Agency 'Independence'
Summary
In this episode of FEDtalk, Natalia Castro and Jason Briefel discuss agency independence in the executive branch with Adam White, a senior fellow at the American Enterprise Institute and Co-Director of the C. Boyden Gray Center for the Study of the Administrative State.
They explore the historical background of the executive branch, the growth of the modern administrative state, and the concept of independence for different types of agencies and federal employees. They also delve into the Supreme Court's role in grappling with agency independence and the potential impact of upcoming cases, such as two cases challenging Chevron defense, on the federal bureaucracy.
Takeaways
The executive branch has evolved significantly since the founding of the country, with the growth of the modern administrative state and the creation of various agencies.
Agency independence can refer to both political non-interference and formal legal independence from the president.
The Supreme Court plays a crucial role in determining the extent of agency independence through cases involving the appointment and removal of agency heads, and the deference given to agency interpretations of the law.
The future of agency independence and the balance of power between the branches of government will continue to be important topics of debate and litigation.
To read more of Adam’s work through the American Enterprise Institue, visit here: https://www.aei.org/profile/adam-j-white/
To learn more about the C. Boyden Gray Center for the Study of the Administrative State, visit here: https://administrativestate.gmu.edu/
Chapters
00:00Introduction and Background
04:22The Original Constitutional Structure of the Executive Branch
09:18The Growth of the Modern Administrative State
12:47Agency Independence and Types of Independent Agencies
19:02Independence of Frontline Federal Employees
32:38The Supreme Court's Role in Grappling with Agency Independence
43:53The Impact of Chevron Deference Cases on the Federal Bureaucracy
46:57Conclusion
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Natalia Castro (00:01.971)
Hello and welcome to Fed Talk. I'm Natalia Castro from Shaw, Bransford and Roth. Today we are doing the next episode in our series on the federal government influx, where we're looking at some of the biggest issues impacting the three branches of government. On this episode, we're focusing on the executive branch and having a conversation about agency independence.
Jason Briefel (00:05.581)
And I'm Jason Briefel.
Natalia Castro (00:29.791)
Joining Jason and I today is Adam White, a senior fellow at the American Enterprise Institute and co-director of George Mason University's C. Boyden Gray Center for the Study of the Administrative State. Thanks so much for joining us, Adam.
Adam White (00:45.762)
Well, it's great to be back. Thanks, Natalia. Thanks, Jason.
Natalia Castro (00:51.307)
Before we dive into some of the content that we're gonna be talking about today, can you give our listeners a little bit of the background on the work that you do and what perspective you bring to this conversation?
Adam White (01:04.674)
Sure, I'm a recovering lawyer. I practiced law for about a dozen years or so, first at a big law firm and then at a small law firm, working on regulatory issues, energy regulation, financial regulation, and then eventually a lot of the constitutional issues around modern administration. And now I've carried that work along with me to my new career, or I guess it's not new anymore, but my second career as a think tanker. I'm first at the American Enterprise Institute, like you said, and at George Mason.
At George Mason, I host a variety of research roundtables and other programs where I bring academics and others together to think and debate and circulate research on modern administrative law issues. Meanwhile, at AEI, I do a little writing of my own. And my own perspective, I'd say, is a center-right reform perspective. I see a few areas where I would like to see modern law or policy change.
in terms of the separation of powers and the allocation of power between Congress, the courts, the agencies, and as we'll be discussing today, I guess, the president. My own instincts are often a little closer to Justice Scalia and Justice Rehnquist from 40 years ago than some of my more libertarian friends today. But I'm definitely instinctually in favor of a lot of the reforms.
that we've seen debated in the last 10 years. Not all of them, but a lot of them, and maybe we'll unpack that in our conversation.
Natalia Castro (02:40.075)
Absolutely. I have no doubt we will. I will just add to your plug for the GMU Center for the Study of the Administrative State. They have done some phenomenal events in the last year. I know you have your own podcast. So we really encourage all of our listeners to check out all the work that's going on there.
And on AEI's website, you can search Adam's name and find a whole host of interesting articles and thought leadership that Adam has produced. So we'll talk about a lot of that stuff today, but we encourage our listeners to go check that out as well. There's some great stuff on there.
Adam White (03:14.982)
Well, that's incredibly kind of you to say and put all, I was going to say, just as you put all that out there, I just wanted to add that I'm incredibly lucky first and foremost at the Gray Center, I get to work with great colleagues like Professor Jennifer Mascot and our research director, Jace LinkedIn and the whole team that really are the driving force behind so much of our conferences and podcasts. And at AEI, I get to have a lot of fun with a lot of smart friends. So I'm very, very lucky.
