In Trump v. Slaughter, the U.S. Supreme Court recently held legislative limitations on the president’s power to fire administrators of independent agencies to be unconstitutional. The Court reasoned that because administrative power is “executive,” the Chief Executive must have the power to hire and fire the people appointed to head up all government agencies. Through this categorical approach to its “separation of powers” doctrine, the Court denied Congress a role in determining how best to implement the laws it passes, even though a) the Constitution is silent on whether Congress can impose restrictions on firing administrative officials, b) the legislature is a co-equal branch of government, and c) Congress is as or more accountable to the voters than the president.
The idea that Congress cannot legislate reasonable controls over the president’s authority to supervise the bureaucracy belies the Founders’ creation of the Constitution to establish checks and balances on how the government exercises its authority. In their exercise of that authority, Congress has established controls over the actions of the bureaucracy to ensure that decisions are made according to legal constraints and for rational reasons. For the Court, however, the issue was accountability to the president, not accountability to the rule of law.
The web of legal constraints established by Congress has the purpose of ensuring that agencies operate according to expert, well-reasoned decision-making. For this reason, Congress limited the president’s ability to fire some administrative officials to prevent the politicization of the administrative process. Whether or not that was necessary can be debated, but it was the legislature’s decision to make. The Court, however, sees the world in simple terms: the people elect a president, the president runs the government, and he must therefore have the power not only to hire administrative officials, but to fire them.
But it is Congress, not the president, which is directly and democratically elected by the people. Two of our last five presidents won the White House by prevailing in the Electoral College after losing the popular vote. In the last election, President Donald Trump won the popular vote by less than 1.5%, having lost the popular vote in two previous attempts. Trump’s democratic mandate is thin at best. His election did not cede absolute control of the bureaucracy to him.
Moreover, it is magical thinking that the president is somehow accountable to the people for how he supervises the Federal Trade Commission (FTC) or any other agency. These details are simply lost in the waves of news that swamp the nation about Washington. For a president in his second term who is barred from facing reelection, this line of accountability is even more attenuated.
It is true that presidents win elections, but it does not follow that those who voted for him did so based on his policy preferences for a specific agency. The voters may have selected President Trump to “clean up the swamp,” but that was hardly carte blanche for taking a wrecking ball to the antitrust laws that the FTC implements or the protection of people and the environment in which the federal government is involved.
The Court’s reasoning for pushing Congress out of the picture was largely theoretical. After all, even without the authority to fire administrators without restriction, the White House has broad authority to set national policies. Congress has agreed that most administrators can be fired by the president without legislative restrictions, and there is little likelihood that this will change. Moreover, even those administrators whom the president cannot fire except for the reasons that Congress has established will carry out the president’s policy preferences because they have been chosen by the president and remain loyal to him.
The Federal Trade Commission is a good example. At multimember agencies like the FTC, the law allows the president to appoint a majority of the commission members. In the Slaughter case, Trump sought the authority to fire a commissioner reappointed by President Joe Biden, even though Trump was already able to appoint three of the five commissioners. Indeed, the FTC was already moving to favor policies that the Trump White House has prioritized.
Finally, there is the matter of agency culture and institutional pride. Government employees, sometimes derisively referred to as “faceless bureaucrats,” are responsible for making the government run. The work that bureaucrats perform, from research and investigation through administering and monitoring regulations, is important, even noble. The responsibilities that bureaucrats are given are substantial and the level of professionalism routinely exercised is noteworthy, enticing highly qualified people to become dedicated career public servants. Giving the president the authority to fire government experts willy nilly, as has occurred, can hardly serve the purpose of good government.
None of these nuances mattered to the Court. Instead, the conservative justices preferred to define “executive” in a way that ignored the realities of governing. There is a reason for the saying, “perfection is the enemy of the good,” as the country is about to find out.
