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Ben Cavataro and I have a new paper forthcoming in the Journal of Law and Politics titled "Associate Commissioners." We interviewed 24 associate members of multimember regulatory agencies to understand the *actual* power they wield in their agencies. papers.ssrn.com/sol3/papers....

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I don't think you can call Fetterman a Democratic Centrist. He's in a league of his own.

The paper is still a work in progress, so comments are very welcome!

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These findings undercut claims that bipartisan commissions are inherently dysfunctional and that nonchairs play little meaningful role. And they suggest paths for Congress and agencies to preserve some benefits of the commission form, despite Slaughter's devastating blow to agency independence.

In short, we learn that associate commissioners wield influence through negotiations, delegations, separate statements, and pre-commitment instruments. Notwithstanding the Supreme Court's assertions in Slaughter, interviewees from both parties perceived their commissions as genuinely independent.

Todd Phillips @tphillips.bsky.social · 26/08/2026

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What can the Fed legally do about those two separate institutional structures pre-distress? I don't think FSOC legally could put OpenAI under enhanced prudential supervision even if it wanted to.

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Todd Phillips @tphillips.bsky.social · 26/08/2026

I gotcha. Comms everywhere has a tendency to water down the nuances of arguments. But I think the playbook is fairly well formulated. Create another 13(3) liquidity facility or give them bank charters so they can access the discount window. Or let them fail so we can have market discipline again.

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Todd Phillips @tphillips.bsky.social · 26/08/2026

I say this as a former Roosevelt Institute fellow: This is a bad take. We all know that NBFIs will fail, and the Fed's only legal authority is to bail them out. We need Congress to legislate before there is a crisis, addressing the moral hazard that comes from the Fed's unilateral action.

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Todd Phillips @tphillips.bsky.social · 07/08/2026

It'S nOn-cUsToDiAl so no laws apply

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Todd Phillips @tphillips.bsky.social · 07/08/2026

I have so many conversations with people these days about AI agents and there are so many concerns about liability. But it's not hard--unless you're intentionally obfuscating to avoid liability!

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Todd Phillips @tphillips.bsky.social · 01/08/2026

Does anyone know what the polling on immigration/ICE looks like for Maine likely voters?

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Todd Phillips @tphillips.bsky.social · 31/07/2026

The US has apparently decided to not enforce AML/sanctions rules against banks doing business with Venezuela. This means that, although Venezuela is still sanctioned, anyone who was previously unable to get ill-gotten funds out of the country can now do so. www.fdic.gov/news/press-r...

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Todd Phillips @tphillips.bsky.social · 27/07/2026

As the Election Assistance Comm'n currently shows, presidential removal can prevent agencies from functioning by ensuring there is no one with power to execute the law. Nick and I argue that the Take Care Clause will not support such a conclusion, and encourage courts to enjoin such removals.

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Reposted by Todd Phillips

Nick Bednar @nicholasbednar.bsky.social · 27/07/2026

Over at @ssrn.bsky.social, @tphillips.bsky.social and I have a new essay called "A Faithful Execution Exception to Slaughter," examining whether courts should enjoin removals when they break quorums in multimember commissions. papers.ssrn.com/sol3/papers....

papers.ssrn.com

A Faithful Execution Exception to Slaughter

In Trump v. Slaughter, the Supreme Court held that Article II permits a President to remove principal officers at will. Ostensibly, the removal power allows the

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Todd Phillips @tphillips.bsky.social · 27/07/2026

Ooh, that's a good proposal, and one I hadn't heard before. Is it constitutional?

Todd Phillips @tphillips.bsky.social · 27/07/2026

From @punchbowlnews.bsky.social: 50+ academics from across the ideological spectrum signed a letter urging Congress to restore agency independence following Trump v. Slaughter. punchbowl.news/open-letter-...

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Reposted by Todd Phillips

The Bulwark @thebulwark.com · 13/07/2026

The Supreme Court greatly weakened independent agencies, but the president's power to fire their officials is not exactly the trump card it looks like. @tphillips.bsky.social on how Congress can slow the politicization of independent agencies:

lnk.thebulwark.com

The Supreme Court Broke Independent Agencies. Here’s a Way to Slow the Damage.

A crypto bill before Congress offers a chance to keep presidents from turning independent commissions into one-party instruments.

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Todd Phillips @tphillips.bsky.social · 13/07/2026

It might be, but I suspect that this administration would want quorums in order to roll-back regulations. You couldn't deregulate without a quorum!

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Reposted by Todd Phillips

Todd Phillips @tphillips.bsky.social · 12/07/2026

I'm up in @thebulwark.com this morning with a piece (1) arguing that quorum requirements are an opportunity to push back against the Supreme Court's decision in Slaughter and (2) encouraging Senators to demand their inclusion in the forthcoming crypto bill. www.thebulwark.com/p/supreme-co...

thebulwark.com

The Supreme Court Broke Independent Agencies. Here’s a Way to Slow the Damage.

A crypto bill before Congress offers a chance to keep presidents from turning independent commissions into one-party instruments.

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Todd Phillips @tphillips.bsky.social · 12/07/2026

thebulwark.com

The Supreme Court Broke Independent Agencies. Here’s a Way to Slow the Damage.

A crypto bill before Congress offers a chance to keep presidents from turning independent commissions into one-party instruments.

