A MARTÍNEZ, HOST:
All right. For more on this case, we turn now to Amy Howe. She's a reporter with SCOTUSblog and was at the court for arguments on Monday. So, Amy, was there a particular exchange that sounded most telling to you about how the court might eventually rule?
AMY HOWE: One of the exchanges or lack of exchange was actually really telling, which is that there was almost no discussion about a question that the justices, when they agreed to take up this case, specifically instructed the litigants to tackle, which is the remedy. If the court would uphold the removal provision and say that Trump's powers are restricted, what is the remedy for someone who is wrongfully fired? Do federal courts have the power to put that person back in office or does that person, like Rebecca Slaughter, only get back pay? And there was basically no discussion of that, which you would expect if the court thought that there were a chance that it might ultimately uphold these removal restrictions. Justice Kavanaugh told John Sauer, the solicitor general, that he had real concerns about this question. But then he said, but we don't need to get into that if we rule for you, meaning the Trump administration.
MARTÍNEZ: Were the conservatives on the court concerned about anything in particular in their questioning yesterday?
HOWE: So both sides - you know, what they were really concerned about, as Andrea's discussion suggested, was the limits of the arguments that both sides were advancing. You know, and I think that that - those were the strongest arguments on each side - were pointing to the potential consequences of a ruling for the other side. Rebecca Slaughter's lawyer, you know, talked about the risks not only for the FTC, but also other independent multimember agencies that she said Congress wanted to insulate from partisanship. But on the other hand, the justices were concerned that if Rebecca Slaughter were to prevail, Congress could take large swaths of the executive branch outside of the president's control by turning departments like the Department of Education or the Department of Interior into these independent multimember agencies that would be insulated from presidential control.
MARTÍNEZ: So, Amy, just so I understand it, is the choice you're telling me about giving Congress a lot of power versus giving the president a lot of power?
HOWE: That's exactly right.
MARTÍNEZ: OK.
HOWE: And, you know, when it comes to the separation of powers, you know, this seems like a case in which they are more comfortable giving the president that power, but perhaps carving out some particular parts that might otherwise be affected, like the Federal Reserve.
MARTÍNEZ: Now, under some of the theories from the justices, does every federal worker and appointee serve at the pleasure of the president?
HOWE: That is the - one of the sort of central questions in this case. The Trump administration and some of the justices are sympathetic to this theory known as the unitary executive theory, which is the idea that the president has complete control under the Constitution over the executive branch. And they say that should include the power to remove members of the executive branch so that the president can carry out his duties and put his policies into place.
MARTÍNEZ: And I guess that's part of the argument - right? - that no one that works with the federal government is completely bias-free, so the federal government should be allowed at that time to appoint anyone they feel is aligned with their beliefs.
HOWE: To appoint and certainly to remove.
MARTÍNEZ: Yeah. Now, we heard from one analyst a few minutes ago, saying that the biggest question is how broadly the court rules. What are some of the options the court has here?
HOWE: So Justice Kavanaugh and Justice Alito both suggested that the court could write a relatively narrow ruling that carves out, you know, someone like the - an institution like the Fed. And then there are also some sticky questions relating to various federal courts, like the Tax Court and the Court of Federal Claims, in which the judges don't have life tenure and there are similar removal restrictions. And so, you know, that could be one of the options, is to say that when you're talking about an agency like the FTC and other similar agencies that exercise what the court would call a lot of executive power, that, you know, we are going to invalidate these removal restrictions. And we will deal with these other things later.
MARTÍNEZ: Could this mean the end of bipartisanship at agencies like the FTC?
HOWE: You know, they didn't spend a lot of time discussing that yesterday. But, you know, under the Trump administration's theory, it seems like that could be in jeopardy as well. If the court were to hold in the FTC case that Congress can't place restrictions on when the president can remove someone, you know, the - sort of the logical next step would be that it also can't tell the president who he has to put on the commission.
MARTÍNEZ: Now, really quick, one more thing, Amy. We also heard about how this is connected to another case, about firing Federal Reserve Governor Lisa Cook. Did Monday's hearing give you any sense of how that case may play out?
HOWE: It didn't, including because Trump has attempted to fire Lisa Cook, citing allegations of mortgage fraud, from before her time on the Fed. So he's saying in effect that he has good cause to remove her. Cook has strongly disputed these allegations. You know, one telling sign is that the court has allowed Lisa Cook to remain on the Fed until it hears her case...
MARTÍNEZ: OK.
HOWE: ...And issues its decision, unlike Rebecca Slaughter.
MARTÍNEZ: Amy Howe reports for SCOTUSblog. Amy, thanks.
HOWE: Thank you. Transcript provided by NPR, Copyright NPR.
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