This teleforum will include a discussion about the Unitary Executive Theory, its judicial and legislative history, and its applicability to the President’s recent termination of EEOC General Counsel Sharon Gustafson. Ms. Gustafson will share her thoughts regarding her duties at the EEOC and the challenges for any individual performing such duties. The panelists will debate and discuss the authority of the President to exercise “at-will” termination authority over Senate-confirmed individuals serving on 'independent' boards and commissions.
Hon. W. Neil Eggleston, Partner, Kirkland & Ellis LLP
Hon. Sharon Fast Gustafson, Former General Counsel, United States Equal Employment Opportunity Commission
G. Roger King, Senior Labor and Employment Counsel, HR Policy Association
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Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Dean Reuter: Welcome to The Federalist Society's Practice Group Teleforum conference call as today, March 25, 2021, we discuss "The Outer Reaches of the Unitary Executive Theory and the Termination of EEOC General Counsel, Sharon Gustafson." I'm Dean Reuter, Vice President, General Counsel and Director of Practice Groups at The Federalist Society.
I'm very pleased to welcome our audience and our guests today. As always, please note that all expressions of opinion are those of the experts on today's call. Also, this call is being recorded for use as a podcast and will likely be transcribed and put on our website in the future.
I mentioned three guests. We're very pleased to have each of them with us. I'm going to introduce them very briefly and then we'll get opening remarks, in turn, from each of them. Not more than 10 minutes or so. And then, as always, we'll be looking to the audience for questions.
So we'll hear first from the Honorable Sharon Fast Gustafson. She's the former General Counsel of the United States Equal Employment Opportunity Commission. She'll be followed by G. Roger King, he's the Senior Labor and Employment Counsel at HR Policy Association. And then we'll get remarks from Hon. W. Neil Eggleston, who's a partner at Kirkland & Ellis right here in Washington D.C.
But as I mentioned, as always, we'll be looking for audience questions so have those in mind for when we get to that portion of the program. With that, Sharon Gustafson, the floor is yours.
Hon. Sharon Fast Gustafson: Hello. Thank you. I'm happy to be here. I very much enjoyed my work as General Counsel at the EEOC. After 28 years practicing employment law, I was honored to have a turn working on the inside of the EEOC. And this experience has certainly helped me better understand how the agency operates. I respected and enjoyed the career employees. Most of them were lawyers whom I worked with, and I had a great group of political staff working with me.
I'm not taking a position today on the legal issues related to President Biden's decision to fire me on March 5, more than two years shy of my four year term. I leave that discussion to the others. But I have agreed to share my thoughts about the pragmatic question of whether Presidents should terminate a presidentially-appointed and Senate-confirmed political employees who have fixed terms.
In my opinion, after having served in such a position, absent some truly unusual reason both political parties would do well to promptly confirm political nominees so that both parties can have maximum influence over the agency when it's their turn. And, then, both parties should respect the term limits of those confirmed.
It is not healthy for career agency employees to become detached from the political process to which they are supposed to be accountable, but they do become detached in the absence of political leadership. They rightly think that they are the subject matter experts, so they wrongly think that they are the people who should make policy judgements. Policy judgements should be made, rather, by those chosen by the voters to make those judgements.
Understandably, perhaps, the career employees tend to regard the political appointees who are their rightful temporary leaders as visitors and interruptions that need to be tolerated. In any discipline, the experts may become so expert that they begin to lose contact with business reality and everyday reality in their work. I doubt whether even a handful of EEOC attorneys have ever owned or run a business or made payroll. I expect that few of them have substantial experience advising a business.
Many of them have spent their entire careers at the EEOC. They are smart and personable and expert, but they do not know what it's like to be an employer who is responsible both to its shareholders as well as to its employees whose livelihoods depend on the success of the business. Nor do they know what it is like to advise an employee who is experiencing discrimination, to help her attempt to remedy matters with her employer and then to represent her through the filing and investigation of the charge of discrimination through a mediation or conciliation, through the filing of a lawsuit, through discovery and summary judgement proceedings, and through trial and appeal and, hopefully, settlement.
Most of the political appointees, on the other hand, have at least some of that experience. And some of us have all of it. The EEOC Commissioners, even the Democrat-appointed Commissioners, reflect a real-world orientation that probably arises, in part, from their political situations. They tend to be more hesitant to push things as far left as possible. They may be more alert to the social and political ramifications of an extreme position than are the career employees.
Democrats may think they do not care because the agencies tend left when no one is at the helm. But Democrats should want agencies to have political oversight. David Lopez, the EEOC's General Counsel under President Obama, was definitely influential in innovative work the agency did during his tenure. Both political parties have an interest in getting their appointees confirmed as soon as possible, and then keeping them in their positions for the duration of their terms.
My point is that thoughtful people from the left and from the right should value the place of political appointees in the running of an agency. If both parties follow President Biden's approach, they will minimize the role of appointees with statutory terms and expand the power of an unelected and self-governing bureaucracy. And now, I'm going to hand it over to Roger King for his remarks.
