Supreme Court win for Trump in FTC case would restore the Founders’ design

If Monday’s Supreme Court argument is any indication, the days of “independent” agencies acting as a fourth branch of government are numbered.

In Trump v. Slaughter, a solid majority of the justices seemed ready to confirm what the Constitution already implies: If an official is exercising executive power, the elected president has to be able to say, “You’re fired.”

The case arises from President Donald Trump’s decision months ago to remove Federal Trade Commission member Rebecca Slaughter, a Democrat he had first appointed (under the statutory requirements for partisan balance) and Joe Biden later renominated.

Federal law says such agency heads can be removed only for “inefficiency, neglect of duty, or malfeasance in office,” language the high court blessed in a 1935 decision known as Humphrey’s Executor.

That ruling invented “quasi‑legislative” and “quasi‑judicial” categories of federal agencies and treated the FTC as something other than an arm of the executive branch, helping to create the modern administrative state.

Monday’s argument showed how fragile that New Deal compromise has become.

The conservative justices pressed Slaughter’s attorney on the basic Article II question: How can Congress wall off powerful federal regulators and still pretend that “the executive power” is vested in a single president, as the Constitution’s framers designed?

Chief Justice John Roberts sounded deeply skeptical that Congress can assign so much coercive authority to agencies the president can’t control.

Justice Brett Kavanaugh stressed how much broader the administrative state is now than the FTC was 90 years ago, while Justice Amy Coney Barrett noted that several of the court’s recent cases have already hollowed out Humphrey’s Executor.

The liberal justices, by contrast, worried mostly about the technocrats.

Justice Ketanji Brown Jackson sounded like Woodrow Wilson’s heir, fretting that a president armed with at‑will removal could replace doctors, economists and scientists with “loyalists who don’t know anything.”

Justice Elena Kagan warned that changing the removal rule would change agencies’ character.

Justice Sonia Sotomayor floated the idea of trimming back agency power instead of taking on removal directly — only to be reminded by Solicitor General John Sauer that “the prestige of independence isn’t a constitutional value.”

The conservatives weren’t buying the liberals’ parade of horribles.

Justice Samuel Alito dismissed predictions that the sky was about to fall, suggesting that what will really change is that someone the voters actually elected would be accountable for what the agencies do.

Justice Neil Gorsuch reiterated the need to revive the nondelegation doctrine to stop Congress from handing vast, standardless power to bureaucrats.

Kavanaugh, meanwhile, seemed eager to draw a line between agencies that enforce the law and courts created by Congress that exercise judicial authority.

Given the court’s trajectory, none of this should be a surprise.

Over the last 15 years, the justices have steadily chipped away at Humphrey’s Executor in a string of separation-of-power cases, while reaffirming Chief Justice William Howard Taft’s principle from Myers v. United States (1926): Because the Constitution vests all executive power in the president, he must be able to remove the officials who exercise that power in his name.

Expect Trump v. Slaughter to be the logical culmination of that line — a ruling that lets the president remove the heads of so‑called independent agencies, while leaving for another day harder questions about the Federal Reserve and specialized Article I courts.

That approach, which several justices explored today, would curb the worst excesses of the administrative state without roiling financial markets or military justice.

Critics say such a decision is a gift to Trump or any future strongman.

They have it backward: Unitary executive theory isn’t a MAGA stunt, but a description of how our Constitution was structured.

Congress can create executive-branch agencies and specify their authority, but it can’t create new branches of government unanswerable to anyone.

Putting the FTC and other alphabet agencies back under presidential control doesn’t make the chief executive omnipotent; it makes the bureaucrats answerable to someone who is answerable to the voters.

At base, Trump v. Slaughter asks whether the people we elect to govern us get to do so — or whether appointed commissioners and their staffers can run the country on autopilot.

If the justices follow through on what we heard Monday, they’ll be restoring an old‑fashioned idea: In a republic, the buck should stop with the president, not assorted boards of “independent” mandarins.

Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of the new book “Lawless: The Miseducation of America’s Elites.“