All that by way of preamble to the recently issued Trump v. Slaughter, which restores some presidential powers to swap out appointed or hired employees of the regulatory agencies, broadly understood. That ruling has people such as Outside the Beltway's James Joyner troubled. "American society is considerably more complex now than it was in 1935. It makes even more sense now than then that some regulatory functions should be carried out by subject matter experts not subject to the changing whims of the electorate."
That position has, from the beginning, been the logic of the administrative state. It's as simple as a city council setting up a commission to adjudicate streetcar fares or cable connection rates rather than having to conduct a vote every time business conditions changes, and as fraught as, in protecting those "subject matter experts" from those "changing whims of the electorate" you get, if not necessarily "swarms of officers, harassing our people and eating out their substance," unelected bureaucrats. In three-plus decades of teaching regulatory economics, I never lacked for material suggesting that things didn't always turn out in practice the way we could draw them up on the blackboard.
Paul Krugman extends the argument for a modicum of regime stability, sheltered to an extent from the election returns.
So you are setting up a situation in which, you know, it’s a little bit like traffic laws. Traffic laws, yeah, they can be annoying, but aren’t we all kind of glad that there are in fact rules about when you can turn and when you can go through an intersection? In order to function, in order to drive your car around you need to have a set of stable traffic rules, not a situation in which a police officer can decide you broke the law and the other guy did not because I say what the law is. And especially not where the police officer does that based upon who’s been paying him off or who he expects to be paid off.That's exactly the city council being of dubious utility in approving a fare increase or changing the boundaries of the single fare area. But when the world is complicated and ever-changing, letting a legislative body establish standing doctrines established by "It is the intent of Congress" preambles and "The Secretary shall issue regulations consistent with that intent" language that, once written down, either never changes or the changes are sneaked in through the Federal Register and its comment periods that the rent-seekers pay attention to and the Normals never learn of.
The real world is far more complex than traffic rules but we need those rules and we need some stability and those rules cannot be specified with every letter, every punctuation mark set by Congress. The world is too complicated and changes too much. You need to have standing ethos, standing doctrine at the agencies that make modern life possible.
Professor Krugman's fellow court intellectual Robert B. Reich brings in another trouble.
I spent five years of my life advising the commissioners of the Federal Trade Commission how they could best protect Americans from monopolies and deceptive corporate practices.Whether the commissioners Mr Reich agrees with did their job properly or not is not the issue here. Rather, note that there is an Antitrust Division in the United States Department of Justice, with a full staff of enforcers, and the Federal Trade Commission exists in parallel with that enforcement. Commission investigators, the unelected bureaucrats if you will, have the opportunity to bring cases before the commission, whose in-house decisions have the same force as a finding in federal district court. Appeals, whether of United States suits or Federal Trade Commission findings, go to the relevant circuit court of appeals. I must draw the curtain of charity over whether there is wasteful and duplicative competition among government agencies.
I’m proud of the work the FTC did then, and proud of much of what it’s accomplished since then. When I served there, the chair of the FTC was Michael Pertschuk, an energetic and charismatic trust-buster and consumer advocate. More recently, the FTC has been chaired by Lina Khan, who courageously stood up to some of the biggest and most politically powerful corporations in America. Part of the reason the FTC has been so effective is that it is—or was—independent, and therefore immune to the political moves of powerful corporations seeking to stop it from acting for the common good.
The FTC was established in 1914 as part of what’s known as the “progressive era” when the government first sought to rescue the nation from the grip of the robber barons who then ran the railroads, oil, shipping, and much of the rest of the economy—and corrupted the nation’s politics—during the First Gilded Age.
I am less disposed to be charitable about the Men of System turning Technocracy into a grift. Mr Reich got to move from the Federal Trade Commission to the academy and into the Clinton administration and back to the academy. What I refer to as the Welfare Economics Paradigm is that academic-policy nexus in which the Men of System in the academy produce Minimal Publishable Units whilst their graduates in policy shops write the position papers and other graduates serve as administrative assistants or deputy undersecretaries in the agencies. Weren't we, only yesterday, contemplating Thomas Jefferson's “The mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God?” Let's stipulate that a diploma is not a boot, nor the tax code nor the Federal Register the spur, and yet, when the unelected bureaucrats credentialed technocrats tend to have the imprimatur of the Kennedy School or Yale Law or Johns Hopkins Medical, are we not in the realm of that favored few riding the mass of mankind?