Jason Briefel (03:16.836)
Yeah, and I, you know...
Jason Briefel (03:45.721)
And I'd just add to this, you know, coming at this from a probably a different kind of perspective and worldview that the two of you bring, I think that there are, there are no bright red lines here. You know, these are ideas and these is complicated stuff. And so we have a lot of smart people thinking about them, what it means for our country, what it means for our democracy. And that's part of why we designed the season of Fed Talk in the way we did. How does something that happens in the courts affect the president? How, how does Congress react? How do the three branches work together?
It's a tug and pull. That's what makes our system unique and what so far has made it last 250 years or so.
Natalia Castro (04:22.527)
Very well said, Jason. Speaking of the last 250 years, let's talk about some of the basics. Adam, can you bring us all the way back to some of the key players in our original constitutional structure of the executive branch? And then just to preface my follow-up question, I'm curious about how the modern executive branch reflects that initial structure from your perspective.
Adam White (04:52.334)
Well, it's a great question and of course, very deep and hard question. And I could probably bore students for an entire semester with a question like that. So I'll try to be quick here. I don't think it's an exaggeration to say that administration really was at the heart of some of the most important constitutional debates or the way it's giving rise to our constitution more than two centuries ago. It was the absence of an executive and the absence of real functioning administration.
That was one of the three or four most important issues at hand when the founders met in Philadelphia in 1787 to draft the Constitution. Now that said, after all of that debate, when they actually produce a written Constitution, it refers to the President. In Article 2 of the Constitution, the President is vested with the executive power and he has a constitutional obligation to take care of the laws that are faithfully executed. He swears an oath.
to faithfully execute his office. The Constitution refers to what we now call agencies, they call them departments in the Constitution. And it explains how the heads of those departments will be appointed. But beyond that, there isn't a whole lot of substance actually. The Constitution doesn't specify what the agencies would be. That really was the work of the first Congress and its successors to really build a government on top of this constitutional foundation.
from the very start, especially Alexander Hamilton, but a number of his contemporaries really thought hard about what would be the structure of government, what would be the relationship between those departments that Congress created and the president, Congress and the courts. And those arguments have continued throughout. I mean, the Cliffs Notes history would point out that after the Civil War, the impeachment of President Andrew Johnson was a big constitutional debate over the...
power of the president and Congress over administration. I should back up and say the very first creation of the first agencies, especially, I guess, Treasury, state, and war, they were debates about presidential power, congressional power, and so on. These debates are timeless, but as new circumstances have spurred Congress to create new agencies or presidents to assert...
Adam White (07:14.37)
policy prerogatives over agencies. We've seen time and time again, not just the raising of new questions, but also the re-raising of old ones. And so a lot of the debates we're having today about presidential power over agencies, they're echoes of debates that we saw in the very, very first Congress in 1789 and onward.
Natalia Castro (07:40.091)
You know, I find it funny because I've now been in law school for four years. I'm an evening student graduating this May, and I have read Marbury versus Madison a million times over the course of my law school career. And we often talk about how that's a case about judicial review. But
a lot of people forget that the kind of underlying issue that brought that case to the court was about giving an executive official his commission and the kind of scope of the president's ability to revoke or refuse to give that commission. And so that one of the most seminal cases in American law that we all look back to as such a
pivotal point in defining the scope of the judiciary's power was also in very many ways a discussion about the executive's power. And so I always just laugh about that in my head when I think about how important it is that we talk about this history and these debates that we've had all the way going back to the beginning of our country's history. As you mentioned, the kind of what the executive branch looks like.
has changed a lot over time, from having those three departments at the beginning of our nation's founding, those initial departments, all the way up till today, where we see a much larger executive branch with many departments and agencies. Is there any time period you can point to where you would say that really accelerated and we really saw the growth of the modern administrative state?
Adam White (09:18.094)
Well, certainly in the New Deal era and right before it and right afterwards, you saw a flourishing of the creation of new agencies, delegations of power to those agencies, and it culminates with the creation of the Administrative Procedure Act in 1946 and also the Legislative Reorganization Act of 1946. So that really was, I'd say, a turning point or a culmination of a wave.
of administrative innovation. But I'd say maybe another turning point that's very important is a few generations earlier with the creation of the Interstate Commerce Commission in I think 1887. That was the law to regulate, I guess, interstate railroads later on would regulate interstate oil pipelines too. But you'd had in the years prior to that a few other regulatory efforts actually around steamships.
