A Threat to Constitutional Order
This term, the Supreme Court is considering a case that can change the entire structure of the US constitutional system, putting the president in policy control of all the agencies of the government’s Executive Branch. The case is Trump v. Slaughter, and it arose after President Trump removed Rebecca Slaughter as a director of the Federal Trade Commission, an independent regulatory agency.
There is nothing in the Constitution that authorizes the removal of a director of an independent regulatory agency—serving for a fixed term of office—other than for malfeasance. But the Supreme Court has recently been attracted to an idea called the unitary executive theory, which holds that all the agencies in the Executive Branch should be under the policy control of the president.
As we all learned in grade school, the US Constitution is based on a concept called the separation of powers, where Congress makes the laws, and the president enforces the laws. The purpose of this separation was clear: it preserved and guaranteed the liberties of the American people. Like the men who made the Constitution, we had no king.
Over most of our history, this has meant that the president worked to make sure that “the laws be faithfully executed,” but did not actually control all the agencies of the government or the policies that they pursued. That was the responsibility of Congress, when it made the laws the agencies were to follow, and there is nothing in the Constitution that says the president is supposed to have policy control of any agency.
Yes, the Constitution says that the “executive power shall be vested in the president” but the term “executive power” is not defined in any way. The recently popular assumption that this language means the president has control of all the agencies of the Executive Branch is just that—an assumption, without any validation. The Constitution makes the president the commander in chief of the armed forces, and says he may make treaties and take other actions with the consent of the Senate, but it also says that “he may require the opinion, in writing, of the principal officer of each of the executive departments,” which certainly doesn’t suggest that the Framers thought or intended that he’d have control of all of the agencies of the Executive Branch.
To be sure, the president appoints the heads of the major agencies of the government—the Defense Department, the Commerce Department and others, and this gives him some degree of control over the policies these agencies pursue, but it is Congress that makes the laws that establish the powers and policies of the agencies, even if the president has some influence over how they carry out their responsibilities.
Nevertheless, over time, because of the president’s power to appoint the heads of the agencies, he has been able to acquire—or at least assume—policy control over their actions, especially those headed by officials he has appointed.
But there is a class of agencies that Congress clearly wanted to keep beyond the control of the president, and for at least the last 100 years, Congress has created what are called independent regulatory agencies. These are bipartisan bodies appointed for staggered terms of five to seven years that regulate large portions of the US economy. Their names are familiar—the Securities & Exchange Commission, the Federal Trade Commission, the Civil Aeronautics Board, and the Federal Reserve. There are more than two dozen of these independent agencies, and many have been in existence for almost 100 years.
Although there is some question about how much policy authority the president has over the members of the Executive Branch, it is clear that Congress wanted the independent regulatory agencies—not part of the Executive Branch—to be beyond the control of the president. To this end, the members of these agencies were given terms of office—usually five or seven years (Federal Reserve members serve 14 years)—and the agencies were to be chaired by a member who was of the same party as the elected president. Members could only be removed from office because of malfeasance.
However, in 2020, in a case called Seila Law v. Consumer Financial Protection Board (CFPB) the Supreme Court, responding to an initiative by President Trump, agreed that the president could remove the director of the agency despite the fact that he had not served his full term of office and there had been no allegation of malfeasance.
This was the first instance in which a president had been permitted to remove the head of an independent agency in the absence of malfeasance, but the case did not establish a precedent for the future because there were unusual elements, including the fact that the CFPB was not a multi-headed agency, having only a single director. Accordingly, President Trump then removed Rebecca Slaughter, a director of the FTC, a multi-member agency, and the Supreme Court agreed in December to hear the case.
There is likely to be a decision in May or June, and most observers believe that this Court will find that the president has the power of removal. If so, it will be the clearest indication that the Supreme Court is willing to abandon the separation of powers as the Constitution’s governing structure and substitute a different structure: a strong presidential system supported by a concept known as the “unitary executive.” This would not be a decision by Congress, or by the American people; it has not been embodied in an amendment to the Constitution, but instead will have the support of the Supreme Court alone.
As the name implies, the unitary executive system would place virtually all federal agencies under the direct control of the president, giving the president policy control of every government agency established by Congress, in which members are appointed for terms of years.
