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Feb. 22, 2025 - Epoch Times
29:20
Does Trump Have Absolute Power to Fire Executive Branch Officials? | Mark Chenoweth
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Mark Chenoweth, so good to have you back on American Thought Leaders.
Good to be with you, Jan.
Just a couple of days ago, the new Civil Liberties Alliance filed an amicus brief urging the Supreme Court to affirm the President's absolute power to fire executive branch officials.
Why did you do this?
What's going on?
Well, what's going on, if I could take those in reverse order, is that the president decided to fire the head of the Office of Special Counsel.
This is a principal officer.
It's an agency that's headed by one person.
And the Supreme Court had decided just a few years ago that those sorts of agencies cannot have heads that are protected by layers of tenure protection.
And so what that means is the president should be able to remove that person and they should have to leave.
The president's removal power is absolute for these sorts of officers, and we know that because if you go back to the Constitution, all of the executive power is given to the president.
It's vested in him by Article II, and then the appointments power is limited.
It says for a lot of these positions, you have to have advice and consent of the Senate in order to make those appointments.
But the removal power is not similarly limited.
So that tells us that...
And Madison said this shortly after the Constitution was drafted as well, that this was deliberate.
And in 1789, Congress looked at this question as to whether they should try statutorily to limit the president's power, and they decided that they shouldn't.
And in fact, the Constitution really didn't permit them to.
So this isn't something new that President Trump came up with, in other words.
This is a long-standing presidential power to remove that Mr. Dellinger, the head of the Office of Special Counsel, is taking issue with.
But there's also this issue in the legal world of precedent.
So how much does that play in here?
So precedent plays in.
The Supreme Court looked at this almost the exact same question a few years ago in a case called Sela Law v.
CFPB, the Consumer Financial Protection Bureau, because the CFPB, like the Office of Special Counsel, is headed by a single principal officer.
And one of the objections that was made to the CFPB was that that head was not...
Accountable to the president.
That person was surrounded by too many layers of tenure protection.
And so the Supreme Court looked at that and agreed.
decided, yes, this is an unconstitutional level of protection for the head of the CFPB.
That precedent, say la la, is directly applicable here to the Dellinger case, which is why it's so surprising that the district court issued a temporary restraining order in this case and tried to reinstate Mr. Dellinger to his previous position.
But what was the argument then?
I mean, you make it sound like there's no argument.
I don't think there is much of an argument.
to be honest with you, Jan, but the argument is that...
Well, first of all, the judge said, well, I haven't had a chance to look at the papers.
I want a chance to look at the papers.
And put an administrative stay in place, even before the temporary restraining order was put in place.
That was an oddity on its own.
I know people may not be familiar with that term.
It's a little bit in the weeds.
But administrative stays are what judges often will issue against other courts.
So if I rule against you, but I know you're going to appeal, I might put an administrative stay in place.
Of my own order until you have a chance to appeal.
But this administrative stay purported to run against the president, against a different branch of government.
That's not a thing.
It doesn't exist, those sorts of administrative stays.
So that was the first oddity from Judge Jackson in this case.
The second one was the temporary restraining order that she issued ran against the president.
Now, they pretended that it didn't run against the president.
But when this got to the D.C. Circuit Court of Appeals, which upheld it, two of the three judges on the panel there upheld Judge Jackson's decision, but Judge Katsas dissented and said, wait a minute, the removal power belongs to the president.
You may want to pretend that you're not restraining the president, but you are, because he's the only one that has this power.
So that's the other oddity here in what the district judge did.
In terms of, you know, what's the controversy?
There certainly have been a number of principal officers in the past who have sued, sometimes successfully, for damages.
In other words, their salary, when they have been improperly discharged.
And that's something that Mr. Dellinger could have done here.
He could have sued to try to get the salary for the remainder of his five-year term.
I'm not saying he would have won that case either, but it's a different question than whether or not he can be reinstated into...
The position the president has removed him from.
I think the president's removal power is absolute, and the court has already decided that.
So it's really surprising that a district judge in the D.C. Circuit would see it differently.
I don't think the Supreme Court will see it differently.
Help me understand this, okay?
In Trump 45, James Schirk came up or worked on this idea of using Schedule F to dismiss certain bureaucratic positions.
You know, there's a whole strategy involved, right, to try to develop this.
But you're telling me that the president's right to dismiss people is absolute.
So why does there need to be...
Well, principal officers.
Principal officers.
