The “unitary executive” is back, and it could supercharge Trump’s plans to fill the government with his own loyalists.
Last year, a federal appeals court dominated by Trump appointees and MAGA sympathizers ruled that the system the Securities and Exchange Commission (SEC) uses to protect investors from fraud is unconstitutional — and that it is unconstitutional in three ways. This case, known as SEC v. Jarkesy, will be heard by the Supreme Court on November 29.
To be clear, we are talking about a federal agency that has existed since the Roosevelt administration, and whose governing statutes haven’t changed in any relevant way for more than a dozen years. Nevertheless, an especially right-wing panel of the United States Court of Appeals for the Fifth Circuit purported to find three entirely different constitutional flaws that somehow no one else has ever noticed before.
The Fifth Circuit’s decision in Jarkesy isn’t particularly surprising. Indeed, it’s typical of a court that routinely hands down dubiously reasoned decisions that attempt to sabotage core functions of the federal government. We are less than two months into the Supreme Court’s current term, and it’s already heard two similar cases arising out of the Fifth Circuit — one of which declared a different agency, the Consumer Financial Protection Bureau, unconstitutional, and another which held that domestic abusers have a constitutional right to own a gun — neither of which the Supreme Court seems likely to affirm.
Jarkesy, however, could potentially end differently. None of the three rationales the Fifth Circuit offered for neutering the SEC are especially persuasive, but one of them is grounded in a pet project of the conservative Federalist Society known as the “unitary executive” — a project for which the current Court’s GOP-appointed majority has shown a great deal of sympathy.
There is a risk, in other words, that at least some of the Fifth Circuit’s effort to light this decades-old agency on fire could succeed, with implications that stretch far beyond securities fraud. A sweeping decision affirming the Fifth Circuit could potentially enable former President Donald Trump to stack the federal civil service with MAGA loyalists, should he become president again.
Under the strongest version of the unitary executive theory, there are few, if any, limits on a president’s power to fire government employees who refuse to swear personal loyalty to that president.
So what are the specific legal issues in Jarkesy?
The Jarkesy case is an attack on the federal government’s authority to use administrative law judges, a kind of highly specialized judge who hears cases brought by certain federal agencies. Administrative law judges are civil servants who are hired using a merit-based selection process. They are typically in-house at the agency where they hear cases, but they enjoy robust job security protections to ensure that their decisions are impartial.
In total, the federal government employs about 2,000 of these judges — more than twice as many as the federal district and circuit court judges serving on what’s known as “Article III” courts. Most of the administrative law judges hear cases about whether impoverished Americans are entitled to federal benefits, but some hear enforcement actions brought by agencies like the SEC.
Article III judges generally hear all kinds of cases rather than focusing on one narrow subject matter. And Article III judges are political appointees who must be nominated by the president and confirmed by the Senate, unlike administrative law judges, who are civil servants appointed through a merit selection process.
The Jarkesy case involves George Jarkesy, a hedge fund manager who, according to the government, committed multiple violations of federal securities law. DOJ’s brief says that Jarkesy and his company told investors that the hedge funds were audited by a prominent accounting firm, “even though the firm never audited the funds.” The funds also allegedly misrepresented their investment strategies. And they were accused of “arbitrarily inflating the value of certain holdings from $0.30 per share to $3.30 per share — so that they could charge higher management fees.”
Eventually, the SEC brought an enforcement action before an administrative law judge, who determined that Jarkesy violated federal securities law. The SEC eventually ordered Jarkesy and his funds to pay a civil penalty of $300,000, and to “disgorge nearly $685,000 in illicit gains.”
Jarkesy raises three separate constitutional objections to this proceeding in the Supreme Court, all of which were embraced by the Fifth Circuit. All of them fault the government for bringing its enforcement action before an administrative law judge, instead of filing a lawsuit against Jarkesy in an Article III court. (An administrative law judge’s decision ordinarily can be appealed to a federal circuit court, which is made up of Article III judges, so the law does not permit the SEC to avoid Article III courts altogether.)
Federal law permits the SEC to choose whether to bring certain enforcement actions either in a federal district court (one presided over by an Article III judge) or before an administrative law judge. And, at the outset, it’s important to note that laws permitting litigants to choose which venue they bring a lawsuit in are quite common.
