Picking up where they left off, Gwen and Marc turn to the two competing versions of the Major Questions Doctrine: the weak, interpretive version and the strong version that demands near-microscopic specificity. And to show how these versions operate in real life, they walk straight into the blockbuster 2023 case Biden v. Nebraska, where the Supreme Court struck down the administration’s student-loan forgiveness plan.

The statutory text seemed generous: the Secretary could “waive or modify” student-loan provisions during a national emergency. COVID was a national emergency. Waive means eliminate. Modify means change. Yet the Court said that forgiving $430 billion in loans for 43 million borrowers was simply too major — and that even broad, literal statutory text wasn’t clear enough. Marc both appreciate Roberts’s now-famous line comparing the government’s interpretation of “modify” to the way the French Revolution "modified" the country's nobility.

They use this to show the full force of the strong version of the doctrine: for truly significant decisions, ordinary delegation isn’t enough. Courts require explicit authorization, tailored to the precise scenario an agency faces — a level of specificity Congress almost never provides. Justice Kagan’s dissent raises the alarm: the doctrine is becoming a “get-out-of-text-free card,” enabling courts to invalidate policies they dislike even when Congress’s language is unambiguously broad.

The episode then zooms out to the real-world consequences: agencies are becoming more cautious, breaking big rules into smaller ones, searching for hyper-specific statutory hooks, and gaming the system simply to survive judicial review. Gwen and Marc map out how this rising skepticism interacts with the Court’s broader project — reining in agencies through major questions, Chevron, and structural challenges all at once.

Takeaway: The stronger the doctrine gets, the harder it becomes for agencies to act — even when Congress wrote broad authority on purpose. The Court says Congress must speak clearly on big questions. But in practice, the demand for “extraordinary clarity” risks paralyzing modern governance.

Gwen and Marc open this episode with a deceptively simple babysitter analogy: you tell the sitter “use anything in the kitchen,” but you don’t expect her to mount a cutting board to the wall and teach knife-throwing, or install a $6,000 closet system. The permission technically covers those choices — but that’s clearly not what you meant. That disconnect becomes the doorway into the Major Questions Doctrine, the Court’s newest tool for saying: “If Congress meant to authorize something this big, it would’ve said so clearly.”

From there, they rewind to Brown & Williamson, when the FDA tried to regulate tobacco by treating nicotine like any other drug. The statutory text fit — in some ways perfectly — yet the Court refused to believe Congress hid such massive economic and political authority inside ordinary words. Gwen shows how that early instinct, even without a label, planted the seeds of today’s doctrine.

Then the episode turns to the decision that christened the doctrine by name: West Virginia v. EPA. Roberts framed the Clean Power Plan not as routine emissions regulation, but as a wholesale restructuring of the American energy sector — far too consequential, he argued, for an agency to find tucked inside an older statute. Through the Court’s own language, Gwen and Marc unpack what counts as a “major question”: billions in economic impact, deep political salience, dramatic expansions of authority, and situations where Congress has repeatedly considered but rejected similar proposals.

But they also highlight the doctrine’s shadows. The Court has never articulated a clear test; agencies don’t know how many “factors” are enough; and the dividing line between ordinary policymaking and “major” policymaking keeps shifting, depending on who’s drawing it.

Takeaway: Sometimes the words of a statute technically fit — but the Court refuses to believe Congress granted vast power by implication. When the decision is big enough, the Court demands clarity Congress rarely provides.

In this episode, Gwen and Marc break down the Supreme Court’s oral argument in Trump v. Slaughter, the case that could upend nearly a century of precedent on independent agencies. Building on Part 1’s explanation of how the case reached the Court, this episode examines what happened in the courtroom: the justices’ questions, the strategies on both sides, and the constitutional stakes that hovered over every exchange.

They walk through the Solicitor General’s forceful attack on Humphrey’s Executor, including his description of the precedent as a “decaying husk,” and the Court’s repeated efforts to understand where the limits of the unitary executive theory might lie. Gwen and Marc explore sharp exchanges with Justices Kagan, Sotomayor, Jackson, Barrett, Roberts, Gorsuch, and Alito, from concerns about the scope of executive power to whether any multi-member commission could survive under the government’s theory.

They also examine what a ruling for Trump could mean in practice — from immediate at-will removal of commissioners to the ripple effects on agencies like the FTC, SEC, NLRB, and the Federal Reserve. Finally, they offer a grounded reading of where the Court seems headed and why even the “narrow” options would still reshape the administrative state.

