Trump V. Slaughter: The Supreme Court Redefines Presidential Power And The Future Of Independent Government With Richard Wilson

The Supreme Court’s decision in Trump v. Slaughter may become one of the most consequential constitutional decisions of the decade—yet many Americans have never heard of it.

At first glance, the case appears to concern whether President Donald Trump could remove Federal Trade Commission Commissioner Rebecca Slaughter before the end of her term. But beneath that question lies something far more significant:

Who controls the Executive Branch, and how much independent authority can Congress create outside the direct control of the President?

For nearly ninety years, the landmark decision in Humphrey’s Executor v. United States (1935) protected the independence of agencies like the Federal Trade Commission by limiting a president’s ability to remove commissioners without cause. In Trump v. Slaughter, the Supreme Court overturned that long-standing precedent, concluding that the Constitution requires the President to have the authority to remove executive officers who exercise executive power.

In this episode of Hot Topic, Bold Talk, attorney Richard G. Wilson and Dr. Jackalyn Rainosek, mental health professional, coach, and organizational development consultant, examine this historic decision from multiple perspectives.

Together they discuss:

Why Humphrey’s Executor became one of the most important separation-of-powers cases in American constitutional law.
Why the Supreme Court concluded that the Federal Trade Commission exercises executive power that must remain accountable to the President.
The majority opinion written by Chief Justice John Roberts and its reliance on Article II of the Constitution, the Federalist Papers, and the writings of the Founding Fathers.
Justice Sonia Sotomayor’s powerful dissent, which argues that the Court abandoned decades of constitutional precedent and threatens the independence of long-established federal agencies.
Justice Neil Gorsuch’s concurring opinion, which raises profound questions about whether Congress should continue delegating broad legislative and adjudicative authority to agencies now subject to direct presidential control.
How this decision may reshape the relationship between Congress, the Presidency, and the administrative state for generations to come.

Whether listeners agree with the majority, the dissent, or remain undecided, this case deserves careful attention. It reaches far beyond one commissioner or one administration. It asks fundamental questions about accountability, the separation of powers, the role of independent agencies, and the constitutional structure designed by the Founders.

As always, Richard Wilson provides his legal analysis while Dr. Jackalyn Rainosek explores the broader leadership, organizational, and societal implications of the Court’s reasoning. Together they invite listeners not simply to react to the headlines, but to understand one of the most significant constitutional decisions in recent history.

Because informed citizens strengthen democracy, this conversation encourages listeners to examine the Court’s reasoning, consider the competing constitutional arguments, and decide for themselves what Trump v. Slaughter may mean for the future of American government.

Episode Summary Points:

The Case: Trump v. Slaughter (2026) concerns the Supreme Court’s ruling on the president’s authority to terminate commissioners of independent agencies like the Federal Trade Commission (FTC).
The Ruling: The Supreme Court overruled the 1935 precedent, Humphrey’s Executor, which had previously established that commissioners could only be removed for “cause” and protected them from at-will termination by the president.
Expansion of Executive Power: The decision significantly empowers the executive branch by allowing the president to terminate heads of many quasi-executive agencies—such as the SEC, FCC, and FTC—at will, potentially leading to increased partisanship and frequent turnover in non-partisan administrative bodies.
Historical Context: The Court’s majority adopted a view consistent with the “unitary executive theory,” emphasizing the president’s appointment and removal powers, while the dissent (led by Justice Sotomayor, joined by Justices Kagan and Jackson) argued for maintaining the long-standing precedent to protect the independence and expertise of these agencies.
Concerns for the Future: Both the expert, Richard Wilson, and the dissenting justices expressed concerns that removing these guardrails could undermine the technical expertise required for regulatory decisions and transform these agencies into partisan political vehicles, effectively destabilizing the non-partisan foundations established over the last 90 years.
Public Impact: The decision risks placing significant power in the hands of a single individual, potentially challenging the founding fathers’ design of a government with checks and balances against a monarchy or a singular concentration of power.

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Watch the episode here

Listen to the podcast here

Trump V. Slaughter: The Supreme Court Redefines Presidential Power And The Future Of Independent Government With Richard Wilson

I’m privileged to have Richard with me because he’s my legal expert that’s going to help us understand Donald J. Trump versus Rebecca Kelly Slaughter. It’s quite a case that is important. Now, I was talking with Richard and I want to tell you I’m not the lawyer, but I want to tell you what my thoughts were about this case. My general comment is that the Supreme Court has taken Humphreys, which was a case that established standards for years and did the same thing they did with the Voting Rights Act of 1965 Section 2. It was to try to destroy the arguments in both of those situations to build a case to eliminate the value of Humphreys.

We’re going to talk about Humphreys, but we’re going to talk about many of the things as well. Now, unfortunately, what I think that you need to understand is the Supreme Court is given the president the right to fire anyone that appears to be in the executive branch of government with no guidelines for him about how he can fire them or what they’re going to be fired for, whether it’s their behavior or actions. There’s no guidelines for him. That is certainly dangerous.

