Just what President Donald Trump needed: more unchecked power.
In the new Supreme Court Trump vs. Slaughter commentsthe court ruled that the president’s firing of Rebecca Slaughter of the Federal Trade Commission was legal – even though he did not follow Congress’s express requirement that FTC commissioners can only be fired “for negligence, carelessness, or negligence in duty.” In the eyes of the court, such a requirement is itself an unconstitutional interference with the president’s Article 2 powers.
The decision was the latest to embrace the “unitary executive” theory, a long-held notion popular in conservative legal circles that the president should have broad powers to fire any head of any executive agency for any reason.
Slaughter it couldn’t have been timed worse. Congress gave these agencies broad powers on the express theory that they would be insulated from White House influence. Now the court has decided that Trump, of all people, will be the first president to have unquestioned authority over them.
In doing so, they are playing with fire. In the United States and around the world, independent organizations have proven to be an important bulwark to protect free societies from would-be tyrants. The specific, arbitrary, and political way in which the courts attack them increases the risk.
The immediate threat of politics
Many in Slaughter paints executive agencies as a form of extra-constitutional growth that violates the vision of establishing a branch fully controlled by the president. In his concurrence, Justice Neil Gorsuch places the blame on President Woodrow Wilson – who, in Gorsuch’s estimation, aimed to replace the constitutional system of pluralism with a principle-and-irresponsibility type of expert. Executive organizations were the means to achieve this evil goal.
“As Wilson put it, the Nation’s traditional mission of ‘popular liberty’ entrusted too much to people who were ‘selfish, ignorant, cowardly, obstinate, or foolish.’ And allowing the public anywhere near the new bureaucracy would be tantamount to allowing ‘rustic(e) handling of a fancy machine,'” Gorsuch writes.
This landmark claim is hotly contested (see Justice Sonia Sotomayor’s opposition for answers). But in the hundred-plus years since Wilson’s presidency, independent regulatory agencies have become commonplace — in the United States and around the world. On a practical level, we know much more about how they work, and their relationship to democracy, than Wilson did in his day.
And what we’ve found is that independent agencies are real absolutely in line with democratic governance. They are used in the democratic world, they exist everywhere OECD countries. Research shows that countries with a strong rule of law tend to have high levels of agency autonomy than those who are weak.
Although the proliferation of these organizations raises difficult questions about democratic accountability, it is clear that the existence of independent organizations does not cause democracy instead of democracy. Instead, they function as a kind of independent power center: one that can abuse its power, sure, but has not acquired so much power that elections are out of date.
In fact, the most common threat to democracy around the world is almost the polar opposite: actors who gain unchecked power, and use it against free speech and fair elections. This “executive promotion” almost always involves the abuse of hire-and-fire power to ensure that partners operate in key positions of power.
The authoritarian groups that had (until recently) run Hungary and Poland both seized control of the country’s media, using their new powers to turn them into propaganda tools. Indian Prime Minister Narendra Modi has done just that administration of political elections and armed law enforcement agencies against political opponents.
Agency independence can be an important safeguard against such tactics. Last year, Israeli Prime Minister Benjamin Netanyahu tried to fire the country’s attorney general – who was overseeing his criminal case for alleged abuse of regulatory powers against democracy. The Israeli Supreme Court decided that Netanyahu’s action break the law to protect the AG from political interference, at least temporarily store important checks on his increasingly lawless government.
The United States, quite clearly, is in the midst of a similar period of democratic backsliding — marked by a president trying to use regulatory and law enforcement powers against his enemies. In this high-profile decision, the Court gives him the green light to put his pedal to the metal.
“Combine the radicalism of the Supreme Court in this case with the new partisan, who won Mr. Trump’s second presidency, and the separation of powers as we know it is lost,” Kate Shaw, a law professor at the University of Pennsylvania, writes in the New York Times.
What happens next is hard to say. Trump had already put aides in charge of historically independent agencies, from the Justice Department to the FCC, removing many political appointees and public servants who might struggle to enact Trump’s every whim.
But experts are already warning of a deeper attack, one of the most pressing aspects of government that has so far eluded Trump.
