FCC chair suggests agency isn't independent, word cut from mission statement
axios.com
axios.com
The FCC has often been called an independent agency. But this may be a mistaken assumption. The 1935 Supreme Court ruling in Humphrey’s Executor held that when Congress included for-cause language, the president could not fire commissioners for simple policy disagreements. The FCC charter does not have that.
Under this interpretation, the FCC is considered part of the executive branch and aligned with the president's policy objectives rather than operating as an autonomous body
It contains an exhaustive historical analysis explaining why the President has unrestricted power to remove executive officers.
The “unprincipled” decisions were the ones like Humphrey’s Executor that sought to find ways to implement the 20th century concept of an “expert administrative state.” That’s not the government that was created in our constitution.
Yes, I do think the time horizon of every SCOTUS member is longer than four years. I believe Gorsuch when he says:
I appreciate that, but you also appreciate that we're writing a rule for the ages. -- https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-939_3fb4.pdf
Which some of them see as an opportunity
Think of a scenario where a President was elected with a large-ish majority and promised during the campaign to change broadband regulations to reduce broadband prices across the country. Unfortunately, the FCC commissioners were all appointed by the previous president and block this policy change that the voters clearly support. How does that square with democratic accountability?
Go read the Federalist Papers. The founders thought very hard about who should exercise which powers and how they should be selected. They did not intend for 99% of the actual government operations to be run by “independent” executive officials that were insulated from elections. That’s something we made up in the 20th century in response to trendy ideas about “scientific government.”
Which would be perfectly fine as a basis if we were still in the 18th century.
Things are, I believe, somewhat different now and what a bunch of rich old white men thought then isn't all that relevant now except as a historical oddity.
It has to be a dichotomy, right? You either go by what the constitution meant to those who wrote it, because that’s how written agreements work, or otherwise you go with what the mob wants. How can there be some third option?
For example, the Catholic Church is neither (solely) defined by a set of 2,000 year old writings, nor is it under strict authoritarian rule by the elected Pope. The Church has been gradually sculpted and steered by centuries of councils, disagreements and reconciliations, power struggles, competing institutions, and much more. It is its own thing, defined by precedent and history and nearly unrecognizable when compared across centuries.
That approach makes no sense in a secular democracy. There is no divine law to interpret, and there is no body like the Catholic church charged with mediating between divine law and the laity. The only source of authority is the consent of the governed. The constitution and amendments reflects the consent of a supermajority that can bind subsequent majorities. But any intermediate majority can be overruled by a subsequent majority. In that framework, the only sources of authority that can overrule the present majority are the edicts previously sanctioned by supermajorities. And the only relevant meaning of those edicts is what they would have meant to the people who consented to them.
If you dispense with the idea that the intent of the framers matters, then you’re dispensing with the authority of the supermajority that consented to what the framers wrote. That leaves only the present majority as the only source of authority.
I don't understand why the Federalist Papers gets cited as if it were part of the Constitution. It is not a definitive source of anything except the opinion of those two (three, with Jay) men.
But find me any contemporaneous document that suggests the framers thought power should be exercise by unelected bureaucrats insulated from oversight by elected officials.
And in doing so they reshaped the precedent. One can't claim Brown v Board is not precedent just because Plessy v Ferguson already spoke on the same matter.
It seems odd to complain about giving insufficient respect to precedent, when that precedent itself overruled a prior precedent.
I agree precedents should be overruled when they are contrary to the text of the constitution, such as when Brown overruled Plessy. There are a lot of 20th century precedents that are wrong and are based more on convenience and a desire to appease FDR than on the text of the constitution.
In this case, Trump is easily bought and isn't very concerned with governing himself (compared to playing golf or designing ballrooms). With this in mind, even people outside the executive branch, or even the USA are benefiting.
In the late 19th and early 20th century, folks like Woodrow Wilson came up with this idea of the administrative state run by independent expert civil servants: https://teachingamericanhistory.org/document/the-study-of-ad.... The concept arose from Wilson’s hatred of democracy and immigration:
> The bulk of mankind is rigidly unphilosophical, and nowadays the bulk of mankind votes. A truth must become not only plain but also commonplace before it will be seen by the people who go to their work very early in the morning; and not to act upon it must involve great and pinching inconveniences before these same people will make up their minds to act upon it.
