The Supreme Court has reached an important decision. At SCOTUSBlog Amy Howe reports:
The Supreme Court on Monday gave President Donald Trump sweeping new authority over approximately two dozen multi-member agencies that Congress intended to be independent. By a vote of 6-3, the justices struck down a federal law that bars the president from firing members of the Federal Trade Commission except in cases of “inefficiency, neglect of duty, or malfeasance in office.” That law, a majority of the justices ruled, violates the constitutional separation of powers between the three branches of government. And in reaching that decision, the court overruled its 91-year-old decision in Humphrey’s Executor v. United States, which had upheld the law at the center of the dispute.
More broadly, Monday’s decision was a major victory for proponents of the “unitary executive” theory – the idea that the president should have complete control over the executive branch. Under this theory, the president should be able to fire any member of the executive branch, and laws – like the one that the court struck down – that restrict his ability to do so violate the separation of powers.
Writing for the majority, Chief Justice John Roberts contended that “the President must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.”
It’s hard to exaggerate the significance of the ruling. The short version is that the Chief Executive is the chief executive. In broad terms, it means that officials exercising executive power ultimately serve at the pleasure of the president rather than Congress.
Rather than examining the law, I will focus on the implications. My takeaway from that is simple: elect good presidents. If the president is responsible for directing the Executive Branch, then he must also bear responsibility for the people who direct it on his behalf. Elections therefore become even more consequential, because voters can no longer plausibly imagine that “the bureaucracy” exists independently of the president. What’s a good president? At the very least a good president is one who is both able and willing to exercise the responsibilities of Chief Executive.
If presidents are expected to manage the Executive Branch directly, then the qualifications we expect of presidential candidates should change as well. That means candidates for president should have substantial prior executive experience, either in the private or public sector. Candidates need not be lawyers but should understand the law.
We cannot assume that the Executive Branch will proceed on automatic pilot. Someone must ultimately be responsible for directing it, and today’s decision says that someone is the president. Power and responsibility now coincide more closely than they have for nearly a century. That makes presidential elections more important, not less.
It’s just more centralized government. With the extensive use of executive orders POTUS now pretty much makes policy/law and carries it out with essentially no check or balance if his party holds Congress. POTUS now also pretty routinely claims the power of the purse, spending or not spending as he wishes money designated by Congress in law.
We were reliant largely upon norms as a mean of checking the power of POTUS. It’s pretty clear that someone willing to ignore those norms has power well beyond that imagined or exercised by those who wrote the constitution or past political leaders.
Steve
There is some irony in the ruling. Franklin Roosevelt would heartily approve the current court’s view on the power to fire officials.
The decision is consistent with Myers and the voiding of the Office of Tenure Act.
Note the limitations on the scope of the ruling, the court didn’t say Congress couldn’t limit the President in firing any official, only officials exercising “core” executive powers, which it evaluated with the passage of past century and further delegations of power to the FTC by Congress, the FTC now does. So agencies like the GAO, CBO are safe.
I think the ruling calls as much for Congress to do its job. The Senate should scrutinize who the President nominates, and decide promptly and fairly whether they are fit for office — and not solely on partisanship. And stop writing legislation to delegate its functions to some other body.
Consider the incentives of Congressmen. Lifetime tenure as long as they follow the leadership’s bidding. Good salary. Great benefits. Pension of something like $125,000/year for which they’re eligible at 62.
CuriousOnlooker:
Taking BOTH of today’s decisions together I suspect the Congress will be creating more public/private hybrids which IMO is exactly the opposite of what it should be doing.
I was going to comment on one of the other posts after reading the twitter arguments on the use of AC; instead of the proposals docking Congressman/woman their pay if they can’t agress on a budget — pass a bill to lock them in the Congressional building and turn off the heat / AC until they pass the budget. Make them feel the “literal” heat to do their job.
On public/private hybrids, its hard to imagine Congress delegating more power on those lines, especially if those bodies can’t have “core executive powers”. I do think we need to pass a constitutional amendment to make it easier for Congress to reclaim delegated powers over the Presidents objection.
PS : Actually congressional salaries are pretty low — especially compared to the scope of their job and compared to legislators in other countries. I sometimes wonder if its a case of “you get what you pay for”…. What they get after leaving Congress is pretty eyebrow raising.