The Small-C Constitutional Problem with Trump v. Slaughter

T here has been a knot in my stomach for more than a month about the recent ruling in Slaughter — that the president can fire any “independent” agency head within the executive branch — and I haven’t been able to articulate precisely why. The majority’s reasoning was clear: The Constitution vests all executive power in the president, and the president must be able to fire agency heads to control the executive branch.

Not until drafting my piece on tariff power this week did I appreciate the simplicity of my discomfort: Fundamentally, if words have any meaning, these are not executive agencies at issue. They are legislative agencies in all but name, having been absurdly misfiled under the “executive” branch of government. Many are functionally judicial as well, as they are tasked with adjudicating the application of their own policies.

“The essence of the legislative authority,” Alexander Hamilton proclaimed in Federalist No. 75, “is to enact laws, or in other words to prescribe rules for the regulation of the society.” There is no better description of what administrative agencies do today. They operate under broad enabling statutes passed by Congress decades ago, with mandates to enforce “fair and honest markets,” to prohibit “unfair or deceptive” economic practices, and to ensure broadcasting that serves “public convenience, interest, or necessity.” Bureaucrats scribble in the cavernous blanks.

These agencies were lodged in the executive branch under the progressive theory that governance of a complex society must be unified. But their powers are improperly located in our constitutional order. The Framers never intended for the executive branch to wield legislative power.

As for the argument that agency heads must be democratically “accountable” to the people via the president, the fatal conceit is that accountability is only necessary because the executive branch is responsible for governing society. Regarding the president, the Framers’ principal concern was not that he reflect popular wishes, as his job was to give force to rules created by the people’s representatives. Accountability was crucial in the formation of these rules — in Congress. The president’s selection was specially designed to place him above the people’s demands — through a nationwide election and the Electoral College — while still ensuring his competence, limiting his danger, and keeping his will separate from that of the legislature.

Even more important than accountability in the legislative branch, however, was friction. The power to govern the country needed to be divided among many hands: two chambers, dozens of members, elected by several states. Making law was supposed to be arduous and require bargaining between different interests. It could not flow from any one will, as that would be arbitrary rule. To join the legislative and executive powers in one set of hands would be tyranny.

Therein lies the danger of Trump v. Slaughter. It removed the little friction remaining in the exercise of improperly vested legislative powers, unifying them under one man’s will rather than a few. Previously, the president could still select the chairmen of independent agencies, but those appointees had to deal with holdovers on their commissions who were of different parties, nominated by prior administrations, and confirmed by other Senates. Such arrangements were designed by Congress to promote the internal dissension that makes national governance appropriately tedious.

This was synthetic representation, to be sure, and not nearly as accountable to the people who are supposed to govern themselves as genuine representation. But it was superior to what we have now: legislative and executive power concentrated (im)perfectly in one man, representative of only himself. The notion that Slaughter unified only executive power is a fantasy, refuted by what today’s federal government actually is.

Neil Gorsuch, in his concurrence, urged the Court to reestablish the lines between legislative and executive powers as the Framers understood them. Given current jurisprudence, that would be a miracle. Until that day comes, if ever, the justices would have done better to uphold the basic observation in Humphrey’s Executor v. United States that so many “executive” agencies are, in fact, quasi-legislative and quasi-judicial.

I have no doubt that the justices on the Supreme Court did their best to honor the word of the Constitution when making their decision. But they should remember that the Constitution they are expounding is, first and foremost, a constitution of government — an instrumental scheme toward certain higher ends. Principal among those ends is the proper organization of authority so that a diverse and disagreeable people may govern themselves safely. The finest means ever devised toward that end, the division and complication of power, has been severely compromised.