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The Left Doesn’t Believe in the Constitutional Order
During oral arguments in Trump v. Slaughter, Supreme Court Justice Sonia Sotomayor threatened America with a good time, warning that the administration is “asking us to destroy the structure of government.”
Great. It’s about time an unaccountable fourth branch of the state was decimated. Trump v. Slaughter revolves around the president’s ability to fire executive branch officials without cause at “independent” agencies. For one thing, nowhere does the Constitution empower Congress to create “independent” anything. The notion is a concoction of our worst former president, Woodrow Wilson, and it was codified nearly a century ago in Humphrey’s Executor v. United States, when the court ruled that the Federal Trade Commission was a quasilegislative, executive and judicial agency.
Google AI still informs me that the Federal Trade Commission is an “independent agency” that is “technically within the executive branch structure,” which is not a real thing. Moreover, even if it were one, the scope of “independent” agencies has expanded significantly since 1934. In some ways, they now have more power over Americans than any branch. There is no conception of the founding that included a sprawling autonomous administrative state empowered to create its own rules, investigate citizens, adjudicate guilt, impose fines and destroy lives. The Supreme Court already overturned the Chevron deference, which granted agencies nearly unfettered powers to create regulatory regimes without Congress. Humphrey’s Executor deserves the same fate.
But we should not ignore the political aspect of the debate over “independent” agencies: the Left’s bad-faith warnings about the collapse of the constitutional order.
Legacy media outlets warn that the Supreme Court is “poised to expand presidential powers” or “vastly expand presidential powers.” Modern presidents have taken far too much power, no doubt. Often, that power is unconstitutionally handed to the executive by Congress, as in the case of levying tariffs. Article II of the Constitution, however, unsurprisingly vests control of the executive branch in the executive. So what power is being expanded here? One that explicitly exists? Or rather, as professor Randy Barnett asks:
Argument: Allowing the president to remove administrative officials will transfer an enormous amount of power to the president.
Question: Transfer from whom? Who currently has all that power?
The answer is one of the political parties, which has crammed bureaucracies with activists. The setup is reminiscent of the “nomenklatura” in the Soviet Union.
Now, Democrats are panicking about presidential power. But their entire conception of the constitutional order is upside-down or inside out or whatever form helps them best today.
When in power, Democrats champion the democratization of the only branch of government that’s explicitly meant to be undemocratic: the courts. Prominent Democrats, including presidential candidates, endorse the idea of packing the Supreme Court to create an ever-expanding pseudo-legislature. The Supreme Court, of course, exists to uphold the law, not answer to the whims and vagaries of the electorate.
When in power, Democrats (though they are certainly not alone in this regard) demand that the executive act as if he were a one-man legislative branch. Perhaps no modern president has abused executive power more than former President Barack Obama, who engaged in a litany of unilateral acts, including, but certainly not limited to, ignoring Congress and legalizing millions of illegal immigrants without Congress. His Democratic successor, former President Joe Biden, not only attempted to “forgive” billions of dollars in private loans but also tried to declare the Equal Rights Amendment the “law of the land” via an X post, to the cheers of many Democrats.
Now, Democrats, the great guardians of “democracy,” argue that the country is in peril because commissioners in agencies within the executive branch will be under the purview of the president. It’s reminiscent of when Democrats warned us that the Supreme Court was crushing “democracy” when it overturned Roe v. Wade and returned the matter of abortion to voters.
Is it in the best interest of the country for the president to allow agencies (small “i”) independence for the sake of governing stability? Yes. Constantly interfering with, for instance, the FTC for short-term partisan gain undermines the country. The temperament of candidates is an important matter for the electorate to contemplate when it chooses a president. The Constitution did not create an FTC immune from oversight.
Of course, if you don’t want presidents to wield power over vast bureaucracies, the best thing to do is to shrink them or not create them in the first place.
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