{"id":2412748,"date":"2025-03-12T08:37:52","date_gmt":"2025-03-12T12:37:52","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/theres-no-such-thing-as-independent-and-apolitical-bureaucrats\/"},"modified":"2025-03-12T10:37:35","modified_gmt":"2025-03-12T14:37:35","slug":"theres-no-such-thing-as-independent-and-apolitical-bureaucrats","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/theres-no-such-thing-as-independent-and-apolitical-bureaucrats\/","title":{"rendered":"There&#8217;s No Such Thing As &#8216;Independent&#8217; And Apolitical Bureaucrats"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"&quot;\"><div class=\"counts mashsbcount\">18<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Ftheres-no-such-thing-as-independent-and-apolitical-bureaucrats%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=2412748&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><p>The article discusses the ongoing debate surrounding the\u2063 authority of\u2063 Congress to create &#8220;independent&#8221; federal agencies and\u200c to limit\u200d the President&#8217;s ability to remove agency heads.It references the Supreme Court\u200d case *Humphrey\u2019s \u200bExecutor*, which upheld certain\u2062 congressional \u2063restrictions on \u2064presidential removal powers and argued that agency \u2064officials\u2062 could operate impartially and free from political\u2062 influence. The author critiques this premise, stating that it is indeed unrealistic to expect bureaucrats to be entirely nonpartisan, citing historical and sociological evidence that shows\u200b humans have political ambitions.<\/p>\n<p>The \u200dauthor \u2062highlights contemporary examples of agency heads under President Biden, such as Lina Khan, Janet Yellen, and Gary Gensler, who actively engage in\u2063 politics, contradicting the notion of an unbiased expert class. The piece argues\u2063 that the belief in the independence and impartiality of agency officials is a flawed fantasy, emphasizing that all government officials should be subject to checks and balances due to their inherent political tendencies. The \u200dauthor calls for a \u200dreassessment of the *Humphrey\u2019s Executor* ruling, claiming it lacks strong\u200d constitutional grounding and reiterating\u200d the need for accountability among agency leaders to \u200censure they\u200c do \u2064not succumb to political pressures. The \u2064argument presents a case for reestablishing a realistic understanding of human nature within the constitutional\u200c framework.  <\/p>\n<p class=\"readmore\">\n    <button onclick=\"showReadMore()\" id=\"readmorebtn\">Read more&#8230;<\/button>\n<\/p>\n<hr id=\"line\">\n<span id=\"more\"><\/p>\n<div>\n<p>There is an ongoing and vigorous debate about the power of Congress to design &ldquo;independent&rdquo; federal agencies, including by restricting the president&rsquo;s power to remove the heads of those agencies. About a century ago, the Supreme Court in <a href=\"https:\/\/tile.loc.gov\/storage-services\/service\/ll\/usrep\/usrep295\/usrep295602\/usrep295602.pdf\" target=\"_blank\" rel=\"noreferrer noopener\"><em>Humphrey&rsquo;s Executor<\/em><\/a> held that certain congressional restrictions on presidential removal powers were constitutional and sanctioned for what we now know as the modern independent agency. While that case and its jurisprudential theory have been tested over the years, the issue is now coming to a head, as President Donald Trump tries to remove officials at various federal agencies and exert more direct authority over the bureaucracy.<\/p>\n<p>There are many reasons why <em>Humphrey&rsquo;s Executor <\/em>is wrong based on both originalism and <a href=\"https:\/\/tile.loc.gov\/storage-services\/service\/ll\/usrep\/usrep272\/usrep272052\/usrep272052.pdf\" target=\"_blank\" rel=\"noreferrer noopener\">precedent<\/a> at the time. But one of the most flawed premises underlying <em>Humphrey&rsquo;s Executor <\/em>&mdash; and underlying the court&rsquo;s justification for agencies being independent from normal political checks &mdash; is that the agency officials will act as &ldquo;nonpartisan&rdquo; experts, impervious to politics. Further, according to the court, the longer that these officials served in Washington, D.C., the more expertise they would garner and, in turn, the <em>less<\/em> political they would become. In <em>Humphrey&rsquo;s Executor<\/em>, which addressed the president&rsquo;s ability to remove Federal Trade Commissioners, the court blindly trusted that these commissioners would act with &ldquo;entire impartiality&rdquo; and therefore did not need traditional checks or political accountability.<\/p>\n<p>This idea of completely apolitical, objective actors in government is plainly wrong. From Plato to Aaron Sorkin&rsquo;s &ldquo;The West Wing,&rdquo; thinkers have fantasized about benevolent tyrants and philosopher kings ruling over the masses in their best interests. But has it ever worked in practice? The Supreme Court offered no empirical, sociological, psychological, or historical support for its assertions in <em>Humphrey&rsquo;s Executor. <\/em>It simply told the people to believe that powerful bureaucrats could remain entirely impartial, and that they would act only for the common good.<\/p>\n<p>What the framers of the Constitution correctly recognized, however, and what James Madison explained in &ldquo;<a href=\"https:\/\/avalon.law.yale.edu\/18th_century\/fed51.asp\" target=\"_blank\" rel=\"noreferrer noopener\">Federalist 51<\/a>,&rdquo; is that humans are inherently tribal and political beings. They have natural ambitions, not just in the careerist sense but in the broader sense that they want power and wish to impose their ideological views on others. Those ambitions must be counteracted. They must be checked and neutralized by countervailing political mechanisms. And contrary to the court&rsquo;s view in <em>Humphrey<\/em>&rsquo;<em>s Executor <\/em>that longer tenure would somehow make commissioners more impartial over time, we know that power tends to corrupt and that those in power tend to want more of it.