This is a case that I’m going to ask the readers to listen to what Richard is saying because you will want to understand this and be very clear about what’s happening with this particular case. I’m going to ask you to, Richard. What is Slaughter looking for? What is her argument first before we get into the Supreme Court argument?

Executive Removal Power & The Slaughter Lawsuit

Thank you for having me again, as always. Rebecca Slaughter, the plaintiff in the lawsuit, was appointed to the Federal Trade Commission in 2018 by Donald Trump during the Biden Administration. She was subsequently reappointed to another term. The Federal Trade Commission is made up of five commissioners that make decisions on a broad range of topics concerning commerce in particular. When Trump came back into office in 2025, he attempted to terminate Rebecca Slaughter as a commissioner on the Federal Trade Commission.

Slaughter, in turn, filed suit and said the president did not have the right to terminate her at will. Trump did not give a reason for her termination. She relied upon the statute allowing for the appointment of commissioners to the Federal Trade Commission that the requirement be for, what I will generally refer to as cause, and that there was no cause for her removal. Now, in the district court, Slaughter was able to obtain a summary judgment in her favor. The reason for that is, there is a 1935 US Supreme Court case called the Humphreys Executor.

The Precedent Of Humphrey’s Executor

The 1935 case concerned William Humphrey, a former Commissioner on the Federal Trade Commission who FDR tried to remove at will. In that case, the Supreme Court said, “The Federal Trade Commission performs many duties that are outside of the executive branch. It has certain duties to establish guidelines and regulations that can be enforced. In that way, it performs a lot of legislative functions.” In Humphrey’s Executor, the US Supreme Court said, “Since this commission is not surely executive, we don’t believe that the Constitution’s grant of authority to the executive to appoint commissioners and by extension to fire them, applies to this commission. This is not something the president can do at will.”

What ended up happening is Humphrey passed away about 4 to 5 months after filing his lawsuit. The reason it’s called Humphrey’s Executor is because his estate was awarded back pay for the time frame that he should have been on the commission before he passed, but had been removed by Roosevelt. Coming back to Ms. Slaughter. She pointed out that she had a case directly on point. The trial court agreed whether a summary judgment was granted in her faith. The executive branch then took the case up. Sought a stay and the case ultimately ended up in the United States Supreme Court, where the Executive Branch President Trump was arguing that Humphrey’s Executor was no longer good law and needed to be overruled.

That was what Ms. Slaughter was looking for. She had a case directly on point and said, “The Humphreys Executor case says he can’t do this.” The district court pointed out, “The Supreme Court president directly on point. I’ve got to follow it,” and it did so, which then brought this case before the US Supreme Court this past term.

One of the things that I hadn’t thought about but I think would be helpful. What are some of these commissions that have commissioners on it? That is not under the preview of the executive branch? Could you give me an example or two?

Let me qualify my answer. After the decision we’re discussing, Slaughter. There were arguably very few. The one example I can think of offhand would be the Federal Reserve Board because of the Lisa Cook case that was handed down the same day where the Supreme Court said, “The Federal Reserve board is not something that falls under the article to a point where the president can remove governors on the Federal Reserve Board at will.”

Affected Independent Commissions & Agencies

However, prior to this decision and Slaughter, there were numerous and they’re still are numerous federal agencies that do not just perform truly executive functions. In Gorsuch’s concurrence, he goes through some of the statutes creating these agencies. Essentially, in addition to the Federal Trade Commission, there is the Federal Communications Commission, which has certain enforcement power and the power to hand down regulations. Most readers should be aware of that because of threats that have been made by the chair of the Federal Communications Commission in relation to some jokes made by Jimmy Kimmel about the current president of the United States.

Another example is the Securities and Exchange Commission, which has certain rule-making abilities and administrative proceedings to enforce those abilities that are both legislative and judicial in nature. The same is true with the federal elections commission, which has the ability to impose fines to people that violate the election rules regarding the reporting of contributions and things of that nature. That is 4 or 5 that I think a lot of our readers will be familiar with.

There are others like the Consumer Financial Protection Bureau, which was established, I believe during President Obama’s term, would arguably be one such agency. There are a substantial number of them. The regulatory and different agencies regarding the environment controls and enforcement. There are a lot of these types of commissions and agencies that exist and under Humphrey’s Executor. Those types of agencies. If the statute that creates them provided that the commissioners, governors, or whatever the positions are called, could only be removed for cause that limited the president’s ability to remove those individuals.

One of the things about all of your examples is we don’t want one person to make a decision about the Federal Trade Commission or many of the other things. We are trying to protect the rights of American people to do business in ways that are acceptable and ways that we can protect our environment or a number of other things. I appreciate you giving us at least a few of the examples. You mentioned, though, with this case, there could be some real possible changes in what is happening with these various agencies where they have enforcement but they may not come under the executive branch.

Unfortunately, I don’t think in this case, they have distinguished between which agencies and commissioners are not under the executive branch. We can talk about all these issues. I know you’re well prepared to talk about all the issues and talk about the threats with this particular decision. I’m going to stop now, but I just wanted to mention those to try to get people to look at it. Humphrey’s is extremely important. Could you please go into a lot more detail? For several years, it has made the rules for a lot of these agencies and commissioners.

From a background standpoint, there were many cases when FDR was working to push through his new deal legislation where the Supreme Court was stepping forward and invalidating many of those statutes. As one of the opinions points out, the Humphrey’s Executor case might have been the decision by the Supreme Court that aggravated FDR the most and led him to want to try and hack the Supreme Court all the way back in 1935-1936.

Ultimately, what we get down to is Humphrey’s Executor where you had these agencies put certain limits on the ability of the president to remove the people that run those agencies. The idea behind Humphrey’s Executor from a conceptual standpoint is where we’ve got these administrative entities that have been created in the federal government that are supposed to be non-partisan. We want to protect them from purely partisan appointments and protect them from having complete and total turnover every time we have a new president elected and taking office.

When we’ve got these administrative entities, we want to protect them from purely partisan appointments.

Impact Of Overruling Humphrey’s Executor

Some legal scholars that I have read have said that the Slaughter case will be the most significant case decided by this court during President Trump’s second term. What we’re talking about and we can get into the history, the analysis and what led the court to this 6-3 decision. What we’re talking about is with a few exceptions. As I said, the Lisa Cook case was handed down the same day. It made it clear the president doesn’t have the right to terminate members of the Federal Reserve Board at will. That’s one federal agency that we know is safe from termination at will by the president.

Another type of federal appointment while not a federal agency that the majority opinion indicated what arguably be protected under the standard set-up and Slaughter would be certain court appointees like judges in tax courts where the tasks that they’re performing are purely traditional in nature. If those appointments are designed to be for a set term where they can only be removed for cause. Those types of appointments very well may be free from being terminated for cause. Ultimately, what you now have is a circumstance where commissioners on the EPA, commissioners on the commodities and Futures Trading commission, commissioners on the SEC, the FCC, the FTC, the elections commission.

There are more federal agencies that I can count where what the Supreme Court allowed by the Slaughter decision. Every time someone new gets elected, in addition to all of the other changes that occur whenever a new president takes off office such as, the cabinet members being appointed by that president. Now, we’re talking about a president being able to just completely wipe the slate clean. With regards to the SEC, the president can whack all of the commissioners and a point to people that he or she chooses.

The same is true with the FTC, the FCC, all of these types of administrative agencies that form quasi executive functions, are now free for the employment in these agencies to be at will, which means, regardless of party affiliation. Every four years, there’s going to be a massive level of upheaval. There are arguably going to be massive vacancies that affect the ability of these agencies to adequately perform their functions for a period of time until new people are appointed to fill those positions.

The agencies are going to become more political. With many of these agencies, the idea is we don’t just point to people that are former members of congress or former governors. The idea is that, the Environmental Protection Agency, were appointing people that are scientists that understand what we’re asking them to do. What we’ve done is we’ve created a new playing board, a new Monopoly board for the president where all of these agencies are now subject to political appointments and they’re going to turn over every four years.

The other problem that we could foresee happening is even where you’ve got presidents that want to appoint qualified people that can appropriately do the job of some of these agencies. To be blunt, if a commissioner’s position was offered to me. Why in the hell do I want to leave my job in the private sector and set aside 30 years of practice in the client base I built up to take an appointment on a commission for 8 or 12 years? When I know the reality is, I’ll only be on that commission for four years tops. What you’re going to have, I think is you will have many qualified people that will no longer want to serve because they understand, best case scenario, I’m in this job for 42 months.

That’s the thing that worries me about this case. What we have to do is we know what Humphrey’s was about and we know what was established. It had some very good guidelines. They were very clear and it is established a lot of these agencies are being forced and some would separate from the precedent. One of the things that the Supreme Court did that Slaughter herself did and the descending judges did was they went and looked at the history.

The Federal Papers, the history of what the founding fathers were doing. It’s important at this point to describe what we see as what our founding fathers said, and what the federalist papers said in some other things about the history so we can show how the Supreme Court changed some views of these experts in order to have the decision they made.

What you now have is a circumstance where commissioners on the EPA, commodities, SEC, FCC, FTC are now free to be at will.

The majority opinion in particular begins with, and for a lot of our readers know, the US starts as an independent nation after the war. Originally, the US was governed under what we’re referred to as the Articles of Confederation. In large part, the government as set up then was designed so that there wasn’t too much power in one person’s hands. It was a reaction to not wanting to have another King. I think it was 1787, the founding fathers and others involved in the government realized that the system that they had set up wasn’t working very effectively.

Having all of these decisions made ultimately by committee had many problems. The majority points this out and points it out as the basis behind the Constitutional Convention and in particular, the creation of the executive branch and exactly what kind of power was desired in the executive branch. They go through discussions over different languages and in particular, the power of appointment and by extension removal is in Article II, Section 2 of the Constitution.

To read the particular phrase at issue, referring to the executive, “He shall have power by and with the advice and consent of the Senate to appoint ambassadors, other public members, and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law.” If the means for appointing those people was not set up in the Constitution, it was left to the President to do with the advice and consent of the Senate.

