Philip Hamburger explores the implications of a major recent US Supreme Court ruling.
When Donald Trump fired a Joe Biden–appointed member of the Federal Trade Commission, Rebecca Slaughter, she sued to recover her position, arguing that she was protected by statute from being removed, unless she had done something egregious, such as neglecting or abusing her office. The Supreme Court … held that the barrier to removal violated the Constitution’s separation of powers. From a narrowly political perspective, one might conclude that the case was a victory for Trump and his control of the administrative state. But the case is about far more than politics. By re-centering executive power in the president, it portends a coming age of diminished administrative power—a necessary corrective to our age of undemocratic bureaucracy.
Since 1887, Congress has authorized administrative agencies, including independent agencies, whose commissioners are protected from presidential removal. Taken together, the agencies form the administrative state—a set of institutions staffed by bureaucrats who are insulated from voters. The independent commissioners are the most fully insulated of these bureaucrats, as not even the president, the head of the executive branch, can fire them.
Protected from removal, these bureaucrats have become a permanent, politically unaccountable presence. They can outlast elected presidents and preserve their own bureaucratic agendas, notwithstanding elections.
This new constitutional arrangement, when it flourished in the 20th century, produced regulations that, in many instances, did more harm than good, impeding personal choice and prosperity. But the implications for constitutional rights were even worse. By shifting legislative power from Congress to bureaucrats, administrative power diluted voting rights. …
… The Slaughter decision has finally resolved these puzzles by recognizing that the protection of commissioners from removal is unconstitutional and that executive agencies cannot be independent of the president. …
… The president’s removal authority is crucial for electoral accountability. If the president cannot fire his subordinates, then they can escape electoral accountability, and he cannot be held politically accountable for their conduct. The Constitution’s location of executive power in the president was designed to preserve political accountability for all who exercise that power.