> And where is this unphilosophical bulk of mankind more multifarious in its composition than in the United States? To know the public mind of this country, one must know the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes. In order to get a footing for new doctrine, one must influence minds cast in every mold of race, minds inheriting every bias of environment, warped by the histories of a score of different nations, warmed or chilled, closed or expanded by almost every climate of the globe.
The idea of “independent agencies” staffed by neutral civil servants arises directly from this skepticism of democracy and voters.
The Constitution may not use the modern civics phrase "executive branch," but it plainly creates what we now call one: "The executive Power shall be vested in a President..." Even if we grant the semantic point, it doesn't prove the legal conclusion you want. Congress's authority to create agencies and offices and design their basic structures (subject to constitutional limits) is well-recognized. [2]
You're also wrong to treat Myers v. United States as if it ended the discussion. Myers involved a purely executive officer (a postmaster) and is part of a broader removal-power line of cases. [3] Humphrey’s Executor (1935) limited the sweep of Myers in the context of independent commissions by upholding Congress's ability to restrict removal of FTC commissioners to specified causes (e.g. "inefficiency, neglect of duty, or malfeasance in office"). [4]
Your analogy to "congressional aides" and "judicial law clerks" is a category error. Aides/clerks are staff whose authority flows through, and is controlled by, constitutional officers. Independent commissions are Congress-created offices exercising delegated statutory authority, and the question is how far Congress may structure that delegation (appointments, terms, partisan-balance requirements, and sometimes removal limits) consistent with separation of powers.
Finally, the Woodrow Wilson citation is doing sleight of hand. The passage you quote is about insulating administration from day-to-day politics ("administrative questions are not political questions") and it indeed contains elitist/racist language about voters. [5] But (1) that’s an argument about civil service/administration, not a dispositive argument about the constitutionality of independent commissions, and (2) it's historically confused to imply this is a late/progressive "invention": as early as 1887 Congress created the ICC with explicit bipartisan-balance language and explicit for-cause removal language. [6]
If you think Humphrey’s Executor was wrongly decided and should be overruled, that's an argument you can make. But pretending "independent agencies don't exist" (or that Myers settled everything) just isn't accurate as a description of U.S. law, and someone with your background and experience should know this.
[1] https://constitution.congress.gov/browse/essay/artII-S2-C2-3... [2] https://www.congress.gov/crs-product/R45442 [3] https://www.oyez.org/cases/1900-1940/272us52 [4] https://www.oyez.org/cases/1900-1940/295us602 [5] https://teachingamericanhistory.org/document/the-study-of-ad... [6] https://www.archives.gov/milestone-documents/interstate-comm...
Even if that was relevant, it's not true. By the time of Thomas Jefferson's death in 1826, the federal government had over 10,000 employees. It didn't just collect taxes and wage wars--it issued patents, enforced laws, managed pensions (for soldiers), provided direct services to the public (mail), issued currency, and had a central bank. By 1900, still decades before the rise of the modern administrative state, the federal government had over 230,000 employees.
It is true and your own comment is a restatement of what I said. It's even obviously true, why would you pick a fight over this? You said "even if that was relevant" why not argue that instead?
It arises from the need for certain aspects of our country to not be explicitly partisan or subject to fickle leadership. Same reason people call for independent committees to draw congressional maps.
This country is not and never has been a “true” democracy. Being inherently skeptical of the democratic process is foundational to our country.
You're correct that the founders were skeptical of direct democracy, but their solution to that was representative government and constitutional protections for private property. The people don't get to decide what to do, but they do get to decide who gets to decide what to do.
This is very obviously the design of our government.
"[The President] shall take Care that the Laws be faithfully executed"
For example, make attorney general an elected, independent position.
Democracy would be more resilient to an executive coup if its powers were split among several independently elected officials, like we see in some state governments today.
Edit: This is what I'm referring to.
Edit: This is what I'm referring to and it has direct bearing on the current controversy.
“Always” is doing heavy lifting here. Independent agencies were a paradigm shift under FDR. We’re presumably seeing a shift away from that paradigm.
