Todd Phillips

Politico really undersells how legally bonkers this argument is.

RIFing employees is agencies' individual decisions, but is pursuant to the President's inherent constitutional authority.

He doesn't even have to negotiate. He and the other Republicans can just nuke the filibuster, as they've done for practically everything else.

Boy, do I hear you.

But will the courts? Tbd...

To be clear, we need not choose between progressive policies and independent regulators; independence does not mean serving the interests of regulated industries over those of the public. It simply means being able to act without fear or favor.

America Needs Independent Regulators A future Democratic President will be tempted to use power like Trump. That would be a mistake.

I argue in Democracy Journal that regulatory independence is a progressive value. It's necessary for our high standard of living and serves as a rejection of backroom dealmaking and governing on the basis of campaign donations and bribes.

Read it here: democracyjournal.org/arguments/am...

@jamellebouie.net, please do a column about how the same logic applies to other independent agencies, like the Nuclear Regulatory Comm'n. Though everyone is focused on the Fed, I spoke to a former NRC chair who told me that they're scared of a Fukushima disaster on US soil b/c of the UET.

Oooooh!

If you're Hill staff (D or R) you're worried about losing minority party commissioners, please reach out. @nicholasbednar.bsky.social and I are speaking staff about legislative language that we think could mitigate some of the losses from the Supreme Court. We'd love to speak with you, too.

If they lose on for cause, they're not going to go for broke is my point.

Very interesting that the Administration's application to the Supreme Court makes clear it is not challenging the constitutionality of the Fed's for cause removal protections. This won't be a chance to directly overrule Humphrey's.

Sure, sure. To be clear, I have no idea. I filed a brief in Vullo on the side of Vullo, so that shows just how much law I know.

FWIW, on remand the 2d Circuit held that Vullo had qualified immunity. I'm not a QI scholar, but I could imagine Carr getting it here, too.

Sure sure. I'm not sure they care. Everyone was telling them that removing a fed Governor would cause markets to go haywire, and we're seeing that's not the case. Will they realize that it's because markets see Cook as still serving? I don't think so.

Why does that put them in a pickle? The majority seems content with declaring what the law is but preventing courts from getting involved adjudicating cases involving them.

Applied here, the argument is that the for cause removal exists, but it's not for courts to adjudicate.

All good. I don't tackle exactly with the problem you're wrestling with, but I do argue that courts explicitly went against the congressional intent of having strong, progressive banking laws when they gave Chevron defence to the OCC and Fed.

Luke, have you read my paper on this? papers.ssrn.com/sol3/papers....

If it were me, I'd go back to what the Court said in Chevron (the 1984 case, not the subsequent glosses): If judges really don't know, defer to the agency. But if judges have a sense of what Congress actually wanted, then go with what Congress wanted. Subsequent holdings (eg Mead) muddled things.

Sry, was on a very long phone call.

I think we must distinguish b/t interpretations of statute and the Constitution. NBA interpretations don't concern me b/c Congress can change the law, whereas if SCOTUS says removal protections are unconstitutional, there's nothing Congress can do about it.

Overruling an agency's interpretation of a statute's purpose is not the same thing as juristocracy.

Why are these two--juristocracy or granting Chevron deference--the only options?

I don't think you can read, e.g., Bankers Trust I and come away with the conclusion that it was a juristocratic opinion. They just realized that Congress wanted to address the causes of the Great Depression.

I'm up in @bloomberglaw.com arguing that the recent push to reshape bank supervision, and Matters Requiring Attention in particular, "is the wrong remedy, resulting from [a] misdiagnosis of MRAs’ problems."

Link here: news.bloomberglaw.com/securities-l...

I offer two changes regulators should make to make the distinction clear.

1) Replace the the name "Matters Requiring Attention with “Supervisory Recommendations” (the FDIC already does this).

2) The FBAs should bring enforcement actions more quickly when problems arise.

MRAs are separate from legal violations, and conflating the two (by both banks and regulators) undermines the role played by bank supervision as a second set of eyes to support bankers in conducting safe and sound banking.

I'm up in @bloomberglaw.com arguing that the recent push to reshape bank supervision, and Matters Requiring Attention in particular, "is the wrong remedy, resulting from [a] misdiagnosis of MRAs’ problems."

www.bankingriskandregulation.com

I truly cannot wait to read this complaint.

I don't have a solution so long as Congress can't restrict POTUS's removal of executive branch officers. Can Congress even place a trigger in law such that (for example) if the OMB Director is removed then the statute is repealed? I'm not sure the Supreme Court would find that constitutional.

You'd need the president to agree to that, and I'm not sure he can credibly make a commitment at this point.

Senators would need POTUS to appoint that person and they'd need to be confirmed before the appropriations bill is enacted.

BUT then POTUS could just fire the new Director.