G. Roger King: Thank you, Sharon. Thank you, Dean. And, Neil, good to join with you this morning. From my perspective, this is both a policy and legal discussion. Let's start with policy just for a moment. The Equal Employment Opportunity Commission, by congressional design, is an independent agency. Congress has spoken on the issue; I think that's well understood and accepted. It's not part of [inaudible 06:48] Department of Labor control. It's an independent agency.
And if you go back to basics and look at the creation of the Commission and the composition of the Commissioners on the Commission and also its General Counsel, I think that point is statutorily is well made. For example, the Equal Employment Opportunity Commissioners shall be no more than three from one political party. And if you look at the EEOC website, you'll see, on a number of occasions, the Commission states it's a bipartisan, apolitical entity. And those are important points to remember.
Also, as Sharon mentioned, we're talking about specific terms. This is a position of General Counsel that has a specific term. Again, going back to the statute. The statute's quite clear. The GC of the EEOC has a four-year term. The word "shall" appears in the same sentence as the advice and consent requirements for the Senate. So we're talking about an agency that is independent, apolitical, and non-partisan. And that's the framework, I think, this discussion should keep in mind as we proceed through various legal issues.
The second point I would make is: No President, Democrat or Republican, has ever removed an EEOC General Counsel. This is completely unprecedented. And the reasons for that: While their Office of Legal Counsel memorandum that discussed inherent presidential authority for sound policy reasons, no General Counsel, again, has ever been removed by a President as was the case that we're talking about today.
And I think that speaks volumes. It is not wise. It is not good public policy for the Chief Executive or those close to him or her to become so involved in an independent agency as to make it a political branch of the office of the President. That is not the way we should be running independent agencies and commissions.
Let's talk for a moment about the duties of the EEOC General Counsel. I think you can distill, basically, into three distinct roles. The GC serves as the Commission's lawyer; second, as the Commissions prosecutor in the courts, and as an administrative officer working with the Chair of the Commission regarding supervision of lawyers in the field offices of the Commission.
This is not a policy-making position. This is, as many would describe, an inferior officer position. And that's a discussion that we've not seen or heard, but there's ample Supreme Court authority, particularly the Morrison case, that discusses inferior officers. And I would submit that the General Counsel of the EEOC is an inferior officer, as discussed by the courts. And this particular position does not have regular interaction with the Office of the President, the Vice President or others in the White House. It is removed from that and for good reason.
Now, there's been all kinds of discussion about recent case law. And I want to just talk first of all about the General Counsel of other agencies. If you do some research, you'll find that there are only three General Counsels of independent agencies and boards that require Senate confirmation. One is the National Labor Relations Board, two is the Federal Regulations Authority, and three is the EEOC General Counsel.
Statutes are silent at the NRA and at the EEOC, with respect to the power the President's removed. The President's not given specific authority. Certainly not at-will authority. These statutes are silent regarding the LRB General Counsel and EEOC General Counsel. However, the Congress was quite clear with respect to the Federal Regulations Authority, the most recent pronouncement by the Congress with respect to General Counsel removal. There, the Congress clearly provided the President, the Chief Executive, with at-will authority to remove the GC of the Federal Labor Relations Authority. So Congress knows how to speak on this issue if it's their desires to give at-will authority. It did not do so with respect to the EEOC General Counsel.
And, finally, I should mention the Seila Law case. It's really interesting. We have an almost complete change of position by many in Washington after President Trump removed a head of the Consumer Financial Protection Bureau. There was a quite substantial push back and then Supreme Court litigation and many, I'm sure, of Neil's colleagues took the position that the President did not have authority to remove the individual heading this agency.
Well, the Supreme Court, of course, concluded otherwise. But it's interesting if you really drill into that decision. What the Court looked at was the considerable authority that the Director of that Bureau had. Indeed, there were 19 separate consumer protection statutes that the individual in that position had authority to promulgate rules and also enforce. That's not the case of the General Counsel of the EEOC. She or he works closely with the Commission, as I mentioned, has three distinct types of duties.
So, in conclusion here, notwithstanding the unprecedented nature of what occurred, this is a very poor policy decision. We think the Supreme Court decisions in Humphreys and Wiener and in Morrison clearly support a legal challenge to what has occurred here. And, at a minimum, we think it would be helpful to have clear Supreme Court guidance on this issue. Neil, let me turn it to you.
Hon. W. Neil Eggleston: Yeah. Thanks, there, Roger. Very much appreciated. So this is Neil Eggleston. I was introduced as a partner of Kirkland & Ellis. I was also White House Counsel for the last three years of the Obama administration, which I thought I probably should mention since people are probably wondering, sort of, what my point of view is here.
Let me just say that, it's my view that President Biden properly terminated Sharon. Both as a matter of law and as a matter of policy. Let me start -- Roger talks about the EEOC as being an independent agency. I guess that's a little bit of a definitional issue and I'm not sure it really matters. The Commissioners on the EEOC are all appointed for a term of years. And, typically, when we think about independent agencies they are protected by for cause removal provisions.
And it's important to note that the EEOC General Counsel is also appointed for a term of years but does not have for cause removal provisions in the statute. And so the legal argument has to be that, for some reason, the fact that the General Counsel's appointed to a term of years means that the President cannot terminate her before that term of years is over, I think the law is overwhelmingly against that argument.
