You’re Fired: Presidential Removal Power on Trial

Mark Chenoweth: If you think that unwritten law doesn't affect you, think again. Whether you're a business owner, a professional, just a average citizen, you are unknowingly going to fall under vague and unofficial rule. And when bureaucrats act like lawmakers, they're really restricting your liberty without the consent of the governed. Welcome to Unwritten Law with Mark Chenoweth and John Vecchione. John, we have talked at length in other segments about the president’s ability to fire principal officers and yet this issue keeps coming up again and again and again. And now, we have a decision from the U.S. Court of Appeals for the D.C. Circuit in a case involving President Trump’s firing of Rebecca Slaughter and Alvaro Bedoya from the FTC.

. Circuit on September second: 2025

The title of it is “Yes, President Trump has the Authority to Fire Lisa Cook,” and he runs through a lot of the same cases and arguments but he does so in, I think, a –

John Vecchione: Less $5 words.

Mark Chenoweth: – very good, non-lawyerly way. And Josh is a lawyer –

e: [Inaudible – Crosstalk] [: 00:02:01

Mark Chenoweth: – but not a practicing one. Right. So, that said, let me jump back to the D.C. Circuit job because I think what Judge Rao says is “Now, wait a minute, guys. The Supreme Court has already looked at this issue a couple of times very recently, as in last month or the month before. And when it’s looked at it in cases like Trump v. Wilcox and Trump v. Boyle, what the Court has said is that “the government faces the greater risk of harm from an order allowing a removed officer to continue exercising the Executive power, then a wrongfully removed officer faces from being unable to perform her statutory duty.”” And I think Judge Rao’s view is “And why would that be any different for these two FTC commissioners than it was for a commissioner from the NLRB or the CPSE?”

John Vecchione: And in fact, I think the Gorsuch admonition to the lower courts that the emergency docket is precedential for how you should exercise your equitable powers. That was an interesting statement, and it’s gone everywhere now. Gorsuch’s admonition about lower courts being revolt –

Mark Chenoweth: Right. Right.

John Vecchione: – is also part of this as well.

Mark Chenoweth: Did you see Judge Young’s comment on that, by the way?

John Vecchione: No.

Mark Chenoweth: So, the judge from the District of Massachusetts –

John Vecchione: I did.

Mark Chenoweth: – against him –

John Vecchione: He said, “I didn't know that.”

Mark Chenoweth: – well, he said, “I didn't know that,” and he apologized from the bench, which I thought was really interesting and a humble thing for a judge to do, and say, “Well, look, I never intended to be defying the –

John Vecchione: Right.

Mark Chenoweth: – Supreme Court on this.”

John Vecchione: Because until Gorsuch said that, I thought your equitable powers, you could just always use them because you're the chancellor’s foot when you're there. I agree with Gorsuch’s analysis but I never thought of it before. I don’t fault the judge for not knowing that.

ay [inaudible – Crosstalk] [: 00:04:04

John Vecchione: He did. Everything Alito’s said being thrown up at him right now because he also said that “We do it too quick. They're not well explained” and all that. So, all these lower courts are quoting Alito on that. But it wasn’t in an opinion and I’m sure he’s revised and extended his remarks.

Mark Chenoweth: That's right. It’s good enough for Congress. John, I view you as the local FTC expert here at NCLA. So, I guess, maybe the question to you, John, is there anything different about this case and the federal trade commission and Commissioners Bedoya and Slaughter that would make the outcome here different than what the outcome was in the Boyle case or the Wilcox case?

John Vecchione: I think they have a stronger argument because of Humphrey’s Executor hasn’t been overruled. It’s tottering. It’s weak, but they are bound by it. I think it’s stronger here that the chance of winning on the law, unless Humphrey’s is overruled, is higher. I don’t think it’s a slam dunk…

xecutive power changed in the: 1970

John Vecchione: Correct. And so, Eli Nachmany tweeted out he was cited in his article about how it’s –

Mark Chenoweth: He was. He was. Good for him.

John Vecchione: – all changed by Judge Rao. So, I think that they're on stronger grounds with the merits, particularly as they're bound by it. But the idea that they can use their injunctive power to put someone back in place and there are no stronger grounds because what you just said, the Supreme Court has said that these preliminary motions, you have to do all four, right? You have to go through it, and the balance of equities aren’t there. So, the one that I find interesting it’s Judge… Oh, he’s irascible. D.C.

Mark Chenoweth: You're not narrowing it down, John.

John Vecchione: I know. One judge put the head of the Voice of America back. But that one’s interesting because it’s a private corporation and the statue says that only the board can fire, right? So, the question is, there's a private-public thing… That one’s an interesting question because, is it a principal officer? Is it a private organization? And that's not the FTC

Mark Chenoweth: So, where do you come down then on the Federal Reserve? Because that's part of the argument that's being made on behalf of Lisa Cook is “Look, the Federal Reserve is different. And by the way, the Supreme Court has even said the Federal Reserve is different.” So, can the president fire Lisa Cook?