Constitutional Origins & Article II Debates

Now, the debate that goes on, and essentially there were two views behind that language and its intention at the Constitutional Convention. The court talks about three views, but there are two views that are important and bear discussion because those are the views taken by the majority and the dissent.

The view the majority adopted was the view expressed by then Congressman, eventually President Madison, which was that, “There needs to be more power in the executive. Even if the appointment is with the advice and consent of the Senate, if the president finds that the people that he has appointed are to act as his functionaries, to act as his agents, and do what he wants done, are not doing what the president wants done. He should be free to remove those people without having to seek the leave of the Senate for their removal.”

The counter view espoused by Alexander Hamilton, the same Hamilton about whom the musical is written, was that, “If the appointment may only be done with the advice and consent of the Senate, then by extension, the removal must only be done with the advice and consent of the Senate.” This was a dispute that ultimately happened 100 years earlier in the Myers case, which Humphrey’s Executor chose to deviate from.

That case involved Myers v. United States, which involved a postmaster in Portland, Oregon. In that case, then Chief Justice Taft, formerly President William Howard Taft, went through the history. He argued that despite the views Hamilton expressed during the Constitutional Convention, Hamilton came to agree with Madison and adopt the other view. One way or the other, the view Hamilton took to that language where there was not explicitly a right to removal was that removal also had to be with the advice and consent of the Senate.

The view Madison took was that once they were appointed, the president could fire him at will. The majority goes through that view. The majority talks about the ultimate adoption of that view. The prevalence of that view is becoming the more preferred and more commonly accepted understanding of the president’s appointment powers over time. The majority acknowledges Humphreys’ Executor and the rationale on which it was based that, “If we’re talking about offices that are not purely executive, then Congress can, in establishing those offices, establish limits to the removal of people from those offices.”

What the Supreme Court does is it takes a different view where Humphrey’s Executor looked at some functions being performed by the Federal Trade Commission that were legislative or quasi-judicial. Essentially, the Supreme Court and Slaughter looks at this from the other side of the window. They say, “If there are functions that this commission performs that are within the executive authority, then the executive can remove these people.”

The decision the majority makes is President Trump can remove Lisa Slaughter at will, even though the statute permits removal only for cause. The court ultimately decides that the law’s limitation on the power of removal is unconstitutional. It runs afoul of Article II, Section 2 of the US. Constitution. Now, this is another one like the Barbara case we discussed. You’ve got two sides arguably taking a strict construction of the Constitution, and the variance of their interpretations is in the different ways in which they define either the language that is in the constitution.

The Dissenting View & Stare Decisis

In the previous, it was subject to the jurisdiction thereof, or the language they choose to use to fill in gaps in the constitution. Again, this is the US Constitution. Pretty thin and pretty small. It’s very much unlike state constitutions that can be a thousand pages thick. There’s a lot that is left to interpretation. That is ultimately what it comes down to. It comes down to a matter of interpretation. The view taken by the minority of Justice Sotomayor writes that opinion, is that, “We agree with Hamilton’s point of view. Here’s some historical bases for Hamilton’s point of view being the right way to view this situation.”

If limitations can be placed on the power of removal under Article II, Section 2, if it is not solely at the will of the president, then Congress can define circumstances where the president can act and remove people. Congress can limit it or expand upon the president’s right to remove it. It all has to do with whether or not appointment with the advice and consent of the Senate allows removal without the advice and consent of the Senate because the Constitution is silent on the issue of removal.

The six-person majority or the six-judge majority says, “Advice and consent is not needed for removal,” which is what the court decided in Myers 100 years earlier, the two-person minority. I don’t think Justice Jackson participated in this decision, saying, “There can be appropriate limitations on the right of removal.”

Let me say one thing. Jackson’s name is on the descent along with Sotomayor and Kagan. She did include herself in that.

I was not aware of that. I thought it was a 6-2 decision. Not a 6-3 one.

I’m sitting here looking and it’s Sotomayor with Justice Kagan and Justice Jackson.

Sotomayor filed a dissenting opinion in which Kagan and Jackson joined. My bad.

That’s okay.

That’s on me, but where I was going to go is, honestly, with the amount of governmental duties that have been placed in these administrative bodies, there is no clean, perfect way to go about it. Arguably, if we were to impose on certain agencies, the requirement that the president obtain the advice and consent of the Senate to remove individuals from these offices. I know a lot of our readers are going to say, “The Senate doesn’t do anything to begin with these days.”

Arguably, the Senate could be left occupying a large amount of its time simply voting to remove people from different commissions and boards and the like. The problem with it, given how large the government has become, is there can be pitfalls to each side of this argument in circumstances where the statutes creating these commissions have not set up appropriate guardrails for the removal of commissioners or governors or whatever positions exist therein.

I want to make that point. As I said, the way I view it is, I am not persuaded that based upon the language in the Constitution, one side or the other truly has the better argument because the Constitution clearly is silent as to the issue of removal. The two things that lead me to believe that the Supreme Court got this one wrong are the consequences of what they have done, which Gorsuch touches upon in his concurrence.