Sheem steamships were an amazing new invention. They had a lot of great benefits. They transformed commerce They also had a tendency to blow up from time to time and so Congress created a regulatory framework Through what ultimately wound up being the steamboat regulatory Commission basically And I bring that up because that commission and then the interstate Commerce Commission and then not long after that the Federal Trade Commission They were created
really to be not so much replacements for executive power or legislative power, so much as replacements for federal district courts. There was concerns in those eras that the decisions that the federal district courts and some state courts were making that would effectively regulate industries like railroads, that they were doing a bad job of it. So, Congress created this commission. Those commissions over time came to look more and more like...
what we would now call executive agencies, in terms of what they do, who they regulate, the way they go about regulating and enforcing their decisions. But 150 years ago, there were some distinctions between, say, the Interstate Commerce Commission and the Department of Commerce that I think were important then, that those agencies have kind of, like I said, converged now, and that brings us to some of the debates now about...
Adam White (11:40.034)
presidential power over those traditional independent agencies. But that's an important moment in our history too, that post-Civil War era of regulatory innovation.
Jason Briefel (11:53.433)
No, it's really interesting how technology and kind of growth of the economy has spurred, you know, the growth of the administrative state as you try to create bounds, you know, and asides for folks to work within, you know, just this week, you know, the tech CEOs were in Congress once again, and there's debate around whether we need an artificial intelligence or a big technology regulatory agency, given the authorities of the existing agencies.
overlap or unclear, it's unclear who's in charge, how do we figure out who to give money to? And you mentioned one of those quote unquote independent agencies that we wanted to talk about here and to get your thoughts on. So you gave the example of the Federal Trade Commission. You know, what are independent agencies? Are agencies really independent?
you know, beyond those regulatory agencies, I think that there are also a couple other types that we think classically of quote unquote independent, the civil service oversight agencies such as the Office of Personnel Management or the Judicative Agencies like MSPB, Inspector General, Offices of Inspector General, who are supposed to be independent but are kind of within an agency. And then, you know, there's also this idea that
career civil servants are supposed to have some independence or insulation from direct presidential control. So like what, what does that concept of independence mean? And is it different in some of those different categories?
Adam White (13:31.286)
great question and independence means a few different things in this context. Sometimes when people talk about an agency's independence, they're talking not so much in terms of legal rules, but what they're talking about is norms and traditions of say political non-interference with the decision. So for example, take the Justice Department. Long history of presidents not being directly involved in criminal prosecutions. It's a kind of independence you might say
that the Justice Department enjoys under the president in carrying out criminal laws. But when the lawyers start talking about independence, we're talking about something different. We're talking about the formal legal independence or formal legal accountability that an agency has relative to the president. So let me start with an agency that's not independent, the Environmental Protection Agency.
It's headed by the administrator of the EPA and the administrator, uh, right now, Administrator Reagan, he is directly accountable to President Biden. President Biden could wake up tomorrow and fire the EPA administrator for any reason or no reason at all. And I don't think there's really anything in the law that stops that from happening. Those, those heads of agencies serve at the pleasure of the president. But for a lot of other agencies, mostly the multi-member
commissions like the Federal Trade Commission or the Federal Energy Regulatory Commission and so on, or the Board of Governors of the Federal Reserve Board. Their leadership in the statutes creating those offices specify that those leaders serve a particular term of years and can be fired by the president only for, and then you insert some magic words, it depends on the statute, but for good cause or for cause or for
Jason Briefel (15:16.125)
Thanks for watching!
Adam White (15:27.542)
neglect of duty or inefficiency or there's another word, malfeasance. Anyway, those statutes, even the wording might differ, but the basic principle is that under the statute, the president doesn't have free rein to just go in and fire the head of the agency. He at least needs a reason, and maybe a particular kind of reason. And those statutes are the ones that have raised
Adam White (15:57.594)
President, oh who was it in Myers, I can't remember anymore, which president it was, it was pre-FDR, but the president wanted to fire a postmaster, I think it was a postmaster in Oregon, and the postmaster contested his firing and the Supreme Court said, no sorry you serve at the pleasure of the president, the president has every right to fire you. A few years later a case arises under the Federal Trade Commission. President Roosevelt decides he wants to fire one of the FTC
He inherited a Republican appointee. He didn't specify a particular decision.
He didn't specify a particular decision that the commissioner had made that the president didn't like. They had some correspondence, I think. The president said, you know, we don't really see eye to eye on things. I'd like you to leave. The commissioner says, no, I think I'll stay. And the president fires him. Doesn't give a particular reason, just fires him. Supreme Court actually holds years later that commissioner was entitled to keep his job. Now he died at that point, so in some ways it was a moot point. But he said the court said.
