. But that's not how the opinion reads.

And so there's this open door right now for the Trump administration to pull some of this language, isolate it, and say, "actually, we can remove any inferior officers or federal employees because they're subordinates in the executive branch, and therefore the president has to have authority to remove these officers."

Natalie Orpett: And you made an interesting point in your piece on Lawfare, which was that it's obvious that this was not an oversight on the part of Justice Roberts, who wrote the majority opinion, because not only is it a very clear l- part of the Supreme Court's jurisprudence, including jurisprudence on which he has been, I believe, an author if not a participant of some of these key previous decisions that made the distinction between these three categories of employees in the executive branch. But also that Justice Sotomayor specifically called out the failure to clarify who exactly constituted, quote-unquote, "subordinates" in her dissent, which of course Justice Roberts had in advance of finalizing his majority opinion. So what do you think we should read from that?

Nick Bednar: So I think the strongest reading of the case is that the president has authority to remove principal officers, except for principal officers in the Fed. I think that is the only holding and principle of law that should be derived from this opinion. So then the question is, why are we using the word subordinates?

My best guess is the following: I think Chief Justice Roberts had a hard time maintaining a majority on a decision that was limited to principal officers, and I think probably Thomas and Alito were hostile to the idea of language that would have further limited removal of inferior officers and employees.

And so, I think we kind of got this like cobbled together bargain of an opinion that is using the word subordinates to avoid answering the question, are inferior officers removable at will?

Natalie Orpett: But why not just allow for, you know, a multi-part Supreme Court decision that includes an opinion that has a couple of justices on it, a concurrence in the judgment, and the, obviously a couple of dissents, where, I mean, there would be the same degree of vagueness as we seem to be dealing with given the use of this term subordinates rather than the framework that's been previously used.

Nick Bednar: I don't know. You know, one thing I've toyed with in my head, is there any way this could have been a per curiam opinion, and Roberts really didn't want a per curiam opinion because a per curiam opinion overturning Humphrey's Executor would have looked really weak.

Another possibility is a more political separation of powers story, which is the Supreme Court is under a lot of pressure from the Trump administration. And it is plausible that Chief Justice Roberts kind of wants to just toe the line and not pick any fights with the Trump administration right now, and he doesn't need to pick the fight over inferior officers in the civil service in this case.

I, I mean, the, the other option, right, is the majority is entirely aware of what it is doing, and it is intentionally opening this door so that the Trump administration makes the argument and then it can do something similar to what it did with Seila Law, which is like, "we're not touching this, but we've opened the door. Grab the door, and we'll keep it open for you when it comes," right?

So that's one possibility. It's hard to say, though. It, it's a really odd opinion to read for this reason, 'cause like you said, Roberts has authored a bunch of these other opinions, and they're almost formulaic in the way they write. And this one feels sloppy in that it just doesn't pair up with the framework that Roberts has established in these other cases, and the exclusion of a discussion of inferior officers is for sure some sort of oversight, intentional or not.

Natalie Orpett: Yeah, it, it does just strike me as a very odd decision to leave that degree of vagueness given the stakes here and given, you know, it, it literally explicitly overturns precedent that has existed for almost 100 years. And as I wanna shift to now, it also, particularly if you apply this sort of maximalist reasoning that might extend to cover inferior officers or even employees, I mean, the implications are really dramatic.

So, can you talk a little bit about what that would look like, and especially, you know, given all of your other work for us on protections of the federal civil service and what, just what this would mean for that whole framework?

Nick Bednar: Yeah. So let me kind of take a minute to recap what I've covered for Lawfare and how this case, if you take the maximalist reading, means everything I've covered for Lawfare might just go away.

So, consider the reductions in force, right? So in March of 2025, the Trump administration begins these momentous reductions in force, like removing thousands of people from Department of Health and Human Services, Department of Education, all these other agencies. Those reductions in force and whether they were lawful working their way through the federal courts right now.

The president has targeted all sorts of different officials. There's a case pending before the Federal Circuit right now called Jackler. Jackler will decide whether the MSPB, Merit Systems Protection Board, was correct in holding that immigration judges can't be protected by the civil service laws. And to be clear, immigration judges are either inferior officers or employees, but they're not principal officers. There's another decision called Comans. Comans is the president arguing that Article 2 allows him to mo- remove members of the senior executive service. There's the Marine Comey case, which is the removal of an assistant U.S. attorney ostensibly based on her political beliefs and her relationship to her father, former director of the FBI, James Comey.

