Who controls the executive branch of government?
For more than two hours on Monday, the Supreme Court listened to U.S. Solicitor General John Sauer and Amit Agarwal, a lawyer for Protect Democracy and former counsel to the Biden and Harris presidential campaigns, argue over this fundamental question. The issues raised in the case of Trump v. Slaughter implicate basic constitutional principles involving the president, Congress, and so-called independent agencies.
A decision in the president’s favor, depending on who you believe, will either correct one of the worst decisions of the Progressive Era, Humphrey’s Executor v. U.S. (1935), which violated basic separation of powers principles and vitiated the constitutional authority of the president as head of the executive branch, or lead to “chaos and destruction” of our governmental structure and give the president who was elected by voters too much “control” over the executive branch (which, of course, is nonsense).
The Background
This case began when President Donald Trump fired Rebecca Slaughter, a commissioner on the Federal Trade Commission and a former counsel to Sen. Chuck Schumer, D-N.Y. She sued, as have commissioners who were fired at other so-called independent agencies including the National Labor Relations Board and the Merit Systems Protection Board, claiming that the president lacked the authority to fire them, relying on Humphrey’s Executor.
In that 1935 case, the Supreme Court upheld a restriction that Congress put into the law limiting the ability of the president to fire a commissioner at the FTC except for cause. Congress placed similar limitations on the president when it created other agencies such as the Federal Communications Commission and the National Labor Relations Board, whose members, once nominated and confirmed by the Senate, serve for fixed terms.
The Arguments
Sauer told the court that the Humphrey’s Executor decision is an “indefensible outlier” that has not “withstood the test of time.” It was “grievously wrong” when it was issued and has led to the creation of a “headless fourth branch” of government that is a direct threat to our constitutional structure. He emphasized throughout his presentation that since Article II makes the president the head of the executive branch, Congress cannot restrict the authority of the president over the principal officers who are the heads of agencies that carry out executive branch functions.
In responding to an assertion by Justice Sonia Sotomayor that “Congress emphasized the importance of independent” decision-making by creating these agencies, Sauer said the “prestige of independency is not a constitutional principle.” In discussing the separation of powers principle, Justice Elena Kagan intimated that the government’s position was a violation of separation of powers because, since many agencies engage in rulemaking, it would give the president executive and legislative authority. But Sauer said that rulemaking is execution of the law, not acting as a legislature.
In other words, the issuance of regulations is, in reality, agencies announcing how they are going to carry out and enforce the legislation passed by Congress.
When Kagan expressed her fear that the “president would have control over everything,” Sauer answered that he will simply have “the executive power the Constitution provides” to a president. Sotomayor spent considerable time on how long the Humphrey’s Executor decision has been in place and kept asking Sauer for other precedent-setting decisions of long duration that have been overturned, repeatedly interrupting him as he tried to answer. He provided many examples, though, and as Justice Amy Coney Barrett later pointed out, some of those cases overruled precedents that had been in place nearly as long as Humphrey’s Executor.
These agencies were pushed by progressives who thought federal bureaucrats, so-called experts, should be free of the political process and political interference to implement public policy, no matter who is in the White House. Justice Ketanji Brown Jackson pushed that very same idea throughout her questioning, praising the concept of public policy being “handled by nonpartisan experts.” To her, that “makes perfect sense” because it removes them from politics and the “danger of presidential control.” Apparently, accountability to voters is a dangerous principle, at least according to her.
Agarwal emphasized the length of time this decision has been in place but also claimed that such independent agencies and commissions have been in place since our start as a country. He said the court should not “overrule a century of precedent” and shouldn’t abandon what “so much of modern government is based on.”
Where Agarwal really got stuck was when several justices started grilling him on how much executive authority an agency has to have before he would consider it to be a violation of separation of powers and the president’s authority over the executive branch.
Justice Brett Kavanaugh wanted to know if Congress could convert all of the Cabinet departments into multimember-headed agencies. Agarwal responded that Congress can’t limit the president’s authority over officers exercising the president’s “conclusive and preclusive” authority, but he seemed to have trouble delineating what powers that entails, and which departments could be converted and put out of reach of the president. He finally admitted that Congress just taking over some departments was “probably within the realm of possibility.”
Agarwal also tried to differentiate between criminal and civil enforcement authority, since the majority of independent agencies have the ability to bring civil enforcement actions against individuals. Agarwal actually claimed that exercising civil enforcement authority doesn’t mean that the agencies are carrying out executive branch duties. Justice Samuel Alito took him to task for that, saying that Agarwal couldn’t say that everything was “on the chopping block” if he couldn’t name which specific departments within the federal government could be converted to multimember agencies with limits on the president’s power to remove their leadership.
Agarwal also indefensibly told Justice Neil Gorsuch that presidents don’t, in fact, have a duty to faithfully execute the law—contrary to the clear dictates of the Constitution.
There were also questions about Congress hypothetically creating agencies with no partisan balance in the leadership and lengthening the terms of commissioners. At what point would such a term become so long, say 15 or 20 years, that it would start infringing on the president’s removal authority and constitute a constitutional violation of separation of powers? Agarwal had no firm answer to that other than the court would have to determine that, meaning there could be no standard unless the court created one.
Current Unconstitutional Structure and Practices
Federal agencies (like the FTC) with the authority to promulgate regulations that have the authority of law and the power to pursue individuals that they claim have broken the law or violated their regulations are engaging in the very essence of an executive function. In addition to being vested under the Constitution with all executive authority, it is the president who is designated in Section 3 of Article II with the responsibility to “take Care that the Laws be faithfully executed,” and contrary to Agarwal’s argument that includes both criminal and civil enforcement of the law.
Yet many of the so-called independent agencies are outside the control and supervision of the president. After all, what kind of supervision can a president—any president—exercise if he can’t fire officials who ignore his commands or take policy positions opposite those of his own administration?
It was clear from the arguments that the liberal justices on the court have no concern over that and don’t believe that is a constitutional problem. They want government policies carried out by “experts” supposedly oblivious to politics, but who can, in reality, exercise their own agendas without vital political checks.
It is a very anti-democratic concept that we should have administrative agencies that are not accountable to voters and not accountable to the president the public elected. Unfortunately, after listening to the oral arguments, it seems clear that Kagan, Sotomayor, and Jackson are prepared to vote to uphold just such a constitutionally problematic arrangement.
The question is whether the rest of the court will take the needed step of overturning a decision that was, as Sauer said, “grievously wrong” when it was issued and that has led to the creation of a behemoth fourth branch of government largely immune to the democratic process. The justices need to correct the mistake the court made almost a century ago. Fortunately, from the tenor of their questions, it seems likely they may do just that.
