WRFH/Radio Free Hillsdale 101.7 FM - Trump’s Supreme Court Showdown: Will Conservatives End Independent Agencies?

Episode Date: February 28, 2025

For decades, the legal Right has sought to dismantle independent agencies in favor of stronger executive control. A recent lawsuit presents the perfect opportunity for the Court’s conservative majority to strike down Humphrey’s Executor v. U.S., a ruling that has shielded these agencies from presidential oversight for nearly a century.Ryan Silverstein—a J.D. Candidate at Villanova Law, a legal expert on administrative law and Young Voices Contributor, explains in a recent essay the Supreme Court may be ready to side with Trump.From 02/28/25.

Hello and welcome to WRFH Radio Free Hillsdale 101.7 FM. I'm your host, Malia Tibido, and today I'm here with Ryan Silverstein, a JD candidate at Villanova University, and a fellow with the Eleanor H. McCullen Center for Law, Religion, and Public Policy. He's also a young voices contributor who recently wrote a gift to the conservative legal movement, which you can read at Dailywire.com. Hey, Ryan, thanks for joining us. you doing?

Doing very well. Thanks for having me. Yeah. It's great to have you here. Could you give a brief background about the content and context of the article? Like what brought the lawsuit itself to your attention? And could you give like a brief overview of what the story itself is about? Yeah, sure.

So Donald Trump, he came into office and he has a very broad mandate to govern. so he's using that mandate to effectuate his control over the executive branch. And part of that is by taking a look at these independent agencies. And this is something that a lot of administrations do. They will do things that might not be, I guess, cogent with the current precedent of the Constitution or the Supreme Court. But they'll do it so they can bring a test case so they can try and overturn that precedent. So what's happening here is Glenn Wilcox.

She was the chair of the National Labor Relations Board. Biden installed her in his last days in the office. is kind of like a midnight appointment, basically. And Donald Trump, he doesn't like that. Why? Because he wants to control the NLRB. So he fired Gwen Wilcox. Now, the problem with that is that under Supreme Court precedent, most notably Humphrey's

executive estate, independent agency heads cannot be fired without cause. So Gwen Wilcox, she thinks her firing is unconstitutional. So she is suing the administration to get her job back. Interesting. What is the National Labor Relations Board itself? Yeah, so the National Labor Relations Board, they're an independent agency, if you will, they have multiple members. There are a multi-member board, and they hear labor issues, right? If you have an employment discrimination claim, you go to the NLRB.

If you have a wage complaint, you go to the NLRB. They're an administrative agency that deals with employees rights. Okay. How were they established? The NLRB was established. I believe they were established by FDR during the New Deal to enforce workers' rights. Right. Okay.

And so an independent agency is one who watches the government and enforces the American, the wants of the American population? I mean, kind of independent agencies, they're this, there are this, there. agencies that were established by Congress for the purpose of regulating something. So independent agencies are like the Securities and Exchange Commission, the Federal Election Commission, the Federal Reserve Bank, right? Under current precedent, they have multiple members sitting on their board for they make decisions and they regulate various things of the economy from the interest rate to cling with employees' rights to overseeing corporate interests. So you mentioned that Wilcox's justification for her lawsuit was

something to do with like longstanding precedents. And you mentioned precedents with Humphreys executor. So how does presidents function in a legal sense? Yeah. So when courts issue a precedent, usually they're binding. And when you, for example, if the Supreme Court makes a ruling like they did Humphrey's executor, they are controlling. They tell the executive, hey, you can't do X action because X action is unconstitutional.

It's basically like, hey, you issued an order. we think that's wrong. So no, you can't do that. What we're seeing here is the court historically held in the past, hey, independent agency heads, they can't be fired without good cause, which is basically, hey, someone's not showing up to work, they're showing up drunk to work, they're not doing their job, et cetera, whatever Congress deems as four cause, right? The court's saying, because Congress said you can't fire without cause, you have to wait to have cause fire them. You can't just fire them whenever you feel like it. Okay. So you mentioned that the court case that set this precedent was Humphreys Executor. Could you walk us through this, basically?

Yeah, so I'm going to walk you through three cases because these cases, they are, I think, they are the bedrock of independent agencies and administrative law. The first one is Humphrey's executor. It was decided back in 1935. This case said that, hey, agencies would yield quasi-legislative or judicial power cannot be removed without cause. So that would be. stuff like the SEC, which not only do they wield the power to make rules, they also wield their own power to enforce their rules. The court, they kind of changed precedent in Morrison v. Olson, in 1980s, where they actually expanded Humphreys' executors ruling to nearly all officers of the United States, which was quite stunning. Justice Antonin Scalia wrote a very famous dissent in that case where he said, no, this is wrong. Agencies can't be independent because that undermines the Democratic.

process. And that kind of led us to CELO Law versus Consumer Consumer's Financial Protection Bureau where the court narrowed the holding and they said, hey, agencies are only independent and can only have act cause removal for cause removal if they are agencies with multi-member boards because that signifies that there is an intent by Congress for the agency to be independent of the executive. Okay. You mentioned their function as like a regulatory in a regulatory position. So how does the Justice Department fit into this? Is it redundant or how does this work?