First, let me just point out that Director Comey, Director of the FBI, who was terminated by President Trump, he was serving a ten-year term. I don't remember any conservative commentators; I may have missed some. I don't read all conservative commentators. But I certainly don't remember a big outcry that Director Comey could not be fired because he was serving a term of years. I think, at the time it was generally regarded that the President could terminate him because there was not a for cause removal provision.
I think the litigation over presidential termination has, typically, been over the for cause removal provision. And I really think, again, I may have missed some but there is not case law that supports the view that being appointed for a term of years insulates the appointee from termination. I think the more accepted view is that the term of years is intended as a limit so that someone cannot continue to serve without being renominated and confirmed.
It's certainly, as we all know, true with the FBI Director because Director Hoover had been in that position so long that eventually when he was replaced, they wanted to make sure that there was a limit on how long he could serve and so they put that directors can serve. People remember Myers, which is the case, I think, from the '20s out of the Supreme Court where the Supreme Court struck down a provision that said that the Senate had a role in the termination of someone who was a Postmaster General of the United States.
Roger mentioned the Seila Law case, which was decided last June, I guess, by the Supreme Court. He's right. It was about for cause termination of the Director of the CFPB. The Supreme Court ruled that that was a limitation on the President's ability to terminate; that was unconstitutional. So, let's just be clear, there was a for cause termination provision in the CFPB statute for the Director, and the Supreme Court ruled that that for cause termination provision was unconstitutional because there was a restriction on the power of the President to terminate him.
Let me just say this would be a very odd case, indeed, if the Supreme Court thought that it was striking down the for cause provision but that the Director still remained in place because he had a term of years. Remember the Director of the CFPB had a five-year term of years and there certainly no one in that case was taking the position that the term of years protected the Director of the CFPB.
I just want to look -- Justice Kagan had what I thought was a powerful dissent in Seila Law, but the dissent was a discussion, again, of the provision for a for cause termination that the majority had struck down. You know, as I, sort of, hear these these arguments I'm feeling a little bit like as if conservatives think that the unitary executive applies to Republican Presidents but does not apply to Democratic Presidents. And I think the law here is quite clear that a term of years does not protect the General Counsel of the EEOC or the other agencies from termination by the President.
A similar issue has come up, I know it's not the subject of this, with regard to the General Counsel of the NLRB who does not have a for cause termination provision in the statute creating his position. The members of the NLRB do. Some conservatives have argued that since he works closely with the NLRB, that he should get for cause termination provisions just as they have. That would be a pretty whacky reading of the statute to read for cause into his termination provisions when Congress elected not to keep it in.
So that's sort of my legal analysis. I, frankly, I hear Roger. He's a super smart guy but I would say that this is not a particularly close case. I might say, I know that Sharon didn't address the legal issues. Maybe she will now that I've weighed in. But I've read her letter to President Biden refusing to resign. I don't see a citation to any legal support that the President does not have legal authority to terminate her. She talks about breach of norms and all sorts of things, but she does not cite to a case other than, or anything else, other than the term of year provision in support of the view that the President cannot terminate her.
Roger mentioned and maybe Sharon also mentioned, that Sharon was the first General Counsel to have been terminated. Let me just say, at least the last two General Counsels resigned when a President of the other party was elected. I think we all know that this is quite common. The Chairman of the FCC, for example, who as a member of the FCC has for cause removal protection, typically, resigns. The head of the FTC, typically, resigns because there's a recognition that the President should get his people into those positions.
I know that they could probably stay on as members. Under the statutes, they can't really stay on as Chairs because the statute gives that power to the President to select. In Sharon's letter to President Biden refusing to resign, the only example she cites, actually, of a General Counsel of the EEOC staying on, was the transition from the Ford administration to the Carter administration in the late 1970's. I don't know enough about that specific episode to know whether there was a reason for it, but it may be true that the EEOC General Counsels have not, typically, been fired but you can tell from this record that they have typically resigned, as well, and have not done what Sharon decided to do sort of in this matter.
Finally, just as a policy matter. Look, I completely agree with Sharon that the Senate should be addressing these nominations and deciding on them very quickly. And the fact that they take years -- I mean, here we are with President Biden it's gone fairly quickly. But here we are with President Biden, who knows, you never know whether you're going have a four-year term or eight years of a presidency. But I completely agree it's important to have political leadership and I completely agree it's important to get people in quickly and the political leadership has an important role in all these different agencies.
What I disagree with, is the notion that there should be some presumption that the nominee appointed by the President, in this case, the President who was defeated in re-election, that that nominee should be permitted to remain in office and, I think, perpetuate the policies of the prior President. I think Sharon made a reference to a choice by the voters. Well, the voters of the United States last November made a decision to reject President Trump and to elect President Biden. And I think it's completely consistent with the unitary executive and the prerogatives of the President to put in people who support his positions and not people who support the positions of President Trump as General Counsel of the agency.
Anyway so, Dean, I'm done with my opening remarks. I may have prompted some questions along the way. But I'll turn it back to you.
