I & I Editorial BoardDuring oral arguments this week, liberal Supreme Court Justice Sonia Sotomayor told Solicitor General D. John Sauer, “You’re asking us to destroy the structure of government.”
To which anyone following this case should say “Amen!”
The case involves Trump’s decision in March to fire Rebecca Kelly Slaughter, a member of the Federal Trade Commission whom Trump appointed to the FTC in his first term, but decided that letting her remain would be “inconsistent with the administration’s priorities.”
Slaughter says her firing was illegal, pointing to a 1935 Supreme Court ruling – Humphrey’s Executor v. the United States – which involved FDR’s firing of an FTC commissioner whom FDR believed was thwarting his activist agenda. In that ruling, the court said that when Congress created the FTC, it dictated that the president could fire a commissioner only for “inefficiency, neglect of duty, or malfeasance in office,” and because the FTC was merely a “quasi-executive branch agency.”
Although that 1935 ruling temporarily thwarted FDR’s big-government ambitions, it had the effect of putting big government on steroids.
After the ruling, “independent agencies” flourished – there are at least 19 of them now – moving the country inexorably toward the leftist vision of a powerful central government run by unaccountable “experts” liberated from the whims of voters.
As Daniel Crane wrote in the George Washington Law Review in 2016, the court’s decision “articulated the heart of the Progressive vision for administrative agencies — politically detached and independent, uniquely expert and objective.”
In other words, a vision that is profoundly anti-democratic.
The Heritage Foundation’s Hans von Spakovsky called Humphrey’s Executor “one of the worst decisions of the progressive era,” and one that “violated basic separation of powers principles.”
During oral arguments, Justice Sotomayor fretted that overturning Humphrey’s Executor would “take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent.”
There’s just one problem. Congress doesn’t get to decide on its own “that the government is better structured with some agencies that are independent.” The Constitution determines the structure of our government. And if the framers of the Constitution had wanted a fourth branch of government, they would have included a provision in the document establishing it.
You’d think a Supreme Court justice would understand that.
Instead, the Framers of the Constitution gave the president sole authority to run one of the three co-equal branches of government.
So when Justice Elena Kagan warned that “The result of what you want is that the president is going to have massive, unchecked, uncontrolled power … with control over everything,” Solicitor General Sauer replied, drolly but with perfect accuracy, “He’d have control over the executive branch.”
“The sky will not fall,” Sauer said. “In fact, our entire government will move towards accountability to the people.”
And that’s what those on the left fear most. They aren’t worried about Trump’s amassing power. They’re worried about losing their iron grip on the federal government, which these independent agencies have granted them for nine decades. The last thing the left wants is to have to answer to voters.
Fixing the court’s 1935 mistake – which the current Court looks poised to do – would go a long way toward restoring constitutional order. But as the Competitive Enterprise Institute’s Clyde Wayne Crews correctly points out, even if the court does that, there’s more work to do.
“Overturning Humphrey’s Executor would sever one of the Administrative State’s oxygen lines, but would by no means asphyxiate it,” he writes, because “we will remain saddled with a Congress that over-delegates to executive branch agencies and independent ones alike and … recognizes no effective limits on its powers to intervene in economic and societal concerns.”
Still, any step in the right direction is a good one and should be celebrated.
–Written by the I&I Editorial Board
I agree; the problem is that Congress wants no accountability for their actions.
These “independent” agencies, unconstitutional in their creation, contain powers from all three legitimate branches of government: They are granted the power to make rules that have the effect of law, they are granted enforcement power, and they are granted the power to sit in judgment. None of the legitimate branches of government have that much power delegated to them.
However, I will admit that Justice Ketanji Brown Jackson said one thing that was intelligent, when she addressed the issue of these agencies reporting to Congress. It was intelligent in the fact that she recognized that most of these agencies are created under the power of Congress to regulate (to make regular, not to control) certain functions of the nation.
What is an “independent agency”, within the Executive Branch”? Article II vests ALL power in the Executive Branch to the Executive. Therefore, agencies in the Executive Branch cannot Constitutionally be “independent”. The statement, “The _____ is an independent federal agency…” describes an unconstitutional act by the Congress which went unchallenged by the executive at the time. Congress has not the power to make executive agencies independent, even with the executive’s consent. The Constitution trumps them both.
Congress can amend the Constitution by a 2/3 vote. This, they must submit to the president for his signature and then to the states for ratification. When 3/4 of the states LEGALLY ratify the amendment (not like the 16th), the Constitution is amended. The Congress cannot amend the Constitution by a simple legislative act.
We have been operating under an unconstitutional structure for a very long time, because those that swore an oath to “preserve, protect, and defend the Constitution of the United States” have ignored that obligation and sought to circumvent the Constitution instead. The result is that the government and particularly the media, and apparently the liberal justices have accepted the circumvention as the Constitutionally prescribed way of government. It is not!