Trump Takes on the Federal Bureaucracy, Putting Administrative Law in the Spotlight

Anne Joseph O’Connell: This piece of legislation would give to the president the ability to not only terminate agencies, including cabinet departments, it would also give to the president the ability with a kind of joint resolution with no filibuster, the ability to get rid of statutory functions. So you could get rid of parts of the Civil Rights Act.

And if that somehow got, goes around the bird rule and somehow gets into reconciliation where you don’t have the filibuster. And it gets through, and then the act itself allows even worse than what DOGE is doing now. Even worse, then to be statutorily permitted, where you just need simple majorities in each chamber.

That would be truly frightening.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they’re available. Today I am so fortunate to be joined by my colleague Anne Joseph O’Connell, and as a leading scholar of U.S. administrative law and the federal bureaucracy, she combines a lawyer’s doctrinal acumen and institutional sensibilities with a political scientist’s steep understanding of American politics and an empiricist rigor about facts in the world. Her scholarship explains how government really works, and she’s done pioneer award-winning work on previously unforeseen questions that are now actually questions that everybody cares about. I mean, Anne, you were an actings person before actings was cool.

Anne Joseph O’Connell: Yes, that could be said of many aspects of my life. Like I’m not part of the cool part.

Pam Karlan: No, you are so cool.

Anne Joseph O’Connell: But other people make it cool.

Pam Karlan: You are one of the coolest people ever and you are, I believe, my only colleague actually have been fired by the Trump administration in this huge wave of firings of people here at the law school. You were actually fired very early on you were fired on January 21st. Can you tell us a little bit about that?

Anne Joseph O’Connell: Sure. So President Biden appointed me to the Council of the Administrative Conference of the United States, which is a non-partisan agency dedicated to improving agency performance.

Basically, we’re all the administrative law nerds either in academia or in practice or in government hangout.

And I was appointed to a three-year term. I got the official Marbury v Madison Commission signed by Biden and signed by Secretary Blinken, which I rolled up and put it in my closet at home.

And my three-year term was to end in October of 2025. But on January 21st, I received a brusque brief email from the head of presidential personnel saying that on behalf of the president I was terminated.

Pam Karlan: And this was before they started with the thank you for your service too. So it was just like, no, you’re out.

Anne Joseph O’Connell: No thank you for your service. I’m thinking maybe I should take out the commission from my closet and print out the email and somehow hang them side by side, but I haven’t decided. I may just roll up, just keep the email in my archives and continue on.

Pam Karlan: So one of the, one of the pieces for which you’re best known is a piece with one of the shortest titles of a great art, a great piece of legal scholarship.

One of the things about a lot of legal scholarship is there’s something really long that you can’t figure out what the article’s about it all. Then there’s a colon and then there’s something that tells you what the article is about.

Anne Joseph O’Connell: I have many of those.

Pam Karlan: And I know you have a lot of those too.

But you have an article with the great, greatest title, which is just actings. So what is, what was that article about? It was not about all of the people who’ve done great roles and are now running for an Oscar or a Tony or what are actings?

Anne Joseph O’Connell: So they’re stand-ins, interim officials permitted by statutory provisions to step into Senate confirmed roles, either because there’s no nomination or because there’s a nomination that’s pending in the Senate.

And we’ve had statutes, Vacancies Acts since 1792, which have allowed the government to function, right? Especially in recent administrations, the nomination process is slow, the confirmation process is slow and you want the government to function, but you also don’t want a government entirely full of actings.

And I became interested in them before President Trump, in his first term, made them popular. I was interested ’cause I was tracking nominations and confirmations basically since I started my academic career and in the second term of President Obama’s administration, the Republicans controlled the Senate for the final two years, and I was noticing that the White House was putting forth very few agency nominations compared to recent two term presidents.

And then I was looking and seeing that there were these sort of phenomenal acting officials such as Vanita Gupta, who was confirmed as Associate Attorney General in the Biden administration, but she was acting head of the Civil Rights Division at the end of the Obama administration doing really interesting, important work.

But there were many others and President Obama kept pretty quiet about it. I think adored his actings because the political environment had him relying on them, and then they were definitely made much more visible in the first Trump administration.

Pam Karlan: Yeah, I mean they, just thinking back to my time at DOJ, obviously I worked with Vanita both when she was the Acting Assistant Attorney General, and then, as you can only hold the actual title for a certain amount of time and then you drop down.

So she went from being the acting Assistant Attorney General to being the principal Deputy Assistant Attorney General, supporting the Attorney General, which is a non Senate confirmation post.

Anne Joseph O’Connell: Yeah. And then you’re, yeah, the senior official performing the functions of assistant.

Pam Karlan: Yeah. I had one of those where I was the principal, deputy assistant attorney general performing the functions of, yeah…

And we actually have a Stanford alum, Brian Boynton, who is a terrific lawyer who served as the head of the Civil Division from day one to day last day of the Biden administration in charge of the Civil Division at the Department of Justice, where you worked actually when you were a lawyer before you entered academia.

And he was I think that he served as the acting and they never actually nominated a second person after the first person they nominated, withdrew, they never again nominated somebody, so he served in that position for essentially four years.

Anne Joseph O’Connell: I think for inferior offices like that one I really don’t see an issue.

I think we have too many Senate confirmed slots, but it gets the delegation, the performing the functions of gets tricky and more important jobs. So the second term of the Trump administration started off with someone Cameron Hamilton at FEMA who got fired for indicating that maybe we wanna be prepared for natural disasters, but he was an outsider and he didn’t fit any of the categories of the Vacancies Act.

He couldn’t come in as an official acting, so he started off on January 20th as the senior official performing the functions of the FEMA administrator. And that makes me a lot more nervous, like the head of an agency is at the start of an administration, not even coming in through the Vacancies Act, but is just coming in through delegation.

Pam Karlan: So another thing that I’ve noticed that’s seems to be actings now is that as I understand the Vacancies Act, and maybe I’m gonna get this wrong, if you were once confirmed to a position by the Senate, you can be moved into another position that would otherwise re otherwise require Senate confirmation.

Anne Joseph O’Connell: Yeah. So there’s there, there are some limits you have to be currently serving in a Senate confirmed position. So back in Trump 1, the fact that Matthew Whitaker had once been confirmed as a U.S. Attorney was not his kind of gateway into being an acting Attorney.

Pam Karlan: But as long as you’re currently serving.

Anne Joseph O’Connell: Right. So you had, now we have these, it used to be maybe double hatting, so Mulvaney…

Pam Karlan: Yeah, that was what I was about to get to. Is it Marco Rubio is now…

Anne Joseph O’Connell: Acting Archivist.

Yeah. And acting head of USAID and…

Pam Karlan: Secretary of State. Yeah. What can one possibly say?

Anne Joseph O’Connell: I hear, so obviously it’s hard to do one Senate confirmed job well, these are important positions.

Pam Karlan: If you’re not gonna do any of them well, you might do three of them, all of them poorly.

Anne Joseph O’Connell: The, so the statute permits it, I feel like double hatting is maybe normatively, you got the extent of it, but the triple, quadruple hatting. The one thing I will say is that the vacancies hacked has different pools of what qualifies as an acting, and you could argue that someone who has been Senate confirmed is a better person to be in acting than someone who has just been at the agency for 90 days in the year before the vacancy and hasn’t been confirmed to anything to the extent that you’re worried about the Vacancies Act being a workaround to the Senate confirmation process. It’s a little tricky now if you’re in an administration where the Senate just seems to be rubber stamping nominations. I don’t know how much weight that holds, but there is, I think, an argument that it’s better to have Rubio as acting head of the USAID than someone who hasn’t been confirmed to anything.

Pam Karlan: And why is that better? Because there’s been some vetting of him by the Senate.

Anne Joseph O’Connell: There’s been some, if the Senate were in normal times, there would’ve been adequate vetting and that would give a boost, and the idea is that to the extent you think the Vacancies Act is a workaround to the Senate confirmation process, at least the person has been confirmed to another post.

Pam Karlan: Yeah, so we’ve got those people, and then the latest firing seems to have been the Librarian of Congress.

Anne Joseph O’Connell: Oh. So I have stuff to say here. It’s complicated.

So the, alright, so as I understand it president Trump fired the Librarian of Congress and also fired the head of the Copyright Office.

There’s a, this wonderful piece I just read in The Verge about a kind of conflict within the Republicans about why Elon Musk wanted the head of the Copyright Office fired. And the kind of replacements are not exactly who Musk thought might come in. So we got these firings of the Librarian of Congress and the head of the Copyright Office.

So there’s a bunch of legal issues. So right, the first issue is can the President fire the Librarian of Congress? So the Librarian of Congress is nominated by the President, confirmed by the Senate. Now you might think in removal doctrine with a kind of unitary executive take. Thank you Supremes that the president has pretty broad removal authority over officials exercising executive authority. And here we have the Librarian of congress.

