947: Can a President Fire ANYONE in the Government?

Brian Nichols  0:04  
All right. And with that joining me here on The Brian Nichols Show Ryan Silverstein from young voices, Ryan, how you doing today? Doing very well. How are you? Can't complain. Can't complain. Happy Saturday. Pete behind the curtain, we are recording here on a not so sunny Saturday in eastern Indiana, which, you know, I was, I was enjoying the what the springtime crack that is like, one day of 60 degree weather and sunshine, only to get hit with the next day 30 degrees and snow showers. So Ryan, that's my what's going on my neck of the woods. But Do us a favor before we jump into today's conversation, talking all things about the National Labor Relations Board and our LB and LRB. We did this beforehand. I still can't remember the the acronym. But anyways, Ryan, introduce yourself here to The Brian Nichols Show. And why is this a topic we're so focused on today? Hi,

Speaker 1  0:50  
my name is Ryan Silverstein. I'm a JD candidate at Villanova University, and I'm Fellow at Villanova mccl and Center for Law, religion, public policy. We're talking about when Wilcox is firing because it's going to have broad ramifications on the entire administrative state, not just the National Labor Relations Board.

Brian Nichols  1:07  
And who is Wilcox? Let's set the stage here for folks who are playing on in the home game who haven't been paying attention to what's happening in the world of hirings and firings from an executive level. So just set

Speaker 1  1:18  
the stage for us. So Gwen Wilcox, she is an attorney. She is, well, she was the chair of the National Labor Relations Board. She was named by Joe Biden as chair back on December 17, and because she was heading the National Labor Relations Board, her term was set to last for, I think, like five years. Might be a little shorter than that, but her term was going to last basically the entire Trump presidency. And it would have taken it, would have stripped a lot of power from Trump over labor regulations, right? And Donald Trump wasn't very happy about that, so he was like, You know what? I'm just gonna fire her. And to a lot of legal scholars, that was wrong, especially when Wilcox thought it was wrong, because there is precedent that says, hey, heads of independent agencies like the National Labor Relations Board, you can't fire them without cause, which means, like, they don't show up, if they show up to or drop if they don't show up and do work, if they commit something like corruption, right? You can't fire them. And that's President Trump said, No, I'm the president. I can fire who I please in the executive branch. So there's kind of this battle set up now within our legal system as to who's right? Are, is President going to be upheld, or is this new theory of executive power going to be advanced? So,

Brian Nichols  2:26  
so talk to us about the true breakdown here, because I'm in the business world, right? And anybody who's in the private sector, they hear, okay, the CEO says you're firing somebody that that seems to make sense, right? And then you look at President Trump being the head of the executive branch, and I believe and keep me honest here, Ryan, the the N R L, N L R B, sorry, the N L R B, that technically falls under the jurisdiction of the executive branch.

Speaker 1  2:50  
No, technically yes, but technically no independent agencies for the past 100 years or so, going back to case called Humphreys executor, a case Humphreys executor of state back in 1935 has said that independent agencies, while they are kind of subject to presidential power, they're only subject to that power when it comes to appointments because they wield quasi judicial and quasi legislative power. So they'll do things like internal educations. They will create rules, rule making process from statutes. And the idea is, hey, independent agencies are consist of experts who need to be able to create policy without being afflicted too much by the political process. Is therefore the technocratic interest outweighs any democratic one, because we want experts to make good policy with with their judgment. Now, the problem being our Constitution, it doesn't leave room for independent agencies. That's why there's this theory of executive power that a lot of conservatives are fans of. It's called the unitary executive theory. The idea being the vesting clause of this of Article Two of the Constitution only vests the President with executive power. Therefore, all agencies created by Congress, they exercise, they exercise power at the best of the executive why all executive power flows directly from the executive to these administrative agencies?

