The Supreme Court's 6-3 decision allowing the president to remove Federal Trade Commission (FTC) commissioners at will may serve as an opening move in a larger conservative effort to reshape the modern administrative state. The ruling, which overturns nearly 90 years of precedent established in Humphrey's Executor, holds that FTC leaders must be accountable to the president because the agency exercises executive power.
Justice Neil Gorsuch, in a concurring opinion, argued that while the ruling addresses presidential removal power, it also raises significant constitutional questions about Congress's authority to delegate broad legislative and judicial powers to independent agencies. He suggested that these agencies, now unmistakably under presidential supervision, may no longer be able to exercise powers that critics argue should reside with Congress or the courts.
"The fourth branch's powers still exist; they have just been reassigned to the President," Gorsuch wrote. He posited that the power to create regulations and adjudicate disputes within these agencies remains, but the ultimate authority now rests with the president.
This interpretation has led experts to suggest that future litigation could focus on dismantling the extensive powers held by independent agencies such as the FTC, the Securities and Exchange Commission, and the Federal Communications Commission. These agencies have historically combined investigative, rule-making, and adjudicatory functions.
Carrie Severino, president of the Judicial Crisis Network, indicated that the next phase of legal challenges may not focus on presidential firings but on delineating whether agencies' functions fit within constitutional categories of executive, legislative, or judicial power. "There still remains to be more work going back and taking out of these agencies that now are properly under executive control the activities that really aren't fundamentally executive in nature," Severino said.
Haley Proctor, a constitutional law professor at Notre Dame Law School, echoed this sentiment, describing Gorsuch's concurrence as a potential roadmap for future legal challenges. She suggested that Congress might need to reclaim delegated powers or reassign responsibilities to Article III courts if concerns about agency power persist.
"If we're concerned about the amount of power that the Federal Trade Commission has, then the next step would be to reconsider giving that power to the Federal Trade Commission because some of the decisions that it's making could be made by Congress instead and some of the decisions that it's making could be made by the courts," Proctor explained.
The majority opinion, authored by Chief Justice John Roberts, focused narrowly on presidential removal authority, concluding only that the FTC exercises executive power. The Court did not rule on the extent of legislative or judicial powers that Congress can delegate to executive agencies, leaving such questions for future cases. Gorsuch, however, suggested that constitutional doctrines exist to potentially limit the power of independent federal agencies and restore lawmaking authority to Congress and judicial power to the courts. "From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the courts," he wrote.