The Supreme Court has previously been accused of having a far right ideology, engaging in judicial activism rather than strict constructionism and moving to empower President Donald Trump even at the expense of the Constitution.
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“In the wake of Slaughter, presidents now hold the keys to the kingdom,” wrote Ryan J. Owens, a political science professor and director of the Institute for Governance and Civics at Florida State University, for The Dispatch on Thursday. Owens was referring to the Supreme Court case of Trump v. Slaughter, which overturned a 1935 case holding that presidents could not fire commissioners of independent agencies except for cause. By allowing Trump to fire a Federal Trade Commissioner, Rebecca Kelly Slaughter, simply because she is a Democrat, the majority of justices brushed aside concerns that this would allow civic and non-partisan institutions to be manipulated for political ends.
Owens argues that the Supreme Court was correct to make it possible for presidents to effectively implement their agenda so long as voters can remove that president. Yet he also argued that this is not in itself enough to help America.
“If the president can remove agency officials at will and Congress continues to delegate substantial authority to the executive, the president will have become more powerful than the Framers possibly imagined,” Owens wrote. “The Supreme Court must now finish the job. Revive the nondelegation doctrine. Make Congress legislate again.”
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He then quoted a Trump-appointed judge, Justice Neil Gorsuch, who suggested in his decision that it might be time “to reinvigorate the intelligible principle doctrine and recognize that Congress cannot delegate its legislative authority.” Agreeing with this principle, Owens argued that “the court’s Slaughter opinion hints at such. Somewhat surprisingly (and unnecessarily), the majority opinion positively referenced A.L.A. Schechter Poultry Corp. v. U.S. (1935), the last case in which the court struck down a law for violating the nondelegation doctrine. The Slaughter opinion further called the Federal Trade Commission Act’s delegation ‘startingly abstract.’ This sounds an awful lot like a formalist court ready to revive the nondelegation doctrine now that the president’s removal power is back in its rightful constitutional place.”
Owens continued that “constitutional formalists and liberals should hope the Supreme Court revives the doctrine—formalists, because it would return legislating to Congress where it belongs, and liberals because they fear an empowered Trump.” He then concluded that, while he believes the Slaughter decision corrected an earlier case with which he disagreed, he hopes “it follows this great ruling with another.”
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