The common use of the expression "fourth branch of government" to describe independent agencies belies your assertion here.
> Almost fifty years of experience has accustomed lawyers and judges to accepting the independent regulatory commissions, in the metaphor, as a headless 'fourth branch' of government.
Source: 1984 Columbia Law article, referencing the 1937 Brownlow Committee Report. https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?art...
Also Wikipedia: "The independent administrative agencies of the United States government may also be referred to as a ‘fourth branch’." https://en.wikipedia.org/wiki/Fourth_branch_of_government
> Such groups can include the press (akin to the European 'Fourth Estate'), the people (in sum or as grand juries), and interest groups. The independent administrative agencies of the United States government, while technically part of any one of the three branches, may also be referred to as a ‘fourth branch’.
U.S. Marshals used to belong to the judicial branch, and were hired by the district courts. In the 1960s, they were moved to the executive branch, under the Justice Department. This wasn't controversial at the time. The court system wasn't set up to train and manage the marshals. But the effect was that the courts lost their independent muscle.
[1] https://apnews.com/article/trump-supreme-court-copyright-off...
Because the constitution explicitly grants the president absolute executive power over executive branch (government) of which FCC is part of. If government is a company then president is CEO and can do anything he wants to do.
Of course people can argue about the meaning so ultimately the arbiter of what constitution mean is Supreme Court.
And recently there were several lawsuits in the vain "the president can't do THAT" and while federal judges said "indeed, he can't" and issued injunctions, they were pretty much overturned by higher court or Supreme Court, re-affirming that president does in fact has control of executive branch.
And if you want to game this: if this wasn't true, congress could completely defang the powers of the president by making every government agency (IRS, FBI, FTC etc.) "independent" and de facto giving the power to unelected beaurocrats away from elected president.
And why should you care about this?
Because every 4 years you can vote for a different president.
You can't vote for the head of FCC.
FCC commissioners are appointed by the president (who is elected) and confirmed by senators (who are also elected). The chair is then chosen from those commissioners by the president (who, again, is elected).
Saying you can't vote for the head of the FCC is like saying that you can't vote for the Secretary of State. Sure, you don't cast a ballot for them directly, but you do wield influence by electing leaders to represent your interests.
The Secretary of State serves at the pleasure of the president.
You're arguing that FCC commissioners shouldn't.
That's why I pointed out that the Secretary of State can be fired at whim by an elected official while the "independent FCC commissioner" can't.
I apologize if my inference was incorrect.
No it doesn't.
The President is obligated to faithfully execute the laws of the United States. It's literally in the very first sentence of the Constitution's definition of the President's power and responsibilities.
Article 2 Section 3
Compare with Article 1, Section 1: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives" and with Article 3, Section 1: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
Who holds legislative power? Congress. Who holds judicial power? The Supreme Court (and other courts that Congress establishes). Who holds executive power? The President.
I'm no advocate for the extreme unitary executive theories of folks like John Yoo, but the idea that all executive authority is vested in the president can't be written off as something that some crank came up with in just the last couple of decades.
That is the power that’s vested in the executive
Take, for instance, the executive power "to grant Reprieves and Pardons for Offences against the United States" (Art. 2, Sec. 2). There is a pardon attorney who advises the president, but it is solely the president who has the executive power to grant the pardon; in that sense the president exercises the pardon power exclusively (or phrased differently "to the absolute exclusion of others").
Congress writes the laws, the executive (led by the President) executes them.
Not sure what your pardon example is meant to illustrate.
Of if one prefers to have it from directly from Chief Justice John Marshall, Marbury v. Madison, 5 U.S. 137 (1803):
"By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive. The application of this remark will be perceived by adverting to the act of Congress for establishing the Department of Foreign Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated."
Independent agencies exist to make policy shifts more gradual. That's their entire purpose.
Suppose, the next election cycle AOC gets elected, then puts in her cronies who require all stations to air 8 hours of pro-socialism ads every day. And there is nobody at the FCC to say "no".
The only entity that can sue is the DOJ, and it's also controlled by the president.
Don't worry--if that came to pass, the Supreme Court would suddenly reverse itself and decide that the president doesn't actually have that much power over the executive branch. He only has that power when he's an (R).