The FTC is not just an executive agency. It's quasi-judicial, quasi-legislative, and that's why its members have some independence. FDR didn't like that decision and supporters of presidential power, including me, have had a lot of qualms with that decision ever since.
Natalia Castro (17:20.043)
It is a bit odd when you think of an executive branch entity. You would think it is fully in the executive branch and therefore should be accountable to the executive branch. But a big part of the rationale for that decision was this idea that it's only partially executive branch. It also has this regulatory power, which makes it quasi-legislative. It has this adjudicative authority that makes it quasi-judicial, which I find interesting because today, especially—
because of the APA, there are so many agencies that kind of blur the lines and do engage in what some might argue feels like judicial work or feels like legislative work. And so those lines have become increasingly blurred over the last couple of years. And I think as Jason highlighted, this is idea of independence and what independence looks like in the executive branch doesn't just come up in the
kind of commission context, but it also comes up in the kind of frontline federal employee context where there is this idea that they, similar to a lot of these commission heads, are insulated from removal unless it's for a particular reason. Within the civil service, a lot of our listeners know there is a wide variety of civil service protections that some argue makes the civil
That is obviously something that's still very controversial. Can you talk to us a little bit about what that independence looks like for frontline federal employees and what some of the origins are for that independence are?
Adam White (19:02.334)
Yeah, I'm glad you asked because I don't want to give a short shrift to the second part of Jason's question. Setting aside the agency leaders, there is, you know, norms and rules of independence for people within agencies. Sometimes it's what we call administrative law judges. They're, you know, pretty high up, I'd say on the org chart of agencies, they serve underneath the agency's leadership. But because they're carrying out a duty that looks a lot like a trial judge.
Jason Briefel (19:15.15)
Thanks for watching!
Adam White (19:32.37)
They've been ALJs and another class of, I call them officers, named administrative judges. They too have a lot of power. They've had independence and a lot of that independence has come under question in recent litigation. That's similar to, but I think a little distinct from the questions of civil service, where you're now talking about a large number of people who work in the agencies.
who in sort of the classic conception of civil service, they aren't making policy judgments. They aren't making big binding policy judgments on behalf of the agency. They're serving in a variety of roles and they're incredibly important. Sometimes their decisions or their advice, their judgments do have real practical consequences, but they're not leading the agency. That...
those that body of workers who your audience knows the rules about that much better than I do um... that those civil service protections they also traced to the nineteenth century with the Pendleton Act a great statute that tried to really uh... alleviate the problem of corruption in government and what we all now call the I guess then called to the spoil system where uh... a new presidency would bring in not just new leadership but they would
other federal jobs like the spoils to be distributed to the friends of the victorious side. So the Pendleton Act tried to do away with that and for 100 plus years since then, you've seen other additions to the civil service laws. There were the big reforms of, I think it was 1978. I said a couple of times along the way, I'm a pretty strong believer in presidential power and responsibility over the executive branch.
wary of arguments or theories of agency independence. But when you get to civil service, I actually have a lot more sympathy for some of those, for those protections, especially when we're talking about the original Pendleton Act. Now, one of the challenges in recent years is that as agencies have come to do more, and they've had more of a role in government and more of a role in people's day-to-day lives through the growth of federal regulation,
Adam White (21:52.398)
there's increasing awareness of the practical importance of civil servants in government and awareness among a lot of us, including myself, that some folks near the top of the civil service, the areas right around the senior executive service level, maybe a little bit below that, may oftentimes be asserting a kind of policymaking power that really ought to be accountable to the president.
Now, where you actually draw those lines in the middle is extremely difficult. I, for one, don't have answers on that. And at the Gray Center, I've been organizing a lot of research and academic discussions around exactly those questions. One of the joys of being co-director of the Gray Center is that I don't have to have the answers. I just get to bring the questions. But instinctually, I am inclined towards some reforms and modernization. In fact,
If you don't mind me saying, this is how I think Jason and I first met years ago, is in some conversations, round table conversations, yeah, that the senior executives association and the Hoover institution co-organized. And those are good conversations and I'm glad they're continuing. I know in recent years, the rise of the schedule F executive order that president Trump put out there has really ratcheted up the temperature around those debates, but I think they're important debates to keep having.
Jason Briefel (22:51.042)
It sure is.
Jason Briefel (23:17.465)
Yeah, and I think one of the things that makes the debates so challenging is, you know, when 40 plus percent of Americans can't even name the three branches of government and you ask them to, you know, say, should federal employees be accountable to the president, you know, basic logic says, sure, of course they should. But how exactly that happens, obviously, the laws, the rules, the way agencies work is very complicated. And I think
most people would want the government that we're paying for to function. And I think that's where things get really messy and are really messy in some of this tug and pull around those debates.