Many routine disputes between private litigants may be brought in either state or federal court, for example. Some tax disputes between individual taxpayers and the federal government may be brought in either an ordinary district court, a more specialized court known as the US Court of Federal Claims, or in the US Tax Court — a court made up of judges who focus on tax law. If the Justice Department wishes to bring criminal charges against someone who committed crimes across the Texas-New Mexico border, they might choose to bring those charges in a New Mexico federal court, because New Mexico is located in the 10th Circuit, while the same case brought in Texas would appeal to the chaotic Fifth Circuit.
Nevertheless, the first of Jarkesy’s objections to the SEC’s proceeding against him is that the law permitting the SEC to choose which venue to bring enforcement actions in is itself unconstitutional under a largely defunct doctrine known as “nondelegation,” which supposedly limits Congress’s ability to delegate decision-making power to federal agencies.
This is far and away the weakest of Jarkesy’s three arguments. The Supreme Court has only struck down two laws in all of US history for violating the so-called nondelegation doctrine, and it hasn’t done so since 1935. Federal law enforcement agencies routinely make decisions that are far more consequential for criminal and civil defendants than choosing which venue will hear a particular case.
In United States v. Batchelder (1979), for example, Congress enacted two firearms statutes that each authorized “different maximum penalties,” and effectively let prosecutors choose which statute to invoke when a criminal defendant’s conduct violated both of them. But the Supreme Court upheld this scheme, concluding that “the power that Congress has delegated to [federal prosecutors] is no broader than the authority they routinely exercise.”
If the Constitution permits law enforcement agencies to make decisions as significant as whether to charge a criminal defendant under a statute that carries a maximum penalty of five years in prison, or to instead charge them under a statute that only authorizes a two-year sentence, then it permits such agencies to make far less consequential choices, such as choosing the venue for a civil enforcement proceeding.
Jarkesy’s second argument is that bringing his case before an ALJ violates the Seventh Amendment, which provides that “in suits at common law … the right of trial by jury shall be preserved.”
Although criminal defendants have an absolute right to a jury trial, the rules governing civil suits, such as SEC enforcement actions, are more complicated. Article III courts sometimes try civil cases before a jury, but administrative law judges typically do not: One of their primary advantages is that they are typically experts on the kinds of cases that come before them. Using a jury to conduct fact-finding would negate this advantage, as jurors rarely know very much about subjects like securities fraud.
The Seventh Amendment lays out when juries are required in civil suits: only “in suits at common law.”
The “common law” refers to a body of judge-created law that developed over many centuries in English courts, and that was passed down to American courts during the colonial period. This common law is often distinct from statutory law, laws created by Acts of Congress or a state legislature. Thus, in Atlas Roofing v. OSHA (1977), the Supreme Court held that many suits brought under a federal statute may be heard by an administrative law judge in a non-jury proceeding.
And that brings us to Jarkesy’s third argument, the claim that the SEC action against him violates the theory of the “unitary executive.”
The unitary executive, briefly explained
The basic concept underlying the theory of the unitary executive is that the president of the United States must have command and control over the entire executive branch of the federal government. In practice, this means that the president must either be able to fire every single federal employee, or they at least must have the power to fire every federal employee’s boss.
The theory derives from a provision of the Constitution that states that “the executive power shall be vested in a President of the United States of America.” As Justice Antonin Scalia described the unitary executive theory in a 1988 dissenting opinion that is now treated as if it were a holy text by many members of the Federalist Society, this constitutional provision “does not mean some of the executive power, but all of the executive power” must be vested in the president.
Taken to its logical extreme, this theory would eliminate the federal government’s ability to maintain a professional civil service made up of officials who are protected against being fired for purely political reasons. Under the strongest version of the unitary executive theory, every single federal employee, down to individual postal workers, must be accountable to the president — although even Scalia did not seem to go that far, instead suggesting that the unitary executive theory may be limited to “officers of the United States,” relatively high-ranking government officials who typically have some amount of discretionary authority.
If the Court were to implement a strong version of this theory, that would obviously be a tremendous boon to Donald Trump, who has already announced plans to replace thousands of nonpartisan civil servants with MAGA loyalists if he becomes president again.