He (the president) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
So the president can appoint various officials, but the Senate must, by majority vote, confirm the ones that Congress hasn't designated as not requiring confirmation.
On the removal side, there's this:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Note "all civil Officers of the United States". Any government employee can be impeached. A few judges have been impeached and convicted over the last 200 years.
That's all the Constitution says.
Cabinet members and some other high officials serve "at the pleasure of the President", and Congress has delegated authority for lower level civil servants to the executive branch and the Merit System Protection Board.
So the question for the various semi-independent boards and commissions is whether the president can remove them, or whether they need to be impeached to be removed. This is a real question where the members have a term of office set by law. Federal Trade Commission members have a 7-year term. Security and Exchange Commission members, 5 years. Federal Reserve commissioners, 14 years. Arguably, they should serve out their term unless impeached. The constitutional argument is that the executive branch has only enumerated powers, those listed in the Constitution. Since the constitution specifies both appointment and removal by impeachment, that covers the only ways such officers can enter office or be removed from it unless Congress provides otherwise.
It also cites https://en.wikipedia.org/wiki/Parsons_v._United_States
Which DOES say something about whether the president has the power to dismiss, among other officials, district attorneys:
https://scholar.google.com/scholar_case?case=755666055204146...
The head of the Judicial Branch operates on vibes and bribes now.
Totally different from bribes
/s
SCOTUS has been liberal since the FDR days. The pendulum has now swung in the opposite direction.
The current SCOTUS is reducing the power of the administrative state and the unelected bureaucrats.
Yes, and concentrating it in the executive. When are we going to stop pretending that the unitary executive dream isn't real?
It's the same dog whistle as States Rights vs Slavery. When push comes to shove the confederacy banned states from determing their own slavery policy.
We see this extremely obviously with the AI policy of the white house which is _do not_ let the states decide.
Elected Republican dogma is "State's Rights" when the states would decide the "correct" right and it's Federal supremacy when they wouldn't.
That is true of all branches of the government, not just the executive.
Just wait until opposition candidates start getting disqualified for an unpaid parking ticket (while the incumbent had his fingers in a tank assault on the Duma, or three different election fraud conspiracies and one failed coup).
It is consistently corrupt.
There's also a giant bloody spectrum between 'policy that had a bad outcome for someone (hint: That's every policy)' and 'blatant pay-to-play corruption and criminality and treason' when it comes to that immunity. The court, of course, went all in on enabling the latter, instead of finding any kind of rational ground, because any rational ground would have put Trump in prison.
By failing to give any qualification of what the fuck an official act is, they've given him blanket immunity. And blanket immunity for an executive means that the constitution is as good as a piece of toilet paper. There are no consequences to him violating your rights.
> There's also a giant bloody spectrum between 'policy that had a bad outcome for someone (hint: That's every policy)
Yeah, that’s exactly why there’s presidential immunity for official acts! Because otherwise you could easily shoehorn one of those bad outcomes into the letter of some broadly written criminal law.
In Texas, there’s a deadly conduct crime: “A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.”
You think some Texas prosecutor couldn’t get a border county Texas jury to squint at that text and convict Biden under it for throwing open the border to illegal aliens? All the Supreme Court decided was that some things the President does can’t be prosecuted under the criminal laws like he’s an ordinary citizen. That’s obviously true, which is the same reason Congress has immunity for official acts and judges have immunity for official acts.
> By failing to give any qualification of what the fuck an official act is, they've given him blanket immunity.
No, it’s exactly the opposite. All they decided was that official acts immunity exists. You can’t prosecute Obama for involuntary manslaughter because some executive action he took got someone killed. They then remanded to the district court to decide what counted as official acts and what didn’t count. That didn’t give Trump “blanket immunity”—it left it to the district court to decide what was covered by the immunity and what wasn’t.
One of the problem is the "the DOJ's policy of not prosecuting sitting Presidents", while it's understandable it's definitely not great for the rule of law.
And the other is it took too many years for the whole shit shower to drip down. (Garland appointed Smith in November of 2022, and it took ~10 months for the indictment.)
