SCOTUS Poised To Recognize That Presidents Run The Executive

SUPREME COURT OF THE UNITED STATES — The U.S. Supreme Court signaled on Monday that it’s prepared to recognize what the Constitution has unequivocally held for centuries — that the president controls the executive branch of government.

During oral arguments for Trump v. Slaughter, a majority of justices appeared favorable to the Trump administration’s arguments regarding President Trump’s firing of Rebecca Slaughter, a Democrat member of the Federal Trade Commission (FTC). As The Federalist previously reported, the case deals with presidents’ ability to remove members of so-called “independent agencies” and could result in the court overturning Humphrey’s Executor v. U.S. (1935), which upheld statutory limitations on presidents’ removal powers.

In challenging the precedent established in Humphrey’s, U.S. Solicitor General John Sauer posited the unitary executive theory, a doctrine that rests on the notion that the president has absolute authority over the executive branch. He argued that Humphrey’s infringes upon this constitutionally prescribed power, and as such, “must be overruled.”

Humphrey’s “has become a decaying husk with bold and particularly dangerous pretensions,” Sauer said. “As Justice Thomas wrote in [Seila Law LLC v. Consumer Financial Protection Bureau], Humphrey’s poses a direct threat to our constitutional structure and, as a result, the liberty of the American people. And, as Seila Law held, the modern expansion of the federal bureaucracy sharpens the Court’s duty to ensure that the executive branch is overseen by a president accountable to the people.”

While many of the court’s Republican appointees appeared generally favorable to Sauer’s arguments, it was clear that the body’s Democrat appointees were not.

Associate Justices Sonia Sotomayor and Elena Kagan espoused fears about what kind of power presidents would be given should SCOTUS adopt Sauer’s theory, with the latter specifically focusing on what kinds of authority presidents would have on bureaucratic rulemaking and other powers Congress outsourced to the executive. Meanwhile, Associate Justice Ketanji Brown Jackson effectively ran a full-court press for the unelected “experts” engaging in many of the activities Kagan described — a move she later repeated when speaking with Slaughter’s attorney, Amit Agarwal.

In contrast to the government’s position, Agarwal argued that a president’s “constitutional duty to execute the law does not give him the power to violate that law with impunity,” and that Trump’s firing of Slaughter is unlawful because “multi-member commissions with members” have enjoyed “some kind of removal protection” since the founding era.

“No tool of interpretation clearly supports the president’s assertion of an unrestricted and indefeasible authority to fire the heads of traditional independent agencies like the Federal Elections Commission and the Nuclear Regulatory Commission,” Agarwal said. “The political branches are more than up to the task of finding reasonable legislative solutions that strike an appropriate balance. That kind of legislative solution is far preferable than abandoning a foundational precedent on which so much of modern governance is based.”

Differing from the views of their Democrat-appointed colleagues, the court’s Republican appointees appeared skeptical of Agarwal’s claims. Many of the latter justices specifically homed in on questioning the limits of the attorney’s arguments and whether Congress may restrict a president’s power to remove members of certain cabinet-level departments and other executive agencies.

Following unsuccessful attempts by Chief Justice John Roberts and Associate Justice Clarence Thomas to get a definitive answer on the issue, Associate Justice Samuel Alito questioned how Agarwal can argue that Sauer’s position would “cause these allegedly revolutionary results without being prepared to explain more concretely … the limits of [his] own argument.”

“I could go down the list with you of the cabinet officers and ask you whether you think they could be headed by a multi-member commission whose members are not subject to … at-will removal by the president. Shall we do that? … How about Veterans Affairs? How about Interior? Labor? EPA? Commerce? Education?” Alito said.

Agarwal noted that, “based on a very quick preliminary analysis, it appeared to [plaintiffs] that the vast majority of executive departments wield at least some of the conclusive and preclusive authorities that this Court has recognized in the past, including criminal investigative and prosecutorial authorities and also authorities implicating national security and foreign relations.” He then agreed with Alito that “for a lot of those [cabinet-level agencies], you could probably take those out, and at that point, there’s going to be a fair question about whether … Congress and the president, acting together, could determine at some point that there is a need for a multi-member body of experts to preside over certain government functions.”

“I don’t think that you should categorically rule out that possibility as a matter of constitutional law,” Agarwal said.

The arguments from Slaughter’s attorney didn’t appear convincing to the rest of the court’s conservative justices.

Associate Justice Amy Coney Barrett noted her apparent uncertainty about the court adopting Agarwal’s position. She specifically pressed Slaughter’s counsel on the lack of history to justify his argument about presidential removal authority.

Associate Justice Brett Kavanaugh seemingly expressed concerns about how Agarwal’s theory could lead to independent agency commissioners subverting the will of future presidents. In one hypothetical, he questioned what would happen if a political party that controls both the White House and Congress were to create a bunch of new independent agencies and extend the terms of their commissioners “as to thwart future presidents of the opposite party.”

“To Justice Barrett’s point, I don’t think we can just say, ‘Oh, that hasn’t happened, so it’ll never happen,’” Kavanaugh said.

Perhaps one of the most notable exchanges came between Agarwal and Associate Justice Neil Gorsuch, who exposed the attorney’s illogical arguments surrounding presidents’ removal powers.

“I’m wondering … I’ll put my cards on the table — maybe it’s a recognition that Humphrey’s Executor was poorly reasoned and that there is no such thing in our constitutional order as a fourth branch of government that’s quasi-judicial and quasi-legislative. Maybe you’re trying to back-fill it with a better new theory that itself recognizes that we’ve got a problem,” Gorsuch said.

A decision in Trump v. Slaughter is not expected until sometime next year.

Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood