Trump and the unitary executive. What could go wrong?
Roberts engages in sophistry to avoid the implications of his unitary executive theory for the Fed.
In two important recent decisions, Chief Justice John Roberts, writing for the majority, asserts that the Constitution forbids Congress from establishing government officials who the president can only remove for cause, with the singular exception of the Federal Reserve’s Board of Governors.
His argument is unpersuasive. The consequences are extensive and severe enough to warrant discussion of a constitutional amendment.
The Constitution provides the process by which high-ranking government positions are established and filled. The president nominates subject to approval by the Senate. The Constitution is silent about the removal of a Senate-approved government official.
In 1887, Congress established the Interstate Commerce Commission to regulate the railroads. The commissioners could only be removed by the president for “inefficiencies, neglect of duty, or malfeasance in office”.
That formulation – multimember bodies with for-cause removal protection – became common over the next several decades, with dozens of such regulatory agencies now established. In 1935, the formulation was found to be constitutional by the U.S. Supreme Court in Humphrey’s Executor.
In Slaughter, today’s court overturned Humphrey’s Executor and found that Congress had no power to provide high-ranking officials with for-cause removal protection. All were fireable by the president at any time, for any reason, or for no reason.
Since the Constitution is silent about removal, this prohibition on Congress establishing positions with for-cause protection has to be inferred. Article II gives executive authority only to the president. Therefore, goes the reasoning, the president has to have complete authority over any official discharging executive functions in the national government. This is the unitary executive theory and Roberts’s opinion, supported by five other justices, openly embraces it.
It is not a theory without foundation. There is support for it in the structure of the Constitution and the deliberations and debates leading to ratification. If multibody commissions with for-cause removal protections had been struck down when they were first established, that might have been arguably wrong but without such monumental consequences.
The Slaughter dissent by Justice Sonia Sotomayor has the better, and much more prudent, perspective. After 140 years of practice and 90 years of having been blessed as constitutional, stare decisis says to leave it alone. Particularly since the Constitution doesn’t expressly forbid it.
The potential consequences of Slaughter are astonishing, and alarming. Under the unitary theory, the president can not only remove commissioners without cause. He can order commissions set up to exercise independent judgment to do anything he wants. Issue particular regulations. Decide cases in particular ways.
There are statutory process requirements that will still have to be followed. However, the president, under the unitary theory, can dictate outcomes. Justice Neil Gorsuch’s concurrence acknowledges the potentially expansive consequences.
The justices shouldn’t engage in this kind of speculation, but it is fair game for commentary. The framers never envisioned a federal government so extensively involved in everyday commerce and life. They would have been aghast at all the powers the federal government now exercises being within the control and subject to the whim of a single person. And Donald Trump is exactly the sort of president that would make them aghast at the prospect.
Roberts apparently feared that his Slaughter decision would raise questions about the independence of the Fed. In addition to firing a member of the Federal Trade Commission, Trump is attempting to fire a member of the Federal Reserve’s Board of Governors. In the Fed case, however, Trump isn’t challenging the for-cause protection feature of the Federal Reserve Act. Instead, he is claiming to have cause.
Even though it wasn’t at issue in the case, Roberts went out of his way in Cook to say that the for-cause protection for Federal Reserve governors was constitutional. However, his argument as to why the governors were an exception to the unitary theory is an astonishing act of sophistry, in league with Roberts upholding the Affordable Care Act on the grounds that the fine for not having government-approved healthcare insurance was actually a tax.
According to Roberts, the difference is that the current Fed is a successor to the First and Second Banks of the United States, which had a majority of directors not removable by the president. Hence, monetary policy, from the founding, has a special status independent of the unitary presidency.
However, the First and Second Banks of the United States were, in no respects, antecedents of the Federal Reserve. They were nationally chartered banks whose public role was to handle the receipts and disbursements of the federal government. They did not control the money supply. Other banks could and did issue their own currency. They did not regulate other banks. They were not a lender of last resort to other banks.
The public functions of the two Banks of the United States are now performed by the Department of the Treasury, not the Fed. And the Fed unquestionably performs executive functions, in bank regulation and other areas, that the two Banks of the United States did not. Both banks only lasted 20 years. There was an 80-year gap between the cessation of the Second Bank and the establishment of the Fed.
The Federal Reserve’s Board of Governors isn’t part of any exception dating back to the adoption of the Constitution. There is no logical or historical reason that it isn’t subject to the unitary executive theory. Yet, Roberts was so concerned about any implication from Slaughter about the Fed’s independence that he went out of his way to decide an issue not before the court in Cook. While the Fed gets a reprieve, the direct consequences of Slaughter, eliminating any pretension of independence in dozens of regulatory agencies, are monumental in their own right.
These agencies aren’t truly independent. The Federal Communications Commission is a good example. It has favored net neutrality when a Democrat was president and opposed it when a Republican was. The current chairman, Brendan Carr, is an abject Trump toady, seeking to use the powers of the agency to suppress criticism of Trump.
Nevertheless, there is a benefit to removing some of the broad regulatory authority of the federal government at least a step away from direct political control. It provides an institutional element of due process and impartiality that doesn’t exist in a unitary presidency.
I don’t think the framers would have supported a unitary presidency exercising the vast regulatory reach of today’s federal government. I don’t think today’s body politic would either.
A constitutional amendment restoring the status quo ante and keeping a governing option that has been employed for the last 140 years would be an arduous undertaking without an obvious champion. But what Trump does with the unitary authority the court has granted him may make the case more compelling.
Reach Robb at robtrobb@gmail.com.