Would the Supreme Court scrap federal agencies’ independence?

March 19, 2025

President Donald Trump said Tuesday that he “fired” two members of the Federal Trade Commission, both the only Democrats serving on the regulatory body. We’re putting “fired” in quotation marks because a the Supreme Court ruled in 1935 that the president can’t fire commissioners of independent agencies simply because he feels like it.

Trump’s action could pave that way for an attack on the independence of other federal agencies like the Federal Reserve, and that, in turn, could have a monumental effect on the country’s rule of law and the economy.

Leah Litman, a University of Michigan law professor, spoke with “Marketplace” host Kai Ryssdal about what the administration’s attack on rule of law could mean for the economy.

The stock market has lost trillions of dollars in the last few weeks “because of the president’s economic erratic behavior, and if he could do that with the Federal Reserve Board, that would be catastrophic,” said Litman, who co-hosts the podcast “Strict Scrutiny,” and wrote the forthcoming book “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.”

The following is an edited transcript of their conversation.

Kai Ryssdal: Could you give us the layman’s version, please, of the case at issue here, Humphrey’s Executor?

Leah Litman: Humphrey’s Executor is the famous case that established the constitutionality of independent agencies. Independent agencies just refer to agencies that are led by people who cannot be fired at will by the president. Basically, they can’t be fired if the president disagrees with them about policy priorities and how to implement federal law.

Ryssdal: OK, so the reason obviously that I’m interested in Humphrey’s Executor is because of what it might mean for the Federal Reserve. And here I should say that you and I are buddies on the socials, and we had an exchange, I don’t know, like a month, two months ago, about what Humphrey’s Executor might mean for the Fed. And you said, “You know, the Supreme Court could carve out a space for the Federal Reserve if they wanted to.” And that leads me to to believe that, as you lay out in this book, the Supreme Court might not understand the society at the moment, might not understand the politics of this moment, [but] they are very finally attuned to the economic challenges of this moment.

Litman: Yes, they have investments, they have billionaire friends. I don’t think any of them want a global recession, and I think endangering the independence of the Federal Reserve Board would do just that. Imagine if the president could threaten or jawbone or pressure the Federal Reserve Board to adjust interest rates or other kinds of monetary policy in order to be politically convenient. I mean, over the last, I don’t know however many weeks, the stock market has lost something like $3 billion, you know, a billion dollars a week, because of the president’s economic erratic behavior, and if he could do that with the Federal Reserve Board, that would be catastrophic.

Ryssdal: Yeah, I think it’s actually trillions of dollars lost.

Litman: Right.

Ryssdal: But you know, what’s a couple of billion between friends? The thinking about this economy and the law has been that, you know, the infrastructure that holds up this economy is the free market, right? The free market rules. I would suggest, and I have on this program suggested, that actually it’s the rule of law, right? And that’s what establishes, for example, private property rights. And I wonder if, once Wall Street figures out that maybe private property rights are at risk here, it would kind of be, “Katie, bar the door.” What do you think?

Litman: I am hoping there will be some concerted pressure to force the administration and the Supreme Court to recognize the importance of independent monetary policy. I mean, if you think about, for example, what the federal government is doing when it is defunding federal agencies, basically canceling contracts and grants that the federal government has made, they are basically reneging on the federal government’s word in honoring contracts. And that is, as you say, a threat to the rule of law, and that also very much endangers the economic stability of the country if you can’t count on the federal government to basically pay its debts and pay what it said it’s going to.

Ryssdal: Well, look, let me get it down to brass tacks. You’re a professor of law, obviously, but you’re also a consumer in this society. As you look at what’s happening with the Trump administration deliberately taking apart this economy and challenging, in the very kindest sense, the rule of law, in your spare time, what do you think about that?

Litman: It is pretty terrifying, I have to say. You know, the idea that the president and the administration can, for example, just summarily deport people without due process of law or any judicial review, is, I think, pretty definitionally authoritarian. The idea that a president can just refuse to spend money that Congress has appropriated is upending the constitutional system and, I think, antithetical to our constitutional democracy because it eliminates a key check on the president’s power and the executive branch’s authority, which is Congress’ spending power. It is, in many respects, unprecedented, just the systematic disregard for the rule of law, and I think I would be a fool and naive if that didn’t worry me.

Ryssdal: People who listen to you on [your podcast] “Strict Scrutiny” will know that you and your co-hosts have some issues, shall we say, with the Supreme Court.

Litman: Not issues in general. We don’t have issues, we have issues with the court.

Ryssdal: That’s right. Are you at all surprised at the turn that the law has taken, and since this is a program on business and the economy, how that might affect the economic future of of literally everybody living in this economy?

Litman: I think I am not surprised with the quick pace at which the Supreme Court has changed the law in pretty radical ways. Now, I don’t consider myself naive or an optimist, but I do hold out some hope, as we were talking about, that one constraint on what the court might do is the prospect of a catastrophic economic recession. But that is one of the few possible checks that remains right now in a world where the political branches, the Democratic Party have shown little appetite for challenging the authority of the court, even when the court is behaving in pretty bad ways.

Ryssdal: Not to be all doom and gloom on the way out here, but that’s a thin reed.

Litman: It is a thin reed. One other reason for optimism, just because I don’t love leaving things on notes of doom and gloom, is I have taken heart at seeing some of the protests. For example, the Tesla takedown protests. I think the evidence suggests that’s working, that one big pressure point on the administration and Elon Musk is their pocketbooks. And that’s part of why I continue to hold out hope that the administration, the Supreme Court, they don’t want an economic recession. I am hoping that they will be convinced that what they are doing is pushing us too far in that direction, and in any event, the Supreme Court won’t take the next step by undoing the independence of the Fed.

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