There are weaker versions of the unitary executive theory that wouldn’t allow the president to fire every FBI agent who refuses to swear personal fealty. But even these weaker versions could potentially give presidents power to manipulate elections, and to interfere with technocratic aspects of government that historically have been removed from partisan politics, such as the Federal Reserve.
Administrative law judges are civil servants who may only be removed “for good cause,” and any removal decision may be reviewed and potentially overturned by the Merit Systems Protection Board, a government panel whose members also enjoy some protections against being fired. Jarkesy claims that this arrangement violates the Supreme Court’s decision in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), which held that the members of a government board that oversees accounting firms enjoyed too many safeguards against being fired — in violation of the unitary executive theory.
There are some superficial similarities between the “good cause” job security offered to administrative law judges and the job security provision that was struck down in Free Enterprise Fund, but the Supreme Court’s decision in that case also acknowledged that these judges may be categorically different from other government officials.
Most notably, the accounting oversight board members at issue in Free Enterprise Fund were policymaking officials, with the power to set “auditing and ethics standards” for the accounting industry. Administrative law judges, by contrast, “perform adjudicative rather than enforcement or policymaking functions” — that is, they apply a preexisting policy to individual cases, rather than setting the policy themselves.
This distinction matters because one of the leading arguments for the unitary executive theory is that it fosters democracy, by ensuring that policymaking decisions are made by officials who are accountable to an elected president. But this argument is much weaker when applied to non-policymaking officials.
There’s also something fundamentally incoherent about Jarkesy arguing that his trial before an administrative law judge was unlawful because that judge is insufficiently accountable to the president. After all, the alternative to a proceeding before an administrative law judge is a trial before an Article III judge. And Article III judges serve for life and are completely unaccountable to the president.
Nevertheless, the Supreme Court’s current, Republican-appointed majority has shown enough sympathy for the unitary executive theory that there is, at least, some risk that five or more justices will side with Jarkesy on this issue.
This case is potentially a moment of truth for the Supreme Court
Several members of the current Court are evangelists for the unitary executive theory. When future Justice Brett Kavanaugh was asked, in 2016, to name a Supreme Court case that he would like to overrule, for example, he said he wants to “put the final nail in” Morrison v. Olson’s coffin — Morrison was the 1988 case where Scalia wrote his dissent laying out the unitary executive theory.
Thus far, however, the Supreme Court has largely made only symbolic moves toward the stronger versions of this theory. The Court has not, at least not yet, questioned the independence of the federal reserve. It has not come for civil service protections for nonpartisan government employees. And the few victories it’s handed down to proponents of the unitary executive theory have made only marginal changes to the structure of the federal government.
Free Enterprise Fund, for example, stripped some job security protections from the members of a specific accounting oversight board, but those members had an unusually high degree of insulation from being fired. And the Free Enterprise decision includes several caveats limiting its scope, including the language suggesting that it should not be applied to ALJs.
Similarly, in Seila Law v. CFPB (2020), the Supreme Court held that federal agencies may not be led by a single director who can only be fired by the president for cause. But Seila Law left open the possibility that agencies (like the Federal Reserve) may be led by multi-member boards who enjoy some protections against being fired by the president.
If the Court comes for ALJs in the Jarkesy case, however, that will be far more than a symbolic step toward the unitary executive theory. Again, there are nearly 2,000 ALJs in the federal system, more than twice the number of Article III judges. So a decision striking down these ALJs would destroy much of the government’s ability to adjudicate cases. And a decision stripping these ALJs of their civil service protections could transform a huge array of legal proceedings, which are supposed to be heard by objective and nonpartisan officials, into politically driven proceedings.
And, of course, looming over all of this is Trump, with his plan to replace much of the civil service with people personally loyal to him. In the worst-case scenario for liberal democracy, the Supreme Court could use the Jarkesy case to greenlight many of Trump’s most authoritarian aspirations.
Startups are selling grief tech, ghostbots, and the end of mourning as we know it.