Before we go into Gorsuch, can you be very clear because as I’m reading this case, I found that the ones that made the decision for the Supreme Court seem to be trying to build a case that I thought was very simplistic with a very complex situation. Can you be clearer on what the Supreme Court really did and then we’ll go into the consequences of it? Maybe we can go into looking at what Sotomayor and Kagan and Jackson said. I think some of their points are well taken that counter what the majority did.

I agree with you. What the Supreme Court did was they pointed out that in Myers v. United States, the Supreme Court 100 years earlier had decided there is an at-will right to removal of executive appointments. Eight or nine years later, they said in Humphrey’s Executor, “There are certain executive appointments that we’re going to carve out of the broad grand of Myers.” I think Humphrey’s Executor may have been a unanimous opinion. I cannot recall. I know there was a dissent in Myers, but I don’t think there was a dissent in Humphrey’s Executor.

What the majority does is they say, “Myers was the general rule. Humphrey’s Executor is the exception to that rule.” Applying the law now, the Federal Trade Commission doesn’t fit within the framework of the appropriate exceptions to the president’s ability to terminate agency appointments at will. That is ultimately the simplistic ruling or decision. Now, the second point I was going to come to and the problem I have is the concept called Stare Decisis. Essentially, when we’ve got a settled opinion from the court, it should be left alone.

The court goes through this analysis, “We don’t have to leave this alone. We can overrule Humphrey’s Executor.” In overruling Humphrey’s Executor, I talked about the ability to just terminate so many of these people at will, but it’s something that I think Gorsuch touches upon the most in his concurrence. Beginning in 1935, when the Humphrey’s Executor case came down, and again, it was a unanimous decision. What Congress then realized is, “We can delegate certain responsibilities to the bureaucracy, to agencies that we establish.”

Upsetting Decades Of Precedent & Congressional Intent

Where Congress did that, it did that with the understanding that we can set limitations on the removal of people appointed to these positions. That is one of the issues or elements of stare decisis. It’s essentially if we pull this card out, is the whole damn house going to come down? What the three-person dissent says and what Gorsuch honestly agrees with is that, “We have just set aside 90 years of laws that were passed or statutes that were passed,” and became law based upon the belief by Congress that they had the ability to do these things.

They had the ability to create nonpartisan agencies by setting terms of 6 or 8 or 12 years and setting limitations where someone could only be removed for incompetence or conviction of a major crime. Things that make it clear that they are now unfit to hold the position. Gorsuch points out that we have just upset the Apple cart. There are a lot of agencies out there that now are no longer safe havens. They’re no longer nonpartisan. We’re turning them into partisan vehicles.

Thank you. I think that’s very clear. That’s what scares me about this case, particularly at this time in history with the president we have. One of my questions to you at the beginning, and I showed it to you, is that, how does this decision affect the founding fathers’ desire to protect us from a monarchy? How does it truly affect the three branches of our government? Now, I happen to know the only one that’s functioning is the judicial branch.

The congressional branch is basically controlled by Trump, so they do what he says or they lose their position. My thing about this is, this decision affects and gives more power to the executive branch or I may be wrong. I don’t think that the founding fathers established three branches and said, “Now, we’re going to make you, Supreme Court, have the right to make a decision that’s going to make the executive branch much more powerful than the rest of them.” I think of all these agencies and all these commissions you’re talking about, and now this whole shift to partisanship, when I think the Congress thought it was literally building agencies and commissions that were nonpartisan.

There are a lot of things. To start with, I would take issue with one thing you said. I think there are two branches of the government that are functioning. You may not like the way the executive branch is functioning, but it arguably is functioning. Maybe not in the appropriate fashion, but it’s still functioning. Now, moving beyond me taking issue with that statement, going back to the past 90 years and what Congress has done. Congress delegated substantial amounts of its legislative power to these governmental agencies.

Executive Overreach And Balance Of Power

By now making those agencies subject to the control of the president through the at-will termination of the members serving on those agencies, the executive branch has just been made far more powerful, in my opinion, than either of the other two branches of government. The judiciary can ultimately say, “You can do this. You can’t do this.” At the end of the day there has to be a reliance on the executive branch following the guidelines or guardrails set down for it by the judicial branch.

The executive branch has just been made far more powerful, in my opinion, than either of the other two branches of government.

Going back to the concept of our founding fathers, which is what you were touching upon. This decision probably takes us closer to not a monarchy, because the position would not be held by birthright, but certainly some form of regime where you have an oligarch or a substantial amount of power being placed in a single individual so that the function is not that much different from the monarchy if the US tried to break from.

If I recall correctly, Justice Sotomayor touches upon how the majority’s view or opinion runs afoul of what was intended when this country declared its independence that even in 18th century England, there are certain limitations that had been placed upon the monarchy that are greater limitations than are now being placed on the executive branch as a result of this decision. It concerns me when you have someone like King George III who wasn’t in the proper mental state due to suffering from porphyria or President Trump, whatever his faults may be.

That when you have someone who does not make sound decisions, that substantial damage can be done to this country. What is the quote that was attributed to Benjamin Franklin after the constitutional conviction? It was something like, “What have you given us? What have you wrought?” His answer was, “A Republic, if you can keep it.” I wasn’t alive 150 years ago. I would argue that the Civil War was a greater level of upheaval to the idea of the United States than this is.

