Today the Supreme Court decided one of the most important cases of recent years, Trump v. Slaughter. The Court affirmed what Article II of the Constitution says: the President runs the executive branch. Specifically, he can fire an FTC Commissioner, with or without cause. I wrote about the case when it was argued last December:
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.
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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.
At stake in the Slaughter case is the fate of the alphabet soup of “independent” agencies, the all-powerful Fourth Branch that is nowhere mentioned in the Constitution. Happily, those agencies, which generally perpetuate liberal policies regardless of who occupies the White House, will now be brought under democratic control.
Chief Justice Roberts wrote the majority opinion. The usual left-wing triumvirate of Kagan, Sotomayor and Jackson dissented, as their party–am I being too cynical?–likely demanded.
Chief Justice Roberts wrote:
Slaughter relies on reliance. She argues that Congress has relied upon Humphrey’s to create agencies that are “insulated from presidential control.” Brief for Respondent 15. But that is precisely the problem. Despite what Humphrey’s may say, independent agencies are not “independent” in the sense that they are free of the President and thus responsive “only to the people of the United States.” 295 U. S., at 625. Placing the power to administer laws in officers who enjoy “freedom from Presidential oversight (and protection)” does not deliver us to a promised land of technocratic governance—it often results only in an “increased subservience to congressional direction.” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 523 (plurality opinion). Pp. 21–25.
Roberts’ opinion is erudite. It traces the history of executive authority to the Federalist Papers, quoting Alexander Hamilton, and through the early years of the Republic. The Supreme Court’s recognition of the scope of Article II has solidified through the years, so that Humphrey’s had become a lonely exception: the President controls the executive branch, except for the Federal Trade Commission. Now that anomaly has been reversed.
Does today’s opinion apply to all administrative agencies? Not necessarily: the independence of the Fed survives, at least for now:
Because the FTC’s activities fall well within the heartland of executive power, the Court has no occasion today to define the bounds of what such power entails. Not all offices created by Congress necessarily come with executive power, see, e.g., Buckley v. Valeo, 424 U. S. 1, 137–138 (per curiam), and the Court has left open the possibility
that some functions traditionally handled outside the Executive Branch may not be encompassed by Myers’s general rule. One example the Court has given of such an entity is the Federal Reserve, to the extent that it follows in the tradition of the First and Second Banks of the United States. See Seila Law, 591 U. S., at 222, n. 8.
As one would expect, Democrats did not try to engage with either the text of Article II or Roberts’ recitation of the relevant American history. Rather, they framed the issue in terms of the politics of the present moment. Thus, the Washington Post headlined: “Supreme Court expands Trump’s power over the federal bureaucracy.” No acknowledgement of the fact that “power over the federal bureaucracy” is precisely what Article II gives to the president.
The justices allowed the president to fire a Democratic member of the Federal Trade Commission, striking down a nearly century-old precedent intended to insulate independent agencies from political influence by the executive.
But “political influence by the executive” means, what the voters voted for, as opposed to an entrenched, politicized, unaccountable bureaucracy.
Never fear, though: the Post will be on board as soon as a Democratic president starts firing Trump appointees.
And finally, congratulations to our friend Phil Hamburger.