Dean Reuter: Terrific. Thanks to all three of you. I do want to open the floor to questions from the audience, at this point, although I have some ideas about some questions of my own. But let's do that. While we wait to let people queue up, I want to also give Sharon -- I don't want to go through the order again, but I want to give a chance for some responses here.
And Sharon and Roger as you respond, there's an interesting thought experiment I've had with regard to presidential power, Executive power, and that would be to ask the question: Let's just assume a President makes an appointment to one of these boards or commissions or a GC position, there's no change in presidency but can the President, then, fire their own person? In other words, let's just say President Biden appoints Joe Smith to be the new EEOC GC. Does President Biden have the power to remove that person and are we focusing too much on a change of administration?
And for Neil, I guess, it's not necessarily a legal question, but it goes to the norms and traditions, I suppose, and some of the policy implications. I put a lot of stock in the difficulty in getting people to serve in the federal government whether it's in the main Executive Branch or an independent agency. And I'm reluctant to make reliance interest, but I also think some people agree to serve because they imagined they'd be in a position for the full term. Indeed, a lot of time they're asked if they, basically, agree to serve the entire term in addition to providing some continuity in the office, which I think is probably a good thing. It sets expectations and it makes it easier, I think, to attract highly qualified people -- especially late in an administration with election results unknown. You're going to try and recruit somebody to fill a position that might be a key position for nine months which can be a hard sell. Which might be another reason that some of these have terms.
So, with that, let me go back and -- we do have some questions from the audience but let me give Sharon a chance to reply and respond to anything that I've mentioned or her colleagues have mentioned on the phone here.
Hon. Sharon Fast Gustafson: I've never before thought about whether or not the President who appointed me could have terminated me. I guess I assumed that he could have, but I never gave any thought to it. I do understand the arguments on both sides and it's kind of fun to hear people arguing on both sides of this question. But, for me, like I said I have just really been interested in the pragmatic questions about whether it's a good idea.
I also note as somebody who's been an employment lawyer for decades, just in employment law generally, and I'm not saying it applies in this situation but, generally, one of the things we tell employees is when you have an employment agreement that's for a period of years, it takes cause to terminate you. That's the difference between at-will employment and employment for a term of years. With at-will employment you can be terminated for any reason, but if it's for a term of years you won't be terminated unless there's cause.
So, again, I never represented anybody who had been appointed by the President and confirmed by the Senate and I haven't given any thought and it didn't occur to me until this conversation today that that's true and how does it apply here. But it is interesting and it's sort of in the back of my mind about how it works when you have a job for a term of years.
But I do think that there just should be an incentive that the four-year term gives an incentive to the political system to get people confirmed early on. And if you know, oh, the new President can just fire this person, then there's no reason for everybody not to just -- for opponents not to just drag their feet and try to hold up these confirmations as long as possible to shorten the term and any influence that appointee may have.
G. Roger King: So, Dean, just two quick points. I want to go back to the statute. Let me just read it. "There shall be a General Counsel on the Commission appointed by the President by and with the advice and consent of the Senate for a term of four years." It couldn't be any clearer. The one case that has come closest to analyzing this issue involved the EEOC Commissioner who sued to be reinstated. Somewhat similar to your question, Dean.
But I want to read one quick passage from this case. It's Lewis v. Carter. It's, for those listening, 436 F. Supp. 958. It's a 1977 decision of the Federal District Court of the District of Columbia. And here's the quote: "However, it is apparent that the EEOC does possess a quantity of functions which are legislative or judicial in character, including information collection and dissemination and the issuance of advisory opinions. The question, of course, is where to draw the line between executive and non-executive agencies. Should only those officials and agencies with purely executive functions be subject to removal at the will of the President or should the test be whether the agency in question has functions which are only predominantly executive. The Supreme Court just left the question open." And there's some OLC opinions that come to the same conclusion. This is a close call; it's an open question.
And just to respond to Neil's points. The Director of the FBI, the Director of the Consumer Financial Protection Bureau have far greater duties and responsibilities, particularly, policy-wise than the General Counsel of the EEOC. I don't think it's even close comparison. And when you really unpack the decision in Seila, including some very thoughtful dissents that Neil mentioned, I think it's clear that when you apply the Humphrey's Executor Functions and Duties Test, the position of EEOC General Counsel doesn't come close to an Executive level policy making position.
This is not only uncertain territory of law, but the Supreme Court should step in and clarify Humphrey's Executor, but also it's exceedingly poor policy. Now, can we imagine a President calling the General Counsel of the EEOC and saying, "Don't move aggressively against this company, or this employer, or this union." That's not what we want. That's not good policy.
This agency is independent. It is, by statute, bipartisan as I mentioned at the top of this call; it should remain that way. And I don't think this is a Republican or Democrat discussion. I think it's about good government, I think it's about independent agencies doing what they're supposed to do without inappropriate interference from the Chief Executive.
Hon. W. Neil Eggleston: So, Dean, it's Neil, just really a couple of thoughts. You sort of, I think, floated to me the question about reliance interests. And, look, I just think on that that if somebody's being nominated at the end of a term, then the person has to think to themselves I might not be able to serve out the end of a presidential term, that I may not be able to serve out the rest of my time.
