Writes Judge Neomi Rao, dissenting, in Slaughter v. Trump.
The NYT article about the case is "Federal Appeals Court Reinstates an F.T.C. Commissioner Fired by Trump/The court said the commissioner, Rebecca Kelly Slaughter, had been illegally terminated 'without cause.'" Excerpt: "Since March, the F.T.C. has been led only by Republicans. Ms. Slaughter said in an interview Tuesday evening that she planned to go to the F.T.C. on Wednesday morning to work."
Here's the Wikipedia article on Humphrey's Executor. Excerpt: "The case involved William E. Humphrey, a commissioner of the Federal Trade Commission (FTC) whom President Franklin D. Roosevelt had fired. Roosevelt had fired Humphrey over their policy disagreements involving economic regulation and the New Deal, even though the Federal Trade Commission Act of 1914 prohibited firing an FTC commissioner for any reason other than 'inefficiency, neglect of duty, or malfeasance in office.'"
FDR wrote to Humphrey: "You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly, I think it is best for the people of this country that I should have a full confidence."
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I asked Grok about how you go about ignoring a Supreme Court ruling and it responded with this story about Joe Biden.
"In a speech in Culver City, California, on February 21, 2024, Joe Biden said, “The Supreme Court blocked it [the student loan forgiveness plan], but that didn’t stop me,” referring to the Supreme Court's 2023 decision in Biden v. Nebraska, which struck down his initial $400 billion student loan forgiveness program as unconstitutional. This comment was widely reported and criticized by, particularly Republicans, as a defiance of the Court's ruling."
And Joe Biden's still walking around a free man.
You don't have to listen to the Supreme Court. That court is laughable.
By the way ... how come Federal Marshall's haven't arrested Lisa Cook yet? She's been fired from the Federal Reserve Board by the President of the United States, but she still keeps showing up at work and logging into her computer.
That's trespassing.
What was the majority’s reasoning? Trump bad?
That second “primary residence” bought by Lisa Cook. Turns out she’s renting it out. She should be in jail.
…living permanently in the lawless land between the political whims of Hawaiian judges and the reversal from the Supremes…
The Lisa Cook case will be a strong argument. There is clear malfeasance in office. If she can’t be fired for cause, then the ruling in Humphrey’s Executor becomes nonsense, because who has the power to remove for cause? If it is Congress, then these roles are as powerful as the President and Vice President.
but she still keeps showing up at work and logging into her computer.
…like a bad ‘90s movie. One clue: if she still has credentials to log in to her computer she hasn’t been fired fired…
That's an interesting legal argument: the court of appeals for the District of Columbia claimed that Slaughter should be reinstated based on a Supreme Court precedent, arguing that not doing so would go against SCOTUS. Now SCOTUS may have to argue that they are wrong to reinstate her -- because lower courts have no right to reinstate individuals sacked by POTUS -- and right at the same time -- because POTUS had no right to sack Slaughter without cause.
Given as Justice Jackson put it the Supreme Court is ‘playing Calvinball where the only rule is the administration always wins’ I don’t put much weight on these judgements. Until the Supreme Court does a backflip and actually clips Trump’s wings or control of congress flips to anyone with a spine -- the US is effectively an imperial regime.
"By the way ... how come Federal Marshall's haven't arrested Lisa Cook yet?"
It's worth considering who has actually been convicted of mortgage fraud.
Mortgage lenders are absolutely able to do DD on borrowers. In fact, there's much more asymmetry between the lender and borrower favoring the lender than there is in a business loan.
Intent was easier to prove in Trump's case than it would be in Cook's case. It's also more plausible that Cook did not intend to misrepresent, if she even did (the applications were weeks apart and she only attested to her intention, at the time, to live in each as a principal rather than primary address).
The judge asked the prosecutor if Pulte's social media posts of allegations against Cook satisfied "due process" requirements (which are elaborated in the Bill of Rights fifth amendment to the US Constitution.) The prosecutor claimed yes. This outrageous claim, if upheld, would reduce rule of law to rule by rumor mill.
By the way ... how come Federal Marshall's haven't arrested Lisa Cook yet?
Mortgage fraud seems likely, so Cook should be charged. They seem to be playing politics.
Originalists should support Humphreys executor and the insulation of appointees to government agencies that have been designated as 'independent' of government agencies that have by law. The constitution requires the Consent of the Senate for appointees. The terms of that consent are an important component of the appointment. In cases of independent agency administrators, like those of the Fed or the FTC, is that those individuals are insulated from political fluctuations. The Senate's role and expectations are an important balance to that of the President.
There are strong public policy reasons that certain agencies (generally with narrow and clear areas of authority) should be non-partisan or have balanced partisan representation. It is even common at more familiar levels. Many towns, for example, require that their school boards have representation from both major parties.