This concludes their two-part series on Trump v. Slaughter. When the decision comes down, they will return with a follow-up episode analyzing the Court’s holding and its implications.

⭐ What They Cover in This Episode

• The Solicitor General’s argument for overruling Humphrey’s Executor
• Why the government describes independent agencies as constitutionally incompatible
• The justices’ concerns about where the unitary executive theory stops
• Sotomayor’s “for now, for now” challenge
• Kagan’s slippery-slope questions
• Gorsuch’s nondelegation angle and the “wolf comes as a wolf” moment
• Barrett and Roberts exploring “narrower” paths
• The debate over single-director vs. multi-member agencies
• How a ruling could affect the FTC, SEC, NLRB, Fed, and beyond
• The range of possible outcomes and what seems most likely

Trump v. Slaughter, Part 1: How We Got Here

In this episode, Gwen and Marc explore the road leading to Trump v. Slaughter, the Supreme Court case that places the very existence of independent agencies under constitutional scrutiny. After two episodes explaining why independent agencies exist and how they function, they turn to the core question now before the Court: can Congress insulate agency officials from at-will presidential removal?

They walk through the events that brought this case to the Supreme Court, beginning with President Trump’s Inauguration Day decision to remove FTC Commissioner Rebecca Kelly Slaughter—an action taken without any allegation of misconduct and in tension with long-standing precedent from Humphrey’s Executor. They explain how the lower courts responded, why the Supreme Court took the case early, and what is at stake for agencies like the FTC, SEC, NLRB, and even the Federal Reserve.

Along the way, Gwen and Marc revisit key administrative law cases, foundational constitutional theories, and the structural arguments both sides bring to the table. This episode takes listeners from the historical background and statutory framework all the way to the moment oral arguments begin.

This is Part 1 of a two-episode series. Part 2 covers the oral argument itself, the justices’ questions, and the potential outcomes the Court is weighing.

What They Cover in This Episode

• The statutory and constitutional background of independent agencies
• What happened on Inauguration Day and why it mattered
• Humphrey’s Executor and 90 years of precedent
• The district court and D.C. Circuit rulings
• Why the Supreme Court took the case before judgment
• Trump’s argument under Article II and the unitary executive theory
• Slaughter’s argument grounded in history, structure, and congressional design
• How multi-member commissions differ from single-director agencies
• What’s at stake for the modern administrative state
• The framework for understanding the oral argument in Part 2

Having laid out why independent agencies exist, Gwen and Marc turn to the harder question: what happens when a president decides he wants someone gone? This episode unpacks the constitutional and political fault lines around the president’s removal power — and why the ability to “fire the referee” is one of the most dangerous pressures in modern governance.

The episode opens on the youth soccer field, where a bad call might enrage parents but doesn’t justify firing the ref mid-game. Gwen uses that intuitive norm to pivot into the most infamous political version of the same problem: the Saturday Night Massacre, when Nixon tried to purge the special prosecutor investigating him. The result wasn’t just chaos at DOJ — it was a national lesson in why removing investigators for doing their jobs destroys public trust.

From there, Gwen and Marc trace the constitutional silence on removal, the founders’ disagreements, and the early battles in Myers and Humphrey’s Executor. They walk through the real-world consequences of presidential pressure — from FDR’s failed attempt to oust an FTC commissioner, to Nixon’s behind-the-scenes arm-twisting of the Fed, to the market panic triggered by rumors that President Trump might fire Chair Powell. Each example shows how fragile independence becomes when removal power turns into a political weapon.

The episode closes by setting the stage for Trump v. Slaughter, the most significant removal case since the 1930s. For the first time in nearly a century, the Court will confront whether multi-member commissions — the backbone of the modern regulatory state — can still be insulated from presidential will. The stakes reach every corner of federal regulation: finance, monetary policy, labor, consumer protection, energy, and more.

Key Concepts: Removal Power | For-Cause Protections | Malfeasance / Neglect / Inefficiency | Myers | Humphrey’s Executor | Morrison v. Olson | Seila Law | Unitary Executive Theory

Examples: Saturday Night Massacre | Nixon & the Fed | FDR vs. Humphrey | Trump–Powell conflict | CFPB | FHFA

Takeaway: A government can’t function if every tough call costs someone their job. Removal protections aren’t technicalities — they are the guardrails that keep expert judgment from collapsing under political pressure.