John Vecchione: For cause it can…

Mark Chenoweth: So, what cause was there here?

John Vecchione: So, she had two properties, and she said both of them were her primary residence. And you got better interest rates and stuff.

Mark Chenoweth: On her mortgage application.

John Vecchione: On her mortgage applications…

Mark Chenoweth: If you're a financial regulator and you're –

John Vecchione: Correct.

Mark Chenoweth: not being honest allegedly on your financial applications, that might preclude you from being a regulator in that space.

John Vecchione: Right. So, she says that she did that before… It has to be for cause in your business, and there's language lek this in the statute; that it has to be for cause of something you did as a regulator, right? So, that's her argument. But I think if you wanna fight this, you’d better be clean as Caesar’s wife. And it looks like she’s not denying it. But the other argument, and Bob Bauer just came out with a piece on this, is that what if she did it but that's not the reason she’s being fired? Can they look behind and say that it’s pretextual? Because I just saw today, it looks like three different cabinet members have done this in the Trump administration right now.

Mark Chenoweth: Is that right?

John Vecchione: Now, I could be wrong about that. I just read it before I came into the studio to tape. But if three cabinet members have done this and I’ve seen other people saying that it’s very common for people to do this, I can’t believe it, but everyone’s saying everyone does it. Well, that's something Trump says a lot.

Mark Chenoweth: Well, when you're saying, “Everyone does it,” you mean everyone who has more than one principal residence, John. That is a very, very small minority of America.

John Vecchione: That is true.

Mark Chenoweth: And the 99% of us who don’t have more –

John Vecchione: Correct.

Mark Chenoweth: – than one primary residence probably don’t smile on that, whether you're a member of the Trump administration, or a member of the Federal Reserve Board of Governors, or the New York Attorney General for that matter.

John Vecchione: That's exactly right. And so, the question, I think it’s for cause because I think it’s broad enough. Although if you do a real textual reading, you have an argument the other way. But it does strike me that you can’t have a federal board person who has violated the law in this way. You make a joke of it. So, the president, you can say all day long that he’s not really doing it for this reason. Well, you shouldn’t have done that because I think –

Mark Chenoweth: That's probably within his discretion.

John Vecchione: – right, and cause, they have a very low bar for cause, right?

Mark Chenoweth: Right. There doesn’t have to be conviction of a crime. There doesn’t even have to be indictment for a crime.

John Vecchione: Right.

Mark Chenoweth: The president can just take the facts as he finds them and say, “Look, that's good enough for me. I’m gonna relieve you –

John Vecchione: Right.

Mark Chenoweth: – of your duties.”

John Vecchione: I’ll give an example. So, let’s say the Chairman of the Federal Reserve was late to meeting Trump. He was a half-hour late –

Mark Chenoweth: …or didn't wear a suit –

John Vecchione: – and didn't wear a suit.

Mark Chenoweth: – let’s say. Just hypothetically, John.

John Vecchione: I think that the Court would say that's not cause under the statute, right? And then, the question would be “Well, is the Federal Reserve different because of the First and Second Bank arguments” and all that? That's a little beyond my pay grade at this moment because, as I remember, the First Bank of the United States was destroyed by Andrew. And then, the Second Bank came in and there were fights over all these. And basically, the Thomas Massie’s of the world have always, since the founding, been against these banks. But then, they had the state banks and that didn't work out either.

There was all kinds of corruption and problems. So, I think that there's gonna be some really interesting stuff above my knowledge right now because the First and Second Bank, how they came around. And I also see the Bank of England, I just learned at a conference about six months ago, that they served for life.

Mark Chenoweth: The governors. Right. I think it’s –

John Vecchione: “Life of the king.”

the Fed, which came about in: 1913

John Vecchione: Oh, yeah.

Mark Chenoweth: And so, that's the whole story. But I don’t even think we have to get to that in this case, John, because I think she was fired for cause. And I think if a court were to look at it and say, “Look, she was fired of cause. The president can do that. We don’t need to get into all of these questions about the First and Second Bank, U.S.”

John Vecchione: I’d put it in a different matter. “She was fired for enough cause that we’re not gonna look behind it.”

Mark Chenoweth: Okay, fair enough. Fair enough. Although we do see in some these Trump cases that the courts are willing to look behind the stated reason more than they otherwise do.

John Vecchione: But here, let’s face it. None of them are gonna be there saying “Oh, this is a minor thing.” They're not gonna be like all the pundits going “Ah, everyone does this.”