Presidential ultramontanists are wrong on the constitutional principles here, subverting established law, and promoting a chaotic administrative system.
At my last place of employment, the Smithsonian, 2 of the previous 3 bosses had been fired for cause, one for financial misdeeds, and another for sexual harassment. In neither case was the offense actually adjudicated in court. They simply laid out the evidence, and said you're fired for cause. It seems like Trump has that evidence, and the authority to act on it. If it actually had to go to court to be legal, the process would take longer than her actual term in office.
…they could be filling the hopper for an election season where many (most) prominent Democrats are being rounded and charged so hawaiian judges can free them, but I’m rating that scenario ‘highly unlikely’. A true justice scenario I’m giving ‘no chance in Hell’…
One thing for certain- if/when the legal arguments to oppose Trump are exhausted, the hyper-Constitutional precedents of we just don’t do that and that’s not something we do will ultimately prevail…
Stephen, "Originalists" have no obligation to approve of your sophistry. Prior to Humphrey's Executor the USSC repeatedly held Advise and Consent for appointments did not give Congress the power to interfere with termination of Executive branch officials, and even subsequent decisions as recent as Collins v. Yellin in 2021 ruled attempts by Congress to control how and when Executive branch officials can be fired was a violation of separation of powers in most cases.
Welcome to the Sausage factory, folks. It's like you expect the Democrats to lay down and play dead. If you can't stand the heat, get out of the kitchen.
This decision was completely predictable. The Circuit Court had to decide the case in accordance with the precedent in Humphrey's. Now Trump can go to the SCOTUS and get Humphrey's overturned, which is quite likely to occur.
"Presidential ultramontanists are wrong on the constitutional principles here, subverting established law, and promoting a chaotic administrative system."
No, Stephen. We're just playing by Democrat rules now. If it suits our ends, it's legal. /s
And wow, I haven't encountered the Hunphrey's case in almost 50 years. A couple of memory synapses fired off.
That's trespassing.
Exactly. And I admire Trump's patience in setting this trap. Jerome Powell, by not escorting her out, is putting at risk the Fed and his own continuing employment. Powell is now guilty of insubordination and no court in the land is going to say Trump does NOT have the right to fire her.
Write it down. Almost every prediction I've made about Trump has come true, including him eventually seeing the overturning of every "win" the left temporarily achieved in court between 2020 and now.
SCOTUS will, hopefully, overturn Humphrey 7-2. There is only aspect of The Constitution that allows a disciplining of the President's ability to fire Executive Branch officials- that is impeachment and conviction. The courts have no power here.
Originalists should support Humphreys executor and the insulation of appointees to government agencies that have been designated as 'independent' of government agencies that have by law.
No. This is too stupid. Every government employee is answerable to someone, either the voters or a supervisor. The only reason progressives invented the "independent" agency is to keep Republicans from firing certain employees. Democrats never adhered to the rules and won't in the future unless they have a huge change in tactics. Clinton and Obama and Biden fired whomever they wanted to without restraint at all. Where was this stupid "independence" argument then?
Steven there are NO "non-partisan" players in DC. THAT is your fundamental mistake in analyzing the agencies.
FormerLawClerk said...
“By the way ... how come Federal Marshall's haven't arrested Lisa Cook yet? She's been fired from the Federal Reserve Board by the President of the United States, but she still keeps showing up at work and logging into her computer.
That's trespassing.”
That’s also the George Costanza tactic.
The government can create agencies that are independent of the government? Does anybody who's not an idiot see the problem here?
Howard with ClownNose on @7:13am.
“It's also more plausible that Cook did not intend to misrepresent, if she even did (the applications were weeks apart and she only attested to her intention, at the time, to live in each as a principal rather than primary address).”
Sure, kakah…once… twice… but third commission of fraud is a charm? Pull the other one, tool.
The far-left anti-trump judges uphold an injuction by a far-left anti-trump district judge. Reason: blahblah. I blame all this nonsense on Roberts and ACB. Injunctions by District Courts should be forbidden except in rare circumstances. Even in Humphreys - the D/C did not stay the firing.
Of course, the Leftists on the Appeals and D/C are going to ignore the SCOTUS rulings. They will get away with as much as they can. As always, the Left and the Democrats have no intention of following the law or tradition if they can get away with it. Meanwhile, you have to keep poking the Republicans with a stick to get them to fight back.
Every action by Trump is either overruled or stayed by the far-left judges. Because of congress inaction and silence, we have "Rule by Judges". Every action of Trump has to be agreed to by all 700 district judges or it can't happen.
Republicans need to act. They can't do their normal thing of complaining or engaging in vague generalizations. Or being Ironic or making wry comments. Go to internet and you'll find rightwingers who wont even tell you what judge is violating the constitution. Others will talk of a "Judicial coup" - a vague phrase that can mean anything.