Brian Nichols  4:11  
Well, it just sounds like and Ryan, this might be my ignorance speaking here, but you mentioned a key word these independent agencies are responsible, from an expert standpoint of implementing what was the key word, policy, right? And hey, maybe this is me back when I was in college, you know, learning about our civics, right? But I just, I keep me honest here, right? I always thought that the executive branch was the one who would carry out the laws, right, enforce the laws, but it was Congress who creates laws, and then in in essence, creates policy, no,

Speaker 1  4:45  
yes, but no. A Congress, what Congress has done with these independent agencies, Yes, everything's Yes, but No, Congress, they create policy, sure, yes, but what they what they've increasingly done over the last 100 years. I'm going back to really the start in the New Deal, where Congress, they would pass. Somewhat ambiguous statutes, and then they would say to agencies, you have the power to enforce these statutes by making rules. That's why we have a whole rule making process called the Administrative Procedure Act that all administrative agencies independent and not have to follow. And by the way, these rules that agencies make, they have real implications on people's lives, like, for example, a National Labor Relations Board. They're gonna, they would pass a they could pass rules that go to worker discrimination, workers comp. Then they could internally adjudicate those rules in, like, essentially a kangaroo court themselves, and then that judgment would be binding on both parties, which is crazy, if you think about it, because you're not going for an Article Three, Judge, you're not going before you know a typical executive agency that the President can control. You're going before a bunch of experts right, which is different and not really good for our substantive rights.

Brian Nichols  5:51  
Well. And it just feels like this is a delegation of authority and responsibility away from the congressional side of the house more towards these and I know it's, yes, it is unelected federal bureaucracies in essence, right? But it goes back to, well, I'm running for Congress every two years. I'm running for Senate every six years, and if I vote for a piece of legislation from a policy prescription standpoint that my my constituents aren't 100% in favor of, oh, I might, I might lose my seat. Ryan, so therefore it's just easier to delegate away this responsibility and authority from actually making laws, making policy, to these unelected bureaucracies. And now it just feels like going back to this whole idea of checks and balances that at the very least the executive starting to to, in this case, the president right starting to say, well, hold hold tight here, if you're delegating the responsibility Congress towards me and under technically my jurisdiction, doesn't it make sense, right, checks and balances standpoint, to actually beat the check and balance?

Speaker 1  6:55  
No, you're totally right. And it's very funny you say that because a lot of progressives and people on the left, they say what Donald Trump is trying to do with the to do with the administrative state. Essentially, they say he's trying to become a king. The funny thing being the only reason that they're scared of the executive is how powerful the executive has become. Why is the executive so powerful? Because easier to give the executive things to do than to do your job yourself, right? So if Congress were to, I don't know, jealously guard its legislative power. Jealously guard it's things like its tariff power, its power to regulate laws. You know, suddenly we wouldn't be in this predicament of the presidency being too strong, and that's a really big reason Congress likes independent agencies to them. It's a way of checking the president. But our Constitution doesn't leave room for these independent agencies to act, which leads to just a lot of problems

Brian Nichols  7:46  
well, and this is where I think we're finding the the political discourse today really devolve when you look at the the greater public, because there seems to be very much this, this um, discrepancy between the folks who and I'm sorry, it's gonna sound Like dismissive here, but the folks who are, you know, ostrich head in the sand versus the folks who are, you know, aware of how your actual civic processes are supposed to work. And you know, it just it goes back to the basic understandings of how our American government system was built, right? And just to see today, where there has been such a perversion of the checks and balances. There's been such a perversion of the roles and responsibilities of these different different branches of government, also there in the different entities that compose these, these branches of government, like I just I look at where we are today, and from a an electoral or an electric standpoint, that is, it feels like a lot of the folks that we have, that we have voting for elected officials nowadays are doing so on a very shaky foundation in terms of understanding of how, like, how the process was originally supposed to work, like they have this, This, this kind of a perverted perspective of, well, this is what I've only known, right? This Congress passes these ginormous omnibus bills every year, and then they just kind of sit back and argue with each other all day long, right? And then, you know, well, Joe Biden, because he's a Democrat, he can do no wrong. He can appoint all these people in these unelected federal bureaucracies, and as long as they seem like they're okay to me as an electorate, I'm gonna just let him do his thing. And all of a sudden, when Donald Trump takes over, you know, it's like, Oh, my God, the world is ending, right? The sky is falling. So it looks like there might be more of an issue here, Ryan, not just in terms of the actual court case, but also the way that the American electorate is approaching this issue. So how do we how do we talk to the American popular populace, and actually, like, I don't say like, just educate them, right? Because, I mean, it's educate, enlighten and inform. That's, that's our motto here at the show. Like, how do we do all three for a populist who seems like they really don't care? They're going to abdicate as much responsibility themselves. As they have allowed for their members of Congress. Well,

