Supreme Court May Dismantle Agency Independence, Empowering Unitary Executive - Episode Hero Image

Supreme Court May Dismantle Agency Independence, Empowering Unitary Executive

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TL;DR

  • The Supreme Court's ruling in Trump v. Slaughter could dismantle the legal precedent of Humphrey's Executor, potentially allowing presidents to fire heads of independent agencies at will, thereby undermining congressional authority to create checks on executive power.
  • Empowering presidents to fire heads of independent agencies could politicize technocratic decision-making in areas like nuclear safety or financial regulation, leading to decisions based on political expediency rather than expertise.
  • The unitary executive theory, if broadly applied, risks concentrating excessive power in the presidency, potentially leading to "telephone justice" where agency actions are dictated by White House directives rather than impartial legal processes.
  • The Supreme Court's rationale for exempting the Federal Reserve from presidential removal power, citing its "quasi-private entity" status, lacks clear constitutional grounding and suggests a judicial preference for preserving specific institutional independence over consistent legal principles.
  • A broad interpretation of the unitary executive theory shifts the balance of power from Congress to the judiciary, granting the Supreme Court ultimate authority over agency independence and substantive agency actions, rather than elected representatives.
  • The historical precedent of Humphrey's Executor has provided a century of stability for independent agencies, and its removal could create intractable jurisprudential problems and necessitate a fundamental redefinition of governmental checks and balances.

Deep Dive

The Supreme Court's consideration of Trump v. Slaughter centers on whether the President can fire leaders of independent agencies at will, threatening to dismantle a 90-year precedent that insulated these bodies from political interference. This case hinges on the "unitary executive" theory, which posits that the President must have absolute control over the executive branch, and its potential overturning could consolidate significant power within the presidency while diminishing Congress's ability to create checks and balances.

The core of the dispute lies in Humphrey's Executor v. United States, a 1935 Supreme Court case that established protections against arbitrary presidential firings for officials in independent agencies like the Federal Trade Commission (FTC). President Roosevelt sought to fire an FTC commissioner, but the Court unanimously ruled that Congress could limit the President's removal power when it created such independent agencies, aiming to ensure these bodies could exercise technocratic expertise or manage conflicts of interest free from political pressure. The current conservative majority on the Supreme Court, however, appears receptive to the unitary executive theory, which argues that any executive power must ultimately reside with the President, thus allowing for at-will dismissals. This interpretation, championed by Republicans for decades, suggests a belief that the judiciary, rather than Congress, should be the ultimate arbiter of agency independence and presidential power.

If the Court sides with the President, the implications extend beyond the FTC. While the Federal Reserve, due to its unique historical structure, might retain some independence as established in Trump v. Wilcox, other independent agencies could become vulnerable. This shift would grant presidents, regardless of party, the power to dismiss officials based on policy disagreements rather than for cause, potentially leading to "telephone justice" where decisions are dictated by White House directives. This erosion of agency independence could compromise the integrity of critical functions, from nuclear safety oversight to economic regulation, by subjecting them to the immediate political winds of the presidency. Ultimately, this case represents a fundamental rebalancing of power, potentially shifting significant authority from Congress to the President and the judiciary, with profound consequences for the structure and function of the U.S. government.

Action Items

  • Audit FTC structure: Evaluate independence criteria for 5-10 federal agencies to identify potential vulnerabilities to presidential influence.
  • Draft runbook template: Define 5 required sections (e.g., statutory basis, removal clauses, historical precedent) for independent agency oversight.
  • Analyze 3-5 historical cases: Compare Supreme Court rulings on executive power and agency independence to identify patterns of judicial interpretation.
  • Measure impact of unitary executive theory: For 3-5 agencies, assess potential consequences of reduced independence on technocratic decision-making.

Related Episodes

Key Quotes

"The statute for the Federal Trade Commission says they can only be fired for neglect or malfeasance or reasons like that and Trump doesn't claim that she was neglectful or malfeasance you know Trump just claims that like look you want to do things that I don't agree with and since I disagree with your politics I'm going to fire you."

Ian Millhiser explains that the Federal Trade Commission (FTC) statute specifies grounds for removal, such as neglect or malfeasance. He highlights that President Trump's stated reason for wanting to fire Commissioner Slaughter is political disagreement, not a failure to perform her duties. This distinction is central to the legal challenge.

"Trump's theory or his lawyer's theory is something called the unitary executive. The constitutional design sets up three branches of government. It forbids Congress from controlling what the executive branch does and also forbids Congress from shaving away the President's control."