Be specific. Be outraged. Demand Action. Get things done.
For once.
Advise and consent to hire is not equivalent to Advise and consent to fire.
Nothing in the Constitution limits the President's power to fire people. Only to hire. And only for some positions.
Theoretically, Congress could pre-approve and advise and consent someone for a position who wasn't appointed by the President. But until that someone is appointed by the President, that someone doesn't have the job.
BTW- a lot of civil service position were originally tested, and that was the justification for making the positions non-patronage, establish a professional civil service free of politics. As soon as they got rid of the- because it was discriminatory- they got rid of the rationale for civil service job protection.
Disappointing. "Humphey's Executor" sounds like an 18th century land case -- or maybe a novel by Anthony Trollope. A lot of legal stuff sounds positively medieval, but it's mostly just about present-day money and power, not about things quainticuarian..
Too bad this lady didn’t also do mortgage fraud. Then it could be the Slaughter Houses Case. I’ll see myself out. RR, JSM
The corrupt left use corrupt judges to do their dirty work.
When the corrupt left do not get their way - they just ignore rulings.
Again- the Democrat party is 100% corrupt.
The democratic/dictatorial duality. A republic without representation. The queens of the judiciary.
It's interesting that both the majority and the dissent claim to be bound by Supreme Court precedent. For the majority, they say that they are bound by a SCOTUS decision directly on point dealing with the FTC (i.e., Humphrey's Exec), which is a situation that SCOTUS has said many times requires the lower courts to follow that case even if they believe it has been undermined by intervening decisions. That remains true, said the majority, even though the description of the FTC in Humphrey's Exec (certainly now, and in fact then too) was more agenda-driven (to put a roadblock in FDR's way) than it was accurate.
For Judge Rao (the dissenter and a Trump appointee), the binding precedents relate to the evaluation of irreparable harm on a stay application (that's the procedural posture in which the issue was presented to the DC Circuit). She concludes that the SCOTUS rulings earlier this year staying other lower court injunctions hold that the harm to the Executive in allowing a discharged commissioner to continue exercising executive power in office heavily outweighs the harm to the individual commissioner in not being permitted to perform in office pending the outcome on the merits. For her, that's the key fact that requires the DC Circuit to grant a stay, while the merits of the Humphrey' Exec issue works its way to final resolution.
It's pretty clear that Kavanaugh and Gorsuch are fully in agreement with Rao, and very likely that Thomas are Alito too. CJ Roberts, Barrett and even Kagan have written decisions that would logically get to the same place. I expect Rao's view will prevail when the dispute is presented to the SCOTUS, which it will very soon on the inevitable application for a stay by the Solicitor General.
A whole lot of people in positions of responsibility being irresponsible. It's all "nuclear" now. One side will regret they decided to go down this path. They did a poor job of reading the room.
more plausible that Cook did not intend to misrepresent
I'm thankful Iman quoted this excerpt because, of course, I skip over Kak's kracks and would not have seen this. It truly does justify my decision to skip the idiot because in so few words it encompasses the depths of his desire to kiss democrat ass, as if trying the 1000th time will finally show Trump.
And of course any sentient being (I do not count Kak among them) would say that a published author, tenured university professor, and self-anointed economics expert would be able to (1) read a contract (or hire someone to do so), (2) know the difference between "primary" and all other ordinal descriptors, (3) be able to count to three, which should be especially easy given the 30- to 45-day (or so) spread among the three purchases she made.
But the fired Ms. Cook, who continues to freeload at the government trough, displayed none of the upper level thinking skills expected of a fourth-grader and instead admitted in her suit against president Trump that "clerical errors" did in fact "exist." But as careful readers will note: this is classic passive voice, begging to be examined closer.
Who made those "errors?" How is it they exist in triplicate?
From bankrate.com:
"The Federal Reserve's board of governors is responsible for overseeing the broader Fed system, as well as supervising and regulating financial institutions."
An internet search shows that approximately 83 million adults own homes in the US and that there are about 250 million adults in the country.
Are we supposed to believe someone who is confused by a mortgage document that 1/3 of US adults have managed to complete is competent to be supervising and regulating financial institutions?
What happens if Humphrey’s Estate is overruled? Does Trump then have the power to fire FTC commissioners and Federal Reserve governors? Or do those two agencies, and perhaps others, go away?
When Congress makes an agency independent, it’s obvious that Congress doesn’t intend to give the powers it is giving to the agency to the President. If independences is integral to the statutory scheme, the whole agency would have to go.
I’ll bet we’ll see amicus briefs on this point, as there are big money constituencies for getting rid of both, especially the Federal Reserve - the Ron Paul Libertarians and the Billionaire Bitcoin Bros, for two.
