Presidential Removal Power Threatens Agency Independence and Media Monopolies - Episode Hero Image

Presidential Removal Power Threatens Agency Independence and Media Monopolies

On the Media · · Listen to Original Episode →
Original Title:

TL;DR

  • Granting the President unchecked removal power over independent agencies like the FTC would enable coercion of officials to align with executive priorities, undermining their intended autonomy and regulatory function.
  • The Supreme Court's potential reinterpretation of presidential removal power risks eroding the separation of powers by allowing the executive to control agencies designed for independent oversight.
  • Hollywood mergers, driven by potential presidential influence and foreign investment, could lead to a monopsony market, reducing competition for talent and IP and stifling artistic expression.
  • The legal battle over Perez Hilton's subpoena highlights the evolving definition of "journalist" and the need for broad legal protections to safeguard news gathering in the digital age.
  • The normalization of conflicts of interest and quid pro quo arrangements in media and government deals, particularly concerning CNN's potential sale, signals a shift toward oligarchic practices.
  • The Supreme Court's approach to presidential power, framed as "presidentialism" rather than originalism, may overlook historical intent and create an executive authority exceeding founding generation expectations.

Deep Dive

The Supreme Court's potential ruling in Trump v. Slaughter threatens to dismantle the independence of federal agencies, granting the President unchecked power to remove officials, which has profound implications for regulatory oversight and the very structure of American governance. This shift, driven by a desire to consolidate executive authority, could enable a President to weaponize agencies like the FTC and the Federal Reserve to advance personal or political agendas, rather than serving the public interest.

The core of the legal debate centers on the President's removal power, an area left deliberately ambiguous by the Constitution's framers. While historical precedent, particularly the Myers v. United States (1926) decision, has supported broad presidential removal authority for purely executive officers, the Humphrey's Executor v. United States (1935) case established crucial limitations. This latter ruling affirmed that officials in quasi-legislative or quasi-judicial roles, such as FTC commissioners, are protected from removal without cause, safeguarding their independence from political pressure. The current Supreme Court majority appears poised to overturn Humphrey's Executor, prioritizing a strong, centralized executive over the checks and balances designed to prevent overreach. This would effectively allow a president to replace independent agency officials with loyalists, potentially compromising the integrity of antitrust enforcement, consumer protection, and even financial regulation, as seen in attempts to influence Federal Reserve members.

The implications extend beyond regulatory bodies to encompass the media and entertainment industries, particularly in the context of potential mergers involving Warner Bros. Discovery, CNN, Netflix, and Paramount. The President's expressed desire to see CNN "sold" and his alleged interventions in film distribution (like Rush Hour 4) highlight how expanded executive power could influence business decisions, especially when those decisions involve entities or individuals seeking presidential favor. The potential merger scenarios, involving foreign sovereign wealth funds and individuals with close ties to the President, raise serious conflict of interest concerns. If the FTC's independence is diminished, its ability to scrutinize and potentially block these monopolistic mergers, which could harm Hollywood workers and reduce artistic diversity, would be severely undermined. This creates a dangerous feedback loop where a President can leverage regulatory power to influence media ownership, and media outlets, in turn, may feel compelled to cater to the President to secure favorable business outcomes.

Furthermore, the legal battle involving gossip blogger Perez Hilton and actress Blake Lively underscores the evolving definition of "journalist" and the associated legal protections. While the ACLU's intervention on Hilton's behalf aimed to broaden the understanding of journalism to include informal news gatherers, the case also reveals how individuals with significant platforms, even those operating outside traditional ethical standards, can become entangled in legal disputes that blur the lines of press freedom. The fact that Hilton relied on AI for legal briefs and that his case was ultimately dropped due to the opposing party's desire to avoid negative optics suggests a complex and shifting landscape for legal protections in news gathering.

Ultimately, the Supreme Court's decision on presidential removal power will set a precedent for executive authority that could reshape the operational independence of critical government agencies. This, coupled with the President's demonstrated interest in influencing media mergers and distribution, suggests a future where executive power may be used to consolidate control over both regulatory oversight and public discourse, potentially eroding the checks and balances fundamental to a democratic republic.

Action Items

  • Audit FTC commissioner removal power: Analyze 3 historical cases (Myers, Humphrey's Executor, Trump v. Slaughter) to identify precedents and potential constitutional implications.
  • Draft press freedom guidelines: Define criteria for identifying journalists and news gathering activities to inform legal protections for informal news creators.
  • Track media merger impact: Monitor 2-3 major media acquisitions for evidence of monopolistic practices or undue political influence on content.
  • Evaluate celebrity legal defense: For 1-2 high-profile cases, assess the use of AI in legal brief drafting and its impact on due process.