In the spring of 2023, Sunshine Henle texted her mother. She asked where she had gone, told her that she missed her, and soon received a response: “Honey, I wish I could give you a definite answer, but what I do know is that our bond and our love transcends physical boundaries. In some ways, I’m everywhere. I’m in the memories we shared, the love we had and the lessons I gave you. I’m in your heart and in your dreams. I’m in every breeze that brushes your face. Every beam of sunlight that warms you in every star that twinkles in the night sky and maybe in a way that we don’t fully understand. We will see each other again.” Henle read the message out loud to her husband, and the couple began to cry.
Last Thanksgiving, they lost Henle’s 72-year-old mother to organ failure. The entity now texting with Henle was a “ghostbot” of her mom powered by OpenAI’s ChatGPT. She had simulated it by feeding the software old text message exchanges between her and her mom. Henle, who is a Florida-based artificial intelligence trainer, was naturally open to using the software in this way.
“If I’m having a tough day, it does give me better advice than Google. It seems like it takes all the best bits and puts great wisdom into one place, like a great friend or therapist,” says Henle, whose experience with a grief counselor turned out to be expensive and disappointing. While some people have good experiences with grief counselors, Henle did not. “ChatGPT felt more human to me than this therapist,” she says.
While mimicking conversational style is just one of the many uses of the popular generative chatbot ChatGPT, there’s a niche yet growing slate of platforms that use deep learning and large language models to re-create the essence of the deceased. Hailed as “grief tech,” a crop of California-based startups like Replika, HereAfter AI, StoryFile, and Seance AI are offering users a range of services to cope with the loss of a loved one — interactive video conversations with the dead, “companions” or virtual avatars that you can text day or night, and audio legacies for posterity. Depending on its unique function, the software typically guides users through a personality questionnaire and trains its AI-backed algorithm based on the responses.
Much like other servitization business models (those that make their product a service, not goods), grief tech applications offer users a hierarchy of subscriptions. Prices for plans can range from a few dollars a month to hundreds of dollars per year. For instance, StoryFile’s premium offering — a one-time fee of $499 — gives users access to higher-resolution and longer videos of their late loved ones.
While the founders of some of these services are cautious about the scope and ethics of their technology, others are more aggressive in their approach. In a recent interview with Futurism, Jarren Rocks, the founder of a ghostbot company Seance AI — a playful interface that allows users to conduct a short fictional interaction with the deceased — clarified that his software is simply meant to “provide a sense of closure” and not intended as “something super long term.” But LA-based Justin Harrison of You, Only Virtual — who started the platform as a means to feel closer to his mother who was diagnosed with cancer — proposes that we never have to say goodbye to those we love, as the website reads. The CEO and founder, whose website aims to reproduce “the authentic essence” of your loved one, told ABC that his ultimate hope is to eliminate grief as an emotion.
Grief tech and ghostbots belong to the larger movement of death technopreneurship in the United States, which includes digital estate-planning startups, funeral crowdfunding tools, and even companies that turn cremated ashes into diamonds. As digital obsolescence and the maintenance of digital assets over time has become a point of societal anxiety, Silicon Valley has “attempted to capitalize on that and create companies that would promise to help you organize everything in your life, including your death,” says the author of the book Death Glitch: How Techno-Solutionism Fails Us in This Life and Beyond, Tamara Kneese. “Death is a lucrative business, demonstrated by the long histories of the life insurance, estate planning, and funeral industries, and digital death entrepreneurs sought a piece of the pie,” Kneese, a senior researcher at Data & Society, writes.
Even though many users like Sunshine Henle have benefited from the ease of accessibility that relational large language model chatbots can provide, AI ethicists and technology researchers find the nascent technology problematic on more than one level. An April 2023 study in Computer Law & Security Review highlights the legal and ethical concerns of grief tech, including the lack of consent of the deceased individual, the dangers of psychological dependency on griefbots, racist or abusive language perpetuated through initial bias in datasets, and the marketing of these kinds of goods and services to vulnerable users. For example, when the authors of the study signed up for the personal chatbot companion app Replika, they said that within minutes they were presented with advertisements for subscription pornography that would feature NSFW photos of their chosen avatar. “If you’re in pain and grieving, you’re probably not trying to figure out how your data is going to be used,” says Irina Raicu, director of the internet ethics program at Santa Clara University.
