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.
The Humphrey’s Executive opinion has been a dead man walking for decades, minimized to its particular facts of being only applicable to a man named Humphrey who is dead. What’s changed is that it’s obvious now, and this makes it easier for Presidents to do what they wanted to do but didn’t want the public cost. Trump never cared what his critics think of him, so the public cost never mattered.
But as CuriousOnlooker points out, during a lot of American political history, Humphrey’s Executor didn’t exist, and also during a lot of history, we had the spoils system. We’ve had good and bad presidents all the same.
CO is correct that the pay isn’t especially good, it’s the benefits (and I dont mean health care). It’s being guaranteed that family and friends get into good schools and get good jobs. It’s the outside income you get while in office and then out of office. All the connections you get to make with the rich, influential and powerful people.
Steve
It’s interesting that this is the same court that said he could not fire Cook from the Fed. Guess the judges wanted to protect their retirement funds?
Steve
See my comment above. If the president can fire an executive branch official at will but cannot fire an appointed official of a hybrid public/private institution at will and Congress wishes to protect regulators from presidents with whom they disagree, then the Congress is likely to create many more public/private hybrids.
We’re fairly likely to have a Congress that disagrees with the present president in November.
If you Gorsuch’s concurrance, there maybe a foreshadow that the Supreme Court may target the agencies themselves next — the idea that Congress would not have delegated power to the agencies if they knew they could not make officials “independent” of the President.
One way you could square the ruling on the Federal Reserve is its a gentle nudge for Congress to take away some of the discretion of the Federal Reserve — like a default guideline to set interest rates at CPI + 1% unless there is an imminent financial crisis (like a bank run or the Federal government unable to finance debt).
I don’t think the importance of the analogy to the First & Second Banks of the U.S. is that they were stock companies, it’s that they demonstrate that monetary policy is not an executive function. If it’s not an executive function then the President’s power to remove executive officials has not been impeded. An agency that is responsible for monetary policy is not exercising executive power.
The difficulty is that the Federal Reserve has additional functions beyond monetary policy that appear to clearly be executive, such as the power to inspect and regulate banks, investigating and prosecuting counterfeiting, and generally serving as a consumer protection agency by assessing penalties and ordering restitution. Some of those regulatory actions are shared with other government agencies. It’s a mixed body, and it appears the SCOTUS thinks the Fed should be evaluated by the prominence of the monetary functions.
@steve, Trump never challenged the legality of the independence of the Fed, and stated so in briefs and oral argument that Fed independence was important and should be respected. The only person who challenged the Fed’s organization was Justice Thomas writing for himself alone. So if anyone was worried about the consequences of taking on the Fed, it was the POTUS.
PD- He respects the legality of the independent Fed but he is willing to bring trumped up charges against individuals who dont vote the way he wants.
Dave- Didnt read all of the opinion but in the excerpts I saw Barrett specifically noted the poor possible outcomes if they didnt rule against Trump. It appears the court will consider outcomes when it wants.
Steve
The Roman Senate voted to confer dictatorial powers on Caesar. What could go wrong?
Am I to interpret that as you believe that we should elect bad presidents? Or that the experience or character of the president shouldn’t matter?
Dave Schuler: Am I to interpret that as you believe that we should elect bad presidents?
The Roman Senate voted for a very excellent dictator, a genius of the first order: military, political, civic, even literary. “Gallia est omnis divisa in partes tres.” The following concerns his successor, but applies much the same:
You didn’t answer the question.
Dave Schuler: Am I to interpret that as you believe that we should elect bad presidents?
Thought the answer was implicit. It’s trivially true that it is better to elect good presidents than bad presidents, just as it is better to have good autocrats than bad autocrats. However, once the bonds of republicanism are broken, liberty will be under constant threat. Republican safeguards cease to restrain power, and citizens become dependent on the personal virtue of rulers. You start with Caesar—but eventually you get Caligula, Claudius (an accidental emperor), Nero and so on.