Adam White (23:56.978)
exactly right. I mentioned a little while ago the Legislative Reorganization Act of 1946. As I said, that was an important turning point because Congress was trying to, as the name suggests, reorganize itself and its own operations to really take account of modern administration. And where I'm going with this is since 1946, Congress has increasingly been an oversight body. And since 1946, under the APA, you have more and more of an oversight role in the courts over
And so agencies and agency decisions and their personnel, they are subject to a kind of accountability to Congress and the inspectors general and others play a role in that and to the courts and to the president. And so there's no shortage of people trying to assert oversight authority over agencies. But the timeless question is, what's the constitutional basis for different, for various forms of authority, with the powers that the president or Congress or the courts have over an agency. And how do we make sure that each
Part of our constitutional system is doing its job without taking over another part of the government's job.
Natalia Castro (25:06.795)
Absolutely, and I always have found it a little bit unsettling for me as someone who considers myself like wedded to the original constitutional structure and the benefits that the separation of powers provides. It's always been a little curious for me that the Constitution, when it talks about officials within the executive branch, it talks about your department heads, it talks about inferior officers, but it actually says nothing about the
frontline federal employee that most of us would see as this kind of unspoken additional rung of the government. And I think that is one of the things that causes some hesitance for people, particularly on the right, when it comes to these now millions of employees who kind of fall outside of the original constitutional structure. There's been some great literature on this. I think it does make sense that there is like
There has to be an implied group of people carrying out these kind of basic tasks, these more administrative ministerial tasks. But it does raise some really interesting questions about how those individuals should be governed and what rules they should abide by when there isn't too much kind of constitutional text that can illuminate that for us.
Adam White (26:25.034)
That's a great point. And it's again, it's a timeless point. It's not as though Congress, uh, agencies didn't have frontline, uh, workers from the very start. And in fact, in the early Republic, the, the responsibilities of frontline government workers were in a way even more significant because they were at such a great distance from Washington, right? The people running the customs offices in say Savannah, Georgia, in 1791,
are working at a great distance from Washington and an era when you can't just fly back and forth and you don't have instant you know You know instantaneous Communications going back and forth So these things have always have always been important Now that said, you know with the increasing role of agencies and governments and you know the increasing capacity for communication between presidents and agencies in some ways again, that's
Jason Briefel (27:07.301)
Thanks for watching.
Adam White (27:19.362)
that's actually accelerated the debates and accentuated the debates because now presidents and the White House team, which grows and grows from administration to administration, they're just in a position to manage or try to manage much more of administration than they used to be, whether it's in defining policy goals within the contours of broad statutes or whether it's trying to make sure that various agencies are all rowing in the same direction.
or whether it's trying to get an agency to prioritize this area of its work over another, you just have more opportunity for presidential and White House regulatory management. And frankly, now that we're in an era where agencies tend to be our biggest day-to-day policymakers, presidential elections are a kind of election over who's going to manage administrative agencies. And so each presidential...
election I think brings more urgency to the White House's efforts to assert more control over agencies. And again, as a sort of originalist and a supporter of a lot of these reforms, heck, the center I co-direct is named for my old friend and mentor, Seaboyne and Gray, who helped to write the original OIRA executive order in the Reagan White House. I'm a big fan of those reforms.
I always have to hesitate and say these things shouldn't be oversimplified. A lot of us like to cite Federalist 70, Alexander Hamilton's classic argument for energy in the executive. It seems a pretty clear case for presidential control of executive agencies, and that's how I read it. But then just a few pages later in Federalist 76, you get to the Senate advice and consent process.
Adam White (29:10.602)
In Federal 76, he talks about how important Senate advice and consent is going to be to make sure that agencies are led by people who aren't just a bunch of yes men. There's a line in there, Hamilton says, presidents will be embarrassed to appoint people who are simply obsequious instruments of their pleasure. Senate advice and consent is going to help keep presidents honest, help make sure that we're getting the best people at the top levels of agencies.
