Dear (Juris)Prudence: How Can Congress Stop Trump From Sabotaging the Next Democratic President?

Last week’s episode of Amicus included a mailbag special in which Dahlia Lithwick and Mark Joseph Stern answered listeners’ burning questions about the law. Amicus listeners have a lot of smart questions, so we’re running an occasional “Dear (Juris)Prudence” series in which we share your questions and Mark and Dahlia’s answers. Write to [email protected] to pose a question to Dahlia and Mark. This transcript has been edited and condensed for clarity.

Considering the essential need of maintaining independent agencies within the government and the obviously devastating decision by the Supreme Court in the Slaughter case, what does the Constitution and/or law say about when a new president takes charge?

Can they hire new leaders of those departments, replace or remove without cause? Is there language that says the end of a presidential term is different than the conditions during a current term?

Mark Joseph Stern: In addition to all the other harms of Slaughter , the decision lets an outgoing president completely hobble all of these agencies by firing or ousting their leaders and leaving them inquorate, meaning without a quorum, when the next president comes in.

And unlike with single-head agencies, things like the Justice Department, where we have an acting attorney general until we can get a real attorney general again, generally presidents cannot appoint acting or interim heads of these formerly independent multimember agencies. What that means is that on his way out the door, President Donald Trump could fire every member of the Federal Trade Commission, of the Federal Communications Commission, of the National Labor Relations Board, of the Merit Systems Protection Board, and leave those agencies paralyzed.

And even if the new president prioritizes those appointments immediately upon coming into office, which he or she probably won’t—that’s not usually a first-day thing—then those agencies will be hobbled. They will be paralyzed. They won’t be able to conduct essential work, and that will have horrible consequences for the American people, because, in the case of the NLRB, organized labor won’t have anyone to protect it. In the case of the MSPB, government employees won’t be protected. In the case of the FTC and FCC, we will have issues enforcing competitive rules and licensing for different broadcast stations. All this stuff that these agencies do, it won’t be done. Nicholas Bednar and Max Sarinsky, came up with a few solutions that Congress could legislate without violating Slaughter , and I do think it’s worth lifting those up.

The first is that Congress could change the laws to allow for acting or interim appointments at these agencies, which would let a new president come in and restore a quorum, so that at least until he or she gets their appointees through, the agencies will be functioning with acting and interims. And I know that Trump has abused acting and interim status, but this is not necessarily going to exacerbate that problem, which is very real, but already happening.

This would at least allow for the next president to quickly fix some of the damage that Trump might try to inflict on his way out the door.