Mark Chenoweth: Well, it might depend on how many primary residences they have, John. Might have to look into that. But okay, so we’ve talked about Lisa Cook. We’ve talked about Slaughter. So, what happens now? So, this case, the Slaughter case is now primed, I think, to go the U.S. Supreme Court. Is that the one? Did this one come up on the emergency docket too? I guess I’m not sure on the Slaughter case because, we have Boyle. We have Wilcox. We’ve got Slaughter. I guess I’m not sure which one of these is gonna be used to overturn Humphrey’s Executor. I’d kinda like it to be Slaughter…

John Vecchione: It’s gonna be the FTC case. It’s gonna be the FTC case. Now, I’ve been saying this for three years, that you need an FTC case because then they’ve gotta go through and they’ve gotta say either the FTC is different now, or they have to say it was wrong at the very start. And I think it’s close call whether they’ll do either of those things because the Congress has no interest. The Elizabeth Warren’s of the world have no interest of having a agency that doesn't have these powers, right? They don’t want quasi-judicial and advisory people…

Mark Chenoweth: They want real executive power.

John Vecchione: Right, not outside the Executive. And that's not gonna be allowed. So, I don’t know if it goes down completely or it goes down so much that it’s no longer worth the candle to try and redo an agency.

utive power by the FTC in the: 1930

John Vecchione: I think that's true. I also think that the problem is gonna be, and I don’t know if they address it if they come out that way, can they ever reinstate an officer?

Mark Chenoweth: Oh. Well, that's a good question. And you were talking about this just before we went on air; the fact that Judge Rao in her dissent points that out too…

John Vecchione: She does.

Mark Chenoweth: Say more about that.

John Vecchione: So, here's the question: the remedy. What’s the remedy for the president fires someone he shouldn’t have fired and they uphold whatever Congress did? I’ll give an example. Sometimes, the Congress says that someone has to have certain qualifications to be in an executive officer position. What if he puts someone in who isn’t there, right, can they take them out? And here, can they put a guy in after he’s been fired? Well, they say “Look, only on the merits,” right “because, because of these injunction balances, we don’t think you can put him in in a preliminary injunction.” But can you do it in a permanent one? When you’ve gone through, you’ve run all the traps and you find by law he should have that job, does the Judiciary have that power? That's gonna be a question that I think they're gonna try and duck somehow.

Mark Chenoweth: Well, that would be an appointments power which is given to the Executive –

John Vecchione: Right.

Mark Chenoweth: – or it would be a real restriction on the removal power, which I think our view is that the removal power’s fairly absolute for the Executive, at least when it comes to principal officers. So, I think that would be interesting. I tell you, the problem if they go the route I was talking about a minute ago, if they decide “Well, we don’t really need to overrule Humphrey’s,” is you're gonna keep having these lower court decisions like you had of the two judges here at the D.C. Circuit not named Rao continuing to apply Humphery’s Executor and saying that these folks can only be removed for cause. So, I think practically, for the reason, in order to essentially maintain discipline over the lower courts, in the lower Article III courts, they need to overturn Humphery’s.

John Vecchione: And we know there's three votes to do it, right? We know Gorsuch, Alito, and Thomas are gonna overrule Humphery’s, right? So, where do you get the other two? That’s my question.

Mark Chenoweth: Sure. Chief Justice Roberts and Barrett. We’ll see. It could be we could be surprised. Although I know Chief Justice Roberts likes to get as many people on board as he can, I don’t know what the narrow path is here. I don’t know if there's a path that Kagan would even wanna walk on this issue. I think that there's probably just a fundamental disagreement over whether these independent agencies can be independent of the president or not.

lked back their decision from: 1925

Mark Chenoweth: ‘35.

John Vecchione: So, they walk back a recent opinion just so FDR didn't have the power to do this. And now, the FDR people are all like “Oh, no. We gotta keep that.”

Mark Chenoweth: That sounds a little bit like Chevron, John.

John Vecchione: I know. I know.

Mark Chenoweth: If you stick around long enough –

John Vecchione: Exactly.

Mark Chenoweth: – people will switch sides on these constitutional issues. Well, so we’ve been talking about a bunch of different sort of firings here, but the case from September second at the U.S. Court of Appeals for the D.C. Circuit was Slaughter v. Trump. And the article from Town Hall, which involved President Trump’s firing of Lisa Cook on August 25th is by Josh Hammer: “Yes, President Trump Has the Authority to Fire Lisa Cook.” And we’ll keep you posted. I don’t think these cases are going away. I think the president enjoys saying, “You're fired,” and he’s gonna keep doing it until the Supreme Court rules on one of these cases.

John Vecchione: And they're gonna rule this term.

Mark Chenoweth: I think that’s right, and when they do, we’ll let you know. You’ve been listening to Unwritten Law. And as we like to say here at NCLA, let judges judge. Let legislators legislate, and stop bureaucrats from doing either.

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Duration: 18 minutes