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Nick Bednar @nicholasbednar.bsky.social · 10/07/2026

In this Lawfare post, Nick and I argue that the Take Care Clause should be read as prohibiting the president from stopping the law from being executed.

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Reposted by Todd Phillips

Over at @lawfaremedia.org, @tphillips.bsky.social and I discuss the relationship between the removal power and the President's obligation to take care that the laws be faithfully executed in the context of the recent firings at the EAC. www.lawfaremedia.org/article/fait...

lawfaremedia.org

Faithful Execution and the Removal Power

President Trump is exercising his removal power in ways that defeat his duty to faithfully execute the law.

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Reposted by Todd Phillips

Nick Bednar @nicholasbednar.bsky.social · 10/07/2026

@tphillips.bsky.social and I recently wrote about this issue. We also drafted an amicus brief that touched on it in Slaughter. As far as we are concerned, Slaughter did not resolve the conflict between the Take Care Clause and the removal power. We'll post an update on @lawfaremedia.org shortly.

The removal power derives, in part, from the President’s obligation to “take
Care that the Laws be faithfully executed.”434 The removal power poses less of a
risk to the faithful execution of law in single-headed agencies since the
Vacancies Act ensures that an acting official remains capable of exercising the
agency’s authority. The loss of a quorum within a commission, however,
prevents it from executing the law, effectively undermining Congress’s intent
that enacted legislation be given effect. Given the derivation of the removal
power from the Take Care Clause, courts should prohibit any use of the removal
power that would prevent the laws from being executed.

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Fair enough. No, I don't think the TC clause has been adjudicated an independent cause of action.

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It's literally the grounds the Supreme Court has given for the President's ability to remove officers!

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@nicholasbednar.bsky.social and I made this argument in an amicus brief in Slaughter but were ignored. Paper forthcoming.

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The Democrats should challenge their removal on the grounds that preventing an agency from functioning is not taking care that the law is faithfully executed.

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I assume that's the answer, but I don't know. FERC is part of DOE. Not sure about STB.

This discussion (and the original Slate piece) has encouraged Nick and me to turn our brief into a short law review article. Frankly, we had outside counsel who butchered the brief, so please assume our logic (and writing) is better than what was filed.

Why aren't EPA and CFPB independent establishments under 5 USC 104? Just because they are doesn't mean the FVRA doesn't apply to them. FVRA applies to everything but independent establishments and gov't corps that have multiple members.

I was speaking colloquially. 3349c says "independent establishment or Government corporation," both of which are defined in 5 USC 104 and 105 (which themselves refer to definitions in 101 and 105).

Dan Walters @profdanwalters.bsky.social · 07/07/2026

Reposted by Todd Phillips

I really do think that there needs to be a movement--every bit as sustained and well-organized as the movement leading to Slaughter--to invigorate the positive requirements of the Take Care Clause of Article II. It's sitting there in plain sight and it means what it says.

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FVRA doesn't apply to any of the traditional independent commissions. There was about a year when it did, but Congress quickly undid it. Nick Bednar and I raised this issue to the Court in an amicus brief, but were ignored.

It's also why next time Democrats are in power, they need to put private rights of action into every statute, or write an omnibus private rights statute.

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Todd Phillips @tphillips.bsky.social · 02/07/2026

@nicholasbednar.bsky.social and I raised the Vacancies Act issue in an amicus brief. We were ignored. I think the answer is that firing officials such that the agency cannot function is not taking care that the law is faithfully executed, and should be undone, regardless of Slaughter.

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I'd love to know how the FTC thinks large language models are created.

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I think bankers would generally prefer light-touch prudential regulation. They know that's generally not possible during D administrations, but it is during R administrations. The only risk with banking agency independence is having more onerous regulation during R admins.

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Yeah. I think the Fed exception is part-and-parcel of the larger FedSoc project that is creating a permission structure to reject contemporary legal thought in a vast array of areas.

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Maybe no one brought up an NRC exception because nuclear energy people don't tend to be a part of these discussions? I only learned of it in an interview I conducted with a former NRC commissioner. I was floored (1) how important NRC independence is and (2) how I had never heard anyone mention it.

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Nah, businesses hate the SEC and very much want it under political control when Republicans are in office.

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I suspect (and have no basis for this suspicion) that FedSoc folks had this UET project, and enough people were saying "hold on there, what about the Fed?" that they needed to figure out a Fed exception to accomplish the project.

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I think "why the Fed" is b/c FedSoc told them it's different with no legal basis for that differentiation. Tbh, my biggest concern isn't potential loss of Fed independence, but loss of independence at the Nuclear Regulatory Comm'n. And that didn't come up at all b/c FedSoc didn't make it an issue.

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I missed that footnote. That's WILD! And shows just how far away this is from being law.

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No disagreement from me. Both opinions are very disingenuous.

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Correct. Which is why Kavanaugh says in his concurrence that they should just decide the issue (in favor of Fed independence, ofc)

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You'd have to go back to how the Court dealt with Seila Law--which was to allow those decisions to be effective, regardless of the constitutional infirmities of the officials who decided them.

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Hey @kexelchabot.bsky.social, this seems like an ahistoric reading of these laws, right? The president couldn't fire the CJ or VP, but could remove them from their positions on the sinking fund commission? What?

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