Civil service reform again was intended to ensure that you'd have the best kind of People from top to bottom really playing their proper role and I think that's still true and it's only in the middle where you get that intersection of policy making judgment and Civil service protection that these things become a lot more fraud
Natalia Castro (30:02.507)
I think that is such an important point that is often missed. People, they kind of ask me, you know, how do you feel about schedule F and all these other things? And I often say I would not be afraid of a unitary executive schedule F system if we had enforced a non-delegation doctrine where Congress writes really clear laws that limit the executive scope. And it just emphasizes how much.
the debates we discuss in one branch of government impacts the other branches of government and how you really need all of those checks and balances working together in order for our system to be most effective and to really match its original structure, but in an effective kind of equal power, separate power way. So I do wanna let Jason take this conversation a little bit more into the modern era. I have no doubt Adam and I could discuss.
Jason Briefel (30:54.042)
Hahaha
Natalia Castro (30:54.283)
..
Jason Briefel (30:57.005)
Well, you know, I think Adam's right that, and he wrote in a recent paper in the Yale Journal on Regulation, an article called Chevron Deference versus Steady Administration. And he kind of talks about how, you know, presidential elections are the Super Bowl because it's a winner take all kind of situation. And part of the effect of that is we do see these wild swings of policy preferences, especially when Congress isn't doing its job. I think we can be honest and agree about that.
And there we see the courts coming in with a really heavy hand, often because businesses are feeling that it's hard to have stability and predictability about the regulatory and the business environment that they're operating in. But also it seems like they're picking and choosing some of these old decisions from many, many years ago and using them to pick apart.
some of these constitutional frameworks or arrangements that have come into play. And, you know, whether it's appointments clause issues, you know, whether we need to reappoint those administrative law judges, whether agency heads really are independent from the president in any way at all, especially in those boards and commissions. And I think that is really interesting at a time when, you know, there's broad distrust in many of our institutions, including the court.
Um, and you know, who do we really follow? Who's really in charge here? But, you know, I am kind of curious in the ways that you see the court grappling with these questions, um, today, um, and in, in the recent years.
Adam White (32:38.23)
Yeah, there's so many issues that are coming up to the Supreme Court now and have been in the last few years, and you just touched on a few of them, right? On administrative law judges, what kind of powers do they have? Do they have powers that rise to the level of what the Constitution refers to as an officer? And if so, does that mean that they must be appointed by the president with the Senate's advice and consent or maybe by the president or the head of an agency?
rather than somebody further down on the org chart. That's the case of Lucia versus Securities and Exchange Commission over how the Securities and Exchange Commission's ALJs are appointed. And I think a lot of people are expecting a follow-up case over the extent to which those ALJs must be subject to the president's full removal authority. That's an argument about presidential power and the nature of what's an office or an officer within the meaning of Article II of the Constitution.
It's similar to but not exactly the same as debates over independent agencies. A few years ago, the Consumer Financial Protection Bureau, which full disclosure I spent plenty of years litigating against when I was at a law firm, actually litigating on these constitutional issues even, that agency headed by one director of the CFPB was given statutory independence from the president. The Supreme Court said that's unconstitutional.
this head of this agency exercises quintessential executive power has to be made independent. I like that decision quite frankly. But then the follow-up question is, well, what does that mean for other agencies like the Federal Trade Commission? The court distinguished the CFPB. They said it's not a multi-member commission. It's pure executive power. But I think a lot of people would like to see a follow-up case with the FTC. And in fact, litigation happening right now in the lower courts between Walmart and the Federal Trade Commission or between
Meta, Facebook against the Federal Trade Commission are raising those constitutional issues too. We haven't seen, I don't think, litigation around the status of civil service. A lot of folks look for tea leaves to read around the ALJ litigation, but I don't think we've really seen anything on the civil service. I do see civil service as different, at least at the very...
Jason Briefel (34:55.366)
Mm-hmm.
Adam White (35:00.138)
hate to say but low levels of the org chart when you get higher up it gets more complicated but again President Trump's schedule f-order really forced the issue if that actually been implemented you probably would have seen somebody who's fired under schedule F bring a lawsuit saying schedule F violates the various civil service statutory protections and we would see that play out now weirdly enough some of the debates around chevron deference are a little different right because that's an area where the reformers are not
pushing for more presidential control, they're pushing for more judicial control because they're saying, we're not talking here about personnel, we're talking about the power to say what a law means when it's being contested. Does the court decide for itself de novo, as we say, or do they give deference to the agencies? So it's not that all of these issues are rowing in one direction towards greater presidential control. Heck, there's a CFPB case pending right now.
involving that agency's independence from Congress. And the argument on the reform side is that making that agency fiscally independent from Congress violates Congress's constitutional powers and responsibilities. So it's an interesting mix of issues. It doesn't all cut in one easy direction. But for reformers like me, we'd say the common thread through all this is trying to re-anchor these arguments.
uh in constitutional text um and to the extent that you know press judicial precedents run in the other direction there's a lot of calls to reconsider those precedents now one last thing by the way um i know that there's a lot of um questions about which institutions to trust now and i know that because president biden appointed me a few years ago to his commission to study the supreme court so i spent an entire year of my life with a lot of friends i disagree with i'm thinking about
the nature of the Supreme Court in our constitutional system and the political debates we've had around it. And quite frankly, I see echoes of the really heated debates around the court in these same debates around, say, civil service, around president. Not so much about Congress. People don't argue about Congress because Congress does a nice enough job of arguing about itself. But, you know, these arguments around the court.
