Critics of the Supreme Court have argued that it has too often deferred to the Trump administration and that the conservative justices are under the sway of suspicious propositions like the unitary executive theory and the major questions doctrine.
What we are actually seeing at the Supreme Court is the chance to rebalance the separation of powers in the federal government.
On Monday the court will hear oral arguments in Trump v. Slaughter, a case that could decide the fate of dozens of independent administrative agencies and the president’s ability to control them. The court’s ruling in the case should help elaborate a coherent vision of a renewed constitutional arrangement — one that we have seen hints and glimpses of in recent years from the Supreme Court.
As decades have passed and Congress’s influence has shrunk, the outcome of Slaughter has vast implications for the future — and political legitimacy — of the three government branches. It could offer the chance to see how the major questions doctrine and the unitary executive theory add up to a renewed integrity for the separation of powers.
Our founders would be shocked by the current constitutional order. Not by a presidency that has ballooned beyond recognition — they were well aware of the threats a power-hungry president could pose — but by the state of Congress, for not more jealously guarding its power and prestige. They would be confused that so many of its more than 500 members seem to have no further ambition than to act like glorified Instagram influencers.
As Congress has receded and presidents have filled the void through executive orders, the Supreme Court has been forced to step in to referee our most bitter political disputes, undermining the court’s legitimacy and leading to calls for court reform.
More than a century ago, Progressive-era politicians were obsessed with the idea that unelected experts could solve many of our thorniest political problems. Congress created independent agencies that were largely shielded from political control and could skip the annoying delays and messy compromises of legislating to create rules and regulations. They would be housed in the executive branch, but they wouldn’t answer to the president.
The result has undermined the very theory of our constitutional republic. With all the focus on presidential elections, the truth is that for so much economic and domestic policy — like energy regulation, labor law, telecommunications, securities regulation — the president exercises a relatively small slice of that power. The independent agencies decide many of those questions, but voters have no way to hold them directly accountable.
That is the focus of the unitary executive theory. At its most basic, it is the idea that when the Constitution says, “The executive power shall be vested in a president,” it means only the president. All members of the executive branch derive their authority from the president, and Congress can’t put limitations on the president’s power to remove executive branch officials. In a self-governing republic, voters have to be able to hold someone accountable.
This is the question at issue in Slaughter. If the Supreme Court changes the rules around presidential control of independent agencies, it will be a good first step at re-establishing political accountability over our federal government.
But if the president controls agencies completely while they continue to wield sweeping, ill-defined powers, we risk something far worse than independent agencies. Agencies with broad statutory mandates become instruments of presidential policymaking, whether it’s the Environmental Protection Agency setting emission standards or the Consumer Financial Protection Bureau regulating unfair financial practices or the Federal Trade Commission determining unfair consumer practices. Giving presidents this discretion will further concentrate both legislative and executive power in a single person.
This means that it is critical for the court to rein in Congress’s bad habit of delegating vast and vague powers to the executive branch.
When Congress created many of these independent agencies, it also created the legislative veto. Congress would delegate powers to the executive branch — like the power to regulate financial transactions in the 1977 International Emergency Economic Powers Act at issue in President Trump’s tariff case. But it would retain the power to veto executive branch actions. In 1983 the Supreme Court held that the legislative veto violated the separation of powers and essentially stripped it out of these laws — without striking down the laws themselves. The president maintained powers, but Congress had lost a crucial tool to assert its power.
Eventually, the branches started to adjust to this new reality. Presidents used executive orders to advance their agendas and to bypass Congress, which avoided hard votes. Presidents got to take credit for big stuff. Activists didn’t have to compromise. Virtually everything ended up in court. But a headline would read, “Court Strikes Down Student Loan Forgiveness” instead of “Court Says Only Congress Can Enact Student Loan Debt Forgiveness.”
The court has been trying to revive congressional power with a constitutional defibrillator called the major questions doctrine. The doctrine requires Congress to speak clearly before allowing the executive branch to make big policy changes. In this arrangement, the unitary executive theory can ensure the president gets to do his job, while the major questions doctrine (or what we should start referring to as the unitary legislative doctrine) can make Congress do its job.
Some will argue that Congress cannot legislate effectively on the complex issues of the modern worlds of business and economics, regulation of industry and the like. But the solution to gridlock is not transferring legislative power to the president. Constitutional structure exists to prevent the concentration of power that threatens liberty, not to facilitate it for efficiency.
The president should direct priorities within congressionally defined boundaries with appointees that he has the power to remove when they can’t or won’t further his policy objectives. But we cannot tolerate Congress writing blank checks that the president fills in.
If the high court applies these two doctrines, the executive agencies face a variety of paths. Perhaps Congress will claw back some of its authority and narrow its mission. Perhaps we will once again elect people to Congress who care about legislating. Furthermore, they may be willing to forge lasting compromises with the other side to prevent presidents from wielding this much power, understanding that the other side will also have all that power one day soon.
The Constitution vests “all legislative powers” in Congress and “the executive power” in the president. The court is overdue to police those lines and keep the branches separated.
Sarah Isgur (@whignewtons) is a senior editor at The Dispatch, the host of the legal podcast “Advisory Opinions” and the author of “Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court.”
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