Again, I think the reason readers should be concerned is the person that holds the White House and with whom we may disagree is not always necessarily going to be a member of the opposing political party. Going back to 90 years ago, Franklin Delano Roosevelt was trying to exercise a substantial amount of power as a member of the executive branch or as the president. At that time, it was the Supreme Court through cases like Humphrey’s Executor that set up certain parameters to rein in Roosevelt’s efforts to create what’s now referred to as the unitary executive theory. Where pretty much all the power is placed in the White House through executive orders, at-will appointments, and at-will firings.

A lot of the structure of our government is set up based upon unwritten rules, if you will. It’s not baseball, but there was nothing that limited George Washington to two terms. Washington only served two terms for fear that he might accumulate too much power, and might be seen more like a monarch. It was a decision he made supposedly for the good of the country. I would note that after Washington made that decision, for roughly 140 years, everyone else followed his lead until FDR, again, a Democrat in the White House, decided, “I’m going to keep running.”

After FDR was no longer in office, a constitutional amendment was passed to limit the president to terms. Prior to the constitutional amendment, it had always simply been a pardon for the sexism of the remark, something that was done by a gentleman’s agreement. The same is true of presidents placing their assets in a blind trust so that they could make decisions for the good of the country as a whole, as opposed to decisions that would be more beneficial to their pocketbook.

There is so much of our current system of government that is largely based upon these civilized guidelines or civilized conduct in society that the current executive hasn’t followed. The concept of attempting to fire Ms. Stallworth, even though you had the Humphrey’s Executor case. Arguably it was done wholly to test and attempt to overrule a decision that had been previously criticized by members of the current court. Essentially, like the Dobbs case with abortion. This was a softball to see if the court is configured to overrule a case that the existing administration finds to be problematic. Lo and behold, the court did so.

I’m so glad you’re going into the details of this and you’ve explained it because you’ve done a fabulous job in doing that. I would like to do something. I would like to read some of the dissent by Sotomayor and Kagan and Jackson if you don’t mind, because I would like to have you make a comment about some of them. Some of them I think need to be read. You highlighted them for me, but they make sense to me and they will also make sense to the readers.

There’s one in particular on the very first page, “In these and many other areas, the wisdom of centuries has taught that some decisions should depend not only on who’s in office. Much less on who is disfavored or owed a favor by those in office, but also on judgment, expertise, and the public good.” I don’t think this case has supported the public good. I think they’re giving us a message here. What do you think the message is in this paragraph?

I’ve discussed this with you previously. A case we haven’t talked about, the Loper case, unruled concept called Chevron deference. I’d like to focus on that because that was the reason I highlighted and put the comment in this language. I touched upon so many of these commissions being nonpartisan. Again, Gorsuch touches upon this and his concurrence as well. That many of these bodies are established and the people appointed to them are people that have scientific or technical expertise.

People who know what they’re talking about when it comes to the regulation and approval of drugs. People who know what they’re talking about in respect to the Federal Reserve Board about monetary policy. People that understand that cutting interest rates just because that’s what the president wants to do would ultimately be problematic to the economy because it could cause the type of hyperinflation that other economies like Argentina, Mexico and Venezuela have experienced.

Too much money ultimately leads to everything costing them, says the lawyer who has only a pedestrian understanding of these economic concepts. Many of the appointments are made focusing on the technical background and credentials of the people serving on a particular governmental agency. For me, what she’s pointing out is that laws that were established to protect the country have been turned on their ear by the decision. The wisdom of the centuries has taught us that some decisions should depend not only on who is in office, but also on judgment expertise and the public good. The point being made is that these decisions are now solely dependent upon who is in office with rare exceptions like the Federal Reserve Board.

Laws that were established to protect the country have been turned on their ear by the decision.

Warnings From The Dissenting Justices

There is one other thing that she talks about later on. It’s on page 48 in descent. I want to read it because I think that’s when I felt disturbed and clear about what was going on. She says, “The majority decision continuing that trend today is egregiously wrong. In this case, the court takes one of the oldest debates in American history and decides that six justices in the majority alone ought to be the ones to settle it for all time.”

“That decision does not just overrule precedent. It all but ignores that precedent exists. It does not just hamstring the political branch’s ability to respond to new challenges. It rewinds the clock nearly 150 years, holding that a common agency structure is and always has been forbidden. It is true that today’s decision does not eliminate the FTC or many other agencies whose structures are implicated by overruling Humphrey’s.”

“It is undeniable, however, that those agencies will be transformed in ways that those who created them never would have expected and actively sought to avoid fundamentally the balance of power in this country in the process.” She goes on and says, “Will those transformations yield the benefits sounding in responsiveness and accountability that the majority touts or will they risk placing in the hands of a bold and designing man of high ambition an instrument of the worst oppression? Which will sacrifice every principle of independence to the will of the precedent.” The reason I read that is because I think these three justices were speaking to us and trying to tell us what’s going on so I’ll be very interested in what you have to say with those comments.