Jason Briefel (37:21.245)
the
Adam White (37:22.178)
president, you see a real ratcheting up of allegations of outright illegitimacy. And I think a lot of these debates are part and parcel of those political debates.
Natalia Castro (37:34.827)
Adam, thank you so much for foreshadowing the next episode of Fed Talk, which is going to be focusing on the issues facing the judiciary with guests from the Federal Bar Association. So for our listeners out there, stay tuned. We'll be talking about a lot more about exactly that topic. It is certainly an interesting one.
Jason Briefel (37:39.313)
Hehehehe
Adam White (37:43.991)
Nah.
Huh.
Natalia Castro (37:56.543)
question that I just kind of wanted to follow up on based on what you just said, Adam. You know, I remember this case from last term that got quite a bit of press when the decision came out. It was Axon v. FTC and its companion case Cochrane, which a lot of what we heard was that it seemingly opened the door a bit more to challenging some of these unconstitutional agency structures in the district court.
without having to go through the exhaustive administrative process first. I'm curious if you think that will lead to increased litigation on these issues, particularly these big constitutional issues, and if that may mean that, you know, litigation takes time so over the next few years, we'll see more of these cases coming up.
Adam White (38:48.75)
Well, it definitely does open the door to more litigation. Not so much on the civil service issues that we've been alluding to, but on questions of the powers of administrative law judges and, and their, you know, accountability or, or independence from the heads of the agencies and from the president, that'll definitely accelerate. Like you said, Axon made clear that if you want to challenge the constitutionality or unconstitutionality of something like ALJ independence, you don't need to go first to the ALJ or to the agency to decide that issue.
That case follows on a trio of, or a couple of cases from the last decade. The most prominent one was called Sackett versus EPA, where the Supreme Court has, over the last decade, opened the courthouse doors more to judicial review. They've made it, you'd say either easy to file lawsuits or harder for agencies to avoid lawsuits, depending on which way you're looking at it. But basically,
um, the court has, has increased these constitutional litigants, um, access to the courts to challenge these agencies. And so I don't know that Axon is going to usher in a wave of litigation. Um, quite frankly, if there's going to be a case about ALJ independence, um, that case would come sooner or later.
You know, even if somebody had to go to the agency first and then litigate before the agency and then go to the court, we're only talking about a difference of a couple or three years. So I don't want to overstate the, um, the, the effect of axon, but I'd see it as part of a broader wave of Supreme court cases, um, that, that do, uh, make, make it easier for, for litigants to bring constitutional claim.
Natalia Castro (40:43.659)
Great, thank you. Well, Jason, do you have anything before I ask our final fun question?
Jason Briefel (40:44.486)
Yeah.
Jason Briefel (40:49.209)
I mean, just an observation, and I think it's interesting that, you know, administrative law judges in the federal government are represented by unions. And like, how the hell does that fit into all this?
Adam White (41:00.694)
Yeah. Yeah, it's, you know, it's.
Jason Briefel (41:02.581)
especially if they're answerable to the president or the courts decide that in the future.
Adam White (41:07.178)
Yeah, you know, I always hate to say too much about the Gray Center's research programs before they actually come to fruition because now that I mentioned the project I'm about to mention, I'm sure all of my authors will disappear from the face of the earth and this will be vaporware. But you know, one series of papers that we've been organizing have been around a mix of personnel issues. And you know, everybody's been focused on civil service lately, especially after schedule F.
Natalia Castro (41:20.395)
Thanks for watching!
Adam White (41:34.422)
That's an important issue. Again, I don't need to tell this audience that, but we ended up getting a group of authors to focus on a range of issues, civil service, public sector unions, outsourcing government things to contractors, that sort of thing. We think it's important to bring all those issues together. Jason, in our old conversations, I remember the talking points, but we called them considerations, the 10 considerations, a little shy of the 10 commandments.
that we published, they were looking at civil service reform plus modernizing agency resources, right? It's one thing to get the right people in and to allow them to do their jobs and to establish the right lines of accountability, but you also need the resources for government to actually do its job. And so there's always a danger in plucking like one issue out and looking at it in isolation. I mean, in a legal case, you have to do that and you're looking at the...
the meaning of the law for that aspect of the issue. But big picture, the sort of how do we run a country kind of questions, like what's the right set of frameworks and procedures? It's really hard to take any one of these issues alone and you really do need to at least be cognizant of the big picture.