What do you mean by redundant? They function in the same capacity of, I guess, making sure that the Constitution slash the laws are followed. See, you're picking up on something that a lot of conservatives have had an issue with, which is the DOJ is an other federal agencies, they kind of derive their power and authority from the same source as independent agencies.

The Constitution, Article 2 of the Constitution, it has something called the vesting clause. It vests the executive with all executive power. And under something called the unitary executive theory, all agency powers flow from the executive, because that is the only person who was vested with that power. Why does that matter in regards to the DOJ? Well, the DOJ is exercising executive power to uphold and defend our Constitution, etc. On independent agencies deriving their power from that same source. And the answer to a lot of unitary executive theorists like myself is yes, like the DOJ,

independent agencies are utilizing executive authority to enforce their rulemaking, to enforce their judicial process, and to ensure that the public's rights are defended. Right. So since there's that, I believe you said, vestment clause in the Constitution, then how did the courts, like, stray so far from the original interpretation? Yeah. So basically, you've had courts, they kind of embraced this functionalist test. And functionalism is basically, hey, we're going to prioritize public policy concerns over the text of the Constitution. You know, functionalists, they, see the Constitution as a, they see it as guidance, but they don't see it as fully binding. They see it as basic guidelines they have to adhere to. But we're seeing the rise of originalism, which is a method of statutory interpretation that prioritizes the text and the history of the Constitution and the words in things like statutes, right? And because this new court is prioritizing things

like the text of the Constitution, like the original intent behind those words, and because they have meaning, we're kind of seeing a rise in the court skepticism, not only towards the administrative state, but towards the idea of administrative agencies, which is why we got CELA law back in 2020. Right. So speaking of CELA law, you mentioned that it kind of restricted the definition of what is protected by Humphrey's executor or how that applies. I know that justices like Roberts and Clarence Thomas and Neal Gorsuch, they all publicly were attached to dissatisfaction with Humphrey's executor and the precedents that it's set. Does this give some indication as to which justices would vote for or against Wilcox's lawsuit based on?

that justification? It absolutely does. If you actually look at the dissents in CELA law, Justice is Clarence Thomas and Neil Gorsuch. They actually wrote a dissent saying, hey, we want Humphreys completely overturned. CELO law didn't go far enough. Humphreys has to be overturned because, quote,

it's a direct threat to our constitutional structure and as a result, the liberty of the American people, end quote. That is stunning. You don't really see justices make statements like that in dissenting opinions too often. I mean, you see it, you saw it in Dobbs, and that's really it. It's not too often. And by the way, I will add, the court wasn't as conservative in CILA law as it is now, because Amy Coney-Barrant wasn't on the bench yet when Ceylaw was decided, which allowed John Roberts to kind of water down the opinion a bit. John Roberts is kind of known for caring about the court's

reputation. He's very much an institutionalist, but the result is you get some watered-down conservative opinions and that can disappoint conservatives a lot of the time. This is WRFH Radio Free Hillsdale 101.7 FM. I'm your host, Malia Tibido, with Ryan Silverstein, a legal expert on administrative law and young voices contributor who recently wrote on a lawsuit that the former head of the National Labor Relations Board brought against the Trump administration. So to turn back a little bit to the constitutionality of independent agencies, John Mariani, who you cited in your article, did say that independent agencies,

unaccountable to democratic pressures, run the risk of creating rules that harm their own constituents. Could you walk us through, like, how that was. works and what that actually means? Yeah, so basically, independent agencies like the Federal Election Commission, the NLRB, CFPB, they have to go through something called the rulemaking process. They have to comply with something called the Administrative Procedure Act, and there are a bunch of requirements in the Administrative Procedure Act. But once these rules are enacted via the Administrative Procedure Act, they essentially have

the full force of law. For example, OSHA, which was another independent agency, they tried enacting a rule that would have required that millions of Americans take the COVID-19 vaccine. And millions of Americans were precluded from going to work because they refused to comply with the OSHA mandate. Unfortunately, they were able to go back to work because this went to the Supreme Court and the Supreme Court said you can't use your power as OSHA to force millions of Americans to take a vaccine, which firstly I think was a correct decision. And secondly, it's a scary thing, that these independent agencies have the power of law.

They've essentially usurped the legislative power, have the power of law. They can force people to do things like take a vaccine, or at least they can try to. But if these agencies, if they're accountable to an executive, like the president who's democratically elected by the public, they're going to have to start making policies that are more in line what the public's wants and not their technocratic needs. Right. Okay. I do remember learning about how in the early 20th century there was a move to have a more administrative state. I believe the justification was that these were experts who would be able to speak more on specific topics.