Pam Karlan: Yeah, I was gonna say the word Congress does appear in the title.

Anne Joseph O’Connell: But it turns out that my late judge, judge Williams in a case some years back called Intercollegiate Broadcasting, which did not involve the Copyright Office, but involved the copyright royalty board, there was an appointments clause issue about the kind of authority of the Copyright Royalty Board, and they had been, they were picked by the Librarian of Congress as the head of the Copyright Office is picked by the Librarian of Congress. And there were kind of removal protections, which ended up getting severed in this case, but in order to uphold it under the appointments clause and the Copyright Royalty Board deals with, this is like streaming royalties of Taylor Swift songs and others, right?

A lot of money at stake. Judge Williams held I’m gonna, we’re gonna find that the Copyright Royalty Board members are inferior officers, but that means that Congress has to have vested the appointment authority if it’s not Senate confirmation in the president alone, the head of a department or a court of law.

So the question became is the Librarian of Congress, the head of a department for appointments, clause purposes? And it’s a really interesting kind of functional analysis, but Judge Williams and the DC Circuit right, held that it was an executive department, at least for these copyright functions.

And upheld the status of the Copyright Royalty Board members with this kind of severing of the removal protection. So under Intercollegiate Broadcasting, I think as a matter of law, there is a pretty strong argument that President Trump can fire the Librarian of Congress. Okay, now that’s gonna raise these issues.

What about these other functions? So there’s an argument on the other side, but the issue where I think it goes the other way is President Trump also fired the head of the Copyright Office. That person is picked by the Librarian. So the question is, can the president fire an inferior officer that the president doesn’t select?

And I think the answer here is no. It actually turns out that the unitary executive theorists, who are also originalists, who argue, there’s this broad removal authority of the president at the founding, even they put to the side, is there backing and they find it going both ways about whether you could remove an inferior office that the president didn’t pick.

And I think you can’t. Like we had this case Free Enterprise Fund, which involved the constitutionality of the structure of Peekaboo, the Public Company Accounting Oversight Board (PCAOB) in the SEC and here it was like the president chose SEC members who were confirmed by the Senate and then the SEC members chose the Peekaboo members.

And this is the case where the Chief Justice holds that double poor cause removal, violates the separation of powers. If the president could just reach down and fire the Peekaboo members who had been like selected by the SEC like, why, like why have pre enterprise fund? And this issue has come up in other cases.

So I’m really interested in this litigation involving the Inner America Foundation and the African Development Foundation. And there, President Trump fired the heads who were picked by Senate confirmed boards who are seen to be inferior offices. So that second issue of removal with the Copyright Office, I think no Trump, only the Librarian of Congress can fire the head of the Copyright Office. Now there’s like another legal question. The question is, okay, let’s assume President Trump can fire the Librarian, cannot fire the head of the Copyright Office, can the president name an acting Librarian?

Pam Karlan: ‘Cause I think there’s a regulation that says when the Librarian’s not there, it’s the next person down, right?

Anne Joseph O’Connell: Yeah, that’s true in many agencies, but if the Vacancies Act is available, we allow the Vacancies Act to apply so you can not take the number two. So I think everyone agrees that if the president has authority under the Vacancies Act to name an acting Librarian, that acting Librarian could fire the head of the Copyright Office. So then the question is, can you name an acting librarian? And that’s tricky. So it kind, it’s like the constitutional question I just discussed, does the president have constitutional authority to remove the librarian? This is a statutory question, right? Is the Library of Congress an executive agency under the Federal Vacancies Reform Act? I think it can go either way.

Pam Karlan: It seems to me that, at least one of the things I understand about this is, the Librarian of Congress has access to an awful lot of stuff that’s kept in the Library of Congress that is congressional materials, if you will, almost owned, but so the, there are a bunch of different things the Library of Congress does, right?

Yeah. It has copies of every book, which is where you get that ludicrous claim that the reason why the Librarian of Congress was being fired is that there are some books that are inappropriate for children in the Library of Congress. And the answer to that is, duh, every book is in the Library of Congress.

Anne Joseph O’Connell: Yeah, but it wasn’t. Read The Verge article. I don’t. It was really about can you train AI on copyrighted works? It was about money.

Pam Karlan: No, I understand. That’s what’s actually…but the public claim for why the Librarian of Congress was being fired, was in part the Library of Congress has inappropriate books for children.

Anne Joseph O’Connell: And children can’t go into the Library of Congress.