So people at the top of these agencies.
And the Supreme Court hasn't spoken to the question yet recently, what happens if you have a multi-member agency?
These independent agencies that the president has been trying to reestablish accountability over, like the Securities and Exchange Commission or the Federal Trade Commission, or there's a bunch of these multi-member.
The Consumer Product Safety Commission, where I used to be an attorney, is another one of these agencies.
There's a precedent from the 1930s called Humphrey's Executor, where the Supreme Court upheld these tenure protections for these multi-member agencies and has not revisited that question since.
But that is an open question.
The president has fired one of the commissioners at the NLRB, I believe.
And I believe Ms. Wilcox has sued.
And so that question is being teed up as well.
So what if it's a multi-member agency and you have these tenure protections?
Does the president have absolute removal power there?
As well.
We'll see.
I think the answer is yes, but we'll see what the Supreme Court says there.
But for Mr. Dellinger, I think the question's already been asked and answered.
And what is the distinction?
What do you mean by multi-member agency?
This is a bit of, for most of us, a kind of a bit of jargon.
We don't probably understand.
Break down, Howard, what kind of different agencies we're talking about here and why it matters.
Yeah, so sorry for the Beltway jargon.
We have a number of federal alphabet soup agencies that are called independent agencies or commissions, and they typically, not always, but they typically have five commissioners who are at the heads of these agencies.
A lot of times, by statute, it's two people from the president's party, two people not from the president's party, so typically two Republicans, two Democrats, and then the fifth person, often the chairman, is appointed by the president.
So these are typically three to two majority of the president's party commissions, but they operate a little bit outside of the normal report up to the White House structure.
President Trump's trying to change that.
Some of these commissions and commissioners are fighting back against that.
They want more independence for these agencies.
But independent agencies weren't part of the constitutional design.
So I think that if the president wants to undo that, he's going to have a lot of success getting that done.
Because presumably it was a thought that it would be another check on...
Power, right?
Presumably.
I think that's the idea that it's really Congress trying to assert its way into the executive branch because my experience at the CPSC, for example, was...
And CPSC was what?
The Consumer Product Safety Commission.
Oh, yes, that's right.
So they do all the recalls that folks hear about, at least the ones that aren't food-related.
And so when I was at CPSC, I started to say...
The folks there would really call the chairman of the oversight committee or the appropriations subcommittee that was in charge of the agency.
That's who they sort of felt like they reported to.
Congress really likes to exert control over these independent agencies, and the White House historically hasn't had as much.
And by the way, that's what Woodrow Wilson wanted.
He didn't trust...
Woodrow Wilson didn't trust the American people, or for that matter, the presidency, and he wanted to insulate these independent agencies and supposedly have rule by experts.
He was very open about this.
He wanted rule by experts, not rule by elected officials.
And so that's how we got these independent agencies.
I think President Trump has more faith in democracy, more faith in the people, and he wants to get away from this so-called rule of experts.
We can talk about whether there's really expertise there or not.
These are political actors at the top of these agencies, and they're making political decisions, and they need to be accountable to the president if they're going to do that.
Hmm.
And then, so I see.
So the distinction is the multi-member agencies, theirs is more of an open question, but the ones that have the single lead, the principal.
The president has absolute power.
But then this bureaucracy below, that's a different question.
That is a different question.
It's a great question.
I actually think the multi-member ones is going to get teed up first because there are some cases that will take a look at this Humphreys executor case from the 1930s to see whether or not those tenure protections...
By the way, what the Supreme Court said back in the 1930s is interesting.
They didn't say these tenure protections are okay because it's okay for these agencies to exert executive power.
Outside of the president's control, what they said was these independent agencies are quasi-legislative and quasi-judicial and aren't really using executive power, so it's okay that the president doesn't have control over them.
Well, whether or not that was true in the 1930s, I don't know.
Probably not.
But it's certainly not true today.
These agencies definitely use executive power.
Doing things like bringing enforcement actions against people and so forth, that's executive power.
That needs to be under the president's control.
So I think that's why when this Humphreys executor case gets back to the Supreme Court, that the Supreme Court will take a very close look at that and probably reverse that precedent.
That's what most, at least most conservative legal scholars think is likely to happen.
This must be an amazing time for you, right?
Because New Civil Liberties Alliance and CLA, your specific focus is challenging administrative overreach.
And so it seems like a lot of what's actually happening in the executive branch right now with what President Trump is doing is precisely that.