Is that correct? No, you're absolutely correct. And I will say there is some kind of technocratic interest in having independent agencies, right? You know, we want experts to be able to give their opinions to make rules without being, without constantly being pressured by the public. But the problem has been, what we've seen is experts have kind of been disconnected from the public. And that's not a good thing. You know, in a democracy, the democratic interest should almost always outweigh the technocratic one.

Because if these are people that are making substantive rules that affect our everyday lives, there has to be a way to keep them accountable beyond forecause removal. Definitely. What does this case mean for the future of regulatory agencies? Yeah, so in the future, I think what's going to mean is that agencies aren't going to be independent anymore, right? They're going to be subject to the whims of the executive. So I think we're going to start seeing agencies which have historically been, quote, unquote, independent. They're going to have to start complying with administrations that come and leave office, right?

So the NLRB might start becoming enacting more Republican policies under Republican presidents. Organizations like the SEC, they might start instituting more democratic policies or democratic rules under a Democratic president. Most notably, things like antitrust rules, for example, could become enforced way more by the SEC. Okay. So independent agencies do have incentives, which are sometimes not aligned with the American people, but is there also an argument to be made that as they're not subject to the whims of the executive, the laws that they enact or influence are not as changeable as those subject to the executive. So it seems more consistent that way. I mean, there is that argument absolutely, but, and I say, but there actually is a procedure in the Administrative Procedure Act that prevents

rules from being changed by transient reasons. So whenever an agent, implements a rule, the rule that they make, it can't be arbitrary and capricious. It has to be based on some kind of substantial evidence. Similarly, when revoking a rule, that administrative procedure act standard of arbitrary and capricious and substantial evidence, that still applies. So it's kind of difficult for agencies to revoke a rule and the change of rule. Okay. It seems almost counterintuitive that the party that ran on a platform of not being, career politicians and such being about limited government is working to bring more power to the executive. Is this more just about returning to original form? I think that's a really good point you raise because it raises a point that a lot of people are conflating, right? For example, people think because the executive has more control over the executive branch, that means they have more control over the public. And that's not the same thing. Now, the presidency constitutionally isn't supposed to be

a super strong branch. It's always meant to be inferior to Congress, right? So what we're kind of seeing happen is we're seeing enhanced executive control over places where it is proper for the executive to have control, but that does not make the executive a king. Rather, it's a return to the proper scope of what the executive branch should be. And we are hopefully going to see a restore of Congress's prerogative to be more powerful over the president and do things like legislate, which would be surprising because Washington, they don't like to do things down there. They let to delegate. How do you believe that the Trump administration's actions against regulatory agencies

signals their wider agenda in Washington? Yeah, I think it signifies that Trump is really dedicated to kind of pushing his conservative. conservative populist agenda through the administrative state. I mean, we're seeing it all over, not just with independent agencies, but with Doge, right? You know, with the mass layoffs of people with, you know, federal employees resigning because they don't think that what Trump is doing is good policy or constitutional, et cetera. Trump is dedicated to fulfilling his mandate. And I give him a lot of kudos for that because most politicians are content with the consensus. Trump isn't content with the Washington status quo.

Would you say that Trump is a follower or proponent of the unitary executive theory? See, Donald Trump is a creature of convenience, right? So I would say he supports unitary executive so far as it helps him. What do you mean by that? Yeah, he will support the unitary executive theory so long as it supports his agenda. But if there's a part of the theory that isn't used to. useful to him, he's not going to use it and he's going to say, whatever, it doesn't matter because it doesn't push my America first agenda.

Okay. So you think that even if it weren't in line with the conservative movement to bring back executive power to what it was before, you think that if it served Trump's agenda, he would empower something else? Yeah, I mean, I would say that's fairly accurate. You know, at the end of the day, it's unlike the conservative legal movement, which is a series of lawyers that have been operating for, you know, 50 years pushing ideas, Donald Trump's a politician. He's not an academic and he's going to do what is politically expedient. Whereas the legal right, the conservative legal movement, they're going to keep standing for these ideas that they've supported for decades until they achieve their ideological goals. Okay. Yeah. Is there anything else that you would like to comment on?

Sure. Some people say that the rise of unitary executive theory and the expansion of executive of executive control over the executive branch. They think that's the rise of a king, but it's not. It's the restore of executive power to an administrative state that has been long disconnected from the duly elected, popularly elected president of the United States. And we should all embrace democratic reforms like this. Thank you very much for joining us today, Ryan. Before we go, where can people find you in your work? Sure. You can find me on Twitter at Rai 916. You can find me on LinkedIn at Ryan Silverstein. The Young Voices website, I have a page there.

You guys can find it. It's Ryan Silverstein Young Voices. My page should come up right on Google. It's like the first thing you find. All righty. Well, that's it for this time. I'm Malia Tibido on WRFH Radio Free Hillsdale, 101.7 FM.