Pam Karlan: Yeah, there’s that problem on top of everything else, but part of the problem is the Library of Congress has data in it that it seems to me that a lot of what DOGE is doing across the government, maybe we’ll turn to this in a couple minutes, but is they’re just trying to get access to every government database and God knows what they’re gonna do with them once they have them.

But Congress has presumably a special interest in when it puts its materials into a place where it doesn’t want them taken out again, especially not by the executive branch, it should have some ability to control that.

Anne Joseph O’Connell: And I think in addition, I actually worked at the Congressional Research Service for several months between college and graduate school and right, individual members can go to CRS and say, “Hey, I want more information on X.” And some of those requests are quite sensitive. Yeah. Actually, I got a request I really can’t talk much about, but it was a kind of crazy request and I’m sure if it was publicized, there would’ve been consequences for the member of Congress who requested the memo.

So there is a kind of separation of powers. So I do think right, the, does, I mean on the side that you can name an acting like the GAO is explicitly excluded from the Vacancies Act, but the Library of Congress is not. Then you get to this weird executive stuff that came into the intercollegiate Broadcasting.

So I think it’s a tricky issue. The one thing I think the administration will do is they’ll say even if the Vacancies Act doesn’t apply, we can just under inherent Article two name and acting, and this is what they did in Inner America Foundation and African Development Foundation. And that I think is nuts. We have an appointments clause for a reason. But I do think, if Congress is really interested in its prerogatives, then it does seem like this could go on the list of a, just to be sure, like amendments to the Federal Vacancies Reform Act.

Pam Karlan: Although the Trump administration seems quite keen on getting rid of a huge number of agencies, of various kinds.

It’s really quite striking. They did create an agency or an office or a department or something. They call it the Department of Governmental Efficiency, which the acronym for which is DOGE, which is pronounced DOGE. And I don’t think when they named it DOGE, I think they were thinking of the meme coin that Elon Musk has been involved in a lot. Of course, the thing that came to my mind, maybe because I teach in Stanford’s overseas studies program in Italy is the DOGE was the leader of the Venetian Republic back in the days when Venice had a republic that ultimately crumbled, the Venetian Republic crumbled in the 18th century, right around the time that the United States was coming into being.

Anne, tell us a little bit about DOGE.

Anne Joseph O’Connell: Yeah. I mean they were arguably clever to use the department title, but of course they’re not one of the cabinet departments. I have to…

Pam Karlan: Because Congress has to make those, right?

Anne Joseph O’Connell: Yeah. I have to admit, we were, I was always interested like, how is it pronounced? Is it gonna be like FERC where you say it, or FDIC?

But I think once I got past that trivial issue, they’re wielding incredible power. One thing I’ll mention is structurally how they’re doing it. So I’m working with Dan Ho at Stanford and two graduate students at the law school Olivia Martin and Isaac Cui. And we’re working on a project on detailees, and normally detailees go up the chain in the executive branch.

And so you wanna build more political capacity. You might put some people in the Department of Agriculture and then detail them up to the White House. And this happens also, you take career people, maybe in the Department of Justice from federal programs and they get detailed up into the political offices.

And what DOGE does is it’s really using detailees, but they’re going down. So you have people close to, I was gonna say close to the president, close to the co-President Musk, and then they’re getting detailed down into the agencies and wreaking havoc. Just what can happen.

Pam Karlan: And these people, they, some of these are not even government employees or they’re pseudo employees.

Anne Joseph O’Connell: They’re pseudo, yeah. Some of them are SGEs, like Musk himself. So you don’t have certain financial disclosure requirements. I think a bunch of them are not SGEs and so have come in under these Schedule C or other slots and then are being detailed down. Of course, in order to have a detail either going up or going down, you have to have a memorandum of understanding, everyone wants to agree, but of course these agencies are getting arm twisted to agree being forced under incredible threat to sign the MOU to have.

Pam Karlan: Yeah. Some of them the DOGE people like showed up and yeah, they were blocked at the door and…

Anne Joseph O’Connell: Yeah, the African Development Foundation, they didn’t wanna sign, but yeah, so they are really wreaking havoc and they’re getting into some trouble in the courts. So there are a bunch of issues about what DOGE is doing. One which is not my area of expertise is about kind of access to data, right? Can people get critical data from the IRS and use it in the immigration context from not being an expert, but just seems no, you cannot do that.

Pam Karlan: I know there are all these rules about, especially about things that the Internal Revenue Service has access to there are all these ways in which they’re not allowed to share that even within the government.

