One would think that after the failure of expert opinion during the COVID-19 pandemic (the mask flip-flop, the unfounded 6-foot social distancing guidelines, and catastrophic school closures), there might be more bipartisan skepticism about the wisdom of handing significant power to unaccountable technocrats. But not from all those who sit on the Supreme Court, where Justice Ketanji Brown Jackson went to the mat to protect the job security of faceless bureaucrats throughout the federal government’s ever-expanding list of administrative agencies.
The case at hand, Trump v. Slaughter, stems from President Donald Trump’s decision to fire Federal Trade Commission member Rebecca Slaughter as part of his broader effort to assert more executive control over independent agencies. He also fired staff at the National Labor Relations Board and the Equal Employment Opportunity Commission.
For our nation’s first 100 years or more, it was well understood that while Congress had the power to create, organize, and fund executive agencies, control of those agencies vested in the president alone. This is consistent with both the separation of powers construction of the Constitution and the Federalist Papers, which warned that “the multiplication of the executive” tends to “conceal faults and destroy responsibility.”
Starting with President Woodrow Wilson, the progressive movement began undermining the Constitution’s separation of powers by creating so-called “independent” agencies that were staffed with “experts” who would be given long terms in office to insulate them from politics. For example, FTC commissioners such as Slaughter, who worked for Senate Minority Leader Chuck Schumer (D-NY) before being appointed by former President Joe Biden, have seven-year terms.
At first, the Supreme Court resisted progressive efforts to rewrite the Constitution, holding in Myers v. United States that the president has exclusive, unrestricted constitutional authority to remove executive officers, as seen in the case of Myers, which involved a postmaster. But nine years later, in Humphrey’s Executor v. United States, the high court changed course, holding that Congress could empower an unaccountable fourth branch of government not mentioned in the Constitution.
The conservative majority of the Supreme Court has been signaling for years that Humphrey’s Executor was wrongly decided, most recently in Seila Law v. Consumer Financial Protection Bureau, where the majority held that since the CFPB exercised not only significant “rulemaking and enforcement powers” but also “extensive adjudicatory authority,” the president ought to have the power to remove its director.
Jackson made clear at oral argument Monday that she believed such an outcome would undermine Congress’s power to place “nonpartisan experts” in charge of “the economy and transportation and the various independent agencies that we have.”
“Having a president come in and fire all the scientists and the doctors and the economists and the Ph.D.s,” Justice Jackson warned, “is actually not in the best interest of the citizens of the United States,” she declared, as though it were any part of her job to rule on what is good for the country rather than what the written law is.
“I guess what I don’t understand from your overarching argument,” Jackson continued, “is why that determination of Congress, which makes perfect sense given its duty to protect the people of the United States, why that is subjugated to a concern about the president not being able to control everything.”
“We can have a government that benefits from expertise without being ruled by experts,” Solicitor General D. John Sauer smartly responded. “Congress cannot violate the separation of powers and threaten all of our liberties in the way that it structures the government and has done so here.”
EDITORIAL: DEMOCRATS AGAINST DEPORTATION
The Supreme Court is not, or should not be, a body that decides what the law should say. Its job is to determine what the law and Constitution do say. In this case, it is clear that the authors of the Constitution intended for a vigorous, unified executive power fully politically accountable to the people.
A return to that constitutional design would not sideline expertise; it would simply ensure that those who wield vast federal power remain answerable to voters. Justice Jackson’s vision elevates technocrats above democratic control, enshrining a system the Constitution’s framers explicitly rejected. A decision for Trump in this case would be no victory for Republicans. Future Democratic presidents would be just as empowered to assert their own control over federal agencies. But at least voters would know who to blame for the results.