After oral argument in Trump v. Slaughter, there is essentially no doubt that the Supreme Court will rule in Trump’s favor, that the president has the authority to fire a member of the Federal Trade Commission even though the statute creating the positions limits the president’s power to removal for cause. In other words, Humphrey’s Executor, the case upon which Congress relied since 1935 in crafting boards and agencies made up of putative non-partisan subject matter experts whose terms would extend from one regime to another, is history.
The question is no longer will it happen, but what reversal of Humphrey’s Executor will do to the functioning of a nation that has been built to be run, at least to some significant extent, by bureaucracy. Once Congress realized that it could dodge the hard work of legislating by creating a board, commission or agency with a vague mandate that was intended to be controlled by people with the knowledge and experience that Congress lacked, it spent almost a century doing so. For many, government by unaccountable bureaucracy wasn’t the democratic dream, with less expertise than agenda and little motive to limit the reach of its fiefdom, or accept the premise that its work was done.
But that’s how the United States runs, for better or worse. Kate Shaw asks:
But Justice Kagan raised an important practical question about this, noting that Congress has given a lot of power to agencies like the F.T.C., and it has done so with the understanding that the agencies would be headed by these bipartisan groups the president couldn’t just fire at will.
As she pointed out, if you take away half of that bargain, you end up with huge unchecked power in the hands of the president. What did you make of that concern? Perhaps counterintuitively, would it be more restrained to blow up the agency entirely?
Will Baude responds:
This is the old problem of “severability,” which used to ask the justices to imagine what Congress would have wanted if it had known that the court was going to hold part of the statute unconstitutional. As textualists have now realized, it’s not clear you can coherently answer the question of what Congress would have wanted. All we know is it wanted to enact the statute it enacted.
Maybe, counterintuitively, the most restrained thing for the court to do would be to start taking the original separation of powers more seriously across the board. That means reckoning with the constitutional problems in the rise of the administrative state. If agencies didn’t effectively write our laws and try our cases, maybe we wouldn’t freak out so much about letting the president control them.
If Congress would never have created the administrative state now largely in control of the functioning of the nation had it realize that part of the bargain was that with great power comes political independence, should the Supreme Court blow up the bureaucracy along with the overruling the president’s authority to fire at will? If the statutes creating these boards would not have been enacted absent Congress’ reliance on the Supreme Court’s ruling in Humphrey’s Executor, does overruling the decision mean the statutes should be invalidated in their entirety or that they continue as some bastardized form of bureaucracy that Congress never intended?
Of course, Congress can always revisit its work, shedding boards and commissions that no longer serve the intended purpose now that experts are being replaced with Trump loyalists who will use their great power to do his bidding, regardless of how idiotic or destructive it may be. Then again, it’s not as if that didn’t happen in the past despite the “for cause” limitations, or that the aspiration of expertise was, well, highly overrated.
On the other hand, if the Supreme Court blows up the statutes along with the “for cause” requirement for termination of commissioners, how does the nation run? Much as you might not think well of the bureaucracy (I know I don’t), it nonetheless plays a critical role in keep the wheels turning the gears grinding. Where would we be without it?
*Tuesday Talk rules apply.
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Until the SC writes and publishes a decision, we have no idea what the administrative state will do. And after they publish their decision, we will STILL not quite know how it will all turn out, as the lawyers get even richer than ever aguing about how the government should be re-structured. Because you KNOW that the Congress is going to take a really long time figuring out where all the alphabet agencies end up. This will truly be a “major question” bag of worms.
SHG.
“Where would we be without it?”
Well, for one thing we wouldn’t be dependent on China, India, and Brazil for our rare earths that we need for everything in our modern life.
The BLM and Forest Service are filled with individuals that have their own agendas and are interpreting laws and making regulations that are far beyond what congress intended when the laws were passed. They are keeping us from developing the infrastructure required because of their personal beliefs.
HG, BLM and Forest Service are not independent agencies, being part of the Department of Interior and Department of Agriculture, respectively. Different head of the same hydra, perhaps, but not the one being addressed here. This is more the Federal Election Commission being usurped by partisans and used for their aims, which I think paints the issue with better contrast.
The prez can already remove the Forest Service Chief and BLM Director at will; SCOTUS’s ruling is expected to be yet a further expansion of executive authority allowing the invasion of things like the Federal Elections Commission, which I hope we would agree should be nonpartisan, if any agency should.
[Ed. Note: One of my all-time favorite album covers.]
Reflecting on previous posts at SJ, I too detest Catherine Lhamon’s misandrist ideology at the DOE, but that’s not all that will be affected by overturning Humphrey’s Executor. The baby is about to be thrown out with the bathwater.
During yesterday’s SCOTUS hearing, Solicitor General John Sauer said, “The entire government will move toward accountability to the people.” We have an immense technical structure, constructed over centuries, that allows us to live our lives as we do, and therefore the world has become much, much more complicated than ‘the people’ realize or want to admit.
My dad worked for the FDA and USDA as a microbiologist. He was truly dedicated to keeping safe the food we all ate as kids. There are – or were, thanks to DOGE – many thousands of folks like him in the government. Their dedication and specialized expertise does much more than ‘keep the wheels turning the gears grinding’.
Do we really expect ‘the people’ to sufficiently appreciate and understand safe practices in, say, food processing plants and nuclear weapons facilities to hold the Government ‘accountable’ in any effective way? Do we want more sycophants like NOAA Administrator Neil Jacobs, who bowed to the sharpie wielded by Jeffrey’s Best Friend, supported his lie that Hurricane Dorian would hit Alabama, and criticized the Alabama weather forecasters who disagreed?
Trofim Lysenko, Director of the Institute of Genetics of the Soviet Academy of Sciences, would be gratified to see political influence and power used to suppress dissenting opinions and discredit, marginalize, and even imprison critics.
“These are dangerous times. Never have so many people had access to so much knowledge, and yet been so resistant to learning anything.”
Tom Nichols, The Death of Expertis
Comrade Melquiades,
I refer you to the above reply made by the PK to Hunting Guy.
Yup. I realized the error regarding agencies very soon after I submitted. Nevertheless, the argument in favor of retaining technical expertise stands. And no, I’m not a leftist.
Well, we have already had the pen-and-phone version of flip-flopping public policy, and this change will amplify it. The theoretical upside is the bureaucracy will now be more accountable to the voters. The practical downside is the voters will only have Republican or Democrat on the menu, and neither gang can actually be trusted. So the voters can put the rascals out, but only at the cost of putting the other rascals in. The voters can empower abrupt changes in policy direction, but only between the devil and the deep blue sea.
I found it very easy to rail against bureaucracy, big government, the very notion of The State itself in the before-times, before I got a good look at the dark heart of American populism in ascendancy. I would much prefer to see a properly functioning/limited government. Faced with the choice between the fabled “Deep State” that MAGA dismantled in months, or the reeking Trojan horse that is the Trump regime….I’d return to the deeply flawed status quo of 2024 in a heartbeat. I suspect that if this nightmare should mercifully end, and we get anywhere close to that, some enterprising Republican would claim “victory.” That feels like a best-case scenario. But I don’t like the odds.
Well, I’m a day late, and maybe a dollar short, but, to me, you guys all sound like amateurs. It’s a law blog, and there may be laws to be passed, and lawyers tend to think they are experts in everything, but this is a topic in bureaucracy management. People (not me) really study this stuff, you know, and have something to say about continuity, or the lack thereof, in management. They know how bureacracies grow. They know about orginazational intertia.
When you get someone in to explain why Max Weber’s theories don’t apply, let me know.