After exploring why agencies need power, Gwen and Marc turn to how we keep that power honest. This episode explains why Congress sometimes chooses to bind the president’s hands in advance — creating institutions that can resist political pressure, maintain stability, and preserve public trust.

The episode opens with the now-infamous PAC-12 “boat call,” where a conference executive phoned in from a boat to overturn a targeting review. The result? Even well-intentioned interference shattered confidence in the process. Gwen uses that collapse of trust to launch into the core question: Why does Congress build entire agencies designed so the president can’t make that call?

Listeners follow the origins of independent agencies from the late 19th century to the creation of the FTC in 1914, using legislative history that reads like a blueprint for credibility: multi-member commissions, bipartisan composition, long staggered terms, and removal protections that prevent retaliation for unpopular decisions. These structural choices weren’t accidental — they were Congress’s way of acknowledging human nature. Power and temptation travel together, and even a well-meaning president will face short-term political incentives that clash with long-term stability.

Gwen and Marc walk through concrete examples — the Federal Reserve’s interest-rate decisions, the SEC’s role in policing financial markets, the FTC’s consumer protection mission — showing how independent agencies serve as referees who can’t be fired for making the right but unpopular call. They also situate these agencies in constitutional doctrine, from Humphrey’s Executor to Seila Law, previewing the Supreme Court’s upcoming confrontation with their very existence.

Ultimately, the episode reveals independent agencies as democracy’s pre-commitment system: guardrails Congress builds because it knows presidents — like Odysseus — may someday hear the siren song of short-term politics.

Key Concepts: Independent Agencies | For-Cause Removal | Multi-Member Commissions | Staggered Terms | Bipartisan Composition | Humphrey’s Executor | Seila Law | Unitary Executive Theory

Examples: PAC-12 replay interference | Federal Reserve | FTC in 1914 | SEC | CPSC | FERC | NLRB

Takeaway: Sometimes democracy protects itself by limiting its own future impulses. Independent agencies exist because stability, expertise, and long-term policy require insulation from the political storms of any single presidency.

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After learning why agencies need power, Gwen and Marc now explain how they use it. This episode breaks down the Administrative Procedure Act’s notice-and-comment process — the backbone of modern rulemaking — through the Department of Transportation’s debate over emotional-support animals on planes. This episode follows the DOT’s 2020 service-animal rule to show how notice-and-comment rulemaking actually works.

Listeners see every stage: publishing a proposal in the Federal Register, inviting and reviewing thousands of comments (including a mass-comment campaign for miniature horses), and crafting a final rule with a detailed preamble explaining the agency’s reasoning. The hosts show why public comments must be substantive, not just popular, and how agencies balance accessibility, safety, and consistency with laws like the ADA.

The discussion extends to the backup-camera mandate and the “ossification” problem — how decades of added procedures have slowed rulemaking to a crawl. Still, notice and comment remains the most democratic tool in the administrative state: it forces agencies to justify decisions, consider real-world impacts, and show their work.

Key Concepts: Notice and Comment Rulemaking | Administrative Procedure Act | Federal Register | Mass Comment Campaigns | Preamble | Ossification | Public Participation Examples: DOT service-animal rule | Miniature horse debate | Backup camera mandate | Benzene rule timeline

Takeaway: Rulemaking may be slow, but it’s democracy in action — transparency and accountability woven into the machinery of expertise.

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After 1935, the Supreme Court mostly gave up enforcing the Nondelegation Doctrine — but it didn’t give agencies unlimited power. In this episode, Gwen and Marc use relatable examples — a micromanaging homeowners association and an overzealous parks director — to explain how an “intelligible principle” keeps delegation from turning into dictatorship. From HOA lawn rules to broadband speeds, they show how Congress can give agencies discretion without letting them run wild.

They walk through real-world statutes that rely on this idea — from OSHA’s “reasonably necessary and appropriate” safety rules to the FCC’s “public interest, convenience and necessity” standard — and discuss how courts review those limits. The conversation ranges from the Benzene case and generic-drug bioequivalence to broadband definitions that evolve as technology changes.

Key Concepts: Intelligible Principle | Delegation Boundaries | OSHA | FCC | SEC | Benzene Case | Generic Drugs | Agency Flexibility Examples: HOA analogy | Youth sports director analogy | EPA air-quality standards | FDA bioequivalence | FCC broadband speed

Takeaway: Delegation is inevitable — but guardrails matter. An intelligible principle ensures expertise can flourish without collapsing into favoritism or tyranny.

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