Justice Sotomayor’s Concerns in Trump v. Slaughter
This week, during arguments in the case of Trump v. Slaughter, Justice Sonia Sotomayor raised alarms about the administration’s actions, suggesting they could undermine the fabric of our government system.
It’s an interesting observation. Perhaps it’s time to reconsider the role of the so-called fourth branch of government, which some argue lacks accountability.
The central issue in Trump v. Slaughter is whether the president has the authority to terminate employees within “independent” agencies without just cause.
To clarify, the Constitution seems to lack provisions for such “independent” entities.
This idea originated with former President Woodrow Wilson and was further established nearly a century ago when the Supreme Court ruled in Humphrey Executors v. United States that the Federal Trade Commission (FTC) operates as a quasi-legislative, quasi-executive, and quasi-judicial body.
Interestingly, my research indicates that while the FTC is labeled an “independent agency,” it is technically part of the executive branch, which feels a bit contradictory.
Moreover, the influence of these “independent” agencies has surged significantly since 1934.
In fact, they may wield more authority over the public than any other government branch.
There’s no foundational principle supporting an expansive, autonomous administrative state that can set its own rules, investigate citizens, convict them, impose penalties, and disrupt their lives.
Previously, the Supreme Court revoked Chevron’s deference, which had granted agencies unchecked authority to establish regulations outside congressional oversight.
Perhaps it’s time for a similar reevaluation of Humphrey’s executors.
And yet, we can’t dismiss the political narratives surrounding “independent” institutions. There are warnings from the left about potential threats to constitutional integrity.
Various media outlets have reported on concerns that the Supreme Court might broaden presidential powers.
It’s undeniable that modern presidents have accumulated excessive power—much of it granted by Congress in ways that raise constitutional questions.
But then again, Article 2 of the Constitution naturally assigns control over the executive branch to the executive itself.
This makes one wonder: what exactly power is being expanded here? Is it clearly defined?
Georgetown law professor Randy Barnett brings up a compelling argument.
He poses the question: “Allowing the president to dismiss executive officials transfers substantial power to the presidency. Who granted you this authority? Who currently holds it?”
His implication is that it’s one of the political parties that have filled these bureaucracies with their supporters.
This situation feels reminiscent of the Nomenklatura seen in the former Soviet Union.
Now, Democrats are expressing alarm about presidential authority.
However, their interpretation of constitutional order appears to shift depending on their political position.
When they’re in power, they advocate for democratizing the judiciary, even though the courts are meant to be insulated from popular opinion.
Some influential Democrats, including those running for president, have floated ideas like expanding the Supreme Court and creating a continually evolving semblance of Congress.
In reality, the Supreme Court is tasked with enforcing the law, not bending to public sentiment.
Once they obtain power, Democrats (and not just them, to be fair) often push for the executive branch to act like a singular legislative authority.
Take former President Barack Obama, for instance. His use of executive power reached new heights, especially with initiatives like the legalization of millions of undocumented immigrants without Congressional approval.
His successor, President Joe Biden, aimed to cancel billions in private student loans and tried to designate the Equal Rights Amendment as “lawful,” drawing applause from many in his party.
Now, within the Democratic framework of defending “democracy,” there’s a concern over agency commissioners in the executive branch being answerable to the president.
This echoes the fears voiced when the Supreme Court overturned Roe v. Wade and returned the issue of abortion to the electorate.
Is maintaining the independence of governmental agencies in the interest of effective leadership? It seems reasonable to think so.
For instance, ongoing meddling with the FTC as a means of short-term political gain could hinder national stability.
While a candidate’s character certainly matters to voters, the Constitution doesn’t create the FTC with any form of immunity from oversight.
Ultimately, if a president is hesitant to manage large bureaucracies, perhaps the focus should be on scaling them back or preventing their creation in the first place.