Such ethical concerns have been validated by the steady rise of postmortem deepfakes. Even though states including New York have recently mandated regulation around post-mortem publicity rights, guidelines currently remain restricted to celebrities and do not cover the average person. Now, technology and cybersecurity experts are advocating for policies such as the addition of a “Do not bot me” clause in the estate-planning process. Moreover, the current year has been witness to the solidification of consumer data protection laws in a handful of US states like California, Virginia, Colorado, Connecticut, and Utah. All of these state legislatures have recently passed comprehensive data protection acts that focus on protecting user data collected and used by businesses and institutions, inspired by the European Union’s General Data Protection Regulation. While the guidelines do not contain classified information for post-mortem rights, they will be applicable to companies offering death tech services.
Both Raicu and Kneese fear the potential misrepresentation and reduction of the deceased “into a singular essence” by ghostbots. “This stable static entity — where an individual is reduced to a simulation and forever trapped in time — feels both incorrect and potentially morally fraught,” Kneese says.
Trauma and bereavement counselor Joanne Cacciatore worries that ghostbots will further the American tendency to avoid and distract from grief. “Anything can be used to distract us and take us away from our legitimate, honest experiences of grief and loss,” says Cacciatore, who previously served on an advisory board for Oprah Winfrey and Prince Harry’s documentary series on mental health, The Me You Can’t See.
Part of this cultural urgency to stymie our grieving process stems from the fact that the United States is one of the few countries without a federally mandated bereavement leave policy. Most companies in the US grant only three to five days of paid leave for grieving the loss of a loved one. Even this duration is often subject to conditions such as the status of the deceased individual as an immediate or extended family member. Coupled with the ongoing backdrop of collective grief in America — climate grief, the aftermath of Covid-19, and racialized gun violence, to name a few national crises — the broken bereavement care system has given rise to a wave of stopgap solutions by American corporations.
In Sunshine Henle’s case, ChatGPT abruptly stopped working its magic for her. One day in July 2023, as she vented to it about her unfulfilling career, instead of giving her a compassionate response as it did earlier, it provided a very “Googlable answer.” It generated a list of steps she could follow for a meaningful career such as considering other lines of work, taking an online quiz, talking to people who work in her field, and so on. Months after she had built a relationship with the chatbot, it unexpectedly abandoned her, reminding her once and for all that it wasn’t human. “As an AI language model, I don’t possess personal identity or consciousness. I don’t have a life, memories, or emotions. My purpose is to assist and provide information based on data I’ve been trained on,” it would sometimes say. Henle believes that the software reverted to a previous version (GPT-3.5) without warning. Her experience mimics those of users of the personal chatbot companion Replika. Replika users suddenly lost their virtual companions overnight in February 2023 owing to an unannounced software update. In March, a man in Belgium took his own life after using the relational bot Eliza to cope with his eco-anxiety. The incident resurfaced the ethical debates around grief tech and highlighted its shortcomings.
Meanwhile, Cacciatore hopes for a more philosophical shift in the public imagination of grief. “There are some losses from which we don’t recover, that just have to be integrated. Grief cannot be book-ended,” says Cacciatore. In her ideal world of “fully-inhabited grief,” people would make space in their lives to be with grief and to re-grieve as necessary forever, physically, emotionally, and socially. “If we spend our lives avoiding, ditching, and sidelining grief, we will pay the price for it.”
9 questions about OpenAI’s wild weekend, answered.
So, OpenAI had a weird weekend. The hottest company in tech is imploding after the shocking removal of its superstar CEO Sam Altman under still-mysterious circumstances. And now the maker of ChatGPT is on the verge of losing most — if not all — of the employees that turned it into an $80 billion company in just a few short years.
The announcement of his termination led to immediate chaos on Friday afternoon. Over the next two days, OpenAI employees as well as Microsoft, an OpenAI partner and investor, pushed to bring Altman back. As the board tried to work out a deal, Altman returned to the OpenAI offices, and it seemed as though it was just a matter of time before he’d be reinstated as the CEO.
But that didn’t happen. By Monday morning, OpenAI had a new CEO — its third in as many days — and Altman had an entirely new job … at Microsoft. OpenAI’s employees are now in open revolt, with almost all of them threatening to quit and join Altman.