Jack Smith’s indictment mixed together conduct, like the sitting President consulting with his AG about suspected voter fraud, that clearly would fall within the scope of immunity, with stuff that was clearly not an official act. I don’t know if he was dumb or arrogant, but it was an insane tactical error.
Official immunity is tough and there’s no clear answer. The old canard that “a prosecutor could indict a ham sandwich” has a lot of truth to it. As between a potentially criminal, but duly elected President, and a potentially corrupt, and unelected prosecutor, which one is the bigger risk? There’s a strong argument that it’s better to have elections be the final backstop rather than the judgment of unelected prosecutors being able to override voters.
Can congress create a law that provides for congressional aides to exercise power “independent” of Congress members? No. Can Congress create a law that provides for judicial law clerks to exercise power “independent” of Article III judges? No. It’s an extremely easy question. Myers v. United States got the right answer almost 100 years ago.
Article I courts arguably exercise judicial power independently of the Article III judges.
But if you want to go down the separation of powers route, you'll need to break up many federal agencies to separate their legislative and judicial functions from their executive duties. That was the basis of Humphreys Excecutor, which btw was decided by largely the same court as in Myers. Humphreys (and later in Morrison v Olson) recognized that federal agencies can in practice perform "quasi-legislative" and "quasi-judicial" functions, not just law enforcement duties. There is for example a body of law governing rulemaking by agencies. Even CJ Roberts observed during the oral arguments of Trump v Slaughter that an agency's functions might span all three categories of government power -- executive, legislative, judicial -- to various degrees.
If separation of powers is to prevent Congress from wielding executive power, it should likewise preclude a president from laying claim to the other categories of power.
They exercise adjudicatory powers that Congress could otherwise provide to be handled directly by the executive or private bills. When a case involves an actual Article III issue, Article I courts need to kick it over to an Article III tribunal: https://supreme.justia.com/cases/federal/us/564/462/
The terms “quasi-judicial” and “quasi-legislative” do not mean “judicial” and “legislative,” they mean “executive.” For example, the legal fiction allowing executive agencies to make rules is that those rules are simply structuring what they could do with executive authority anyway.
So separation of powers actually cuts in the opposite direction with respect to quasi-legislative and quasi-judicial powers. So when the SEC prosecutes you in front of an ALJ for violating an SEC rule, it isn’t actually exercising judicial or legislative powers. It’s just laying out those structures for what it could do through some guy making an executive decision. That’s the only reason the SEC is constitutional. Given that, Congress shouldn’t be able to limit the President’s supervision over what’s notionally an exercise of executive power.
A fundamental principle in any legal system is that no one can be the judge in his own case. But if the ALJs and the SEC rulemakers are under the direct control of the president, then the president is effectively performing legislation, prosecution, and adjudication all at once. The president could keep sacking ALJs until he finds one willing to issue his favored ruling. That is precisely the kind of scenario that separation of powers seeks to avert.
It is structured like a judicial proceeding, but it is not a judicial proceeding in the sense that it doesn't exercise the "judicial power." For example, everyone agrees that determining violations of criminal laws is an exercise of judicial power. So the SEC cannot prosecute you in front of an ALJ and impose criminal penalties. SEC v. Jarkesy also held that the SEC cannot impose civil penalties in front of an ALJ: https://www.congress.gov/crs-product/LSB11229.
On the other hand, Congress can create a procedure in an executive agency that looks like a judicial proceeding, so long as it only does what an executive agency could do anyway. In Oil States, the Supreme Court held that the Patent Trial and Appeal board was constitutional, because patents were a "public right" that could be determined by the executive branch: https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf. A Patent Examiner can grant you a patent and can revoke an already-granted patent. That's an executive function. Back in 1790, Thomas Jefferson was doing that himself as Secretary of State. So Congress can create a court-like proceeding in the Patent Office to challenge a patent's validity, and that's fine because the result is something the executive branch could do anyway. It's not an exercise of the judicial power.
> But if the ALJs and the SEC rulemakers are under the direct control of the president, then the president is effectively performing legislation, prosecution, and adjudication all at once... That is precisely the kind of scenario that separation of powers seeks to avert.