Related Episodes

Key Quotes

"The Supreme Court has been expanding the president's power in ways that would have troubled our anti-royalist founders. This week, the high court seemed inclined, despite precedent, to let Trump fire an FTC commissioner without cause."

This quote highlights a central concern of the podcast episode: the Supreme Court's potential to alter established norms regarding presidential power. The speaker, Brooke Gladstone, frames this as a departure from the intentions of the nation's founders, who were wary of concentrated executive authority. The specific example of the FTC commissioner illustrates the practical implications of this potential shift.

"Justice Elena Kagan: 'So the result of what you want is that the president is going to have massive, unchecked, uncontrolled power here.'"

This quote directly captures Justice Kagan's expressed concern about the potential outcome of the Supreme Court's deliberation. Michael O'Loughlin uses it to emphasize the gravity of the situation, suggesting that the Court's decision could lead to an unprecedented level of unchecked presidential authority. The quote serves as a stark warning about the potential consequences for the balance of power in the U.S. government.

"Noah Rosenbloom is an associate professor of law at New York University specializing in constitutional law and legal history. He wants the removal power so that he can threaten government officials, tell them to do what he wants them to do, and if they fail to do it, he'll fire them."

This quote introduces Noah Rosenbloom's analysis of Donald Trump's motivations regarding the removal power. Rosenbloom, an expert in constitutional law, interprets the desire for this power not as a matter of administrative efficiency but as a tool for coercion. The speaker uses this to explain the potential for the president to exert undue influence over government officials by leveraging the threat of dismissal.

"The court has telegraphed over and over again that they're going to overrule the Humphrey's Executor precedent. I think this is about presidentialism, not originalism, and this is a real tension for the court, which they've tried to resolve by claiming the original reading of the constitution creates this strong presidential democracy. But every scholar of the 18th century knows that's not true, and the court at this point has to know that that's not true as a matter of history as well."

This quote, attributed to an unnamed speaker analyzing the Supreme Court's actions, critiques the Court's stated justification for its decisions. The speaker argues that the Court is prioritizing an expansive view of "presidentialism" over genuine "originalism," the principle of adhering to the Constitution's original meaning. The speaker asserts that historical scholarship contradicts the Court's interpretation of the founders' intent regarding presidential power.

"The administrative theory of fascism... I mean that very pragmatically, in a very scholarly way. If you were to go talk to fascist public lawyers in the 1930s and say, 'How do you think about administration?' they would say, 'Oh, under fascist government, administration is nothing other than an extension of the personality of the chief executive.'"

This quote, presented by Michael O'Loughlin, draws a direct parallel between a certain theory of presidential power and the administrative principles of fascism. The speaker uses this comparison to underscore the potential dangers of an executive branch that operates solely as an extension of the president's will, rather than as an independent body governed by law. The speaker emphasizes that this is not hyperbole but a scholarly observation about the nature of fascist governance.

"The Supreme Court seems to be confusing the president's power over the government with the kind of power monarchs exercise over the government, whereas the key feature of the American republic is that the president, like other officers of the United States, is nothing more than a creature of law."

This quote, from Noah Rosenbloom, articulates a core distinction between the American republic and monarchies. Rosenbloom argues that the Supreme Court appears to be blurring the lines, suggesting a presidential power akin to that of a king. He emphasizes that, in the U.S. system, the president's authority is derived from and limited by law, not inherent personal power.

Resources

External Resources

Books

  • The Federalist Papers by Alexander Hamilton - Referenced as a source for early discussions on the power of appointment and removal.

Articles & Papers

  • "The OG News Influencer" (Columbia Journalism Review) - Discussed as the piece that introduced the author to the legal case involving Perez Hilton.