You want to speak to that a little bit?
Sure.
It's a challenging time.
It's a fun time.
Some of the many cases we brought against the Biden administration are still pending against the new administration.
And so we've seen in some of those cases...
The lawyers on the other side come in and say, well, we're not going to defend that position anymore.
We think that decision's wrong.
And so the dust has yet to settle on what's going to happen with these cases.
Are they going to settle?
In some of these cases, the government has other reasons why they think that our case should lose anyway.
And so those will continue to be fought maybe on different grounds.
But the thing that's been...
Different for us is we agree with some of the things that the Trump administration is doing, and so we're filing amicus briefs in support of the government, which is not something we were doing very often for the last four years.
But at the same time, there's some cases which you think this new Department of Justice is still going to be fighting you on.
They definitely still are fighting us on some fronts.
Some of that, I think, is they don't necessarily have their top person confirmed yet, and so they're maybe in a holding pattern trying to figure out what their strategy is going to be in a particular case and so forth.
And courts are pretty lenient about giving them extensions of 30, 60, 90 days to sort of wait and see what the official position is going to be of the new leadership.
Bottom line, right, just with...
They're all under the executive branch.
Is that supposed to be?
Almost all of them.
You have the architect of the Capitol and the Library of Congress.
There's a few agencies that are in the legislative branch.
We have an interesting case right now that involves administrative power in the judiciary because the Federal Circuit Court of Appeals, the Judicial Council of the Federal Circuit, Kind
of a remarkable area of focus for a legal group.
You know, it had been an area that no one was focused on for a long time.
And our founder, Philip Hamburger, who's a constitutional law professor at Columbia University, diagnosed the problem and started diagnosing some solutions and thought that the best way to get these solutions implemented would be to have a public interest legal organization that could bring lawsuits against the government.
And so we've been doing that for seven years, seven plus years now.
We had seven victories at the Supreme Court this last year, including two cases that were original litigation that we brought from the ground up.
So, you know, it's proven to be a successful effort, and we're going to keep at it.
I think, to your point about how interesting a time it is right now, there are so many balls in play right now, if you will.
That folks have taken a lot of things for granted over many decades that maybe they shouldn't have taken for granted.
And President Trump isn't going to take those things for granted.
He's made that pretty clear.
And so that gives us the opportunity to help the courts think through and reshape the existing law in a way that's in better conformity with the Constitution.
What do you expect is going to happen?
We're 31 days in, I think, right now.
And a lot of change.
A lot of balls in the air, as you're describing.
What do you expect is going to happen?
What do you expect from this administrative state that has grown so much over the years?
Well, I expect that for the first time in my lifetime and maybe the first time in living memory that the administrative state is going to shrink over the next four years.
And I think that's exciting because I don't think the founders ever really intended for the executive branch to be as And this was part of the diagnosis of Professor Hamburger.
We've come to a point where a lot of this power is being delegated in unaccountable ways.
And that's what President Trump has said.
No more.
We're not going to have this.
And I actually think it was good for him to be out of power for four years, Jan, because it gave him time to reflect and think about, when I was in office the first four years, what happened?
What went wrong with the control of the executive branch?
What things were going on that I didn't want to have happen and were happening anyway?
And I think he's come in loaded for bear from day one, and we've seen that, determined to assert control over the executive branch.
He's not asserting control over the legislative branch.
He's not asserting control over the judicial branch.
He's not doing things outside of the president's lane.
He's doing things in foreign policy, which are under his control.
He's doing things with the administrative state, which is supposed to be under his control.
I think what we're going to see over this next four years...
Assuming that the courts don't interfere in ways that I think they shouldn't and probably won't, is a return to presidential authority and presidential control over the entirety of the executive branch.
And I think that's a good thing.
I think accountable government is a good thing.
I think self-government is a good thing.
People forget that these unelected bureaucrats prevent us from having self-government, and the Constitution was designed to give us self-government.
And President Trump is trying to take that back for us, and I think the American people are going to be happy with the results.
But we'll see.
We'll see what happens.
It's possible they could go too far.
I haven't seen very much evidence of that yet, but we'll see.
There's been a lot of debate about national injunctions, especially if they're filed in a very specific local...
Yeah.
Can you just kind of expand on that for me?
Where does that come from?
Because it seems to the uninitiated like myself, it seems odd.
But there's this saying, right, that the most powerful person in the United States can be a federal judge.
Right.