Under your interpretation, the SEC is exercising legislative, executive, and adjudicatory powers all at once--regardless of how much supervisory authority the President has. You're correct that separation of powers seeks to avoid that. But the way it does not is not by creating agencies that exercise all those powers independent of the president. It does so by creating three branches of government, and requiring the executive, legislative, and judicial powers to be exercise by the respective branches. The problem you have identified is a problem with administrative agencies exercising legislative and judicial powers, not a problem with Presidential control over the executive branch.
Actually, there are at least three early examples of independent agencies, though note that until the modern administrative state emerged in the late 19th century the Federal government was never so hierarchically organized as to admit to an "agency" as we understand that term today.
First was the 1790 sinking fund, a nominally executive committee created by Congress to pay down the national debt, which could override the President's preference regarding payments. Second was the office of the comptroller, which was strongly shielded from executive control for fear of a corrupt president, and which (IIRC) was the subject of vigorous Congressional debates. These two examples are possibly at least partly why in a recent emergency docket decision there's dicta exclaiming that Federal Reserve independence was not and in decisions to come would not be implicated by what SCOTUS (impliedly) has coming down the pipeline. Both of these examples would later be construed as examples of "quasi-legislative" executive agencies, rooted in Congress' power of the purse. (Though, it's likely SCOTUS will lean more heavily on powers and precedent regarding banking.)
Third was the de facto independence of federal district attorneys. Until 1820 they were answerable to nobody, except in theory to Congress by impeachment, until Congress nominally placed them under the Treasury Secretary in 1820. This would be an original example of "quasi-judicial" executive officers, which one might naturally apply to modern administrative and immigration law courts.
There are more, albeit less clear-cut practices, including the situation in Marbury v Madison. Also note that the removal power is distinct from the broader contemporary unitary executive theory, which aims to place even more plenary power in the presidency than merely removal (which is just the hook to prove the larger theory by logical inference which otherwise has little, if any, historical precedent or positive textual evidence), and therein lies much more complexity, which is why the whole debate has been muddled from the very beginning of the US--the Founders and early Congresses discussed it explicitly, but largely showing there was in fact no consensus, except what they de facto established in practice (e.g. many of those who argued for a unitary executive-like theory in fact joined in the establishment of and acquiesced to the practices of a partially independent comptroller). I think the black letter law annunciated by Humphrey's Executor, that Congress can in principle shield quasi-legislative and quasi-judicial agencies from the president, is spot on when trying to square constitutional text, constitutional theory, historical debates, and historical practice. Though, there's a good argument that over time the courts have not been vigilant enough in cabining Humphrey's Executor, e.g. by more clearly and strictly articulating what qualifies as quasi-legislative and quasi-judicial functions, which is presumably why Robert's recently suggested, as an olive branch offering, that Humphrey's Executive as applied today does not hew closely to the legal principle it expounded (and presumably, were Roberts to continue, that it applied it's own principle wrongly). Personally, I wouldn't mind a forthcoming SCOTUS opinion that effectively expands removal powers by way of affirming and applying Humphrey's Executor legal rule, even if it nominally reversed it's application with the same set of facts.
There are scores of law review articles discussing the subject going back well over a century, but a really good one written not long after the Reagan-era debates is "The President and the Administration" by none other than Cass Sunstein and (apropos HN) Lawrence Lessig, https://chicagounbound.uchicago.edu/journal_articles/7779/
That article is the most honest review of the debate I've read; perhaps too honest and earnest because they really pull their punches. (Perhaps that's partly because of Lessig's background in legal history and his reluctance to make absolute declarations about historical matters? EDIT: I confused Lessig with Eben Moglen at the FSF) It gives significant attention to Myers, FWIW, including agreeing (IIRC) that it was correctly decided.
And if you haven't read this already, here's the contemporaneous strong-man argument for independent agencies, Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 96 Notre Dame L. Rev. 1 (2020), https://scholarship.law.nd.edu/ndlr/vol96/iss1/1
The shame of this is, it is in defiance of the design of the Founders, and will take a LONG time to correct, if we don't descent into authoritarianism before it is corrected.
Judicial review of executive actions is stronger and more frequent than its ever been. Congressional power of the purse is secure. And the REINS Act (not yet passed) would require Congress to approve major agency rules before they take effect
Which reality do you live in?