Ian Millhiser introduces the legal concept of the "unitary executive theory." He clarifies that this theory posits that the President must have complete control over the executive branch, and Congress cannot enact laws that diminish this control. This theory underpins the President's claim of broad removal power.

"The most important thing that they have on their side is a Supreme Court decision from 90 years ago called Humphrey's Executor v. United States. And Humphrey's Executor v. United States also involved the Federal Trade Commission. President Roosevelt wanted to fire someone on the FTC. The Supreme Court said no, Congress is allowed to create this independent agency to insulate its members from being fired."

Ian Millhiser points to the Supreme Court case Humphrey's Executor v. United States as a key legal precedent. He explains that this 90-year-old decision, which also involved the FTC, established that Congress can create independent agencies and limit the President's ability to remove their leaders. This case is a cornerstone of the argument against arbitrary presidential firings.

"The Republican party's vision really concentrates power in the judiciary. It gives the judiciary the final word on which agencies can be independent and not Congress. But then it does still check that agency's power because it also gives the justices a veto power over the substantive actions that those agencies take."

Noah Rosenblum contrasts the visions of the Democratic and Republican parties regarding governmental power. He argues that the Republican vision, particularly as reflected in the judiciary, favors concentrating power in the courts to determine agency independence and to review agency actions. This approach, he suggests, shifts decision-making authority from Congress to the judiciary.

"There are lots of things that government does where just as a matter of common sense you want some independence between the person making the decision on behalf of the government and the particular political will of the president. One example I sometimes use with my students... you don't want the next mayor or you don't want whether the sewer system works to turn on what the mayor's political preferences are."

Noah Rosenblum provides a practical rationale for independent agencies. He uses the analogy of a sewer system to illustrate that certain governmental functions should operate based on technical necessity rather than political preference. Rosenblum argues that this independence is crucial for consistent and effective governance, free from the shifting winds of presidential politics.

"The Federal Reserve is a uniquely structured quasi-private entity that follows in the distinct historical tradition of the first and second banks of the United States."

Ian Millhiser quotes the Supreme Court's one-sentence explanation for why the Federal Reserve is treated differently from other agencies. He notes that this explanation, which references the Fed's unique structure and historical lineage, is legally obscure. Millhiser suggests this phrasing indicates a majority of justices want the Fed to be distinct, even if the legal reasoning is unclear.

Resources

External Resources

Books

  • "Humphrey's Executor v. United States" - Mentioned as a Supreme Court case from 90 years ago that limited the President's ability to remove Federal Trade Commission members.
  • "Myers" - Mentioned as a 1926 Supreme Court case that held the Senate could not interpose itself in the President's removal of purely executive officers.
  • "Morrison v. Olson" - Mentioned as a case from the 1980s where Justice Scalia wrote a solo dissent arguing against the idea that Congress could limit the President's removal powers.
  • "Trump v. Wilcox" - Mentioned as a Supreme Court case that stated the Federal Reserve is special and not subject to the unitary executive rule.
  • "Seila Law" - Mentioned as a 2020 decision that transformed the logic of Humphrey's Executor by addressing the independence of single-headed agencies.

Articles & Papers

  • "The Pecora Hearings" - Mentioned as a historical event where bankers and corporate executives were brought before Congress for misdeeds.

People

  • Donald Trump - Mentioned as the President whose power to fire federal officials is being debated.
  • Rebecca Slaughter - Mentioned as a Commissioner at the Federal Trade Commission whose potential firing is the subject of a Supreme Court case.
  • Elon - Mentioned in relation to his time running companies.
  • Jerome Powell - Mentioned as the Chairman of the Federal Reserve who has pointed out that President Trump cannot simply fire him.
  • Franklin Roosevelt - Mentioned as the President involved in a conflict with FTC Commissioner Humphrey regarding the New Deal.
  • Commissioner Humphrey - Mentioned as a Federal Trade Commission commissioner appointed by Republicans who disagreed with President Roosevelt's New Deal policies.
  • Scalia - Mentioned as a justice who wrote an opinion in Morrison v. Olson regarding presidential powers.
  • William Rehnquist - Mentioned as the conservative Chief Justice who wrote the majority opinion in Morrison v. Olson.
  • Brett Kavanaugh - Mentioned as a rising conservative judge who came up with a theory regarding the unconstitutionality of single-headed agencies serving independent of the President.
  • John Roberts - Mentioned as the Chief Justice who adopted Brett Kavanaugh's theory in the Seila Law decision.
  • Noah Rosenblum - Mentioned as a legal historian at NYU Law School who filed an amicus brief in the Trump v. Slaughter case.
  • Ian Millhiser - Mentioned as someone who covers the Supreme Court for Vox.
  • Eric Adams - Mentioned as a potential mayor of New York.
  • Zora - Mentioned as a potential mayor of New York.