So you have all these cases working their way through the federal courts about the civil service, and what I anticipate is about to happen next is the Trump administration in every one of these cases is going to file a notice of supplemental authority saying, "hey, the Supreme Court just said that the president has power to remove subordinates at will, and that these subordinates cannot be protected by Congress.” Now, they're gonna exclude that first line from the Gorsuch concurrence that talks about how this is about principal officers, and they're just gonna focus on the fact that this is a broader holding than it seems. And that creates a lot of turmoil for all of these courts that now need to sit down and figure out what Slaughter means.

And what's at stake here is not just any one individual employee's firing, it is the entire system that holds together the federal workforce and makes sure that there are people to sign Social Security checks, to clean up the national parks, to issue regulations, to enforce regulations, to, you know, scan luggage at the airport for guns and weapons, right?

And so this is a massive decision. You're talking about if the expansive decision applies, right, it not applying to the, say, 5,000 principal officers, but to probably 2 million employees. And the courts, the lower courts, are going to be asked to make that call.

Natalie Orpett: Yeah, and I imagine there's no way that there won't be splits among the, certainly the district courts, and then as things work their way up through the appellate courts.

Let me, let me test out this description to you and let me know if this sounds right. You were mentioning before that one of the things that Congress was trying to set up with respect to independent agencies and ensuring stability, including through things like longer terms than that stretched across presidential administrations, al- also with respect to these employment protections that at least for some people are no longer intact after Slaughter.

But if the goal was to, as you say, make sure that people with specialized skills were employed, that there was stability in that workforce, that it didn't just turn over sort of at the whims of a president who is acting under political or policy priorities, that there's really a question for me as to what this says about the president's authority vis-a-vis Congress, right?

Because my understanding at least is that Congress has typically set up these agencies as a delegation of its own power to give to the executive branch a specific agency that is charged with doing work that is often really technocratic or really detailed and just is something where Congress effectively says “listen, under the Constitution, this is on our, our realm of authorities, but here, Executive Branch Article 2, we are going to give you a certain agency charged with certain tasks because we think that you are sort of better positioned to, you know, staff up and hire all of these people rather than make these regulations that are very technocratic.” For example, in our staff offices of individual members of Congress, and then pass it through legislation. That just seems not workable. So what does this new system do to that balance?

Nick Bednar: I think that's, it hits the nail on the head. I think the fight in these cases has always been about to what extent does Congress possess the authority to design the government?

And if you had left me alone in a room without the Supreme Court, right, what I would tell you is read Article 1. And Article 1 says, in the Necessary and Proper Clause, "Congress has the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States."

So the Necessary and Proper Clause, in my mind, envisions that Congress designs the agencies, the systems and the institutions that govern the execution of law, and therefore Congress can set up these agencies however it deems necessary. Because ultimately, execution has always been about the faithful execution of the laws enacted by Congress, and so Congress determines how execution should be carried out. If Congress wants monetary policy, nuclear policy, national security policy to be carried out by technocratic experts who are not subject to political pressure, in my mind, that is Congress's prerogative.

But what the Supreme Court seems to have done is the opposite, which is to say, well, the executive power is vested in the president, and therefore the president must have some say in how these agencies are designed, or at the very least, Congress cannot restrict the president's executive authority even though the Necessary and Proper Clause says Congress makes the laws that determine what is necessary and proper for execution, Congress cannot use that power to restrict the president's own authority. And so I think the right way to read Slaughter and Cook is it's a battle between Congress and the president, and the Supreme Court has basically decided that the president has won the battle.

Natalie Orpett: Yeah, I'm tempted to ask you questions about how this intersects with Loper Bright, but I think that, that drives way too much into the realm of, of theory. So to, to wrap us up, I, I want to just come back to the practical real-world- world's implications that are going to follow because one other part of your article that I found really compelling is just to think about the incentive structure that this creates for federal employees going forward, even in the face of uncertainty, but especially if we soon have reason to believe that this much more maximalist interpretation is the correct one, and that even employees can be fired at will and they no longer have these civil service protections, you know, what that does to this largest employer in the United States, as you say, and what it does to the ability of, of the government to function.