Speaker 1  10:04  
first, I think we need to keep having conversations like this on this show. That's really important. But more importantly, I think most political parties, you know, by the way, Republicans do this too, they're not, oh yeah, educating the public we, you know, both political parties are more concerned with passing on the buck to the other guy. So the most important thing that we can do as a people is to hold our the political parties accountable, and hold our elected officials accountable and demand better. You know, for example, one of a big progressive concern right is that, oh, we don't want political pressures on independent agencies, because, you know that's going to lead to bad outcomes. But if you ask me, most of our fiscal policy, most of the stuff the NLRB does, or other independent agencies like the Federal Reserve, most of what they do is can already be legislated by Congress. They just choose not to do it. Congress, for example, tomorrow, Congress can pass a law that says we are going to set the interest rates really low for the next 30 years, and the Federal Reserve wouldn't be able to do shit about that. And guess what? Would that be great for the economy, maybe, but in the long term, it would probably lead to a lot of inflation. But guess what? Congress can do that if they want. So this idea that experts just have to be in control and politics can't get involved, not true. Politics can get involved tomorrow. If Congress really wanted to, they just choose not to. Yeah,

Brian Nichols  11:22  
well, and by the way, like, I think this conversation has gotten to where it is today. It was like we we've seen the the proverbial foot hit the accelerator right all pedal to the metal over the past five years, specifically during an era of COVID where everything right was trust the experts, trust the science, and we're going to delegate all, all authority and frankly, critical thinking skills to these so called experts in these institutions of federal bureaucratic power, who, yes, they they have their expertise, but they're unelected, right? They are, no, they're no more powerful than than the plumber, right? I say they shouldn't be more powerful than than your plumber. When it comes to public health. They should just have opinions. It should have guidance, right? But it turned into Ryan. It turned into edicts. And you mentioned this, we're gonna go full circle here. It turned into now, these federal bureaucracies and these so called experts making policy, telling, folks that, no, you we're gonna, we're gonna mandate that you stay home, or you're gonna stick six feet away from people, or you're gonna put an experimental jab in your arm, or you're not gonna go to work because you're considered not essential. Or if you are gonna go to work, we're gonna force you to get a vaccine. Like all these questions that should have been permitted at the very like, if we're gonna make the argument, those should have been congressional conversations, not just, you know, oh, Anthony Fauci or Deborah Bergs or Susan Collins. Decided not Susan Collins. Walensky, Rochelle walensky, I don't know why I said Susan Collins main center. She just popped in my head. But like you see all those different bureaucrats there who they're just gonna say, we're gonna do this, this. This is the policy prescription. If you question this, you're anti science. You're anti expert, right? It just, it feels like it comes down to, we gotta, like, start holding our members of Congress accountable. And yet, Ryan, and this is where the challenge comes in, right? We look to the future. You look at your average voter, they will look at Congress with disdain. They'll give them, you know, low single digits, if you're lucky, in the teens approval rating. And yet, when it comes to my congressman, right? And their re election rate, it's in the 90 percentile, right? So right there, there seems to be a discrepancy. We have a populace who recognizes that Congress sucks. They're abdicating responsibility, they're not doing their jobs, and yet I'm going to keep electing it, because my guy's not my guy's doing the right things, right so how do we how do we bridge this gap? How do we go from where we are today to where we can be in the future, specifically looking at regulations, policies and trying to re, restructure, reformat, whatever term you want to use, this battle between unelected federal bureaucrats making policy, and I don't know, Congress actually doing their jobs?

Speaker 1  14:04  
Yeah, I think the best thing you can do is, you know, go to your town hall and talk to your Congressman. I mean, we're already seeing Democrats do that to display their displeasure for things like Doge right at the end of the day, if you want something, you have to go out and fight for you can't just sit back, because if you're quiet, the people with the loudest voices are the only ones that will be heard. So you have to go out there and you have to say, No, this is what I demand of you. I want to hold you accountable. Do your job. It's all it's all about, I guess, taking responsibility for politics. Something is that our framers envision, right? They wanted a virtuous and involved public and we kind of lost that. So let's get back to that. Let's come virtuous again. Let's start fighting for our core values again. Man,