Organizations & Institutions

  • Supreme Court - Mentioned as the body hearing oral arguments on a case concerning presidential firing power.
  • Federal Trade Commission (FTC) - Mentioned as an agency that oversees consumer protections and fights monopolies, with a commissioner whose job is in question.
  • Environmental Protection Agency (EPA) - Mentioned as an agency whose inspector general was fired.
  • Department of Education - Mentioned as an agency whose inspector general was fired.
  • Department of Defense - Mentioned as an agency whose inspector general was fired.
  • Bureau of Labor Statistics (BLS) - Mentioned as an agency whose commissioner was fired.
  • Federal Election Commission (FEC) - Mentioned as an agency whose chair was fired.
  • Equal Employment Opportunity Commission (EEOC) - Mentioned as an agency whose commissioner was fired.
  • United States - Mentioned in relation to Supreme Court cases.
  • Federal Reserve - Mentioned as a special entity with the power to influence the economy, whose independence from presidential control is discussed.
  • Congress - Mentioned as having broad leeway in deciding which agencies are independent.
  • Consumer Financial Protection Bureau (CFPB) - Mentioned as a single-headed agency whose leader's independence was addressed in the Seila Law decision.
  • NYU Law School - Mentioned as the institution where Noah Rosenblum is a legal historian.
  • New York - Mentioned in relation to its mayor.
  • Soviet Union - Mentioned as an example of a system where government decisions are influenced by political will.
  • National Football League (NFL) - Mentioned as an example of an organization.
  • AFP - Mentioned as a news agency.
  • Getty Images - Mentioned as a source of photos.
  • Vox - Mentioned as a media organization.
  • Shopify - Mentioned as a commerce platform.
  • Mattel - Mentioned as a brand using Shopify.
  • Gymshark - Mentioned as a brand using Shopify.
  • Framer - Mentioned as a design tool and platform for publishing websites.
  • Rippling - Mentioned as a unified platform for HR, payroll, IT, and finance.
  • Amazon Ads - Mentioned as a provider of advertising services.

Websites & Online Resources

  • vox.com/members - Mentioned as the location to become a Vox Member for ad-free listening.
  • vox.com/today-explained-podcast - Mentioned as the URL for the transcript of the podcast.
  • podcastchoices.com/adchoices - Mentioned as a website to learn more about ad choices.
  • mongodb.com - Mentioned as the website to start building faster with MongoDB.
  • cruciblemoments.com - Mentioned as the website to check out the podcast "Crucible Moments."
  • patreon.com/vox - Mentioned as the website to join Vox on Patreon.
  • schwab.com - Mentioned as the website to learn more about investing with Schwab.
  • advertising.amazon.com - Mentioned as the website to learn more about Amazon Ads Omni channel metrics.

Podcasts & Audio

  • Today, Explained - Mentioned as the podcast producing the episode.
  • Crucible Moments - Mentioned as a podcast that takes listeners into inflection points of influential companies.

Other Resources

  • Unitary Executive Theory - Mentioned as a theory that the President must have the power to fire agency leaders at will.
  • Acid Compliant - Mentioned as a characteristic of MongoDB.
  • Enterprise Ready - Mentioned as a characteristic of MongoDB.
  • AI - Mentioned as something MongoDB is fluent in.
  • Fortune 500 - Mentioned as a group that trusts MongoDB.
  • New Deal - Mentioned as a period of policy goals characteristic of Roosevelt's electoral promise.
  • Securities and Exchange Act - Mentioned as a piece of legislation requiring companies to file prospectuses.
  • Federal Deposit Insurance Corporation (FDIC) - Mentioned as an entity created to protect retail banking.
  • Laissez-faire tradition - Mentioned as an older tradition embodied by Commissioner Humphrey.
  • Separation of Powers - Mentioned as a concept with different views held by justices appointed by Republican and Democratic presidents.
  • Telephone Justice - Mentioned as a practice where government decisions are influenced by political will, characteristic of the Soviet system.
  • Omni channel metrics - Mentioned as a feature from Amazon Ads to understand campaign performance.
  • ROAS (Return on Ad Spend) - Mentioned as a metric used in advertising.
  • AI tools - Mentioned as features offered by Shopify for writing product descriptions and enhancing photography.
  • Design Pages - Mentioned as a feature of Framer for designing more than just websites.
  • HR, Payroll, IT, and Finance - Mentioned as operational areas covered by the Rippling platform.

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