Supreme Court gives Trump power over independent agencies
Trump is now empowered to shape federal agencies in his image
What happened
Overturning a 91-year precedent, the Supreme Court last week handed President Trump sweeping authority to control previously independent agencies—all except the Federal Reserve. In Trump v. Slaughter, the six conservative justices ruled that Trump was empowered to fire Rebecca Slaughter, a federal trade commissioner, last year because her views didn’t align with the White House’s agenda. The decision guts the precedent set by the 1935 Humphrey’s Executor decision, which held that Congress could limit the president’s ability to remove certain federal agency officials without cause. Writing for the majority, Chief Justice John Roberts argued that because the FTC “unquestionably exercises executive power,” it “must therefore be controlled by the chief executive.” In a scathing dissent, Justice Sonia Sotomayor said the ruling gave the president “power unknown even to the English Crown against which the Founders revolted, elevating him above his once-coequal branches by transforming a duty to take care that the laws be faithfully executed into a license to act in defiance of those very laws.”
In a separate case, though, the court made the Federal Reserve exempt from that new presidential power. Roberts and Justice Brett Kavanaugh joined the three liberal justices in Trump v. Cook to rule that Trump overreached when he tried to fire Lisa Cook, a Fed governor, after accusing her of mortgage fraud. Roberts wrote that the Fed was different from other federal agencies because it was “uniquely structured” to maintain independence, and that the president must present legitimate cause before removing a Fed governor. Trump said he would begin that process “immediately” so he could proceed with ousting Cook. Justice Amy Coney Barrett, meanwhile, was skeptical of the Fed carve-out. “The court’s holding is in serious tension with Trump v. Slaughter,” she wrote in her dissent. “Might history sanction other exceptions too?”
What the columnists said
The Roberts court just took a “wrecking ball” to the separation of powers with Slaughter, said Alexis Romero in Slate. Now not just the FTC but dozens of other federal agencies designed by Congress to be insulated from partisan politics are “fully under Trump’s thumb.” You can bet a newly empowered Trump “will begin to make Nixon’s Saturday Night Massacre look like a normal weekday.” He’s now free to retaliate against any agency leader who dares to investigate him for a violation of the law, refuses to attack his political rivals, or pushes back against attempts to manipulate elections. “This is the world the Supreme Court has created.”
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The ruling “invites presidential abuse,” said Victoria Nourse in The Economist. Trump can now pressure leaders at the SEC or the National Labor Relations Board to ignore wrongdoing by his cronies. He can lean on the National Transportation Safety Board or the Nuclear Regulatory Commission to waive safety requirements for his friends’ companies. At the Federal Election Commission, he could replace commissioners with “loyalists who deny that he lost the 2020 election.” He may not even need to fire people: Just “the threat may be enough.”
Yet it “may be premature” to declare the death of agencies’ independence, said Ilya Somin in Reason. That’s because Slaughter and Cook, as Barrett noted, appear completely incompatible. Sure, “central bank independence is a long-standing tradition,” but “the same is true of many other independent agencies.” More exceptions could follow. The two rulings are at odds because Slaughter “is good law and good policy,” said National Review in an editorial, and Cook is a mess. “If the president controls the executive branch, and doesn’t control the Fed, then what is the Fed?” It’s not a legislature and it’s not a court. “The Constitution doesn’t mention a fourth branch. But now we have one.”
It’s no surprise Roberts and Kavanaugh are willing to shield the Fed but not the other agencies, said Elie Mystal in The Nation. They “didn’t feel like crashing the global economy and tanking their 401(k)s.” Most federal agencies are there to protect the little guy the justices don’t care about: The FTC goes to bat for consumers, the NLRB for employees. The Fed, though, “protects the monetary policy that capitalists rely on to make their billions.”
The conservative justices are unruffled by this obvious double standard, said Zack Beauchamp in Vox. They consistently rule that their “own policy preferences are constitutionally mandated” while those they disagree with get extra scrutiny. The result is that the president has “an electoral dictatorship” in areas where the justices agree with him. Everywhere else, “the court sets policy.”
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