The conservative majority on the Supreme Court, in line with the Trump administration, seems ready to dismantle independent administrative agencies. This was evident from Monday’s oral arguments over the firing of Federal Trade Commission member Rebecca Kelly Slaughter.
Allowing the president to dismiss commission members at will is part of a broader process of further expanding the president’s power and making it completely unrestrained. The consequence is that the executive branch will have more opportunities to undermine the rule of law, as an increasing number of federal officials are forced to be loyal to the sitting president rather than to the principles of good governance or the Constitution.
The fundamental reason for the existence of independent agencies lies in the fact that Congress sometimes wishes to confer regulatory powers on an agency but does not want it to be completely under the control of the president. This is particularly important for two types of functions: one is rule-making, which is a legislative act based on reason, policy analysis and professional knowledge; the other is agency adjudication, that is, the agency formulates policies through a series of specific cases, and these cases accumulate over the years to eventually form precedents. This explains why Congress is reluctant to place these important functions directly under the control of the president.
Many independent agencies play various crucial roles. Among the most well-known are the Federal Communications Commission, the Environmental Protection Agency, the Securities and Exchange Commission, and the Federal Reserve Board. But there are also many less well-known agencies that are equally important, such as the United States Tax Court and the United States Court of Federal Claims.
Of course, President Donald Trump wants to have complete control over every aspect of the government. This president, known for his catchphrase “You’re fired,” prefers to fire people rather than hire them. He views the entire government as an extension of his personal power and personal brand.
Conservative justices, meanwhile, have been deeply influenced by the so-called “unitary executive” theory. The foundation of this worldview is a seemingly simple yet highly misleading claim: since the president is the only official elected by the entire public, democracy demands that the president have absolute control over all members of the executive branch, even if that was not Congress’s intention.
Undermining the independence of institutions weakens the possibility of regulation based on professional expertise rather than naked political preferences. In an era of increasingly partisan polarization, this is a disaster for any rational decision-making that can improve the country’s situation and help such policies continue through changes of presidents.
It would be especially bad if those institutions that operate by way of adjudication lost their independence. The quasi-judicial function of such institutions only makes sense when they decide cases based on rules and principles rather than arbitrary political instructions from the president.
The Supreme Court may issue a narrow ruling in the current “Trump v. Slaughter” case, which would result in only rule-making commissions like the Federal Trade Commission losing their independence, while adjudicatory commissions would remain unaffected. Moreover, any ruling seems likely to exclude the Federal Reserve, based on some far-fetched logic that views the Fed as historically distinct from other independent agencies, which is not the case.
As Justice Elena Kagan pointed out, an opinion based on the unitary executive theory would logically extend to adjudicatory bodies and the Federal Reserve. Once such an opinion were formally established, the long-term independence of other institutions would be seriously questioned. If the court, as now seems almost certain, rules that Trump can fire Slaughter for any reason, future cases would almost certainly expand the president’s firing power to the heads of other independent agencies and perhaps even to ordinary civil servants.
The result will be a government dominated by the president’s whims, with decisions made entirely based on arbitrary political preferences. The adverse effects will soon become apparent – and will affect all of us.