That is quite the hash, Kaki. The current SCOTUS has already allowed Trump to terminate numerous people. And shown an interest in overturning Humphry. How would doing so be "Calvinball?"
More to be point. Your eagerness to absolve Cook of mens rea in her actions while insisting the kangaroo court that "convicted" Trump of fraud was legitimate is too absurd to ignore. She not only filled out the mortgage a mere two weeks apart, she put the Atlanta property up for rent within less than two months. To argue that such behavior was a honest error rather than fraud is to concede that Cook is cognitively unfit for the job. Given her poor, dishonest academic record that is plausible. No way she got any of her jobs if she was white. Maybe even if she was a black male.
If I grant you your premises, that still does not absolve her of the ongoing fraud. She has apparently not corrected the errors. She is currently committing mortgage fraud. How does that fit into your evaluation of her intent?
Further, Paulet's tweets were not rumors. They were accurate factual assertions about the representations she made on the applications. Prima facia evidence of her guilt. And for the issue the judge was addressing, her termination (not criminal conviction), more than adequate due process.
Other than all that, really solid points. I'll ask again, don't you claim to be a lawyer?
"To argue that such behavior was a honest error rather than fraud is to concede that Cook is cognitively unfit for the job."
She's a black female. That's your fitness right there.
See: Kamala Harris
I agree that reinstatement isn’t required by Humphrey’s Executor. The case was wrongly decided but the remedy for the president firing one of his subordinates “without cause” is a money judgment in the Court of Claims.
Steven: "Presidential ultramontanists are wrong on the constitutional principles here, subverting established law, and promoting a chaotic administrative system."
Hum. Explain what branch those "independent agencies" belong to. Which Article explains how they are to be created? Which Article gives them the authority to create rules that are enforceable on pain of punishment? Too whom are they accountable? (Clearly not to the voters.) Why are they given both legislative and judicial authorities simultaneously? None of that is in the ballpark of being constitutional. The law you accuse the right of subverting is subverting the constitution.
BTW, a law's policy impact is irrelevant to its constitutionality. Since you keep making assertions about the policy impact, I'm guessing you're aware your legal argument is BS. But even at the policy level, you're wrong. Insulating policy makers for accountability with voters is bad.
In fact, the lack of accountability is why the left loves the swamp. They get their policies without having to be accountable.
"In fact, the lack of accountability is why the left loves the swamp."
The left AND their GOPe buddies.
"It's a big club and you ain't in it." - G. Carlin
Whether or not Slaughter committed mortgage fraud is beside the point. The issue is: Can the President fire an officer of an executive agency of the federal government? Or, can Congress create an executive agency that cannot be controlled by the President? The Constitution makes the President the head of the Executive Branch. How could the President NOT have the power to fire an officer of the Executive Branch? If you want to create an agency that is beyond the President's control, then you need to amend the Constitution.
"When Congress makes an agency independent, it’s obvious that Congress doesn’t intend to give the powers it is giving to the agency to the President."
I brought this up the other day, Left Bank and whoever it was I queried refused to answer:
If Congress intended the Federal Reserve to be "independent" why did it insert the requirement that the President appoint the board with confirmation by the Senate? I know the answer to this question, do you?
Why do these federal employees need so-called due process when they are fired? I can assure you that if someone had done what the federal reserve governor Cook did, you would be fired. There is no court review. You can sue later, but you are gone.
"If you want to create an agency that is beyond the President's control, then you need to amend the Constitution."
This is the part the Democrats have trouble with. They're used to just ignoring anything that gets in their way.
Trump is going to win this one. The only question is whether the Supremes will expressly repudiate Humphries or say that the powers of the FTC are much different than the were in the 1930’s and distinguish Humphries while leaving it a dead letter. I am betting on Humphries being repudiated. It was part of the Supremes war with FDR in the 1930’s. It was bad law, even then. By the way I worked for the FTC in the 1970s and Humphries was considered a joke, even then.
I don't think the court will overturn Humphrey's Executor. Instead, I expect they will take the same approach as they did in Seila Law (re removal of the CFPB director) and enforce the restrictions on Congress' power to limit removal of the head of independent agencies established in that decision and largely ignored by Congress since.
In Seila law they enforced the requirement that an agency must report to a multimember body of experts balanced along partisan lines. In the current set of cases I expect them to enforce the requirement that the functions of the agency are predominantly quasi-judicial or quasi-legislative (issuing regulations, disbursing funds, administrative law judges, etcetera) and rule that the HE precedent doesn't apply to an agency the exercises significant purely executive functions, such as investigating violations of law/regulations, exercising prosecutorial discretion, and bringing cases to trial (in Federal court or before admin law judges).
Under that standard some Trump's firings will be upheld, some won't, and Congress will have a blueprint for structuring independent agencies whose leadership can only be removed for cause.
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