It’s starting off with, six justices in the majority alone ought to be the ones to settle it for all time. There was a question you asked me before we started. Will this decision always be there, or will this always be the law going forward? I think it was the more artful way in which you asked it. My answer was no. The same way that this court overruled Humphrey’s Executor. If you arguably have a change of just two justices that disagree with the majority’s point of view, we could have a circumstance where multiple decisions made in the past five years, the Loper case that overruled Chevron deference.

The Dobbs case that overruled Roe v. Wade. The election cases that we’ve talked about, Calais and Louisiana. In this case, Slaughter could be overruled by a different configuration of the court that basically says in each of those cases, “We had case law that was around for 50 years, 80 years, 90 years, 100 years. Through a simple majority of this court, in five years, many of the rules governing our society were set aside by just a handful of people.”

To me, that’s the underlying message of the opening sentence you read. At the end, the one sentence you did not read is, “Neither I nor the majority knows with certainty.” She’s probably talking about knowing with certainty what will happen as a result of this decision. Why do I say that? She cites a case from the story versions of the US Supreme Court opinion. We’re talking about close to 200 years ago, the statement was made by the court. Will they risk placing in the hands of a bold and designing man of high ambition an instrument of the worst oppression?

In the wrong hands, a lot of damage can be done. Arguably in the right hand, someone with the character and intelligence of an Abraham Lincoln or a George Washington, choosing two people that held a position so long ago that none of us lived and that hopefully everyone will acknowledge our beyond partisan politics. With the hands of someone like that, putting so much power in the executive branch could prove beneficial to the country. It would allow things to be done much faster.

I fear that, unfortunately, with this decision, for practical reasons, the court has gone in the ops direction.

There are certain concepts ingrained within our Constitution. The idea of guilt beyond a reasonable doubt. The whole idea there is, it’s much better for society if a hundred guilty men go free rather than one innocent man goes to prison. The whole concept and the idea behind many of the elements of our founding documents of the Constitution was an idea of, “Let’s set up these guardrails to protect against the bad thing, even if it could prevent a good thing from happening.” In that regard, even though there’s no language in Article II, Section 2 of the Constitution I can point to support her opinion, there are certain concepts that are accepted as being part of the fabric of the Constitution that support this statement and the ideas behind it but that’s just me.

I know, but Richard, I know you well, I think. To me, you’re ethical, honest, straightforward ability to admit the two different points of view, how both had possibilities. When we’re showing the points of view and yet we’re showing the consequences in this current day situation, then that’s the best thing we can do for our readers. That’s the reason I chose you as the lawyer that I wanted to work with because I respect who you are. I trust that you make the greatest effort possible for us to fully understand or somewhat understand what is happening with each case.

I want to say that I’ve certainly learned a lot in this situation. I said to you, this is a case that I understood finally along with the others, and had more ideas about what it was. It made a lot of sense to me. I certainly am more in the dissent group than I am in the majority. I want to thank you. I want to give you a chance, if there’s anything else you want to say before we end this episode, please do so at this point.

I touched upon this and may have already said it but, to me, it’s worth saying again. Your readers can feel free to disagree with me. I cannot point to a particular word in the section of the Constitution that we’re dealing with that I would say clearly supports my viewpoint. To me, I am concerned more about this decision than any other, and again, we’ve touched upon this already. What we have is almost a century of the legislative branch saying, “We’re going to move these powers into administrative agencies and let them make these decisions.”

The Food and Drug Administration will decide what drugs meet the appropriate guidelines to be safe for use in the United States. Now, arguably, as many viewers are seeing with the current configuration of health and human services and the ability to make these political appointments. Not necessarily based on expertise, but on partisan politics. There are concerns about exactly where we’re going. It’s simply another specific example I’m giving, but I agree with the dissent for practical reasons. I can’t say that I think they’ve read the text of the Constitution right, but let’s face it.

There have been many important decisions in the history of this country where you cannot find specific language in the Constitution to support the decision. The decision was made largely on practical grounds because it was just the right thing to do. The one that immediately comes to mind is Brown v. Board of Education. I fear that, unfortunately, with this decision, for practical reasons, the court has gone in the ops direction. That’s where I’ll end it.

I appreciate you ending it that way, and always, I’m very grateful. I want to ask my readers to possibly read this one again, because I think you’re going to learn a tremendous amount. One of the things that I know is, any individual voter has a voice. When the election time comes, we can help make some of those decisions then it may take some time for us to change things. We certainly have the power with our vote to help make those decisions in our country. Thank you so much.

Important Links

Richard Wilson on LinkedIn

Supreme Court Decisions

Constitutional Sources

Historical Sources Cited by the Court

Madison, James. The Writings of James Madison.
Hamilton, Alexander. The Papers of Alexander Hamilton.
Washington, George. George Washington: Writings.
Story, Joseph. Commentaries on the Constitution of the United States.
Marshall, John. The Life of George Washington.
Wood, Gordon S. The Creation of the American Republic, 1776–1787.

About Richard Wilson

KERR WILSON, P.C.

