LEILA FADEL, HOST:
The Supreme Court appears likely to hand President Trump another major victory.
A MARTÍNEZ, HOST:
Yeah. The court heard arguments Monday over whether the president should have the power to remove members of independent agencies despite laws that say he cannot. The conservative majority indicated they thought he should.
FADEL: NPR's Andrea Hsu is listening to the arguments and joins us now. Good morning.
ANDREA HSU, BYLINE: Good morning.
FADEL: OK. So let's back up first and just talk about this case, which involved the firing of a Federal Trade Commissioner who then sued the Trump administration to challenge her firing. But it's not about just that - right? - Andrea? What's at stake here?
HSU: Yeah. Well, the FTC is one of a couple dozen government agencies that share a similar structure. You know, these are regulatory agencies typically with three or more members representing both parties who are appointed by the president and confirmed by the Senate. And Congress dictated that the president can only fire members for cause - for things like neglect of duty or malfeasance. And Amit Agarwal was representing the fired FTC commissioner in court. He argued the setup has a long history dating back to the beginning of the republic.
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AMIT AGARWAL: Presidents have understood and appreciated the vital interests of the American people can be served by having constraints on the exercise of power. That is a really important part of our constitutional tradition.
FADEL: OK. But it sounds like the conservative justices didn't buy that historical argument.
HSU: That's right. They seemed concerned that the separation of powers has gotten murky. You know, it seems like everyone agreed that independent agencies like the FTC and many others are not purely executive in function. Their board members and commissioners make rules and decide cases. Their actions affect people and businesses all over the country. And Solicitor General John Sauer, who was representing the Trump administration, argued that's why it's a problem that they're not accountable to the president.
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JOHN SAUER: That's a power vacuum. The president is answerable to the voters. They have no boss. The point is that power vacuum should not exist in our constitutional structure.
FADEL: What did the liberal justices have to say about this?
HSU: Well, Leila, they took the opposite view of pretty much the same facts. Let's listen to Justice Kagan.
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ELENA KAGAN: Isn't it problematic that what this is going to amount to is putting not only all executive power in the president, but an incredible amount of legislative/rulemaking power and judging?
HSU: And Justice Sotomayor said that the administration is asking the court to destroy the very structure of government and take away from Congress this idea that some agencies are better off independent. Of course, Leila, you know, with the current makeup of the court, it's hard to see how that independence will stand. And in fact, Thomas Berry with the libertarian think tank the Cato Institute says he is really confident the court will overturn the 90-year-old precedent that limited the president's power of removal. And he spoke with NPR just after the arguments.
THOMAS BERRY: The only real question left is, how are they going to write this opinion? How broad is it going to be? What reasoning are they going to use? And to what extent, if any, will they address other contested issues?
FADEL: And I know one of those issues is the Federal Reserve, right?
HSU: Yeah, and the court is going to be tackling a whole different case about that next month. But yesterday, Solicitor General Sauer did quote the court's own shadow docket order that called the Fed a quasi-private, uniquely structured entity with a distinct history. You know, whether the conservative majority shifts their thinking on that after next month's arguments - that remains to be seen. But for the moment, the Fed aside, it seems the court is prepared to give the president a lot more control over agencies that traditionally were independent.
FADEL: NPR's Andrea Hsu. Thank you for your reporting, Andrea.
HSU: Thanks for having me. Transcript provided by NPR, Copyright NPR.
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