In my reality, POTUS is doing everything he can to grind down Congress's power of the purse.
He's actively pressuring Fed policy, which at its most extreme gives the executive a blank check as it can force the Fed to purchase treasuries, filling the executive's coffers directly.
At the same time, they're arguing that pocket rescissions give them the right to avoid spending any individual dollar they do not wish to spend, even if Congress has allocated it.
Tell me what gives you confidence that the power of the purse is secure?
And it hasn't been working well. DOGE failed, SCOTUS has not yet issued a final determination on pocket rescissions, and the Fed can only buy treasuries on the secondary market, meaning the bond market is in control. There is also the debt ceiling which requires Congress to raise it.
SCOTUS "hasn't issued a final determination" on almost any issue put in front of it in Trump 2. Yet they consistently land on "the administration can do what it wants while we delay actually ruling, even if several lower courts have ruled against this outcome after actually hearing the case at length."
The Fed's prohibition from buying Treasuries directly is only relevant if the FOMC is actually independent. If it's not, nothing prevents POTUS from saying "the Fed will buy $x in treasuries at $y," directing them to do so, and creating a clear arb opportunity for all the intermediary banks to buy and re-sell their slice.
Sure, that'd trigger a financial crisis, but that's kind of the whole problem with idiot demagogues: they trigger such crises as a matter of course.
By “at the moment,” you mean “in the 1930s when the Supreme Court bent over backward to uphold FDD’s administrative state, right?” When they effectively overruled the Supreme Court’s 1926 decision in Myers v. United States, right?
Because the text of the constitution says this: “The executive Power shall be vested in a President of the United States of America.” Show me how you get from that to executive agencies exercising executive power independent of the President.
For example, Congress can ban “unfair competition.” But it can leave it to the executive agency charged with enforcing the law to define rules for exactly what constitutes unfair competition. That’s permissible because deciding exactly what’s unfair reasonably falls within the scope of enforcement discretion.
"[The president] may require the Opinion, in writing, of the principal Officer in each of the executive Departments"
Could you please explain why that clause is there if the president can already threaten to fire anyone who doesn't comply with their orders?
> “The President may require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices.” This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office.
Note that this provision must be redundant even without a unitary executive. Because otherwise, the implication is the only thing the President can do with principal officers is to ask them for an opinion.
Some modern scholars think the provision, though functionally redundant, is there to address a dispute that arose during the debates about executive councils: https://www.yalejreg.com/nc/reconciling-the-unitary-executiv... (“Unsurprisingly, the issue of an executive council arose at the Philadelphia Convention. Several proposals to create a council of state or a privy council were offered. Some of the proposed councils would have provided advice to the President but would not have required that he follow it, whereas others might have required that he secure the consent of the council. But each of the proposals was rejected. Instead, the Convention took language from part of one of the executive council proposals – ‘he may require the written opinions of any one or more members” of the council – as a model for the Opinions Clause.’”).
So the clause is there not to describe what the principal officers must do, but what the President need not do. The President may but does not need to consult his principal officers before taking action.
> otherwise, the implication is the only thing the President can do with principal officers is to ask them for an opinion.
That's not at all the implication... how do you even reach that conclusion? The obvious implication is that the president can only do what he is legally permitted, which means he could do whatever Congress provides for in law, in addition to what's in the constitution. Because, you know, his job is to execute the law. And Congress and the constitution are the ones establishing the legal framework for agencies.
> This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office.
It's nice that Hamilton thought that, but what did those who wrote it think? It seems safe to assume they wrote it for a reason, not as fluff. Which brings us to...
> Some modern scholars think the provision, though functionally redundant, is there to address a dispute that arose during the debates about executive councils [...] the clause is there not to describe what the principal officers must do, but what the President need not do. The President may but does not need to consult his principal officers before taking action.
It's great some modern scholars think this, but this also isn't compelling. If that's what they wanted... they could and should have just said that directly, not left it as a historical puzzle for people to speculate about.
The constitution doesn’t list any other supervisory powers the president has over officers. So if the Opinions Clause isn’t redundant, Congress needs to spell out all other supervisory authority, down to something as little as asking for opinions.