Nick Bednar: So the n- initial response to a lot of people in reading a case like Slaughter is, "oh, the Supreme Court failed to talk about this. They'll talk about it in the next case," right? And so there's this assumption that, oh, the Supreme Court can plug the hole, and the Supreme Court can plug the hole legally, but what it can't change is how federal employees and individuals who might seek federal employment respond to these structural changes, right?

The federal government depends on the ability to have individuals willing to work with it. It is the largest employer in the United States. It takes a lot of manpower to run the federal government. And so, when, when I'm not writing civil service law for Lawfare, I moonlight as a political scientist, and what I mostly think about is bureaucratic behavior and the relationship between presidents and the federal employees. And so, you can imagine, and I know anecdotally having talked to federal employees over the last year, that federal employees might respond to the instability in certain ways that could threaten the ability of government to function.

So some ways that might happen. Well, the first is that, okay, so even suppose the Supreme Court ultimately decides that removal protections for federal employees are constitutional, it takes a lot of time to work through judicial review, right? Federal employees are not permitted to go straight to federal court. They currently have to go through the Merit Systems Protection Board. The Merit Pro- Systems Protection Board is very much captured by the Trump administration and has been pretty much ordaining a lot of what the Trump administration has done with respect to removal of federal employees, and it currently has a huge backlog.

As anyone who is an attorney listening knows, judicial review takes a lot of time and a lot of energy and a lot of monetary resources for litigants. Federal employees, for the most part, do not have the resources to engage in this battle. They are ordinary employees who frankly often make less than they would in the private sector. They need to pay bills. They need to pay groceries. They do not have time or energy to wait around for a court to tell them in four years whether they get to keep their job. They will move on. And because the Merit Systems Protection Board does not issue injunctions generally requiring the reinstatement of these individuals because many of these individuals will probably lose at the Merit Systems Protection Board, they're going to leave rather than pursue these cases.

The other thing you can think about is, okay, so many of these people probably won't ever be removed. That's the reality of this, right? The Trump administration, even if it takes the position that the civil service system is unconstitutional, is not going to suddenly send termination letters to all two million employees.

But, it is making the workforce feel threatened, and they've, there's a bunch of data showing that federal employees, their job satisfaction is declining. They no longer feel secure in their positions, and so consequently, many of them are gonna voluntarily leave. I'm working on some preliminary research that kind of leverages Schedule F and how employees who were in positions that would be deemed Schedule F positions before the inauguration just left at higher rates because they anticipated that their positions were on the line.

You can think about this from the perspective of whistleblowers, right? All federal employees take an oath to uphold the Constitution, and part of upholding the Constitution means identifying when your agency is engaged in unlawful, fraudulent, or wasteful behavior. And we have really concrete and robust whistleblower protections for people who want to alert Congress or the inspector general about those illegal activities. And the tenure protections are really crucial for people willing to go and whistleblow, right? If I'm a federal employee and I observe illegal behavior and I know I can be retaliated against if I report that behavior, I have no incentive to do so.

And then the final thing to consider is just suppose all these people leave or they get fired, regardless, there is going to be a moment where Congress and the president are going to want to rebuild capacity. They're going to want to hire again. And we're already seeing that in the Trump administration, that certain agencies concede they went a little too deep on the reductions in force and they believe they need to hire back more people. But the federal government's reputation as a stable employer is shot.

Part of the reason people are willing to go into federal service for less pay than they would often make in the private sector is the promise of stability. The only reason it is rational to be a government employee at a rank-and-file level is if you are promised that you will not be removed from your position every four years. Otherwise, you are far better off finding a job in the private sector where you will be promoted, you will climb the ladder, and you will have a decent amount of instability. But if the federal government can't promise that stability and people are telling you, like, "the morale here is terrible," why would you choose to work there?

Natalie Orpett: Yeah, it's, it's going to be quite a lot to watch both in terms of impact in that sense, which, you know, won't show up in the courts, but will be, I think it's fair to say, potentially catastrophic change in the way the government works or doesn't. And we will most certainly have to have you on once we start getting a critical mass of decisions in the lower courts trying to figure out exactly what Slaughter is meant to do.

But in the meantime, I want to thank you so much for your piece and for this podcast and for spending time on these admittedly very complicated questions of federal employment and administrative law. So thank you, Nick Bednar.

Nick Bednar: Thanks, Natalie

[Outro]

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