This is significantly different from the “separation of powers” system that has characterized the US constitutional structure since the Constitution was ratified in 1789. Under that system, the independent regulatory agencies were created and carried forward into the future by an agreement between Congress and the president then in office when each of the agencies was created.
Where, then, did the Supreme Court get the authority to undo these agreements between the president and Congress? Certainly, if there were something in the Constitution that makes these agreements constitutionally questionable, the Supreme Court would have the power—as interpreter of the Constitution—to make this clear. But it seems from the Court’s decision in Seila Law that the Court did not find any principle in the Constitution that contradicts or invalidates this agreement.
Instead, according to the Court’s syllabus in Seila Law, “the President’s removal power derives from the ‘executive power’ vested exclusively in the President by Article II” [of the Constitution]. However, despite the Court’s confident statement, there is nothing in Article II that gives the president the power to remove officials whom Congress has given terms of office.
Defenders of the unitary executive idea—even though it has no constitutional foundation—argue that the vesting clause (“the executive power shall be vested in a president of the United States”) provides the authority the president needs here. But as noted above, the term “executive power” is not defined anywhere in the Constitution, and on its own it can mean anything. It’s clear that the Framers thought it meant only that the president would enforce or execute the laws, but nowhere in the debate over the Constitution was there any suggestion that “executive power” meant total control of the Executive Branch. Recall that Article II, section 2, says, “He may require the Opinion, in writing, of the principal officer in each of the executive departments,” which certainly doesn’t sound like he was supposed to be in control of them; here, he needs the Constitution’s authority to be able to ask a simple question.
Then, the Court in Seila Law argues that “the Framers’ constitutional strategy is straightforward: “Divide power everywhere except for the Presidency, and render the president directly accountable to the people through regular elections. In that scheme, individual executive officials may hold significant authority, but that authority remains subject to the ongoing supervision and control of the elected President.”
Here the Court is referring to the general case, where the president may remove from office any official of the Executive Branch who was appointed by him or a previous president to serve “at pleasure.” But this “general case” clearly does not include a statutory term of office. The Director of the CFPB, even if a member of the Executive Branch, and now a director of the FTC, was appointed to an office that Congress determined would have a term of years. There is nothing in the Constitution or any statute that says the president can remove such an official, other than through misbehavior in office, and the Court cites nothing in its Seila Law decision to the contrary.
Instead, the Court claims that the president has control of the Executive Branch, which is undoubtedly true when we are discussing agencies whose officers serve at the president’s pleasure, but the Court cites no provision of the Constitution or any law to the effect that a person appointed to office, even in the Executive Branch, for a term of years established by Congress, may be removed before the end of that term, other than for malfeasance. That would certainly be a violation of a valid law enacted by Congress, and it is far from clear where the president has gotten the authority to do that.
In Seila Law, for the first time, the Court acknowledged the unitary executive theory and cited its validity because of the president’s “accountability to the people.” This is a highly questionable idea, that the president—because he is accountable to the people—can do things not specifically authorized by law. No constitutional scholar would support that idea, and the Court failed to show in its Seila Law decision that the president is actually “accountable to the people.”
It’s important to remember, in considering Seila Law, that the Constitutional Convention established the office of the president, but provided that he would be elected by an Electoral College, not through direct election by the people. The reason for this was that many delegates feared that the direct election of the president by the people—where he would be “accountable to the people” or “supported by the people”—would give the president a claim to become a monarch or a dictator.
The Electoral College, which of course still exists, was intended to prevent the president from making any such claim. And indeed, in five presidential elections—1824, 1876, 1888, 2000, and 2016—the winner of the Electoral College vote lost the popular vote, and in 15 other elections the Electoral College winner did not have a majority of the popular vote, making it difficult for the presidential winner to claim popularity with the people as a basis for wielding a power beyond what the Constitution allows.
So, what will it mean for the United States if the Supreme Court in Trump v. Slaughter allows President Trump to take control of the independent regulatory agencies? Clearly, it will mean that the president will have policy control of all the agencies of the US government, giving him powers no president has ever had, and essentially ending the separation of powers as the underlying principle of the US Constitution.
Advocates of the unitary executive theory believe it reinforces the separation of powers. It actually destroys it.