16676 Northchase Drive, Suite 450

Houston, Texas 77060

(281) 260-6304

EDUCATION

University of Texas at Austin, J.D., 1995

Louisiana State University, B.S., Finance, cum laude, 1992

BAR ADMISSIONS

State Bar of Texas

S. District Courts for the Eastern, Northern, and Southern Districts of Texas
S. Court of Appeals for the Fifth Circuit

PROFESSIONAL EXPERIENCE

Kerr Wilson Houston, Texas

Shareholder 2008- present

Represented clients in breach of contract, tort, employment, and insurance cases
First chair trial experience
Lead counsel in multiple appeals in both state and federal appellate courts
Advisor for small and mid-sized businesses in the energy industry
Responsible for all facets of managing and operating a law office

McFall, Breitbeil & Shults Houston, Texas

Associate & Shareholder 2001- 2008

Represented clients in breach of contract, tort, employment, and insurance cases
First chair trial experience
Lead counsel in multiple appeals in both state and federal appellate courts
Established the budget, managed litigation, identified corporate objectives, retained local counsel and experts, and tried complex cases that were pending in multiple jurisdictions

Chamberlain, Hrdlicka, White, Williams & Martin Houston, Texas

Associate 1997-2001

Hirsch, Robinson, Sheiness & Glover Houston, Texas

Associate 1995-1997

ACHIEVEMENTS

First chair jury trials in professional liability, breach of contract, insurance, trade secret, and personal injury cases
Appeals to the Fifth Circuit and Texas appellate courts
AV Rated by Martindale-Hubbell

PUBLISHED CASES

Webb v. Crawley, 590 S.W.3d 570 (Tex. App.—Beaumont 2019, no pet.)
O’Hern v. Mughrabi, 579 S.W.3d 594 (Tex. App.—Houston [14th Dist.] 2019, no pet.)
Sheller v. Corral Tran Singh, LLP, 551 S.W.3d 357 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
Kelly v. Nichamoff, 868 F.3d 371 (5th Cir. 2017)
Stallworth v. Ayers, 510 S.W.3d 187 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
Galindo v. Prosperity Partners, Inc., 429 S.W.3d 690 (Tex. App.—Eastland 2014, pet. denied)
Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 390 (5th Cir. 2014)
Allstate Tex. Lloyd’s v. McKinney, 964 F. Supp. 2d 678 (S.D. Tex. 2013)
Glattly v. Air Starter Components, Inc., 332 S.W.3d 620 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
Willbros RPI, Inc. v. Continental Cas. Co., 601 F.3d 306 (5th Cir. 2010)
Duerr v. Brown, 262 S.W.3d 63 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003)
King v. Dallas Fire Ins. Co., 85 S.W.3d 185 (Tex. 2002)

PUBLICATIONS

Author, From Advocate to Party – Defenses for Lawyers Who Find Themselves in Litigation, 61 LAW REVIEW OF SOUTH TEXAS COLLEGE OF LAW 43 (2020)
Author, Policy Benefits- Are They Recoverable Under Extra-Contractual Theories When A Covered Claim is Denied?, JOURNAL OF TEXAS INSURANCE LAW, Volume 12, Issue 5, at 17

(cited by the Texas Supreme Court in USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 487 (Tex. 2018))

Author, The Additional Insured, an update of recent developments in Texas focusing on additional insured clauses and indemnity agreements
Co-author, Recent Legislation Concerning Attorneys

Texas Lawyers’ Insurance Exchange Newsletter

Panelist, Occurrence-Innocent Insured Pays Price for Guilty Third Party?

Presented to the Insurance Practice Section of the State Bar of Texas

REPRESENTATIVE EXPERIENCE

Successfully defended an attorney in a two-week trial in federal court against fraud claims based on representations made during negotiations for the purchase of a multi-million-dollar interest in an oilfield services company.
Defended one of the world’s largest insurance brokers in a malpractice and breach of fiduciary duty case. This was one of the first cases to go to trial concerning broker duties related to the failure of Reliance. I obtained a take nothing judgment for the broker.
Defended an oilfield services company in a catastrophic injury case where the client destroyed the key piece of evidence after the accident. After a week-long trial, the jury returned a finding of minimal liability and damages against the client.
After a month long trial, obtained a take nothing judgment for a manufacturing company in a misappropriation of trade secrets case. Represented that client and several co-defendants in the appeal, and successfully reversed an unfavorable verdict against the co-defendants.
Successfully defended a liability insurer in a bad faith and Texas Insurance Code case concerning damages to a major pipeline. Obtained a summary judgment in the client’s favor, and persuaded the Fifth Circuit that the client’s coverage position was correct on appeal.
Represented an employer in an insurance coverage dispute all the way to the Texas Supreme Court, and persuaded the Texas Supreme Court to recognize coverage for the employer when an employee has committed an intentional act.
After being hired by a probate judge to defend him, successfully obtained the dismissal of a suit against him and on appeal defined the judicial immunity available to courts in Texas.
Obtained summary judgment for a law firm sued for malpractice over its handling of Sulzer implant cases. The summary judgment was affirmed on appeal.