Anne Joseph O’Connell: Yeah. So there, these kind of data access issues, there were litigation over whether DOGE could get just information on government employees by personnel records. So there’s this whole issue about kind of data access and then what is being done by the data, like where’s it going, where’s it being stored? And so those are really big questions. So not my area of expertise, though everyone I know who cares and knows a lot about data is very frightened by DOGE and data access and mining and whatever else is happening. A second thing that DOGE is doing is in their words reducing these agencies to their statutory minimum as the text read in the executive order. And that’s resulting in challenges. They are also DOGE has been involved in right, cutting of probationary employees who have less protections, but they still have to follow certain rules.

Like you can’t fire probationary employees for performance reasons if in fact you’re not firing them for performance reasons. And then wide scale rifts, like the reductions in force there’s been a kind of successful litigation thus far about whether OPM through the DOGE detailees can be the one to order those reductions in force, or whether the agencies themselves have to be the ones to terminate workers.

So there’s a lot of kind of procedural and substantive challenges. And can you get rid of USAID or can you get rid of the CFPB or the Department of Education without kind of Congressional consultation and agreement? I will say I’m super frightened about a piece of proposed legislation called the reorganization Act of 2025, which, I think has pa it well, I know it has passed out of the house committee and this piece of legislation would give to the president the ability to not only terminate agencies, including cabinet departments, it would also give to the president the ability with a kind of joint resolution with no filibuster, the ability to get rid of statutory functions so you could get rid of parts of the Civil Rights Act.

And if that somehow got, goes around the bird rule and somehow gets into reconciliation where you don’t have the filibuster and it gets through, and then the act itself allows even worse than what DOGE is doing now. Even worse, then to be statutorily permitted, where you just need simple majorities in each chamber.

That would be truly frightening.

Pam Karlan: Yeah, I think, people hear about we want to eliminate waste, fraud, and abuse. And my feeling about that was they eliminated the offices that were most directly the statutory offices that already existed that were most clearly directed at that, which were the inspectors general.

And, I know the DOJ Inspector General, millions of dollars every year have saved money. Lots of guilty pleas on the parts of people who were misappropriating government funds and lots of reports and lots of recommendations. There was one at from, I guess he was the inspector at USAID who said there was like $400 million worth of food that had already been shipped to other countries that was rotting on the dock and Donald Trump fired 17 or 18 of those guys without following the procedures at all.

Anne Joseph O’Connell: But here’s what I would say is Congress actually got some guts after President Trump fired a bunch of IGs in his first term. Not as many. And in the National Defense Author authorization legislation imposed, going back to our first topic on actings imposed restrictions on who could be an acting IG.

So in the first Trump administration, he fires a bunch of IGs and he puts in political people. But now under the amendments to the NDAA, you have to use either Senate confirmed IGs or you have to use senior career people in IG offices. So you are actually seeing post firings, some IGs saying, we’re investigating data access, we’re investigating some of these things.

So I at least view that as a little bit of a silver lining to those firings.

Pam Karlan: Yeah, I mean it’s really it’s interesting to me because if what you wanted was to deal, actually wanted to deal with fraud and waste and abuse, yeah., You add a mechanism and instead of doing that, you have this kind of random group of bros showing up in agencies where they don’t really know very much about how the agency works with the like.

And I wonder if you could just say a little bit about why we have all of these administrative agencies and alphabet agencies. Why do we have them?

Anne Joseph O’Connell: Because kind of the private market would leave us in a really desperate situation if we weren’t, if the government wasn’t stepping in and providing certain public goods, whether that’s safety of food or safety of drugs, safety of vaccines encouragement to take vaccines, maintaining the safety of nuclear weapons where we had some firings.

And so they’re critical to that, and if I could just go back and say one thing about the waste. It’s a, it’s the tech bros. We sometimes see this in students or in certain academics where people are like, I am the first to discover fraud. We have the government accountability office, thousands of incredible experts who do understand that there is some waste, there is some fraud.

Like we, we want government agencies to do better and they’ve made serious recommendations and targeted, targeted things, but, no, we’re just gonna go in with a bulldozer and be like, oh, I’m the first to notice this. But yeah, I believe unlike the Reagan quip, I actually believe that, if someone came and said, I’m from the government and I’m here to help I think the government helps on so many different levels.

And so this raising of government capacity is just gonna have repercussions to come for a long time.

Pam Karlan: We could discuss those and I’m sure we’ll have many opportunities to have you back to discuss that, but we’re out of time. I want to thank my guest, Anne Joseph O’Connell. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app.

Your feedback improves the show and helps new listeners to discover us. I’m Pam Karlan. See you next time.