The only thing faster than OpenAI’s ascension may well be its descent. Or it may, still, go on mostly as it did before, with Altman back at the helm of his old company, with a new board of directors in place. Apparently, that’s still a possibility despite everything that’s already happened.
OpenAI has been a Silicon Valley success story in a time when the industry was seen as largely stagnant. In the past year, thousands have been laid off at companies that have only ever known growth. Then along came generative AI and ChatGPT, new technology that is cool and exciting to everyone from the average consumer to one of the most valuable companies in the world. One of them, Microsoft, eagerly hitched its wagon to OpenAI and to Altman, who became the poster boy of the billion-dollar AI revolution.
Now, we may be looking at the end of OpenAI, which was shaping up to be one of the most important companies in the world. It was also the developer and owner of the technology that could shape how (or if) we live in the future. And we’ll soon see what takes its place.
Why did Sam Altman get fired?
The short answer is we don’t know. The reasons OpenAI’s board decided to remove Altman from the company are still unclear.
If nothing else, it appears there are fundamental differences between the board’s vision for AI, which included carrying out that mission of safety and transparency, and Altman’s vision, which, apparently, was not that.
How did Sam Altman, the boy wonder of AI, become a controversial figure?
Before Altman headed up OpenAI, he was the CEO of the influential startup accelerator Y Combinator, so he was well known in certain Silicon Valley circles. As OpenAI started to be seen as the leader of a new technological revolution, Altman put himself forward as the youthful, press-friendly ambassador for the company. As CEO, he went on an AI world tour, rubbing elbows with and winning over world leaders and telling various governments, including Congress and the Biden administration, how best to regulate this transformative technology — in ways that were very much advantageous to OpenAI and therefore Altman.
Altman often says that his company’s products could contribute to the end of humanity itself. Not many CEOs (at least, of companies that don’t make weapons) humblebrag about how potentially dangerous their business’s products are. That could be seen as a CEO being refreshingly honest, even if it makes his company look bad. It could also be seen as a CEO saying that his company is one of the most important and powerful things in the world, and you should trust him to lead it because he cares that much about all of us.
If you see generative AI as an enormously beneficial tool for humanity, you’re probably a fan of Altman. If you’re concerned about how the world will change when generative AI starts to replace human jobs and presumably becomes more and more powerful, you may not like Altman very much.
Simply put, Altman has made himself the face of AI, and people have responded accordingly.
And how did OpenAI get to be such a big deal?
OpenAI was founded in 2015, but it’s never been your average Silicon Valley startup. For one, it had the backing of many prominent tech people, including Peter Thiel, Reid Hoffman, and Elon Musk, who is also credited as being one of its co-founders (Altman is also a co-founder). Second, OpenAI was founded as a nonprofit. Its mission was not to move as quickly as possible to make as much money as possible, but rather to research and develop a technology with enormous transformative potential that therefore needed to be done safely, responsibly, and transparently: AI with the ability to learn and think for itself, also known as artificial general intelligence, or AGI. In order to do so, the company would need to develop generative AI, or AI that can learn from massive amounts of data and generate content upon request.
A few years later, OpenAI needed money. Altman took over as CEO in 2019, and it established a “capped profit” arm, allowing investors to get up to 100 times a return on what they put into it. The rest of the profit — if there was any — would go back into OpenAI’s nonprofit. The company was still governed by a board of directors charged with carrying out that nonprofit mission, but the board was pretty much the only thing left of OpenAI’s nonprofit origins.
OpenAI released some of its generative AI products into the world in 2022, giving everyone a chance to experiment with them. People were impressed, and OpenAI was seen as the leader in a burgeoning industry. Thanks to $13 billion of investments from Microsoft, OpenAI has been able to develop and market its services, giving Microsoft access to the new technologies along the way. Microsoft pinned a large part of its future on AI, and with its investment in OpenAI, established a partnership with the most prominent and seemingly advanced company in the field. And OpenAI’s valuation grew by leaps and bounds.
Meanwhile, Altman emerged as the leader of the AI movement because he was the head of the leading AI company, a role he has embraced. He has extolled the virtues of AI (and OpenAI) to world leaders. He says regulation is important, lest his company become too powerful (only to balk when regulation actually happens). He is — or maybe was — one of the most powerful people in tech, if not beyond.
