It’s not that government by unaccountable bureaucracy is acceptable. It’s not, and over the years, as federal administrative agencies have been captured by the very people they were created to regulate, strayed from their legislated purpose into politicized realms to pursue ideological goals far beyond anything Congress authorized and grew into untouchable fiefdoms of their own that sneered at the idea that either court or public could hamper their total control over some niche of American society, it became clear that something had to change.

The first change was the Loper Bright decision, ending Chevron Deference. The next change was Trump v. Slaughter, holding that the president, as executive under Article II of the Constitution, had the inherent authority despite whatever limitations were crafted by Congress in the creation of a board, agency or commission to dictate who could hold a position in the Executive Branch.

The majority opinion by Chief Justice John Roberts says that requiring presidents to have cause when they fire agency heads conflicts with the separation of powers in the Constitution. Because the Federal Trade Commission exercises executive power, it “must therefore be controlled by the chief executive,” Chief Justice Roberts wrote. The majority has decided that Congress erred when it tried to insulate the F.T.C. and a couple of dozen other agencies from partisan politics by stipulating that its leaders be semi-independent. The ruling happens to suit perfectly the view of President Trump, who has said that Article II of the Constitution gives him “the right to do whatever I want as president.”

Curiously, as noted by Justice Amy Coney Barrett in her dissent in the Cook v. Trump case, the Court distinguished the Federal Reserve from all other administrative agencies, reaching the opposite result based essentially on vibes.

How can history support both a categorical rule and a carve-out?

But I digress. Despite the fact that some commissions have become bureaucratic boondoggles, others require a high level of expertise and non-partisanship to perform their functions. Indeed, the problems created by Brendan Carr, Trump’s FCC chairman, in using its authority to carry out Trump’s vanity and vengeance agenda offer a glimpse of the plethora of problems created when independent agencies lose any independence.

The Supreme Court could have gone two very different ways in its Slaughter decision. The first way was to reverse the 91-year-old precedent of Humphrey’s Executor and hold that the president, Trump now but another later, has the power to fire without reason or limitation under the unitary executive theory of Article II.** This, of course, is what they did.

The second way was to hold that the law creating the commission, in this case the Federal Trade Commission, established in 1914, was unconstitutional because it failed to allow for the president to fire at will, thus eliminating the existence of the FTC altogether and kicking the problem back to Congress to enact a law, or not, that both served Congress’ purpose and was consistent with the Constitution. This, it did not do.

The problem is that Congress expressly created an independent, non-partisan FTC, which it housed under the auspices of the Executive Branch because it had to fit somewhere into our tripartite form of government. There is no fourth administrative branch, even though its de facto existence was undeniable.

But the creature that now exists following the Slaughter decision isn’t remotely the bureaucracy created by Congress. Would Congress have created an FTC, intended to be independent and non-partisan, if it understood that the very conditions necessary for its existence would be thwarted by the Supreme Court? Can an FTC, or any administrative agency for that matter, be justified under its enabling legislation without the requisite nuts and bolts of independence and non-partisanship?  When an agency crafted to provide expertise morphs into a political tool to exercise the power without the very expertise that justifies its existence, it fails to serve its reason for being and becomes a tool of regulatory oppression.

Now that the administrative agencies are under the full political control of the president, we’re left with the worst of both worlds. There remains an unelected bureaucratic state that runs much of the government, but it need no longer possess the independence or expertise to do the job properly and in accordance with the purpose for which Congress created it. What now?

*Tuesday talk rules apply.

**To the extent it’s argued that empowering the president to fire at will makes the bureaucracy more democratic and responsive to the public since the president is elected, the argument is nonsense. Presidents aren’t elected based on administrative appointments and can’t be unelected if they choose poorly.