Jason Briefel (42:53.577)
Yeah, and it's hard because so many of us specialize in our spaces and the things that we know, the things that we're passionate about. But to your point, that kind of systems perspective, how does this fit together into our constitutional structure? How does it enable our country to be successful and to do the things that it wants to do? It's going to require some give and take, you know, that's the idea behind a democracy, right? You know, we're giving up a little bit of autonomy.
and freedom and authority so that we can flourish as a society. And it'll be messy. It has been messy for our nation's history, but you know, what alternatives do we have?
Adam White (43:33.878)
Yep, that's right.
Natalia Castro (43:39.019)
All right, Adam, before we close out today, I want to ask you, what case before the Supreme Court now do you think will have the biggest impact on the federal bureaucracy?
Adam White (43:53.966)
That's a great question. And I know as soon as I answer it, something totally, I'm gonna realize I'm missing a really, really obvious one. But I think the answer is the Chevron deference cases, Loper-Brite and Relentless. Those are the cases again about how much deference should a court give an agency in interpreting the law. I think that could have a huge impact, not on the civil service protections at all, that's not at all at stake, but.
Natalia Castro (43:59.84)
Hehehe
Adam White (44:21.954)
to the extent that the court says that they're going to give less deference to some kinds of interpretations, either because of the procedures that the agency used in arriving on that interpretation, or maybe the history and longevity of that legal interpretation, or the extent to which it calls upon certain exercises of technical expertise in interpreting a law or implementing a policy.
Adam White (44:52.719)
a premium on long-standing legal interpretations, well, you're going to see longer and longer legal memos in support of new rules. To the extent that the courts are giving more deference to technical judgments rather than political judgments, well, you're going to see agency rulemakings and other decisions focus, really play up the technical expertise side of their work and try to downplay.
the political policy judgment side of things. So I think the Chevron deference cases could have a huge impact on just the mix of responsibilities that agencies are bringing to bear in their work. And I'm curious to see how the court phrases that decision.
Natalia Castro (45:35.135)
Yeah, absolutely. I think there are a lot of different ways that the court can tackle that question. There tends to be a conversation about whether or not Chevron will stay or go, but I think there are a lot of ways that the court can clarify, refine, add some nuance to those decisions. And I think agencies will have to, as a result, amend their procedures to make sure that the policy they put forward can survive in court. So.
I think that's a great answer. Who knows what will percolate in the next couple months, but that is certainly a big one that we're all watching very closely.
Adam White (46:10.326)
Absolutely.
Jason Briefel (46:11.389)
Yeah. And, you know, I think the thing that I'm interested on that is, you know, how might Congress react? You know, we know that they know they have things to do, but they haven't necessarily been able to do many of them lately. You look at immigration, other issues. And I think that's one of these things that kind of puts civil servants and others who are working on these issues in the crosshairs. And again, we'll have to see how those chips fall once those decisions are made. And we know there's always going to be another step. This is a continual process.
Adam White (46:42.702)
I'm not going to get out ahead of myself on this one, but let me just say the future of Congress and what its responsibilities are is certainly something at the heart of the Gray Center's work in the next year.
Natalia Castro (46:43.635)
Absolutely.
Natalia Castro (46:57.195)
Absolutely. I think that is a key to this conversation. After all, that's why on this podcast, we're going branch by branch. We're talking about all the issues facing each one because they are so interconnected. Adam, thank you so much for your time today. This has been a really great conversation. And who knows, maybe next year, we'll have to invite you back to talk about the next iteration of...
policies and cases impacting the executive branch. But this has been a great conversation today. So thank you for joining us.
Adam White (47:33.282)
Well, thank you. I would glad to come back anytime.
Natalia Castro (47:34.427)
And with that...
Jason Briefel (47:39.325)
Thanks so much, Adam. This was wonderful.
Natalia Castro (47:39.339)
Thanks, Adam.
And with that, we thank all of you for listening as well. This is Fed Talk brought to you by Shaw, Bransford and Roth. I'm Natalia Castro. Thank you guys and have a great weekend.
Jason Briefel (47:51.35)
And I'm Jason Breiffel.
Natalia Castro (47:57.127)
Thank you, Adam! That was great!