<\/p>\n<h2>Politicized Conduct Shows Need for Checks<\/h2>\n<p>If anything disproves the court&rsquo;s theory of an apolitical, expert class in <em>Humphrey&rsquo;s Executor <\/em>today, it is the highly politicized conduct of &ldquo;independent&rdquo; agency heads under President Joe Biden, such as Lina Khan at the Federal Trade Commission (FTC), Janet Yellen at the Treasury, and Gary Gensler at the Securities and Exchange Commission. These individuals prove that <em>Humphrey&rsquo;s Executor<\/em> is a fantasy that cannot be sustained. These are all highly political operators in the thick of D.C. politics. That is not to say these are bad or corrupt people. They are intelligent and accomplished &mdash; but they certainly are not entirely impartial.<\/p>\n<p>Khan, for example, is an acolyte and supporter of Sen. Elizabeth Warren, D-Mass. She worked at a left-leaning think tank before being appointed to FTC, and she wrote about her deep disdain for <a href=\"https:\/\/www.yalelawjournal.org\/note\/amazons-antitrust-paradox\" target=\"_blank\" rel=\"noreferrer noopener\">Amazon<\/a> and Big Tech (her eventual enforcement targets) in law school. While still head of the FTC, Khan went around the country <a href=\"https:\/\/www.nationalreview.com\/corner\/lina-khan-praised-by-some-republicans-campaigns-with-democrats-and-bernie-sanders\/\" target=\"_blank\" rel=\"noreferrer noopener\">campaigning<\/a> with Democrat politicians and candidates. Likewise, in 2024, Yellen was dispatched to tout the Biden economic record. According to <a href=\"https:\/\/www.cnn.com\/2024\/02\/10\/politics\/cabinet-politics-2024\/index.html\" target=\"_blank\" rel=\"noreferrer noopener\">CNN<\/a> at the time, &ldquo;Yellen isn&rsquo;t a political operator, but she&rsquo;s one of President Joe Biden&rsquo;s strongest&nbsp;and most credible&nbsp;economic messengers&rdquo; &mdash; as though messengers who go around stumping for politicians aren&rsquo;t political operators? And Gensler sought to impose left-wing, ideological views on the market by forcing&nbsp;Environmental, Social, and Governance (<a href=\"https:\/\/www.sec.gov\/newsroom\/speeches-statements\/gensler-statement-esg-disclosures-proposal\" target=\"_blank\" rel=\"noreferrer noopener\">ESG<\/a>) considerations into investing decisions.<\/p>\n<p>The usual response is that bureaucrats in Washington are noble public servants. Of course, there are many people &mdash; in and out of government &mdash; who can put politics aside and try their best to act impartially. But that is not always the case, especially for the types of people appointed to key agency roles. And even if the president really sought to appoint those most &ldquo;impartial&rdquo; experts, who could promise that they would remain unaffected by the media attention, public pressures, and the Washington ecosystem? Contrary to <em>Humphrey&rsquo;s Executor<\/em>, no one can guarantee that &ldquo;independent&rdquo; officials will always act with &ldquo;entire impartiality.&rdquo; If men were angels, we wouldn&rsquo;t need government, as James Madison said &mdash; and we wouldn&rsquo;t need political checks and balances.<\/p>\n<h2>Ruling Lacks Grounding<\/h2>\n<p>The originalist Supreme Court ought to put <em>Humphrey&rsquo;s Executor <\/em>on the chopping block for lack of grounding in the text, structure, or history of the Constitution. At the same time, it should dispense with the fiction that these operators in Washington are or can remain independent experts impervious to politics. So-called &ldquo;independent&rdquo; agency heads like Khan, Yellen, Gensler, and many others have flouted the idea of a purely apolitical, expert class. They may or may not promote some good policy, but agency leaders should always be subject to constitutional checks and balances in the likely event that they respond to politics rather than purely scientific considerations. In other words, in the event that they exhibit human tendencies.<\/p>\n<p>That is the brilliance of our constitutional structure. It was designed to account for and protect against humans&rsquo; natural instincts, even when we may do our best to repress those instincts for the common good. The Supreme Court upended our constitutional structure in <em>Humphrey&rsquo;s Executor <\/em>based on a fantasy. It&rsquo;s time to get back to reality.&nbsp; <em>&nbsp;&nbsp;<\/em><\/p>\n<hr>\n<p>   Mark Pinkert is a partner at Holtzman Vogel Baran Torchinsky Josefiak PLLC. He represents and advises clients on a variety of administrative issues, including rule challenges, enforcement actions, and constitutional challenges to the administrative state.<\/p>\n<\/p><\/div>\n<p><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Debate continues on Congress&#8217;s power to create &#8220;independent&#8221; agencies<\/p>\n","protected":false},"author":3718,"featured_media":2412749,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"https:\/\/thefederalist.com\/wp-content\/uploads\/2025\/03\/52714587157_b251fede84_k-e1741297478573.jpg","fifu_image_alt":"","footnotes":""},"categories":[548,546,33651,538],"tags":[],"class_list":["post-2412748","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-conservative-news-daily","category-the-federalist","category-the-western-journal","category-washington-examiner"],"fifu_image_url":"https:\/\/thefederalist.com\/wp-content\/uploads\/2025\/03\/52714587157_b251fede84_k-e1741297478573.jpg","_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/2412748","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/3718"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=2412748"}],"version-history":[{"count":2,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/2412748\/revisions"}],"predecessor-version":[{"id":2412751,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/2412748\/revisions\/2412751"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2412749"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=2412748"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=2412748"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=2412748"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}