Obviously, President Trump, largely filled his -- not largely, it's too strong, but heavily filled his administration with people who were acting and decided not to nominate them, at all, even when the Senate was controlled by Republicans. And I just think that anybody thinking about reliance interests just has to think to themselves if a President from another party is elected, then I'm going to lose my job. And that's part of being in a political system where you get nominated by a President and confirmed by the Senate, and I really don't buy that, sort of, the term of years issue.
And let me just say, this is sort of interesting. I have such whipsaw, at least Thomas and Gorsuch and maybe others and certainly the SG's office in the Department of Justice, all urged the Supreme Court to overrule Humphrey's Executor. So the conservative view of this is that Humphrey's Executor should be overruled and there should not be protection even for independent agency commissioners. And I just can't get over the thought that what's going on with this, is a view that it's okay as long as it's a Republican President, but when it's a Democratic President, we want to constrain his ability.
Now, let me just say on the Lewis v. Carter case, I just think that the Supreme Court has a very different view of this now than the District Court did in 1977and that, if anything, they didn't need to decide the Humphrey's Executor issue in order to decide the CFPB case because he was a single member. I really don't know where the case is going to go if they present one that presents multi-member commissions.
Obviously, some members of the Supreme Court have made it quite clear, a lot of conservative commentary has been that Humphrey's Executor should be overturned. It seems to me, if anything, that's the way the law -- that's where the fight is. It's not over whether people who have a term of years should be protected. I really think there's no support for that at all.
Dean Reuter: Very good. We do have a couple of callers with questions. Go ahead caller.
Paige Smith: Thank you. Hi. My name is Paige Smith. I'm a reporter with Bloomberg Law. I have a question for Ms. Fast Gustafson: Are you planning on taking any legal action over your termination?
Hon. Sharon Fast Gustafson: I don't have any plans. I'm keeping all my options open. As Neil has pointed out today, I haven't been making legal arguments in this call or in my letter. I'm just listening to other people make those arguments. I agree that we need Supreme Court guidance and I agree that whatever the rule is it should apply to both parties, and nobody will hear me saying that there should be two different rules depending on who's in office -- what party's in office.
Paige Smith: Thank you.
Dean Reuter: We've got one question left. Go right ahead, caller.
Pepper Crutcher: Hi. This is Pepper Crutcher. I'm the current Practice Group Chairman. Let me first say, thank you very much for Neil Eggleston's thoughtful presentation that actually may have changed my mind to some extent about this. But I have a pointy head statutory construction question that's separate and apart from the unitary executive analysis and I want to direct it to Roger King.
So, Roger, as Sharon said those of us on the management side have been fighting the at-will employment wars for 30/40 years. And, to my knowledge, it is the common law of all the states that a contract for a definite term is terminable only for a cause and the at-will cases go off on what about contracts of indefinite duration to what extent is cause required? So my question is: For federal statutory construction purposes, does it matter what the uniform underlying law of the states is? Should that be considered when construing a federal statute, assuming you think the federal statute is ambiguous? Has the underlying common law of the states been considered in other context for purposes of interpreting a federal statute? There's my question, Roger.
G. Roger King: Thanks, Pepper. Great question. Well, it certainly should inform the discussion. The Supreme Court, though, has been very clear on the silence of the statutes. It has said that's not an issue. The Supreme Court has gotten past that and look to the functions and duties test. But, per your question, no I think it's something that's worthy of statutory construction discussion.
At-will employment is a very severe and contested doctrine as you know. And to provide the decision-maker with absolutely unbridled authority to remove someone, is very contentious. Our friends on the labor side of this discussion would push back and argue for cause. And that's what's somewhat interesting about the political consequences of this discussion.
We saw a lot of pushback against President Trump's removal of the Director of the Consumer Financial Protection Bureau, and now we have a complete role reversal by some of the same individuals as supporting President Biden. This can't continue, shouldn't continue. So, again, back to your question. Yes, I think , the common law in this area should be considered. The at-will doctrine is one that certainly should be looked at. But, ultimately, Pepper I think it's a functions and duties test. I think Humphrey's Executor was properly decided and should be clarified.
Dean Reuter: Neil or Sharon, anything on this point?
Hon. Sharon Fast Gustafson: Not for me.
Hon. W. Neil Eggleston: Yeah. It's Neil. So this is a super interesting question, Pepper. But just a couple of thoughts on it which is one: I think it's very hard to separate the functions and duties test from statutes and at for cause removal provisions. We just haven't seen case law applying it simply to a term of years. Now, I'm talking about in the federal system not the employment law context. That's where this has come up. As I say, there was no way to in Seila Law, there was no, sort of, second argument because he was also serving a term of years that he had some additional protection. It was because he had this for cause termination provision.
And, I guess Pepper, the other things I would just distinguish from the employment situation, the regular employment situation. And I do sound like a conservative when I say this, but the essential argument is that the Vesting Clause vests executive power in the President of the United States and the Take Care Clause requires him to execute the laws of the United States. And the argument from Myers and the argument in Seila Law is, in order to do that, he needs to have hiring and firing authority. And, unless he can control employees -- and remember that General Counsel of the EEOC, this isn't just some employee somewhere in the bowels of the administration, this is someone who is nominated by the President of the United States. And so this isn't some low-level employee here. And the notion is that the President needs to be in a position to be able to terminate that person if the person is not acting appropriately.
And, Dean, to go back to your question, I don't think it matters whether it's a new President. I think if the President decides that the person is not discharging the function the way the President intended, that that President can terminate that person. I don't remember there were a term of years terminations except Comey by President Trump, but he sure terminated a lot of people. And I don't think anybody think there was much of reliance interest. Except for Comey, I can't think of a good example of someone who was terminated through a term of years. No. I acknowledge that.
Dean Reuter: And, Neil, let me ask you a quick follow up, but we've got four questions in the queue. But does it make a difference in your estimation whether or not we're talking about an independent "agency" or cabinet level agency in terms of the President's ability to fire them or replace them?
Hon. W. Neil Eggleston: So I, yeah. So, look, I'm in the camp that agrees with Humphrey's Executor and believe that it should not be overturned and I would like to see Seila Law limited to the specifics or circumstance of the single director. So I don't think that the President of the United States should be able to terminate the SEC Commissioners and I think Humphrey's Executor was an FTC situation or the FTC Director.
Dean Reuter: Correct.
Hon. W. Neil Eggleston: I don't know, look, I haven't looked into it carefully. But I don't know that it's fair to call the EEOC an independent agency. I know that Roger's taking that position; I'm not really disagreeing. But most of the agencies that we think of as independent agencies have for cause termination protection and the Commissioners of the EEOC do not.
And, so, part of the answer to you, Dean, is I agree generally and I think Humphrey's Executor should remain in force and not be overturned by the Supreme Court, but I'm not sure that that applies to the EEOC. But I haven't looked at it carefully, I acknowledge that.
Dean Reuter: Very interesting. We've got four questions pending. So let's move on now. Go right ahead, caller.
Caller 3: Okay. Thanks a lot. Great panel. Very interesting. I appreciate all the panelists very much. So my question is for Mr. Eggleston. And I'm trying to make sense of a lot of these cases myself. So my question is: If I'm hearing you correctly, aren't for cause protections actually illusory and unenforceable? In other words, if a President says, "This quasi-judicial NLRB member or EEOC Commissioner has issued substantive decisions on legal issues that I don't like, that constitutes good cause for removal under my Executive power." And if there is, essentially, unlimited removal power doesn't this destroy the advice and consent power of the Senate and undercut a very import check and balance in the Constitution?
Hon. W. Neil Eggleston: So let me do the second one first. I'm a little worried your first question is going to fall out of my head, so I may have to -- but I have an answer to it but it just may fall out of my head. When you give me two at my age, it's so hard to keep them both in my head. But the advice and consent issue is basically present whether there's any protection.
It's the same thing as on a cabinet official. And that's really Myers. And it wasn't obvious Myers had to come out that way. There's nothing in the Constitution that says anything about termination. But Myers said despite a statute that said the Postmaster General of whatever state he was in couldn't be terminated without, essentially, Senate consent. The Supreme Court said, no, that the President gets to do the net statute is unconstitutional. I think Myers is unanimous if I remember correctly.
So I think in some ways that's just where we are on the state of the law, and the Supreme Court, enthusiastically, reaffirmed Myers in the Seila Law case. But could you give me your first one again because I had an answer to it?
Caller 3: Yeah. The first one was: If the President has unlimited removal power, then what does for cause mean? Because the President can just say, "Gee, you issued anti-union decisions, or you issued pro-union decisions so you're out of here." Even though you’re a quasi-judicial official in an independent agency, you are out of here. And that constitutes for cause. So that's the question.
Hon. W. Neil Eggleston: This is an interesting question. And it was sort of debated during the argument in the Seila Law case, which I listened to. My partner, Paul Clement, was appointed to defend on law because the Trump administration, obviously, had decided not to defend the law. And I think, actually, not in Seila Law but in the D.C. Circuit opinion that was written by Judge Kavanaugh that dealt essentially with the same issue, I think, Judge Wilkins makes a similar argument. And the argument, essentially, is that the for cause protection is not much of a protection. Essentially, the argument you just made.
I think the Supreme Court didn't resolve it and didn't have to resolve it in Seila Law. I think that most people think that for cause means something more than I disagree with sort of the substance of your position. But I think that that was an issue that came up in the Seila Law argument, well, argument and maybe even the briefs. I read the briefs, so I wouldn't say argument. Sort of, basically, arguing we're not sure what the content of -- so the President can't just wake up one morning on a whim and do it, but as long as the President has a sort of, articulated reason that's sufficient.
I've heard that argument. I suspect there's a fair amount of case law that suggests that it has more teeth than that, but that's something that got a lot of attention, I think, in the Seila Law argument.
Dean Reuter: Roger or Sharon? Anything on this point?
Hon. Sharon Fast Gustafson: I would just say about the for cause issue, generally, in employment law either that for cause is defined by the contract itself or there's an assumption that there's some sort of malfeasance or neglect, severe neglect. It's not just somebody who has a difference of opinion.
And I just want to make the point that during my tenure at the EEOC, it was the career employees who I heard feeling strongly about the fact that the EEOC is an independent agency. I found the question interesting and I still do.
