The Supreme Court’s conservative-leaning majority seems poised to scrap a 90-year precedent that has insulated the deep state for decades.
Justices are weighing whether an elected president can remove executive branch officials serving on supposedly “independent” commissions or boards, and whether blocking the president from doing so violates the constitutional principle of separation of powers.
This specific case regards President Donald Trump’s ouster of Federal Trade Commissioner Rebecca Slaughter. If the justices uphold Trump’s firing of Slaughter, that might overturn the precedent set in Humphrey’s Executor v. United States (1935), which also dealt with the FTC. In the New Deal-era Humphrey’s Executor case, the Supreme Court ruled that Congress could enact laws limiting a president’s power to fire “independent” agency executive officials.
Even Chief Justice John Roberts, a George W. Bush appointee who has occasionally joined the court’s three liberals against his fellow conservatives, called Humphrey’s Executor a “dried husk,” and said the original ruling “was addressing an agency that had very little if any executive power.”
Solicitor General D. John Sauer argued, “The modern expansion of the federal bureaucracy sharpens the court’s duty to ensure that the executive branch is overseen by a president accountable to the people.”
Slaughter’s lawyer, Amit Agarwal, special counsel at the left-leaning group Protect Democracy, told justices that independent commissions have existed in some form since the 1790s, and added that such bodies don’t operate with unchecked power.
“More than two dozen traditional, independent agencies have been established by statutes enacted by the people’s elected representatives and signed into law, all of them, by democratically elected presidents,” Agarwal said.
‘Absolute Power’
Justice Sonia Sotomayor, an appointee of President Barack Obama, said scrapping the precedent would give “absolute power to the president.”
“You’re asking us to destroy the structure of government, and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent,” Sotomayor said.
Sauer said the Trump administration is asking the court to return to a longstanding separation of powers argument that predated the 1935 ruling.
“The fundamental alteration of the structure of the government was ushered in by Humphreys, and then the Congress kind of took Humphreys and ran with it, in the building of the modern administrative state, in the proliferation of independent agencies,” Sauer said.
The so-called independent boards and commissions have members appointed by Republican and Democrat presidents who, in theory, operate without political concerns. They serve for a set term, regardless of whether a new president of a different party assumes office during that term.
Justice Ketanji Brown Jackson, a Joe Biden appointee, defended Progressive Era policies.
“My understanding was that independent agencies exist because Congress has decided that some issues, some matters, some areas, should be handled in this way by nonpartisan experts,” Jackson said. “Congress is saying that expertise matters with respect to aspects of the economy and transportation, and the various independent agencies that we have. So, having a president come in and fire all the scientists, and the doctors, and the economists, and the PhDs, and replacing them with loyalists, and people who don’t know anything, is actually not in the best interest of the citizens of the United States.”
Sauer replied, “We can have a government that benefits from expertise without being ruled by expertise.”
Limits for Congress?
The Republican-appointed justices later pressed Agarwal about what limits Congress would have under the natural logic of his arguments.
“Your position would allow Congress to create independent agencies, maybe converting some of the existing executive agencies into independent agencies, with no political balance requirement, with a long term, say, 10 or more years, and with the chairs not subject to removal as chair,” said Justice Brett Kavanaugh, a Trump appointee.
“I just want to give you a chance to deal with the hard hypothetical when both houses of Congress and presidency are controlled by said party, then creating a lot of these independent agencies with or extending some of the current independent agencies into these kinds of situations so as to thwart future presidents of the opposite party,” Kavanaugh continued.
Agarwal said there should be existing protections from that, outside his case.
“The bigger point is that historically, this is a problem, and this is a problem that has been resolved through a process of political accommodation,” Argawal said. “There’s no reason to believe that that process, which has been adequate for a very long time, will not be adequate in the future. But if it is not, the court can keep open the possibility that there will be time enough to decide on new constitutional rules.”
Later during the arguments, Justice Neil Gorsuch, also a Trump appointee, asked, “The president is vested with all the executive power. You agree that he has a duty to faithfully execute all the laws?”
After some hedging, Agarwal responded, “I would say, no.”
“The president does not, under both history and tradition, have to have plenary power of supervision, but, in the case of the FTC, he does have some power of supervision, including, if there’s a demonstrable palpable violation of law, the president could absolutely fire a commissioner of the FTC under the plain language of the statute,” Agarwal argued.
‘Distrust of the Democratic Process’
Agarwal did not have good answers for justices when asked about the limiting principles of his argument, Hans von Spakovsky, senior legal fellow at The Heritage Foundation, told The Daily Signal after the arguments.
Further, conservative justices seemed dismissive of liberal justices’ concerns about “chaos and destruction” if the Trump administration won the case, von Spakovsky said.
“It was clear the conservatives just thought that was a ridiculous argument,” he noted.
He added that Jackson’s argument about government by experts is the argument progressives have advanced for 100 years.
“The liberal justices showed a fundamental distrust of the democratic process,” von Spakovsky said.
The Humphreys case revolved around President Franklin Roosevelt’s firing of FTC Commissioner William Humphrey. The Federal Trade Commission Act of 1914 prohibited the president from firing a commissioner for any reason other than “inefficiency, neglect of duty, or malfeasance in office.”
Humphrey sued but died before the Supreme Court decided the case. Thus, it was named after the executor of Humphrey’s estate. The high court held that Congress can enact laws limiting a president’s ability to remove members of independent boards and commissions.
