The Supreme Court ruled today that Federal Trade Commissioners’ statutory independence violates the separation of powers.
The ruling was not unexpected. It builds on a string of decisions out of the Roberts Court over the last couple decades or so.
Still, the ruling will likely have dramatic impacts. The logic of the Court’s ruling likely means that dozens of independent federal agencies and offices, touching on all aspects of our daily lives, are unconstitutional, and that the President can remove incumbents at will (meaning: for purely political reasons). In other words: These agencies, designed by Congress to be politically independent, are now fully politicized.
This is likely even more so under the current President, who has already endorsed and applied an extremely robust version of the unitary executive theory. UET says that the President, as unitary head of the Executive Branch, enjoys plenary authority over its officers, notwithstanding congressionally-designed independence in congressionally-created agencies. (Remember: Congress creates agencies through legislation; it vests them with authority; it funds them; and it oversees them.) Today’s ruling endorses a just-slightly-less robust version of UET. But we can expect that President Trump will use today’s ruling not only to politicize officers within the Executive Branch, but also to politicize civil-service employees, to restructure and dismantle federal agencies, and even to ignore law, including appropriations law, that applies to the Executive Branch. (We can reasonably anticipate this, because this is what he’s already done.)
In other words, today’s ruling massively increases the President’s power, and massively reduces Congress’s. (It also increases the Court’s power, because, after all, it’s the one that issued the decision).
But even as today’s ruling allows and invites President Trump to politicize offices and agencies, remember that it will also invite the next Democratic President to do the same. The net effect of the ruling, therefore, could be wild and economically-destabilizing swings in agencies’ enforcement priorities as different Presidents come in and out of office.
The case, Trump v. Slaughter, arose when President Trump removed FTC Commissioner Rebecca Slaughter without providing a cause or reason. Slaughter claimed that this violated federal law, which says that the President can remove an FTC commissioner only “for inefficiency, neglect of duty, or malfeasance in office.” 15 U.S.C. Sec. 41. That statutory “for cause” removal protection is key to ensuring FTC independence, because it prohibits the President from removing an FTC commissioner at will, or for purely political reasons.
The Court ruled that the “for cause” removal protection violated the separation of powers. In short, it said that by granting FTC commissioners for-cause removal protection, Congress impermissibly encroached on the power of the President, as unitary head of the Executive Branch, to direct the operations of the Executive Branch and, ultimately, to execute the law.
The Court said that its ruling was narrow, applying only to the FTC, given the FTC’s significant executive authority under law. But the logic of the opinion almost surely sweeps in other independent agencies and offices, allowing the President to remove officers for purely political reasons. It will also invite the President to extend its reasoning to civil-service employees (who are protected by statutory civil-service laws), agencies themselves, and even the law of the Executive Branch.
Along the way, the Court also overruled Humphrey’s Executor v. United States, the 1935 case that upheld the independence of the FTC against a similar separation-of-powers argument. That’s significant, because Humphrey’s Executor provided the precedent for multi-member agency independence. It (obviously) no longer does.
Justice Gorsuch concurred, raising a concern that today’s ruling gives the President all the legislative and judicial powers that Congress has delegated to agencies over time. Justice Gorsuch’s concern is that Congress delegated those powers in the first place, not that the Court’s ruling gives the President sweeping power over previously independent agencies in their law-enforcement capacities.
Justice Sotomayor dissented, joined by Justices Kagan and Jackson. In short:
Today, this Court undoes centuries of political practice and concludes that all three branches of Government have been acting in open defiance of the Constitution all this time. Its conclusion is wrong. The text of the Constitution, along with its history, the longstanding practices of the political branches, and the precedents of this Court, make clear that Congress may limit the causes for which the heads of Commissions like the FTC can be removed by the President. In holding otherwise, the Court gives the President a power unknown even to the English Crown against which the Founders revolted, elevating him above his once-coequal branches by transforming a duty to take care that the laws be faithfully executed into a license to act in defiance of those very laws. . . .
Perhaps worst of all . . . [t]oday’s majority . . . decides that it knows better: better than members of the founding generation who created agencies like the Sinking Fund Commission and the Bank of the United States, free from unfettered Presidential control; better than a century and a half of Congresses and Presidents, starting with Grover Cleveland and continuing into the 21st century, who created agencies in the FTC’s mold; better than even Hamilton, Story, Webster, Holmes, Brandeis, Frankfurter, and Rehnquist. . . .
Leave a Reply