G. Roger King: Just another thought here, Dean.
Dean Reuter: Roger, go ahead.
G. Roger King: I'd like to focus on the Morrison v. Olsen case court decision 1988. And there, I think, the Court really properly framed our discussion. It said the concluding question is whether removal protections are of such a nature that they impede the President's ability to perform his or her constitutional duties. And, there, the Court upheld the constitutional removal protections for an independent counsel and noted that an independent counsel position had structured jurisdiction and lacked policy making or significant policy making authority.
I really think we need to put that in the equation here and look at the functions and duties of the General Counsel. Yes, I understand the unitary executive approach. I may agree with Neil; as to its [inaudible 46:13] point. But I don't think there's any debate that the General Counsel does not have significant policy making authority. It's back to the three essential functions or duties of that position. And we can't lose sight of that.
We should have career people taking a position that Sharon just mentioned. I know it's frustrating sometimes for those of us that are working with a new administration to have pushback from career people, but that's the way our system is set up. If the Congress had intended an at-will termination authority here, as I mentioned at the outset—it did so in the Federal Labor Relations Authority General Counsel statute—it could have so stated; it didn't so state.
And the Supreme Court has been very clear on this that the silence of removal is not an impediment for protection here. I mean, I'm clear on that in my research and I know we had a question that really gets into the National Labor Relations Board which is a different discussion but similar.
So I don't think that's really the issue. I think the issue, again, is Humphrey's Executor, duties and functions, the Supreme Court that elaborated further in Seila Law.
Hon. W. Neil Eggleston: Hey, Dean, can I weigh in—it's Neil—just on the --
Dean Reuter: Yeah.
Hon. W. Neil Eggleston: -- Morrison v Olsen parts that you said.
Dean Reuter: Of course. Go right ahead.
Hon. W. Neil Eggleston: I mean, just for two thoughts which is one: Conservatives, basically, have -- I mean, this is such a weird conversation, have completely adopted the Scalia dissent. The Scalia, to the extent that now people are now seeming to think that the Scalia dissent, and he was by himself in dissent the majority was written by Rehnquist, he said that the independent counsel often performed executive functions, that the Vesting Clause vest executive functions in the President of the United States and, therefore, the independent counsel statute was unconstitutional.
It's pretty simple, per him, and my general sense is that the conservative unitary executive people have essentially adopted the Scalia dissent as almost controlling law. The other thing about Morrison that you just have to remember is the independent counsel was not someone nominated by the President of the United States and confirmed by the Senate. I mean, we keep talking about how this person has very little function and no policy. It's someone who, under the statute, has to be nominated by the President and confirmed by the Senate. This is a very high-ranking official. The independent counsel in Morrison v Olsen—independent counsel was Alexia Morrison—was selected by three judges who were part of a panel that did it and lightly supervised by the Attorney General and removable for cause by the Attorney General.
So much further down in the hierarchy than someone who's been nominated by the President and confirmed. So I don’t think that Morrison v Olsen is much support for someone at such a senior level as Sharon had.
And can I just say one other thing, Sharon? Which is, you know, I disagree with you about whether you should have been fired, but people used to say to me when I was done, "Thank you for your service." And I want to say to you, thank you for your service and it's a selfless act to serve in -- particularly in high levels because you get criticized all the time and you don't make any money and all that kind of stuff, but I want to say thank you for your service.
Hon. Sharon Fast Gustafson: Thank you so much. I really do appreciate that. It really was an honor to serve, and I don't just say that because that's what people say. I really felt it. I felt it at the time I was doing it; I still feel it now. As I've said to other people, it was a pleasure to get to have the opportunity to do it, and I was more delighted at having that opportunity than I am now unhappy about my not being there.
I really did feel like my job was primarily as a prosecutor. I was intent on making sure that the statutes that the EEOC is supposed to enforce were going to be enforced in a way that protected all American employees in a manner that was fair to all American employers.
And I just want to make it clear that I never was giving any marching instructions from the White House when I was in that job. I don't know the extent to which that's interesting to people when they think about whether or not the President should be able to remove somebody from that position but the President, at least in the last administration, left the performance of those duties to the person appointed and confirmed to do that job.
G. Roger King: Well, as was the case for the many years the President had mentioned. That's the way every President, Democrat and Republican, has observed and viewed the office. But I do want to agree with Neil. Sharon, you did a terrific job. You should still be there from my perspective and we wish you well.
Hon. Sharon Fast Gustafson: Thank you.
Dean Reuter: Well, it feels like we're wrapping up, interestingly, but we're not. We have three questions left. So I'm going to try and get through as many of these as possible. I ask the questioners to be as concise as possible in their questions. Go right ahead, caller.
Caller 4: Hi. I'd like distract the conversation a little bit because I think the real problem here is [inaudible 51:39] have become the norm. The examples won't match exactly but whether it was Scott Pruitt or Wheeler at the EPA, Pruitt had sued the EPA; Wheeler was a coal lobbyist. I mean, these are people that are appointed to undermine the agencies that they're going to work for.