You deplorable! Be grateful! "It's all For Your Own Good. Wise Experts know better than you, dear reader, what 'disinformation' on social media is, what additives to cigarettes are dangerous, how much beer you should drink, and whether your business ought remain open during flu season or not."
Never mind that as developments from urban renewal to coronavirus mitigations have demonstrated, the favored few are doing a lousy job.
That's true, dear reader, whether the unelected bureaucrats serve at the pleasure of the president or of Congress.
Mr Reich then introduces another bug he sees as a feature.
Congress has by now established 19 independent regulatory agencies, including the Securities and Exchange Commission, the Federal Reserve, the Commodity Futures Trading Commission, the National Labor Relations Board, the Federal Deposit Insurance Corporation, the Consumer Financial Protection Bureau, and the Office of Special Counsel.I'm not sure how much "countervailing power" there is in the face of regulatory capture or lobbying or rent-seeking, and perhaps a Congress that creates independent agencies ought be reviewing more carefully what those agencies are doing. What could go wrong?, asks Reason's Damon Root. (Plenty)
These independent agencies, staffed with experts, have become a major countervailing power to the political clout of large corporations.
But as of Monday, they’re no longer independent and no longer have any countervailing power.
Monday’s ruling overturns the basic idea—part of the fabric of our government for well over a century—that Congress has the power to create independent agencies.
To make or promulgate rules [as the Federal Trade Commission does] basically means to make new federal laws. Yet the federal lawmaking power does not properly belong to the executive. Rather, it belongs to Congress under Article I of the Constitution. Yet now, as a direct result of Trump v. Slaughter, the federal lawmaking power that the FTC and other "independent" federal agencies have long wielded is suddenly resting in the sole hands of the president.It's on Congress to review those "The Secretary shall issue" provisions and the actions taken thereunder. Perhaps they'd rather not.
Doesn't that upset the constitutional separation of powers?
For decades, Congress has passed laws delegating its authority to executive branch agencies and unelected, unaccountable bureaucrats. The regulatory state has become the de facto fourth branch of government, upending the intended constitutional order.Yes, and that's how policy cans get kicked so far down the road that only after the freight railroads strangle under Interstate Commerce Commission expertise does Congress finally set up an Amtrak and a Conrail to clean up the mess, and after a few years with the Staggers Act, finally wind down the Interstate Commerce Commission.
Madison's mistake was believing that members of Congress would prioritize power. Instead, most crave re-election. They're happy to let bureaucrats make the rules because it helps them avoid tough, unpopular votes.
Nor are we done. Constitutional law maven Jonathan Turley looks at that part of the sausage making.
For decades, scholars and jurists have questioned where the Court found the authority for Congress to create a hybrid creature like the FTC — part legislative and part executive, with officials protected from removal by a president.That's not necessarily a good thing. David Sulzer argues that the administrative state has been an anomaly for the better part of a century.
Various presidents have chafed at this limiting doctrine. But Trump pushed aggressively against the precedent and appointed three justices who would prove critical in ending Humphrey’s Executor after more than 90 years.
When Congress created these so-called “independent agencies,” it often provided that the people appointed to operate had long-term sinecures that presidents could end only for malfeasance. This created what some called a fourth branch of government, cementing the “Deep State.” These agency heads, running their own fiefdoms, could thwart an elected president’s preferred policies. As Senator Elizabeth Warren has repeatedly, and rightly, pointed out, “personnel is policy.”There are several dimensions to his argument. The most important is his fear that the powers the current Court has granted the current president are contrary to separation of powers. Legislative oversight, he correctly notes, is crucial. I could teach the Welfare Economics Paradigm for years without having to worry too much about who was implementing it: clearly a Congress passing a law with some "The Secretary shall issue regulations" provisions and thereafter letting things more or less be, perhaps in the hopes that those Kennedy School or Yale Law graduates in the offices will do as they were trained. In the absence of Congressional action, for the next few years it will be Donald Trump's departmental secretaries writing the regulations; thereafter it will be somebody else. Those nomination hearings at the start of a presidential term are not enough, Congress must observe and call attention to the ways in which those departments are carrying out their intent.
However, despite their seeming entrenchment, these agencies have no place under the Constitution. Art. II Section 1 provides that the “executive power” to enforce the laws resides solely with the duly elected president. As Chief Justice John Roberts wrote in his majority opinion, the Constitution’s drafters explicitly intended that the executive power include the plenary authority to remove any personnel exercising executive powers. Congress cannot curb that power using legislation.
