Today the Supreme Court heard arguments in Trump v. Slaughter, perhaps the most important case to come before the Court this term. The case tests the constitutionality of the “independent agencies” that Congress has established over the years–independent, because their commissioners are not under the control of the president.
The case arose when President Trump fired FTC Commissioner Rebecca Slaughter, not for cause, as authorized by the FTC statute, but because her service was “inconsistent with this Administration’s priorities.” Slaughter refused to leave office; hence the lawsuit.
Press accounts indicate that the Court’s conservative majority seemed inclined to side with the Administration. Thus, the New York Times: “Justices Seem Ready to Give Trump More Power to Fire Independent Government Officials.”
The Supreme Court on Monday appeared poised to make it easier for President Trump to fire independent government officials despite laws meant to insulate them from political pressure in what would be a major expansion of presidential power.
Absent from the Times’s partisan description is any acknowledgment of the controlling constitutional provision. Article II is devoted to the executive branch; its first sentence states: “The executive Power shall be vested in a President of the United States of America.” That’s it: the President is the executive branch. Congress’s establishment of supposedly “independent agencies” within the executive branch has been, in my opinion, plainly unconstitutional.
The Constitution didn’t seem to loom large in the views of liberal justices:
Justice Sonia Sotomayor told the administration’s lawyer that “you’re asking us to destroy the structure of government” and to “take away from Congress its ability to protect its idea that a — the government is better structured with some agencies that are independent.”
Ms Sotomayor may have her own opinions about how our government might be “better structured,” but her job–in case she has forgotten–is to apply the Constitution as written.
Professor Phil Hamburger’s book Is Administrative Law Unlawful? is seminal here. Professor Hamburger addresses the issue more briefly here.
I have often said that the government we live under is not the one that is described in the Constitution. A principal reason for this is that the branch of government that exercises the most power over us is the Fourth Branch, the one that the Constitution never mentions: the unelected alphabet soup of “independent” federal agencies. If the Court rules in the Administration’s favor, it will go a considerable distance toward establishing constitutional government, as well as political accountability. The president will now be responsible for the entire executive branch, and will be able to implement his or her policies throughout the executive branch. Which no doubt is what voters thought was happening all along.