People

  • Alexander Hamilton - Referenced for his writings in The Federalist Papers regarding government structure.
  • Brett Ratner - Mentioned as the director of Rush Hour 4, for whom Donald Trump reportedly advocated.
  • Brooke Gladstone - Co-host of the podcast "On the Media."
  • Candice Wong - Producer for "On the Media."
  • Clarence Thomas - Mentioned for asking a question during oral arguments in the Trump v. Slaughter case.
  • David Ellison - Son of Larry Ellison, mentioned as a potential buyer of Warner Bros. Discovery and for assurances made to Trump administration officials regarding CNN.
  • Donald Trump - Frequently mentioned in relation to presidential power, the FTC, potential media mergers, and his interactions with media figures and companies.
  • Edith Wilson - Mentioned as having managed the country during Woodrow Wilson's incapacitation.
  • Erica K Kirk - Mentioned in relation to Barry Weiss hosting town halls.
  • Erl Caldwell - Journalist for The New York Times, involved in a Supreme Court case regarding journalist subpoenas.
  • Frank Myers - A postmaster in Portland, Oregon, whose case against President Wilson regarding removal from office reached the Supreme Court.
  • Jared Kushner - Mentioned as a financial backer of David Ellison's bid to take over Warner Bros. Discovery.
  • Jennifer Munson - Technical director for "On the Media."
  • Joel Simon - Founding director of the Journalism Protection Initiative at the Craig Newmark Graduate School of Journalism, author of a piece on Perez Hilton.
  • Larry Ellison - Father of David Ellison, mentioned for discussions about potentially changing CNN hosts.
  • Lisa Cook - Member of the Federal Reserve, mentioned as having been targeted by Trump for her stance on interest rates.
  • Melania Trump - Mentioned in relation to Brett Ratner directing a documentary about her.
  • Michael Levenger - Co-host of the podcast "On the Media."
  • Michael O'Loughlin - Co-host of the podcast "On the Media."
  • Molly Rosen - Producer for "On the Media."
  • Nathaniel Donahue - Co-author of an amicus brief for the Slaughter case.
  • Noah Rosenbloom - Associate professor of law at New York University, specializing in constitutional law and legal history.
  • Oliver Darcy - Reporter and lead author of the newsletter "Status."
  • Perez Hilton - A blogger discussed in the context of press freedom and legal protections for journalists.
  • Rebecca Clark Calendar - Producer for "On the Media."
  • Rebecca Slaughter - Commissioner at the Federal Trade Commission, whose attempted firing by President Trump is central to a Supreme Court case.
  • Richard Brody - Film critic for The New Yorker, who used the term "monopsony."
  • Ryan Reynolds - Mentioned in relation to Blake Lively's dating history.
  • Scalia - Mentioned for his interpretation of the Humphrey's Executor case.
  • Sonia Sotomayor - Supreme Court Justice, quoted regarding the structure of government.
  • Ted Sarandos - CEO of Netflix, mentioned for seeking face time at the White House.
  • Travis Mannin - Video producer for "On the Media."
  • William Howard Taft - Former president and Chief Justice who ruled in Myers v. United States.
  • Woodrow Wilson - President whose actions and theories regarding presidential power were discussed.

Organizations & Institutions

  • ACLU (American Civil Liberties Union) - Represented Perez Hilton pro bono in a legal matter concerning press freedom.
  • CBS News - Mentioned in relation to changes under Barry Weiss and integration with The Free Press.
  • CNN - Mentioned as part of Warner Bros. Discovery and a potential point of contention in media mergers.
  • Committee to Protect Journalists - Joel Simon's former organization.
  • Craig Newmark Graduate School of Journalism - Where Joel Simon directs the Journalism Protection Initiative.
  • Federal Trade Commission (FTC) - An independent agency whose commissioner's attempted firing is central to a Supreme Court case.
  • Hollywood Union Leaders - Mentioned as speaking out against media mergers.
  • Justice Department - Mentioned for its guidelines on evaluating whether to subpoena a journalist.
  • Mako Foundation - Mentioned as doubling donations to "On the Media."
  • New York Public Radio - Parent organization of WNYC.
  • NFL (National Football League) - Mentioned in the context of sports analytics.
  • NPR - Mentioned as a platform to listen to "Pop Culture Happy Hour."
  • Perez Hilton's Blog - Discussed as a platform for celebrity culture chronicling.
  • Pro Football Focus (PFF) - Mentioned as a data source for player grading.
  • Supreme Court - Central to discussions on presidential power and the FTC case.
  • The Free Press - Mentioned as Barry Weiss's outlet, with plans for integration with CBS News.
  • The New Yorker - Publication where Richard Brody writes.
  • Trump Administration - Mentioned in relation to assurances made by David Ellison.
  • WNYC - Public radio station that lost federal funding.

Podcasts & Audio

  • On the Media - The podcast hosting this episode, discussed in relation to listener support and funding.
  • Pop Culture Happy Hour - Mentioned as a podcast available on the NPR app.