That principle puts a dagger in the heart of the “deep state,” which is a good thing. However, as Justice Gorsuch writes in his concurrence, this now poses a great danger to our constitutional republic. That’s because this decision, at least temporarily, puts into the president’s hands the power not merely to enforce the law, but through the no-longer-independent agencies, to write the law and adjudicate it as well.
As James Madison wrote in The Federalist Papers, No. 47, combining these powers in a single person is the textbook definition of a “tyranny”—one that our Constitution explicitly set out to avoid. In other words, we’ve gone from one tyranny, that posed by an all-powerful unelected and unconstitutional branch of government primarily loyal to the Democrat party, to another, a presidential tyranny, with the latter being something the Founders especially feared.
Our nation was meant to have clearly divided powers. The Constitution, Art. I, Sec. 1, provides that Congress has the sole power to write the laws, while Art. II, Sec. 1, provides that the President has the sole power to enforce the laws, and Art. III, Sec. 1, provides that the “Article III” Courts have the sole power to adjudicate cases under the law, both civil and criminal.
Congress, though, with permission from progressive courts, from the Supreme Court on down, has spent a century making a mockery of those provisions, transferring to the regulatory agencies vast powers to create regulations, to enforce them, and to adjudicate cases under those regulations. That is tyranny.
For the moment, with a president currently holding plenary authority to fire the people governing the regulatory agencies, the president now holds in his hands the potential to be a tyrant—and I wouldn’t have trusted George Washington with this power, let alone a possible President Alexandria Ocasio-Cortez. As matters stand—and Justice Gorsuch states—it is up to the Supreme Court to use its unique authority to restore legislative power to Congress and to strip regulatory agencies entirely of the authority to use their internal courts to adjudicate alleged civil and criminal regulatory violations.
George Will concurs and extends.
Congress delegated this obviously legislative function on the assumption — true for decades, until Monday — that the agencies would not be under presidential domination.Yes, and here we are, going into the 251th year of American Independence, and Congress find themselves in the position of that city council fretting about streetcar fares. They'd really like to pass a law laying out their intentions, establish an agency within one of the departments (where more than a few senior managers are presidential appointments) to carry out those intentions, and hope for the secretary to issue the regulations and the line and staff workers to implement them. It's on Congress to look at agencies and offices they've created, and review and on occasion end some.
Why, exactly, cannot Congress carve out, by laws, exceptions to the president’s removal power, exceptions that Congress thinks serve the public interest? The president should be duty-bound to take care that those laws are faithfully executed. Never until Monday has this been declared constitutionally forbidden.
The court has made the congressional power exercised over multimember independent agencies irrecoverable. Any president will veto Congress’s attempt to claw back its power. So, it will be nearly impossible for congressional supermajorities to pass legislation reestablishing the bargain it struck when, in the 19th century, it began creating independent agencies.
Although Gorsuch participated in the majority’s mistaken enhancement of the executive, his concurring opinion summons the court and Congress to strengthen the separation of powers by asserting theirs. He notes that the (until Monday) independent agencies wield, with scant statutory guidance, vast legislative authority. They define, outlaw and prosecute “unfair or deceptive” economic practices, enforce “fair and honest markets,” define broadcasting that serves “public convenience, interest, or necessity.”
Such open-ended delegations of legislative power, Gorsuch notes, “have not gone away.” Now they will be exercised by officials answerable to presidents, who “now will enjoy waxing authority over all those areas and more.” The so-called fourth branch of government endures, its powers wielded by presidents.
The Constitution, Gorsuch reminds, “created three branches of government — not four, and not just one led by the President either.” He intimates the court’s duty to limit Congress’s delegation of its legislative powers to agencies. “We face only two ways forward: Let Presidents exercise all those powers or begin subjecting them to the Constitution’s constraints. ... From here, the only sure path is to … restore legislative and judicial powers to where they belong: in Congress and the courts.”
This is the project of making today’s federal blob again resemble a government of limited, because enumerated, powers. The court’s desire — admirable, up to a point — was to enforce tidiness on the sprawl of today’s ever-metastasizing government. So, the court decreed a great simplification, a clean sorting of executive from legislative functions.
But in defending the theory of separated powers, the court should have heeded Albert Einstein’s admonition: The goal of any theory is to make irreducible elements as simple as possible — but not simpler. Monday’s misguided oversimplification calls for Gorsuch’s agenda of accurately defining government’s powers, then enforcing their separation.
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