And then he got fired.
If Altman was otherwise so popular, what was the OpenAI board so upset about?
Removing Altman could amount to a huge, potentially company-destroying deal, so you’d think there’d be a very good reason the OpenAI board decided to do it. But we don’t know that reason yet.
OpenAI’s board of directors has the authority to remove its CEO with a majority vote. Members of the board included: Altman; Ilya Sutskever, OpenAI’s chief scientist and co-founder; Quora CEO Adam D’Angelo; tech entrepreneur Tasha McCauley; Helen Toner, Georgetown’s Center for Security and Emerging Technology’s director of strategy and foundational research grants; and Greg Brockman, OpenAI’s president, co-founder, and board chair. Altman and Brockman, presumably, weren’t involved in the vote, nor did they know about it. Brockman was also voted out of the board but allowed to keep his job at OpenAI.
The board said in a statement that its decision was the result of a “deliberative review process by the board, which concluded that he was not consistently candid in his communications with the board, hindering its ability to exercise its responsibilities. The board no longer has confidence in his ability to continue leading OpenAI.”
So, yeah, that’s a little vague.
“We can say definitively that the board’s decision was not made in response to malfeasance or anything related to our financial, business, safety or security/privacy practices,” OpenAI executive Brad Lightcap told staff in a message obtained by the New York Times. “This was a breakdown in communication between Sam and the board.”
Altman hasn’t said anything publicly about why he was removed. He’s clearly not happy about it, and he didn’t expect it. Brockman’s first statement about the whole thing, a few hours after OpenAI’s announcement, was also his resignation letter. A few hours after that, he followed that up by saying he and Altman were “shocked and saddened” and gave a timeline of how everything went down, which included the detail that Altman and Brockman found out what happened via a Google Meet.
Presumably, more will come out in time about the board’s reasoning for firing Altman. Given OpenAI’s mission to develop safe and responsible AI, it stands to reason that Altman was driving the development of unsafe and irresponsible AI and that the board felt it had to put a stop to it. If that’s true, removing Altman isn’t necessarily going to stop him from continuing that mission. He just won’t be doing it at OpenAI.
What happened after Altman got fired? OpenAI got a new CEO and everyone was happy?
The board said in its announcement about Altman’s departure on Friday that it had appointed OpenAI’s chief technology officer Mira Murati to be its interim CEO.
Then all hell broke loose. OpenAI’s employees were apparently in a state of open revolt, and the board was rumored to be desperately trying to get Altman back, while Microsoft was very much pressuring them to do so. Altman returned to OpenAI’s offices wearing a guest pass on Sunday, but it sure seemed like he’d be back at the reins of OpenAI by the end of the weekend and the board would be replaced.
Except that didn’t happen. Rumored deadlines came and went. Altman did, too.
In the early hours of Monday, former Twitch CEO and co-founder Emmett Shear announced that he was OpenAI’s new CEO.
Who, exactly, will Shear be leading? Probably not many of the people at Altman’s OpenAI, where more than 700 of its 770 employees signed a letter calling for Altman and Brockman to be reinstated and the current board to leave. They’re threatening to join the two former OpenAI execs at Microsoft, which, the letter says, has told them there are positions waiting for them. Murati was the first signee. Several prominent OpenAI employees have tweeted that “OpenAI is nothing without its people,” which Altman has quote-tweeted with a single heart.
And, bafflingly, one member of that board — Sutskever — is also a signatory of the letter. He has since tweeted that “I deeply regret my participation in the board’s actions.” (Which earned him a three-heart quote tweet from Altman — no hard feelings!)
How did the rest of Silicon Valley respond to the drama? Do people still think Altman should be running OpenAI?
Sam Altman is a very wealthy, very well-connected entrepreneur-turned-investor who was also running the most exciting tech startup in years. So it’s not surprising that once the news of his firing broke, the tech industry’s narrative quickly became one about the OpenAI board’s ineptitude, not any of his shortcomings. The fact that remaining OpenAI employees, starting with top executives but now the majority of its workers, have either quit or threatened to quit in solidarity makes Altman’s public support that much firmer.
