Dec 8, 2025 · 2 hr 30 min · 14 segments
**Trump, President of United States v. Slaughter, No. 25-332** Argued on Dec 08 2025. Certiorari to the C. A. District of Columbia Circuit. For petitioners: D. John Sauer, Solicitor General…
Amit AgarwalGuestJohn SauerGuest
Brett KavanaughPanelist
Ketanji Brown JacksonPanelist
Elena KaganPanelist
Samuel AlitoPanelist
Amy Coney BarrettPanelist
Sonia SotomayorPanelist
Neil GorsuchPanelist
Clarence ThomasPanelistOn the sort of parade of horribles argument that's being made, I think it's very telling that Mr. Agarwal, one of the last things he said is that the FEC has to remain independent, but of course the FEC does not have statutory removal restrictions, and under Braidwood, the President already has the power to remove the commissioners of the FEC.
Therefore, the notion that this is the end of the world, it's going to change the structure of our government, the lead counterexample that's given is one that's already been decided by this Court's cases.
Justice Barrett, regarding the question of historical liquidation, we think the case that you ought to look at is Powell v. McCormick.
It's very analogous to the sort of historical, what happened in the history here.
In that case, Congress, from the time of the founding until the Reconstruction Congress after the Civil War, had interpreted the Constitution to not allow it to refuse to seat a member of Congress other than the reasons that are set forth explicitly in the Constitution Qualifications Clause.
The Reconstruction Congress changed that and decided not to seat a couple of former members who had too close ties to the Confederacy.
And after that, for the next hundred years or so, Congress then started exercising that power, not often, but intermittently, exercising the power to refuse to seat other members.
And this Court said in Powell v. McCormick, what is decisive there in that point of constitutional interpretation is the liquidation that occurred in the 19th century, not the subsequent, again, very lengthy tenure of practice of Congress refusing to do that.
And therefore, it held that Congress lacked the power to refuse to seat the congressman in that case.
I think it's very telling that in this particular case, early on, Mr. Agarwal said twice that it is within the realm of possibility that Congress could take not sure how many, but a significant number of cabinet-level agencies and convert them into multi-member agency commissions outside the government's control.
How many of them it could do is really a creature of not a constitutional question on his view, It's a question of statutory accident.
Are there conclusive and preclusive powers in the organic statute there? If there are, maybe they could be excised.
And obviously the devil's in the details here because if those conclusive and preclusive powers are fairly broad, as the colloquy about civil enforcement powers illustrates, if they're fairly broad, then basically we would win this case and virtually every other case because almost all the agencies, cabinet level or independent agencies, are going to have civil enforcement powers in most cases and so forth.
But if they're narrow, then we have a situation where Congress could erect reconstruct virtually the entire executive branch outside the president's control and that is not even a republican form of government but that is the logic of the position that's being advanced here that is the parade of horribles the court ought to consider and that contrasts dramatically with what uh for example madison said when he talked about the great principle of unity and responsibility the chain of dependence that runs from the lowest to the middle grade to the highest to the president and the president is accountable to the community which is the voters In short, Humphrey's executor is a decaying husk with bold pretensions.
It has a powerful hold on the minds of some people within our constitutional system.
It certainly seems to have a powerful hold on the minds of lower court decisions.
The court should overrule Humphrey's executor explicitly and restore the separation of powers to our government.
On the sort of parade of horribles argument that's being made, I think it's very telling that Mr. Agarwal, one of the last things he said is that the FEC has to remain independent, but of course the FEC does not have statutory removal restrictions, and under Braidwood, the President already has the power to remove the commissioners of the FEC.
Therefore, the notion that this is the end of the world, it's going to change the structure of our government, the lead counterexample that's given is one that's already been decided by this Court's cases.
Justice Barrett, regarding the question of historical liquidation, we think the case that you ought to look at is Powell v. McCormick.
It's very analogous to the sort of historical, what happened in the history here.
In that case, Congress, from the time of the founding until the Reconstruction Congress after the Civil War, had interpreted the Constitution to not allow it to refuse to seat a member of Congress other than the reasons that are set forth explicitly in the Constitution Qualifications Clause.
The Reconstruction Congress changed that and decided not to seat a couple of former members who had too close ties to the Confederacy.
And after that, for the next hundred years or so, Congress then started exercising that power, not often, but intermittently, exercising the power to refuse to seat other members.
And this Court said in Powell v. McCormick, what is decisive there in that point of constitutional interpretation is the liquidation that occurred in the 19th century, not the subsequent, again, very lengthy tenure of practice of Congress refusing to do that.
And therefore, it held that Congress lacked the power to refuse to seat the congressman in that case.
I think it's very telling that in this particular case, early on, Mr. Agarwal said twice that it is within the realm of possibility that Congress could take not sure how many, but a significant number of cabinet-level agencies and convert them into multi-member agency commissions outside the government's control.
How many of them it could do is really a creature of not a constitutional question on his view, It's a question of statutory accident.
Are there conclusive and preclusive powers in the organic statute there? If there are, maybe they could be excised.
And obviously the devil's in the details here because if those conclusive and preclusive powers are fairly broad, as the colloquy about civil enforcement powers illustrates, if they're fairly broad, then basically we would win this case and virtually every other case because almost all the agencies, cabinet level or independent agencies, are going to have civil enforcement powers in most cases and so forth.
But if they're narrow, then we have a situation where Congress could erect reconstruct virtually the entire executive branch outside the president's control and that is not even a republican form of government but that is the logic of the position that's being advanced here that is the parade of horribles the court ought to consider and that contrasts dramatically with what uh for example madison said when he talked about the great principle of unity and responsibility the chain of dependence that runs from the lowest to the middle grade to the highest to the president and the president is accountable to the community which is the voters In short, Humphrey's executor is a decaying husk with bold pretensions.
It has a powerful hold on the minds of some people within our constitutional system.
It certainly seems to have a powerful hold on the minds of lower court decisions.
The court should overrule Humphrey's executor explicitly and restore the separation of powers to our government.
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