President Donald Trump’s big and controversial Supreme Court win in Trump v. Slaughter empowered the head of America’s executive branch to fire members of previously independent agencies in order to solidify his power and policy agenda. Now, a conservative publication is publishing an article on how opponents of this case can fight back.
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“The death of independent agencies should not be considered a fait accompli,” wrote Todd Phillips, a consultant and former law professor at Georgia State University, in The Bulwark on Sunday. “The Court’s ruling in Trump v. Slaughter just turned a wonky bill focused on the structure of crypto markets into a live test case for whether Congress will let one party’s White House—present or future—singlehandedly control how every industry in the United States is regulated.”
Phillips added, “Slaughter need not be the last word on bipartisan policymaking. Although the Court has ruled that the president must be permitted to remove board members and commissioners at will, Congress is still permitted to structure agencies in ways that disincentivize firings.”
From there Phillips argued, citing a recent Stanford Law Review article he co-authored with University of Minnesota Law Professor Nicholas R. Bednar, that “one partial solution worth pursuing would be to emphasize and clarify independent agencies’ quorum rules, requiring that bipartisan slates of commissioners are seated before agencies take any actions.” This process might work because “commissions’ quorum requirements could be structured such that members from both the Democratic and Republican parties must be in office and must not be recused before the agency may advance any action. Such quorums would ensure that even if members of the minority party are not successful in persuading their colleagues of their policy proposals, they are at least in the room when decisions are being made.”
Indeed, “although the Supreme Court has made its decision, Congress need not let the six justices have the last word on whether agency independence is permitted to exist. Tightening quorum requirements for independent regulatory agencies is not a perfect solution. But it’s a step worth taking.”
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He concluded, “Legislators who oppose volatile, episodic regulation driven by who happens to control an agency at any given moment should use the CLARITY Act as an opportunity to preserve, at least in a limited way, bipartisan, independent agencies while articulating a blueprint for reforming other commissions in the future.”
When the Supreme Court issued its ruling in the Slaughter case, dissenting Justice Sonia Sotomayor broke down in detail why she believed the case was poorly reasoned.
“There is little to suggest ‘Executive Power,’ as understood at the time of the founding, was as capacious as the Court today asserts,” Sotomayor explained. “The powers held by the English Crown and state governors before ratification did not include a removal power that the legislature could not modify. Instead, Parliament often restricted the Crown’s ability to remove even high-level royal officers, and states with vesting clauses like the Constitution’s similarly allowed for limits on gubernatorial removal powers.”
She added, “Today, this Court undoes centuries of political practice and concludes that all three branches of Government have been acting in open defiance of the Constitution all this time. Its conclusion is wrong.”
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