The Supreme Court is set to reassess a pivotal decision concerning the president’s authority to terminate members of independent regulatory agencies. This review promises to extend executive power and may yield significant repercussions. The Court’s recent order indicates a willingness to revisit the 1935 ruling in Humphrey’s Executor v. United States, a case that Hans von Spakovsky, a legal expert at the Heritage Foundation, claims is now “on life support.”
Von Spakovsky argues that agencies, including the Federal Trade Commission (FTC) and the Securities and Exchange Commission (SEC), should not enjoy protection from presidential dismissal. He stated, “The Constitution says the president is the head of the executive branch… You can’t have Congress taking parts of that away from him.” This perspective aligns with a view of the presidency that emphasizes centralized control, much like a CEO managing a corporation.
The high court’s decision comes as a result of a challenge initiated by a Biden-appointed FTC commissioner, Rebecca Slaughter, whom former President Donald Trump dismissed after taking office. While the Court has temporarily upheld Trump’s action in a 6-3 decision, it seeks to use Slaughter’s case as a lens for evaluating the earlier ruling in Humphrey’s, which held that FDR could not dismiss a commissioner without just cause.
Slaughter has claimed her termination was illegal, highlighting the FTC Act, which stipulates that commissioners cannot be terminated without cause. Joshua Blackman, a law professor, underscores that should the Supreme Court overturn or limit Humphrey’s, the ruling could extend to other agencies that possess similar protections. He noted, “I think this ruling will necessarily reach beyond the FTC.” The critical question remains: will the Federal Reserve be viewed differently in this context?
An earlier shadow docket decision suggested that the Supreme Court might regard the Federal Reserve as a unique entity, one rooted in historical precedent and distinct from typical executive agencies. This idea is currently being tested in a separate case involving the firing of Federal Reserve Governor Lisa Cook. Von Spakovsky believes recent decisions reflect a trend towards reevaluating the protections established by Humphrey’s.
The Supreme Court has recently chipped away at independence guarantees for federal agencies. The 2010 ruling that curbed the Sarbanes-Oxley Act and the 2017 verdict allowing the president to dismiss a director of the Consumer Financial Protection Bureau signal a shift in judicial philosophy. Chief Justice John Roberts articulated that the president’s right “to remove — and thus supervise — those who wield executive power on his behalf follows from the text of Article II.” This rationale emphasizes a president’s oversight of agencies that exercise substantial executive power.
Should the Supreme Court rule in Trump’s favor, it would align with a broader goal of establishing a unitary executive—a concept suggesting the president should exert sole control over the executive branch. According to Jed Shugerman, a Boston University law professor, Trump’s actions have arguably solidified the unitary executive more than any legal scholarship could achieve. However, Shugerman also criticized these actions, claiming they expose the unitary executive theory as “lawless authoritarianism.”
John Shu, a constitutional law expert who served in both Bush administrations, expressed confidence that the Court will narrow Humphrey’s. He argues that the FTC’s functions have changed significantly since 1935. “The Federal Trade Commission of 1935 is a lot different than the Federal Trade Commission today,” he noted. Contemporary powers include the ability to initiate investigations, issue subpoenas, and impose financial penalties, illustrating a vast expansion of its scope and responsibilities.
The stakes are considerable. A ruling favoring the president could reshape the landscape of independent agencies and their accountability to the executive branch. This Supreme Court evaluation could have lasting impacts on governance, as the balance of power within federal agencies hangs in the balance. As the justices prepare to deliberate on this matter, the legal ramifications will likely resonate well beyond the current cases, touching on fundamental questions of authority within the American political system.
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