The Supreme Court has ruled that the president can lawfully fire heads of independent agencies without cause, a decision that significantly bolsters the "unitary executive" theory and could reshape the power dynamics between the White House and federal regulatory bodies. In the case of Trump v. Slaughter, the Court determined that provisions requiring the removal of officials, such as Federal Trade Commission (FTC) Commissioner Rebecca Slaughter, only for specific reasons like "inefficiency, neglect of duty, or malfeasance in office" constitute an unconstitutional infringement on presidential powers.
This ruling, which embraces the concept that the president should have broad authority to dismiss leaders of executive agencies for any reason, is seen by some legal scholars as a sweeping endorsement of executive power. Critics argue that this decision undermines the intended insulation of independent agencies from White House influence, potentially making them more susceptible to political pressure. The timing of the ruling has also drawn concern, as independent agencies are often viewed as crucial safeguards against authoritarian overreach in democratic societies.
The majority opinion in Slaughter characterized executive agencies as elements that deviate from the principle of a branch fully controlled by the president. Justice Neil Gorsuch, in a concurring opinion, traced the expansion of agency power to President Woodrow Wilson, suggesting Wilson aimed to replace popular sovereignty with rule by unaccountable experts. However, these historical interpretations are contested, with Justice Sonia Sotomayor's dissent offering a counterargument.
Over the past century, independent regulatory agencies have become common features in both the U.S. and globally, operating within the OECD countries. Research suggests a correlation between strong rule of law and higher levels of agency independence. While the proliferation of these agencies does present questions of democratic accountability, they have generally functioned as independent centers of power rather than leading to the obsolescence of elections. Conversely, the primary global threat to democracy is often identified as executive aggrandizement, where leaders consolidate unchecked power, frequently by staffing key positions with loyalists. Examples include the politicization of public broadcasters in Hungary and Poland, and the weaponization of law enforcement agencies against political opponents in India.
Agency independence can serve as a critical defense against such tactics. The article notes an instance where the Israeli Supreme Court blocked Prime Minister Benjamin Netanyahu's attempt to fire the attorney general, who was overseeing his criminal trial, thereby preserving a check on executive power. The current U.S. political climate, marked by a president's alleged use of regulatory and law enforcement powers against adversaries, is seen by some as facing a similar risk. Legal experts like Kate Shaw of the University of Pennsylvania have expressed concern that this ruling, combined with a potentially expansive second Trump presidency, could fundamentally alter the balance of power.
Concerns extend beyond the heads of independent agencies. Professor Don Moynihan of the University of Michigan suggested that the decision's logic could be applied to other public servants, including senior civil servants, potentially leading to a broader assault on the civil service. Justice Gorsuch's concurrence acknowledged the risk of concentrating excessive power in the executive, referencing James Madison's warnings about the "accumulation of all powers…in the same hands." Despite this, Gorsuch voted to grant the president more influence over agencies like the FCC.
Gorsuch proposed that the judiciary might be the ultimate check on executive authority, given Congress's diminished capacity to do so. This raises questions about the Court appointing itself as the final arbiter of executive power, potentially superseding the role of democratically elected representatives.
In a related but seemingly contradictory decision, Trump v. Cook, Chief Justice John Roberts ruled that President Trump's dismissal of Lisa Cook from the Federal Reserve's Board of Governors violated statutory protections requiring dismissal only for cause. The justification for this exception for the Federal Reserve, as outlined by Roberts, hinges on its historical independence and unique role in monetary policy. However, Justice Amy Coney Barrett, in her dissent, argued that this creates an inconsistency with the categorical rule established in Slaughter, questioning how history can support both a general rule and a specific carveout.
This divergence in rulings suggests that the Court may be interpreting executive power differently based on substantive policy considerations, rather than a uniform constitutional principle. The article posits that this could lead to a future where the presidency operates with unchecked power in areas favored by the Court, while the Court itself sets policy in others, potentially reducing Congress to a subordinate role. This dynamic, it is argued, poses a risk to American democracy, creating a power struggle between an executive with dictatorial tendencies and a judiciary acting as philosopher-kings.