Nearly a half century ago, Ronald Reagan was elected on the promise of shrinking the federal government. Toward that end, his administration incubated a theory of presidential power that would give the president unprecedented control over all discretionary policy making within the executive branch. The new paradigm came to be known as “unitary executive theory.” Yesterday, in Trump v. Slaughter, that theory emerged triumphant.
In the decision, the Supreme Court held that Article II of the Constitution guarantees a president’s power to remove members of the Federal Trade Commission—and effectively, all regulatory-commission members—for any or no reason at all. Congress, according to the Court’s 6–3 opinion, violated the separation of powers in 1914 by limiting the president’s power to fire FTC commissioners to cases of “inefficiency, neglect of duty, or malfeasance in office.” In the words of Chief Justice John Roberts, who wrote for the majority, the FTC “unquestionably exercises executive power, and must therefore be controlled by the Chief Executive, in whom such power is vested.” As a result, he said, Rebecca Slaughter “served as the President’s subordinate at the FTC—and that the President was entitled to cut her tenure short.” In so concluding, the Court explicitly overruled the unanimous 1935 decision Humphrey’s Executor v. United States, which held exactly the opposite with regard to the same agency.
Slaughter, a Democratic lawyer and former Capitol Hill staffer appointed to the FTC by Joe Biden, was fired from the FTC by Donald Trump just two months into his second term, along with the only other remaining Democratic commissioner, Alvaro Bedoya, also a Biden appointee. Trump asserted no wrongdoing or incapacity on their part. He wrote only that their “continued service on the FTC [was] inconsistent with [his] Administration’s priorities” and that they were removed from office “pursuant to [his] authority under Article II of the Constitution.”
The Court’s decision extends to all independent regulatory agencies, not just the FTC. Its central premise is that the president is constitutionally entitled to control all exercises of executive power—the “unitary executive theory.” Roberts defined “executive power” as broadly as is possible: “When an agency ‘executes’ a congressional mandate against private parties,” he wrote, “it exercises executive power—no ifs, ands, or quasis about it.” Because all of the regulatory agencies created by Congress issue rules and orders that affect private parties, they all would appear to exercise executive power within the Roberts definition.
[Duncan Hosie: How the Supreme Court broke Congress]
Even before Slaughter, presidents could and did exercise powerful policy influence over regulatory agencies. Presidents appoint commission members. They designate each commission’s chair, whom they can replace for any reason. They control agency budget submissions to Congress through the Office of Management and Budget. What Slaughter makes dangerously plausible, however, is that presidents can now use their unfettered removal authority to leverage yet more administrative power to reward friends and punish those who disagree with the president.
The one opinion to speak in greatest detail about the practical implications of the Court’s holding is the concurrence by Justice Neil Gorsuch. He contends that Congress has “delegated” to independent agencies “vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them.” That observation prefaces Gorsuch’s frequent complaint that the Court has been too indulgent in allowing Congress to give agencies “tremendous sway over the Nation’s affairs,” but “with hardly any statutory guidance” to limit their policy making. Slaughter, he notes, may put an end to the so-called fourth branch of government, but, he says, it does not curb any of the powers Congress has delegated to the agencies. Instead, after Slaughter, “the President can effectively exercise all those powers too.”
It is not hard to imagine how a creative president could use his newfound control over all agencies. As Gorsuch points out, giving presidents unfettered control over the specialized agencies allows a retributive chief executive to launch attacks on his opponents from multiple directions: “A business out of favor with the party in control of the White House might be able to stave off an FCC investigation. But can it survive a subsequent FTC rule declaring unlawful one of its longstanding trade practices? What about an in-house adjudication by OSHA? Or a prosecution for a new crime the SEC announces?”
[Leah Litman: The Supreme Court’s era of meaningless rights]
What Gorsuch does not say is that Slaughter also enables presidents to hobble agencies—to perhaps even more disastrous effect. A president can eliminate an agency’s bipartisan makeup by simply firing minority commissioners, as Trump did with the FTC. For agencies that can act only with a statutory quorum, a president can kneecap the agency simply by reducing its membership below quorum level. And this is key to understanding why overruling Humphrey’s Executor was so important to the Reagan revolutionaries. Congressional statutes already enable agencies to regulate ambitiously pursuant to their delegated powers. There are no statutes that authorize presidents to engage in what the law professors Jody Freeman and Sharon Jacobs call “structural deregulation,” or, more plainly, sabotage.
The prospect of kneecapping agencies might seem of less concern if it were as easy to challenge agency underperformance as it is to challenge overregulation, and if one were confident that the Supreme Court would be as vigilant in overseeing Republican administrations as Democratic. But neither is the case. A Court tilted against regulation has positioned itself as the ultimate, nondeferential arbiter of when legal challenges to the president are even permissible and whether those challenges have merit. The Court can also tell Congress if measures the legislative branch thought “necessary and proper” to constrain the executive went too far.
Justice Sonia Sotomayor is certainly correct in stating that “the result” of Slaughter “is a President who emerges with far greater power than ever before.” One might, however, say the same about the Roberts Court itself.
The post The Ultimate Triumph of the Unitary Executive appeared first on The Atlantic.
