Even before the Supreme Court reached its decision in Trump v. Slaughter, the joke was that the decision would slaughter independent agencies. The opinion, issued earlier this week, has not eliminated them, but it has ended their independence.
The facts of the case are political. When Donald Trump fired a Joe Biden–appointed member of the Federal Trade Commission, Rebecca Slaughter, she sued to recover her position, arguing that she was protected by statute from being removed, unless she had done something egregious, such as neglecting or abusing her office. The Supreme Court on Monday held that the barrier to removal violated the Constitution’s separation of powers. From a narrowly political perspective, one might conclude that the case was a victory for Trump and his control of the administrative state. But the case is about far more than politics. By re-centering executive power in the president, it portends a coming age of diminished administrative power—a necessary corrective to our age of undemocratic bureaucracy.
Since 1887, Congress has authorized administrative agencies, including independent agencies, whose commissioners are protected from presidential removal. Taken together, the agencies form the administrative state—a set of institutions staffed by bureaucrats who are insulated from voters. The independent commissioners are the most fully insulated of these bureaucrats, as not even the president, the head of the executive branch, can fire them.
[Peter M. Shane: The ultimate triumph of the unitary executive]
Protected from removal, these bureaucrats have become a permanent, politically unaccountable presence. They can outlast elected presidents and preserve their own bureaucratic agendas, notwithstanding elections.
This new constitutional arrangement, when it flourished in the 20th century, produced regulations that, in many instances, did more harm than good, impeding personal choice and prosperity. But the implications for constitutional rights were even worse. By shifting legislative power from Congress to bureaucrats, administrative power diluted voting rights. Individuals had a right to vote, but their most active legislators were no longer their elected representatives. And by moving judicial power from the courts to mere bureaucrats, administrative power deprived Americans of their right to be tried by an independent judge and jury.
One of the cases securing this inversion of the Constitution came in 1935, when the Supreme Court, in Humphrey’s Executor v. United States, upheld the statutory protection from removal for FTC commissioners. The Court thereby legitimized the independence of a host of federal agencies. Since then, until this week, it has been judicial dogma that, in addition to the Constitution’s three branches of government, there can be independent agencies.
The illogic of Humphrey’s Executor, however, has puzzled generations of law students and lawyers. The opinion justified the independence of the FTC by saying that an agency can exercise an “executive function” that is different from “executive power in the constitutional sense.” But how can an agency lawfully exercise a type of power not authorized by the Constitution? The opinion further argued that the FTC could exercise this newfangled executive function in pursuit of “its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of the government.” Again, this is strange reasoning. How can the executive branch exercise legislative or judicial powers?
The Slaughter decision has finally resolved these puzzles by recognizing that the protection of commissioners from removal is unconstitutional and that executive agencies cannot be independent of the president.
The Constitution creates three types of power, each separated in its own branch of government, and places the executive power in the president of the United States. Of course, he cannot carry out that power by himself, and he therefore delegates most of it to subordinates. But the Constitution says it “shall be vested” in him. That means the executive power must always remain in him, however much he may delegate it. And if he is to continue to have the executive power, he needs to be able to fire subordinates.
Since the 18th century, it has been said that the Constitution creates a unitary executive; by placing the executive power in the president, the Constitution gives a single power to a single person. Consequently, there cannot be independent executive power. Put another way, personnel is policy. The president cannot control executive policy if he cannot fire his subordinates.
The president’s removal authority is crucial for electoral accountability. If the president cannot fire his subordinates, then they can escape electoral accountability, and he cannot be held politically accountable for their conduct. The Constitution’s location of executive power in the president was designed to preserve political accountability for all who exercise that power.
Some critics of this view have objected that the Constitution has an appointments clause but no removal clause. Although that’s true, the implications run in the other direction. The president’s executive power includes the authority to both hire and fire executive subordinates. The Constitution restricts his hiring authority, but it leaves him unconfined in firing. His executive power to remove subordinates is therefore unqualified. Indeed, he must be free to fire them in order to fulfill his duty to “take Care that the Laws be faithfully executed.” He ordinarily relies on subordinates to execute or enforce the laws, and he cannot take care that they do this faithfully unless he can control them.
Topping off these constitutional considerations is that the First Congress debated the president’s removal power. In 1789, James Madison and a congressional majority relied on the Constitution to reject a proposed statutory limit on the president’s authority to remove subordinates. Thus, layers of constitutional principles, text, and early interpretation coincide in showing that statutory limits on the removal of heads of executive agencies are unconstitutional.
Will the Slaughter decision, in letting Trump fire the heads of agencies, liberate him to control the massive regulatory and judicial apparatus of the administrative state? Certainly, if the Supreme Court were merely to repudiate agency independence, the decision would greatly empower the president.
There is reason to think, however, that Slaughter signals a very different development. By restoring the president’s executive power to control executive agencies, Slaughter exposes the contradictions inherent in administrative power and thereby sets the stage for further judicial reconsideration of that power.
[Yuval Levin: The missing branch]
The Constitution places legislative power in Congress—a representative body, elected by Americans through the exercise of their voting rights. In contrast, the president is neither a legislative nor a representative body. So with Slaughter’s restoration of presidential control over executive agencies, it becomes difficult to understand how such agencies can exercise legislative power, which they do when they regulate. That regulatory power is legislative and thus utterly incompatible with presidential control.
Similarly, Slaughter clarifies that when agencies adjudicate violations of their regulations, they do so under presidential control. It has long been painfully evident that agency prosecutions of Americans in the agencies’ in-house tribunals—for example, before the FTC’s administrative-law judges—deny Americans their right to be tried in court and to enjoy the basic due process of a neutral adjudicator. Slaughter, however, accentuates these problems. The decision restores the president’s control of his subordinates, making it clear that commissioners and their administrative-law judges are not neutral adjudicators and that their trials violate due process.
In revealing the contradictions and dangers inherent in the administrative state, Slaughter foretells its impending collapse. It is therefore important to recognize Slaughter’s trajectory. The decision lays the foundation for a repudiation of administrative power and a restoration of the separation of powers. When that happens, presidential power will be confined to executive power. The president will have more control over less.
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