Because they can stop a presidential action with one of these national injunctions.
Right.
And it's a problem.
I like to put these in two different buckets because I think there are two different kinds of injunctions that we see.
If you're talking about a rule or a regulation that has come up from one of these administrative agencies, when it reaches the federal district court, that may be the first time that anybody who's a constitutional officer has looked at that rule or regulation.
And that might be surprising to people, but when things go in the federal register as regulations, the president hasn't signed off on them.
The cabinet secretary of that agency maybe has signed off on it, maybe not.
It depends on what the sort of internal rules of that agency are.
Maybe the general counsel of that agency or department has signed off on it.
Maybe not.
Again, it depends from department to department.
And so you have these rules that come up.
They reach the federal district court because someone sues over them.
And that judge may be the first person who's ever really asked the question, can the government do this?
Is this constitutional?
And if the answer to that is no, the government can't do this, this isn't constitutional.
I think what Congress has said in the Administrative Procedure Act is for that limited class of rules and regulations that came up from administrative agencies, federal district judges do have the power to set those aside, which means nationwide for everyone.
What we've seen in some of these other actions is where the president has done something, not with a rule or regulation, not really from the administrative state side of things, or we've seen a statute that Congress has passed.
And that statute has been challenged in court, and a federal district judge has tried to set aside that statute.
Well, now, we're in a different place there, because if you have a statute that Congress has passed, it's already been signed off on by one entire branch of government.
The president signed it into law.
It's been signed off on by a second branch of government.
So you already have two of the three branches of government saying, this is constitutional, this is okay.
For one single district judge to then set that aside...
Congress, first of all, has never empowered district judges to do that, and it's not really consistent with our constitutional scheme.
That's not to say that those things can never be set aside, but it can't be one district judge who sets aside an act of Congress.
And so I just wanted to make that distinction, if I could, between acts of Congress, these sort of administrative rules and regulations that come along, and presidential actions.
When you're talking about these presidential actions or these acts of Congress, district judges should tread much more carefully.
If you're talking about rules and regulations from the bureaucrats, then I think Congress has said they want federal district judges to be able to rein those in when they're unconstitutional.
But we're seeing it happen, right?
We are seeing it happen.
Judge Jackson, in this case we started off talking about...
You may not think of it as a nationwide injunction, but in essence, she has said that Dellinger needs to stay in as the head of the Office of Special Counsel.
That has a nationwide effect.
That's for every employee who's affected by that role.
But you're telling me that that shouldn't be allowed.
It shouldn't be allowed.
Who decides how does this work?
How do we discipline the district judges?
Who guards the guardians?
And who would decide whether you're right?
So it needs to be the courts of appeals in the first instance that would discipline the district judges.
That didn't happen here.
The D.C. Circuit was stacked by Harry Byrd a long time ago, so we've got that problem.
But we do have the Supreme Court in place, and you asked me, do I think that the Supreme Court will take the case?
One of the reasons that I think they'll take the case is...
We do have a district judge who has exceeded her mandate.
And so I think that the court, in its disciplinary function, may see a need for it to step in and say, no, no, no, no, that's not the way we do this.
It would be one thing if Mr. Dellinger had sued for damages.
We could have done this on a less fast track.
That would be one thing.
But this business of trying to reinstate him with a TRO, no, no, no, no, no, that's not.
That's not how we do this.
And I think the Supreme Court needs to say that to maybe just turn the temperature down a notch with some of these district judges.
If the court doesn't take the case, it will be because the court decides that the temporary restraining order is so brief, so short, that the harm to the executive branch isn't significant enough for it to worry about.
I think that would be the wrong decision, because I think that would then empower district judges to put out multiple...
Temporary restraining orders.
And even though, arguably, one might not tie things up too much, a whole bunch really could tie things up.
And really, even one, if you think about it, Jan, if you're the president, you're trying to run the whole executive branch, and you've got somebody in charge, the principal officer in charge of one agency who you've lost confidence in, don't want there, don't think they're going to do things consistent with your policies and preferences, that's going to take a lot of time and attention away.
Because you're going to have to keep an eagle eye on that person.
They're going to be running interference.
They're not going to be doing what you want.
That's really preventing you from taking care that the law be faithfully executed, which is the job that Article II gives to the president in our Constitution.
So as we finish up, is there one particular case out there that is kind of like the Chevron deference case that was taken up by the Supreme Court and, of course, reduced this administrative power, the decision reduced?