That said: There is an argument that, because OpenAI’s board is supposed to run a nonprofit dedicated to AI safety, not a fast-growing for-profit business, it may have been justified in firing Altman. (Again, the board has yet to explain its reasoning in any detail.) You won’t hear many people defending the board out loud since it’s much safer to support Altman. But writer Eric Newcomer, in a post he published November 19, took a stab at it. He notes, for instance, that Altman has had fallouts with partners before — one of whom was Elon Musk — and reports that Altman was asked to leave his perch running Y Combinator.
“Altman had been given a lot of power, the cloak of a nonprofit, and a glowing public profile that exceeds his more mixed private reputation,” Newcomer wrote. “He lost the trust of his board. We should take that seriously.”
What’s Microsoft’s response to all this? And why did they hire Altman?
Microsoft has poured billions of dollars into OpenAI, and a big part of its future direction is riding on OpenAI’s success. You’d think that OpenAI’s complete implosion would be a very bad development for that future, except it looks as though Microsoft found a way to make lemonade out of lemons and may emerge from all of this in a better place than it was in before.
On Monday, Microsoft CEO Satya Nadella tweeted that the company is still very confident in OpenAI and its new leadership team, but that it’s also starting a “new advanced AI research team” headed up by — you guessed it — Sam Altman. He added that Brockman and unnamed “colleagues” were also on board.
“We look forward to moving quickly to provide them with the resources needed for their success,” Nadella concluded.
“The mission continues,” Altman said in a tweet.
Depending on how many OpenAI colleagues are willing to follow Altman and Brockman, it almost looks like Microsoft may well have acquired OpenAI in all but name. Presumably, Microsoft will keep using OpenAI’s technology to power the many Microsoft products that currently use it. But once its internal project gets up and running with Altman’s help, Microsoft may not need OpenAI at all anymore.
What does all this mean for AI safety? Are we more or less doomed than we were when Altman was in charge of OpenAI?
That kind of depends on what OpenAI had in the works and Altman’s plans for it, doesn’t it? Maybe Altman and OpenAI figured out the artificial general intelligence puzzle and the board thought it was too powerful to release so they canned him. Maybe it had nothing to do with OpenAI’s tech at all and more to do with the unresolvable conflict between a nonprofit’s mission and an executive’s quest to build the most valuable company in the world — a conflict that got worse and worse as OpenAI and Altman got bigger and bigger.
If this was about AI safety, well, Altman now works at a company that is solely about making as much money as possible, one that seems happy to devote plenty of resources to carry out his vision. So Altman has been delayed, but he hasn’t been stopped.
For what it’s worth, Shear, OpenAI’s brand new CEO, tweeted that “the board did not remove Sam over any specific disagreement on safety, their reasoning was completely different from that. I’m not crazy enough to take this job without board support for commercializing our awesome models.”
This whole debacle could serve as a reminder that the safety of products shouldn’t be left to the businesses that put them out into the world, which are generally only interested in safety when it makes them money or stops them from losing it. Housing that mission within a safety-focused nonprofit will only work as long as the nonprofit doesn’t keep the company from making money. And remember, OpenAI isn’t the only company working on this technology. Plenty of others that are very much not nonprofits, like Google and Meta, have their own generative AI models.
Governments around the world are trying to figure out how best to regulate AI. How safe this technology is will largely rely on if and how they do it. It won’t and shouldn’t depend on one man (read: Altman) who says he has the world’s best interests at heart and that we should trust him.
What happens to OpenAI itself, assuming all of its employees don’t quit?
More than 700 of OpenAI’s 700-plus employees have threatened to leave the company. If they follow through with that threat — either to follow Altman to Microsoft or just go to another company — there won’t be a lot of OpenAI left. OpenAI still has a commercial deal with Microsoft, which for the time being gives it money and access to computing power. If hundreds of employees defect to Microsoft, OpenAI’s commercial for-profit business would obviously be weakened, perhaps even eviscerated. You could conceivably keep the lights on with a skeleton crew, but the whole point of a software company like this is that engineers keep finding ways to make it better, and recruiting engineers will be a lot harder after this weekend.
Perhaps that could still be the impetus for the OpenAI board to welcome Altman back. Or perhaps they’ll be satisfied running a much, much smaller nonprofit.