“My fear is that Slaughter it also lays the groundwork for a more comprehensive attack on the public service. The logic of that decision – that senior officials who employ executive powers must be removed by the President – may extend to other public servants beyond the heads of independent agencies, including senior government employees,” writes Don Moynihana professor at the University of Michigan who studies federal bureaucracy.
The long-term threat of legal authority
While the court is diligently avoiding calling Trump specifically a threat to democracy, it is clearly aware of the dangers of its decision.
Gorsuch’s compromise is particularly surprising on this issue. Quoting James Madison’s Federalist No. 47, the justice wrote that “allowing Presidents to control not only executive functions, but also vast new reservoirs of legislative and judicial power, there is a danger of inviting exactly what those who framed our Constitution feared: ‘the accumulation of all power…in the same hands.'” Even mentions FCC chairman Brendan Brendan. trying to silence Jimmy Kimmel as an example of the emerging powers of agency, and the dangers of their misuse.
However, despite this, Gorsuch voted to give the president ultimately responsible for these abuses more power to influence the FCC – for example, firing its only remaining Democratic commissioner.
What makes Gorsuch’s compromise even more interesting is that he, unlike many, proposes a solution to the problem of a strong executive. Since the court has knee-jerk Congress’ ability to control executive power, he concludes that power must fall to him and his fellow justices.
“If any real answers are to come they will have to come from this Court,” he writes. “The Constitution provides a guide to the task ahead. The Charter provides a more reliable and legitimate democratic plan for ‘public administration’ than anything Wilson devised.”
Effectively, it appears that the Court has appointed itself the sole arbiter of the appropriate limits of executive power. Any powers that democratically elected members of Congress have had to delegate to agencies have been overseen by nine unelected judges (or, more commonly, six).
Gorsuch laments that agencies are not neutral experts, but subject to political and ideological bias.
But the same can be said about the Court itself – perhaps even more so. For evidence, look at another Supreme Court decision issued yesterday that seems to directly contradict that decision Slaughter.
In Trump vs. CookChief Justice John Roberts ruled that Trump’s firing of Lisa Cook – a member of the Board of Governors of the Federal Reserve – violated the statutory protections required for firing just for cause. To allow this special Fed carving out SlaughterRoberts relies on the argument that the Fed is somehow more independent historically than other agencies. But, as Justice Amy Coney Barrett points out in her dissent, that directly contradicts the plain text of . Slaughter.
“Slaughter declares a comprehensive rule…However, the Court claims a special exception ‘authorized by history’ and based on the Federal Reserve’s role in setting monetary policy. How can history support the rule of thumb and carve-out?” he asks, sarcastically.
The answer is that it cannot. Judgments are meaningless together unless you see Cooking less law than policy. Indeed, Roberts spends the first six pages laying out the history of federal banking and financial panics, essentially arguing that the Fed has a unique role in the American economy that should not be interfered with.
“It is the independence of the Federal Reserve that allows it to carry out its duties of ‘higher employment, stable prices, and moderate long-term interest rates,’ goals that may be thwarted if (to quote Hamilton) a ‘suspicion’ arises that its activities were ‘Government,'” he writes.
There is a great deal of weight to his argument: Fed independence is indeed important to the US (and global) economy. But the chief justice makes no serious attempt to explain why this logic is nothing but a special fabrication Slaughter based on judicial opinions of important economic questions. In fact, the word “Slaughter” does not immediately appear in Roberts’ decision. And history can easily be read another way: There were many Founders and early presidents who they were rivals of the national bank, suggesting the issue of its independence was controversial from the start.
This points to another danger for American democracy, which will defeat Trump: that when it comes to executive power, the Supreme Court will continue to act as if its policy recommendations are constitutionally mandated while those with whom the conservative majority disagrees must face special scrutiny.
Absent some kind of reform or course correction, we risk a future in which the presidency becomes an electoral dictatorship in areas where the Supreme Court approves its policies — and where the Court dictates policies in other areas. Congress, the most democratically responsive branch of government, has been reduced to a rump.
America deserves better than a power struggle between an elected dictatorship and nine philosopher-kings. But the Court (and a supine Congress) seems determined to force the issue. It won’t end well.