Brian Nichols  14:46  
I'm gonna sound like such a downer here, and I hate that I'm even doing this like So Ryan, back to the average person, though, do they care? Like, are they actually gonna get involved and try to make things better? Because it as I look at the elections past election cycle, i. The folks who voted are the folks who, maybe, or let me rephrase that, the folks who were active in the voting process, like they're going out, getting people to the polls, like they were maybe more aware of this than most. But when I go talk to your average person, they're more focused on the problem than they are the cause, right? It's when you go to the doctor's office. Oh, my tummy hurts. Okay? Why? I don't know my tummy hurts. And it feels like America is feeling my tummy hurting right, but they're refusing to acknowledge that the reason their tummy hurts is because last night, they downed an entire 12 pack of Budweiser while at the same point in time eating an entire pizza, and then, you know, eating more and more sweets and garbage like you have to as the American public, kind of point the finger at ourselves at some point. No,

Speaker 1  15:49  
no, you're right. Listen, Part, Part of our governing is reflection and choice, right and right now we're lacking the reflection part, and we do need to get back to reflecting on our choices. And what's the key to that? You know, again, have being virtuous, being vigilant regarding our civil liberties. And right now, we're not doing that, and it's not really a good thing. No,

Brian Nichols  16:06  
not at all. Um, well, how about this? Ryan, I would love for you to to paint two pictures for us, right? One, if we continue down the path that we have been going, right this, this unelected federal bureaucracy putting out policy, be it good or bad, and just continuing the path that has been going. Or if we look at this case with the NLRB right this time, right? And this does set some precedent saying, okay, hold on. President is going to start reigning back some of these executive overreach from the Federal bureaucracies, ironically enough, by giving himself more power. But it doesn't really feel like it's more power, because it's supposed to be his branch. Anyways, Branch. Anyways. I digress. And then, you know, saying, Okay, now let's start to turn this back towards Congress. So paint those two pictures. We stay on path, path A, or we choose to go down path B. What does the future look like for us?

Speaker 1  16:54  
So for path A, path A, largely looks the same as it does now. You know, it's a status quo that a lot of people feel like has failed them. They feel they have been listened to. They think experts are out of touch, and to an extent, that's true, and they want government to respond to them. We're just going to keep seeing this. I guess populist anger boil over because people do not feel listened to, and that's not a good thing for the country. Path B, I'm very optimistic for path B, you know, the Supreme Court, we go down this road. I'm just gonna say the Supreme Court has already started reining in independent agencies in CeeLo law in 2020 this was a big Supreme Court case. The Supreme Court, they limited the scope of Humphreys executives ruling to agencies with multi member boards. So that's like the National Labor Relations Board, for example, it's a multi member agency board, multiple people who sit on it, right? And by doing, by doing that, they've limited the scope of Humphreys, and they've signaled to the to the public, like, Hey, we're interested in overturning Humphreys. In fact, you two Supreme Court justices in that case literally say, Yeah, this case didn't go far enough. We want to overturn that case. Because Humphries is quote, under is, quote, a direct threat to our constitutional structure, and as a result, the liberty of the American people. End quote that way, those were justices, Clarence Thomas and Neil Gorsuch. Now, fortunately, and this is why I'm very optimistic for this path, there was a new Supreme Court justice on the bench. Her name is Amy Coney Barrett. She wasn't on the bench last time, and she it usually joins the conservative block in what they decide, those major decisions. And now John Roberts, he historically, has been known to water down these conservative opinions and make them a little too moderate for the liking of those on the legal right, both Amy Colleen bear on the court. That's a sixth conservative justice, and that kind of overrides the Roberts veto, which is a really good thing. So with this case, we go down that path, we're going to have bureaucrats suddenly be held accountable by the President. And I'm very hopeful that that's what happens, right? That that the conservative legal movement, they win this lawsuit, that the President controls the executive branch. And hopefully what we're going to start seeing is Congress get involved, right? Because now we're going to see a React, Congress react to broad executive power over substantive rights, and then Congress is going to say, Oh shoot. Do we really want the president constantly controlling fiscal policy? Do we constantly want the president controlling things like the Federal Election Commission? Do we want him controlling federal election policy? Probably not, which means Congress is going to get involved and set very straight guidelines for each of those, which is a good thing. When Congress legislates, it leads to good outcomes. One

Brian Nichols  19:28  
last question for you, and I was just thinking of this as we're going through things, how much did the overturning this past summer of 2024, of Chevron deference? How much did that help play a role here of setting up this conversation for where we are in March of 2025