Other Resources

  • Stewardship Theory of the Presidency - A concept associated with Teddy Roosevelt, suggesting the president can do anything not affirmatively forbidden by the Constitution or laws.
  • Symmetry Rule - An early principle suggesting the power to appoint is the same as the power to remove.
  • Textual and Historical Evidence for Giving the President Unlimited Power to Fire Officials - An essay by Caleb E. Nelson.
  • The Apprentice - An Oscar contender mentioned as an example of a film that struggled with distribution.
  • The Federalist Papers - Referenced for early discussions on government structure.
  • The Free Press - Mentioned as Barry Weiss's outlet.
  • The Journalism Protection Initiative - An initiative at the Craig Newmark Graduate School of Journalism.
  • The New York Times - Mentioned in relation to Earl Caldwell's case.
  • The Presidency - Discussed in terms of expanding power and constitutional design.
  • The Stewardship Theory of the Presidency - A concept associated with Teddy Roosevelt.
  • The Trump v. Slaughter Case - A Supreme Court case concerning the president's power to fire an FTC commissioner.
  • The White House - Mentioned in relation to meetings with media executives and assurances made to Trump administration officials.
  • US Constitution - Discussed in relation to the framing of government and presidential powers.
  • Warner Bros. Discovery - A media company discussed in the context of potential acquisition by Netflix or Paramount.
  • WNYC - Public radio station that lost federal funding.
  • Anti-Royalist Founders - Mentioned in relation to concerns about presidential power mirroring monarchical power.
  • Bidding Process for Warner Bros. Discovery - Discussed in relation to Netflix and Paramount's offers.
  • Broadcasting Unit of Warner Bros. Discovery - Mentioned as part of David Ellison's bid.
  • Crony System of Patronage - Discussed in historical context of presidential appointments.
  • Decline of Cable Television - Mentioned as a factor in CNN's business model.
  • Executive Power - Discussed as a concept that the current Supreme Court may be fetishizing.
  • Fascist Public Lawyers - Mentioned in relation to the administrative theory of fascism.
  • Federal Funding for Public Media - Mentioned as a source of loss for WNYC.
  • Federal Reserve - Mentioned in relation to President Trump's attempts to influence its members.
  • First Amendment Protections - Discussed in relation to journalist subpoenas.
  • Gossip Beat - A historical part of journalism.
  • Hollywood Union Leaders - Mentioned as speaking out against media mergers.
  • Humphrey's Executor v. United States - A Supreme Court case concerning presidential firing power.
  • Independent Agencies - Discussed in the context of presidential control.
  • Journalism Protection Initiative - An initiative at the Craig Newmark Graduate School of Journalism.
  • Legal Filings from Justin Baldoni - Mentioned as a reason Perez Hilton changed his stance.
  • Legal Jeopardy of Perez Hilton - Discussed in relation to his subpoena and legal fees.
  • Media Mergers - A central theme of the episode, involving Netflix, Warner Bros. Discovery, and Paramount.
  • Monopsony - A term used by Richard Brody to describe reduced competition for scripts and IP.
  • Myers v. United States - A Supreme Court case concerning presidential removal power.
  • Nevada Shield Law Protections - Discussed in relation to Perez Hilton's legal case.
  • New York Shield Laws - Mentioned as having weaker protections than Nevada's.
  • No Kings Slogan - Used in protests against perceived monarchical presidential power.
  • Oral Arguments in Trump v. Slaughter - Discussed in relation to the Supreme Court's potential ruling.
  • Original Intent of the Constitution - Discussed in relation to the Supreme Court's approach.
  • Originalism - A judicial philosophy cited by conservative justices.
  • Paramount v. Netflix Battle - Mentioned in the episode description.
  • Patronage Positions - Discussed in the historical context of presidential appointments.
  • Pentagon Press Corps - Mentioned as being taken over by right-wing influencers.
  • Political Considerations - Mentioned as a factor in Supreme Court decisions.
  • Presidentialism - Discussed as a concept influencing the Supreme Court's approach.
  • Press Freedom - A key theme related to journalist subpoenas and legal protections.
  • Public Interest in Testimony - Balanced against First Amendment protections for press freedom.
  • Quasi-Judicial Functions - Discussed in relation to independent agencies.
  • Quasi-Legislative Functions - Discussed in relation to independent agencies.
  • Removal Power - A central issue in the Supreme Court case concerning presidential authority.
  • Rush Hour 4 - A film whose distribution was reportedly advocated for by Donald Trump.
  • Scholarly Work on Presidential Democracy - Mentioned in relation to Caleb E. Nelson's essay.
  • Settlement with CBS - Mentioned in relation to Donald Trump suing the network.
  • Shortwave Radio - Mentioned as a historical topic.
  • Sovereign Wealth Fund of Saudi Arabia, Qatar, UAE - Mentioned as potential financiers for David Ellison's bid.
  • State Shield Laws - Laws offering varying levels of protection to journalists.
  • Subpoenaed Materials - Discussed in relation to Perez Hilton's legal case.
  • **Supreme Court Justice Sonia Sotomayor

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