Same thing with GOP federal elections administrators that the FEC is just paralyzed right now because of the nature of the appointees is such that they are there to undermine the core mission of the agency. And the same thing with Postal Governors that are trying to gut an organization because it competes effectively with private sector operators.
And I'm curious for the folks that don't think there's anything that can be done, are they really abdicating for destruction of these agencies if you have people there moled in that are there to undermine the agency? Is there any solution to that problem at all?
Dean Reuter: Might be far afield from our discussion today, but does somebody want to respond to that, Roger or Neil or Sharon?
G. Roger King: Well, I mean, I'd be happy to have a discussion about for cause removal. Back to Pepper's question: At will v for cause. Two, obviously, distinctly different doctrines. If an individual is not performing the duties that are vested in her or him that are required to be performed, then that's a different discussion. That was not the case with respect to Sharon's removal. The White House has never articulated to this day any for cause reason for her removal. Her term didn't expire until August of '23, as I recall. So this was just an absolutely, I think, political move without good policy justification and without good legal justification.
Dean Reuter: Let's see if we can get a final question in here. Neil, were you going to say something? Sorry.
Hon. W. Neil Eggleston: No. No, I'll leave that to Roger. That's good.
Dean Reuter: Okay. Go right ahead, caller.
Caller 5: Yes. Thank you. Great discussion today. My question is about the practical effects of the change in leadership of the EEOC with the General Counsel and otherwise. And the question is: In the wake of still the unanswered questions from Bostock v Clayton County last year, what do you anticipate we're going to see, or what are we already seeing from the new EEOC leadership to indicate a change of enforcement or interpretation priorities at the Agency?
Dean Reuter: Let's -- this is Dean. Let's consider this our final question and we'll go through the order again and try and ask for brief responses and you can say anything you want by way of wrapping up, as well. So Sharon Gustafson?
Hon. Sharon Fast Gustafson: It's not a secret that I was interested in making sure that we were protecting people from religious discrimination. I had heard too many stories for too many years about employees facing religious discrimination and not thinking that the EEOC would help them. So that was a priority of mine. I have heard from people there that some people think there is some discrepancy between protecting people on the basis of religion and protecting people from discrimination on the basis of their LGBTQ status. I insist that both of these things can be done at the same time and it was my intention to do both at the same time.
I think that in the current administration, there may be good reason for thinking that one of these is of much higher importance to people than others and that is disappointing and discouraging to me. Religion fits right in the middle of Title VII, right in the middle of all the other bases and needs to be protected just like all the other bases.
Dean Reuter: Final thought, Roger King?
G. Roger King: Well, excellent question, but let's get back to the issue at hand. The authority of the General Counsel and is it of such a high level of authority, as Neil mentioned, that requires a presidential at will termination authority? No. I don't think so. And the question that the caller posed is a policy question that will be decided ultimately by the courts not by the General Counsel of the EEOC.
Hon. W. Neil Eggleston: Hello, it's Neil, just sort of a follow up.
Dean Reuter: Neil, let me just interrupt you just really quickly.
Hon. W. Neil Eggleston: Yeah. Yeah, of course.
Dean Reuter: Before I give you the final word. We of course could have gotten conservatives to make the unitary executive argument, but I thought it would be more interesting to hear that from you, so I appreciate your participation. And, with that, I'll give you the final word to wrap up.
Hon. W. Neil Eggleston: Okay. Thanks. You know, Roger, I'm just not sure it's ultimately true. Prosecutors, I was an assistant U.S. attorney in the Southern District of New York, and as a prosecutor, I had enormous discretion, particularly when I was a senior prosecutor, about what kind of cases to bring, where to focus my attention and prosecutors are not just scriveners along the way.
And the only other issue and, look, I have no idea. I have not spoken to anybody at the White House. I don't know why Sharon was terminated. But I do think the point Sharon just made is probably more difficult that accommodating religious freedom and at the same time not letting religious freedom become an excuse to discriminate against LGBT, that is a fraught issue. And I think that Democrats, generally, have a different view of it than Sharon did. And it's not that they can't both coexist. As Justice Kagan, again, I love her writing and so I'm going to cite her again, she's talking about the majority on the Court now weaponizing the First Amendment and I'm quite worried about that that's where we're headed, and I think we're going to see a different level of advocacy out of the Biden administration on a number of those issues.
Anyway, I want to thank everybody for permitting me to be on this panel and thank you, Dean, I've really enjoyed it. And Sharon and Roger I've enjoyed appearing with you.
Hon. Sharon Fast Gustafson: Thank you, Neil and Roger. I've enjoyed it, as well.
G. Roger King: I would echo that. And, Neil, we're going to remember your remarks 20 years hence [inaudible 58:05].
Dean Reuter: They're recording our remarks so no problems with that.
Hon. Sharon Fast Gustafson: That's right.
Dean Reuter: My thanks -- this is Dean, my thanks to all of you, as well, personally and on behalf of The Federal Society, I certainly appreciate it. I want to thank the audience, as well, for dialing in and for their thoughtful questions and comments. Reminder to the audience, check your e-mails, monitor our website for upcoming Teleforum conference calls, but my insider information tells me our next scheduled call is at 2 p.m. this very day. So, with that, we are adjourned. Thank you very much everyone.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.