Speaker 1  19:46  
it did. It did a lot because of Chevron deference. And by the way, I also have to mention a case called SEC versus that also played a big role here. Those two cases, they played a very big role in holding the administrative state accountable. Because now you can go to. A federal agency and sue them in federal court, and suddenly courts don't have to defer to what the agency does. They actually have to give it a substantive look, which means plaintiffs are getting their days in court. And more importantly, now if an agency tries to punish you and hold you accountable, okay, sure, but now if they want to give you a punitive fine based on some kind of common tour that you could find in any brand of state law, you have to go. You have a right to a jury trial for that, and that's a good thing. And there are some critics who say, well, oh, that's going to prevent agencies from collecting, no, it's not why the SEC when they collected their fines from those people, they weren't using those fines to reimburse the victims of those crimes, that's not what was happening. So the SEC is whole justification. There was complete BS, and those who were upset about it clearly didn't read the case. Sounds

Brian Nichols  20:49  
about right? Well, Ryan, this is obviously a tip of the iceberg conversation behind a much larger issue when it comes to our federal bureaucracies. And again, like we talked about, just this overall ethic, it seems like across the country, of just deferring responsibility and obligations. Hopefully we're going to see some some positive changes, as we've outlined here today. So folks who want to continue paying attention, obviously, please go ahead and support Ryan. Give him a follow and Ryan, where can folks go ahead and reach out to you if you want to learn more and just see what's going to be coming down the pike here as it comes down to looking at who's gonna be getting the the federal bureaucracies in order, and if we're gonna see Congress actually taking back some responsibilities and obligations,

Speaker 1  21:29  
sure they follow me on LinkedIn. My LinkedIn is Ryan Silverstein. They can follow me on Twitter. My Twitter is right, right, 916,

Brian Nichols  21:37  
awesome. And Ryan, any final thoughts you want to leave our audience with today as we wrap things up,

Speaker 1  21:42  
yeah, sure. Do not be moan the administrative state. Go to your members of Congress and hold them accountable. Be involved. This is what the founders wanted. They wanted a citizenry that was actively involved in public life, and that includes politics. I

Brian Nichols  21:56  
love it. Ryan Silverstein, you're joining us from young voices. Can you give us a little peek behind the curtain of young voices, all the great things you guys are doing over

Speaker 1  22:03  
there. Yeah, so young voices is an organization that promotes classical liberal values, and they do great stuff. You know? They do the dissonant project, for example, which has bunch of people who are victims of authoritarian regimes like China and Russia and Venezuela. And they go to classrooms, they talk to people, and they educate them on what socialism actually is and what it actually looks like.

Brian Nichols  22:24  
We have various, oh, go ahead, sorry. I was

Speaker 1  22:27  
gonna say there's we also have various contributors who write about various topics, including tariffs, some Tiktok, right, and other various regulations.

Brian Nichols  22:35  
Yep. I was just gonna say we had William Dunson here on the show back air this past week. We're talking about increasing the age of Retirement and Pension pension accessibility. Think it was up in Canada. So yeah, we've had a lot of guests here on The Brian Nichols Show who are young voices contributors. I love young voices. So if you are young and you have a voice, and you want to get involved with young voices, please go ahead and reach out to yours truly, or reach out to Ryan. I'm sure we could go ahead and point you in the right direction. And as always, our good buddy Caleb, France, he's doing amazing work over there at young voices as well. So a shout out to our good buddy, Caleb and I, by the way, I think right there we're gonna go ahead and put a pin in today's conversation. Ryan has been a lot of fun. And folks, please go ahead reach out to yours truly at bead Nichols liberty. You can find me on Twitter, on Facebook, on YouTube, on rumble, wherever it is, you consume your podcast content, your video content. You can find The Brian Nichols Show. And of course, you can go ahead and reach out to yours truly, Brian at Brian Nichols show.com let us know your thoughts in our emails, or head down below into the comments. Let us know your thoughts as it comes to executive power versus congressional power. We're gonna go ahead and keep an eye on this conversation. And obviously, Ryan, you have an open door policy to come back here on the show just like it's 1899 sound good? Yes, awesome. All right. Ryan Silverstein, thanks for joining us here on The Brian Nichols

Unknown Speaker  23:53  
Show. We'll talk to you soon. Thank you. You.

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