More Power to Him—First Takes after Argument in Trump v. Slaughter

Trump can fire agency heads at will; agency independence is over.

The Court will give the President the power to fire agency heads at will, if they exercise an executive function.

It was a good run, but the era of independent agencies is over. The U.S. Supreme Court is likely to hold in Trump v. Slaughter that the Constitution does not allow any statutory limits on the President’s power to remove agency heads. He and future presidents will be able to fire agency heads at will, without limit, if they exercise any executive authority. In reaching this conclusion, the Court will overrule a 90-year-old precedent, Humphrey’s Executor, which unanimously held that President Roosevelt could not remove an FTC commissioner without good cause. The oral argument today confirmed that the majority will deliver what its earlier emergency-docket ruling in the case foreshadowed: a win for the President. Nevertheless, as explored at argument, substantial uncertainty remains about how the Court will explain its ruling and how far it will reach.

I am not an unbiased observer. I filed an amicus brief on behalf of two scholars in support of Slaughter. In my view, the Constitution does not preclude Congress from limiting the President’s power to remove commissioners or board members without good cause. Moreover, the doctrine of stare decisis (standing by precedent) counsels strongly against upending that arrangement. More than two dozen agencies have removal protections for agency leaders; whatever the Court does here, assuming it overrules Humphrey’s Executor, will be extremely disruptive. I believe Slaughter should prevail and hope she does. Based on the oral argument, though, that seems unlikely.

(Axios photo of FTC Commissioner Rebecca Slaughter)

The conservative justices largely announced at argument that they are ready to discard Humphrey’s Executor. Chief Justice Roberts called it a “dried husk” of a decision. Justice Gorsuch put his “cards on the table” in rejecting Humphrey’s Executor. The votes of Justices Alito and Thomas are just as easily counted. Justice Kavanaugh expressed doubt that striking down removal protections would have any negative consequences. Justice Barrett seemed to view agency independence as a recent innovation. In short, six justices apparently view Humphrey’s Executor as a dead letter and view their task as burying it completely.

The Court still must decide what counts as an “executive” function.

But writing the opinion won’t be easy, even if the majority knows how it will end. The conservative justices’ thesis is that the President must have sole and exclusive control over the Article II executive power, which in turn requires the Court to decide whether an agency function is “executive” in nature. The magnitude of the coming Trump v. Slaughter earthquake will depend on how broadly the Court defines the word “executive.” If any function assigned to any agency housed in the executive branch is “executive” then, by the majority’s reasoning, the President must have sole and exclusive control over all agency functions. On the other hand, if “executive” has an original constitutional meaning that is independent from the branch to which Congress formally assigned agency functions, then “executive” could refer to that meaning—and some agency functions could be non-executive.

The anticipated majority appears to be inclined to define the word “executive” to have separate and independent meaning, as distinguished from simply saying that everything an executive-branch agency does is necessarily “executive.” This approach may enable the majority to preserve the independence of tax courts, bankruptcy courts, military courts, and the Merit System Protection Board, which are formally part of the executive branch but generally hear and decide disputes (and thus are substantively adjudicative, not executive). The majority might also wish to define the Federal Reserve as non-executive, having already said that the Federal Reserve is “unique” in another case because they want it to remain independent. But often identifying authority as “executive” in nature, or at least exclusively “executive,” is not easy. For example, some statutes, such as the False Claims Act, authorize private citizens to initiate civil actions on behalf of the government, and if private citizens can do so without direct control by the President, one might think that Congress could empower agencies to do so as well.

If the FTC’s civil enforcement powers are not necessarily or exclusively executive, then the FTC’s removal protections might survive. But if civil enforcement is “executive” in nature, and the President must have unlimited control over such executive functions, then the removal protections must fall under a unitary executive theory of the Constitution. Justice Gorsuch and others in the majority seem skeptical that civil enforcement power could be subject to any restraints and are likely to hold that civil actions to recover fines or penalties are “executive.” That ruling could, in turn, end private initiation of civil suits under the False Claims Act and thus hinder recovery of stolen taxpayer funds.

If Congress has unconstitutionally limited the removal of agency heads who exercise executive authority, then the Court must decide whether to strike the removal restriction or the authority.

Everyone seems to agree that Congress believed it had the power to enact removal protections when it created most of the modern administrative state, not least because the Supreme Court unanimously said so in 1935 in Humphrey’s Executor. This leads to a troubling hypothetical question: Would Congress have granted executive authority to the FTC and other agencies if it could not limit the President’s power to remove commissioners? If the answer is “no,” then the correct result might be to strike the executive authority (not the removal restriction), leaving behind whatever is not “executive” in nature and therefore not vested in the President. This approach would make the agencies smaller in scope and would not increase the President’s power.

Conversely, if the Court strikes the removal restriction, as is far more likely, then the President will have more direct control over an agency with enforcement powers that Congress might never have conferred, had it been able to predict the Court’s decision. In that situation, the President’s power increases substantially, and Congress is nearly powerless to do anything about it. Its only option would be to repeal the statutes that granted executive authority, but this approach would require Congress partially to abolish agencies that it had established to protect and serve the American people. This bottom line, plus the difficulty of passing any substantive legislation under existing filibuster procedures, means that for the foreseeable future, presidents will have much more control over agencies.

With the end of independent agencies, the worrisome trend lines of our polarized era will continue. We can expect that agencies decisions will be far more partisan, less informed by expertise, less consensus-oriented, and less stable from administration to administration. Presidents will fire most or all the members of every commission upon taking office, just as they currently replace their cabinet officials. No statutory authority permits “acting” commissioners to serve, so any agency action that requires a functioning board or quorum to perform will be delayed or never occur. The burden of filling even more Senate-confirmed positions with each new administration will increase, creating further backlogs. Government will function a little less well, further decreasing the public confidence. And the need for even more sweeping reform will have been made all the more clear.