Is there something out there right now that you could point to that we should be watching?
Yeah, I'll give you a case to watch it.
It's called Davidson v.
SEC, and it's down in Texas.
It'll come up through the Fifth Circuit.
What happened is that the Securities and Exchange Commission and FINRA got together and created a Well,
FINRA... User fees.
user fees essentially, but not in a way that Congress has ever authorized.
So you have this rogue agency engaged in rogue taxation power and then violating your Fourth Amendment rights by putting all of your personal information in a giant database.
You haven't committed a crime.
You haven't done anything that creates suspicion that the government should be looking into your stock transactions, but now it has access to every single stock transaction you've engaged in.
I think it's a huge, huge issue.
Bill Barr has said that it's a massive violation of the Fourth Amendment.
We agree with him.
And so that's something that NCLA has been working very hard to correct.
I hope that Paul Atkins, the incoming chairman of the Securities and Exchange Commission, will recognize the error of the agency's ways.
He was on the commission back during the Bush administration before this thing ever got off the ground.
And he remembers what it used to be like.
And so he would be a perfectly good person to say, wait a minute, what are you guys doing now?
No, no, no, no.
That's not how we do things.
Let's go back to the lawful way of doing this.
If not, we're prepared to take that case all the way up to the Supreme Court because we think that the It's not just the violation of the Fourth Amendment, which is bad.
It's also this...
This aggregation of power by the SEC, the amount of money they're raising from this is more than the SEC's annual budget.
So they've more than doubled their effective budget through this mechanism.
You can't have agencies going out there and irrigating that much power to themselves in the way that the SEC has done here.
And I think the Supreme Court will knock it down if it isn't.
Knocked down before it gets there.
Well, and at a time where all sorts of agencies are being hacked for information, it presents a particularly poignant issue, I think.
We've been told by cybersecurity experts that this is a horrendously bad idea.
And it didn't exist before.
If you did some stock trades with Fidelity, you might have some information in their databases.
You did some with Schwab.
They might be over there.
You did some with whoever else.
They might be with them.
But now it's all consolidated in one place.
You're just creating a giant target for hackers.
And it's a terrible idea.
And by the way, guess who wants liability protection in the event that a hack occurs?
The consolidated audit trail, folks.
They want liability protection.
Well, why?
Because they know that eventually it's not a matter of if, it's a matter of when.
It's going to be hacked because they've set up a disastrous program.
But they think it's easier for them to, and it probably is easier for them to, you know, sort of look around this database and try to find a suspicious activity than it would be to operate the old way where you had to have the suspicion before you started the investigation.
Right.
But again, major Fourth Amendment problem, but also major...
Structural problem.
FINRA is this sub-agency that's been given a lot of power by the SEC, but not by Congress.
We'll be watching that.
A final thought as we finish?
A final thought would be that don't let the pace of action by the president necessarily make you think that what's happening is untoward.
You have to look at each one of these actions by themselves, and if each one of them passes constitutional muster, then what he's doing is fine.
There's no rule against the president being active, doing a lot of things.
We saw in the first hundred days of the Biden administration a whole lot of things done.
But my organization was drinking from a fire hose at that time because most of the things that were coming out were unlawful or unconstitutional.
And so we were just like, which thing do we go after?
The things that we've seen coming out so far, by and large, from this administration.
Are things that I think fall into three buckets.
Either he knows that there's a precedent against him, but he wants to test that precedent.
So he's firing someone in order to test that precedent.
That's okay.
That happens all the time.
I mean, that's how Rosa Parks brought the Civil Rights Revolution about, right?
By testing a law on buses.
That's a traditional way of testing things.
So that's one bucket.
Another bucket is things that he knows that he's right about and he's fighting over.
So the CFPB, we know...
That agency head can't have protection.
Similarly, Mr. Dellinger at the Office of Special Counsel can't have protection.
President Trump knows that.
He fired him.
He's going to defend that decision.
That's a perfectly legitimate bucket.
And then the third bucket is maybe, you might call them maybe gray area items, where, look, can he fire someone lower down?
Can he exert some other sort of executive power to try to rein something in when Congress has said something else?
I think those are open questions.
I think I'll probably win some of those cases.
I think I'll probably lose some of those cases.
But overall, the effect is going to be less administrative power, more accountability to the president for the rest of the executive branch.
Well, Mark Chenoweth, it's such a pleasure to have you on again.
Great to be with you, Jan.
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