That reading isn’t just inconsistent with the unitary executive view, it’s inconsistent with every other common view of how the executive works. It would not only mean that Congress can create independent agencies, but that all cabinet officers are independent by default. Nobody seriously thinks that’s true, but that’s the implication of the non-redundant reading of the Opinions Clause.
It’s true that the framers probably didn’t put a redundant power in there just for funsies. But it’s also true that drafters don’t hide elephants in molehills. Article II only mentions executive officers in passing. It would be very odd if the drafters meant to invest them with tremendous independent power only by implication.
No. "By default"? That's a really weird way to make this sound crazy when it simply isn't. Congress is the branch that creates the departments and creates the legal framework around them in the first place. The president faithfully executes the law. That's not unserious, that's literally the point of the whole system.
A realistic Congress is, generally, not going to pass an act establishing an entire department and somehow neglect to prescribe how the heads are appointed and removed. (!) If it did that for some reason, then yeah, the heads would "by default" be independent, until/unless Congress prescribed otherwise in the future. And... so what? Either that'd be deliberate -- in which case it's equivalent to explicitly prescribing their independence, so it makes no difference unless your real belief is that Congress can't even prescribe this explicitly -- or it would be the result of hundreds of people simultaneously goofing, in which case they can just... fix it by passing another act. Or they deliberately wanted to sow chaos or play games by leaving this unclear, in which case... what else do you expect. In that case it's up to the voters to vote them out, or for courts to rule something if this silly hypothetical ever happens.
All of which is to say: "by default" basically means nothing here. It feels like a pointless argument with an agenda. The idea that the "by default" scenario somehow means some clause was superfluous and deliberately added for funsies is the unserious take here.
It has little to do with political parties even though originalist thought is more aligned with conservative social and political thinking and pragmatists are more aligned with progressive thinking.
Which have been packed by Federalist ideologues for years. The "court" (as if its some one whole) isn't some nueatral 3rd party arbiter of the "law".
https://thehill.com/regulation/court-battles/5636278-trump-s...
It appears to be an open question as to if independent agencies are allowed under the constitution. The most recent round of articles seem to be like that one in The Hill, which indicate the answer is likely to be 'no'.
This seems to be in response to that.
The congress cannot legislate a fourth branch even if they wanted to. They'd need a constitutional amendment for that. We have thus, by a simple application of reading and logic concluded that this is precisely as is expected given the US constitution.
He directly said it was not an independent agency, he didn’t “suggest” it. But we’re in the era where organizations like the BBC have people resign because the King doesn’t like their version of reality so I guess I better brush up on my NewSpeak
From my perspective the Federal Government subjugated all the states by magically noticing that all commerce had become interstate commerce by the 1930s. Its a parallel country overlaying the union of states, instead of federalism - which has a definition divergent of what "Federal" means to us in reference to the national government.
Harmonizing that all back under the President is a step, right before going after the Interstate Commerce clause itself.
I don't care how disruptive that is, its Congress' job. If Congress can't form consensus the country is done, obviously. Otherwise, surface candidates that can actually bridge consensus, which is always an option. Everyone's last minute civil rights goals aren't going to happen, duh! So drop that just like all administrations from the past 250 years did consecutively, and pass relevant things that keep the lights on.
I don’t think you’ve thought through your point or you are desperately struggling to get through the cognitive dissonance. Nothing has indicated that SCOTUS will defang Trump. Their history so far has been heads Trump wins, tails Trumps enemy loses.
Like they ruled Biden couldn’t cancel student loans but then bend over backward to let Trump do as he pleases.
You’re getting a king, not a return of power to the states
I think its a speedbump that now they all will be under the purview of the Executive
Its not controversial to me as most of them already are and were never suggested to be outside of it, most agencies weren't formed as independent just a couple
the entire paradigm should be scrapped, in the mean time their sovereignty over a domain is gone
the other side gets a President eventually too, if that freaks out Republicans then they can get consensus with the currently freaked out Democrats to change it
While this SCOTUS is tossing out the chevron defense because Congress apparently shouldn’t be able to delegate out broad power and needs to pass a law for each chemical agencies like the DEA are supposed to police, they are going to green light the agencies set aside as independent by Congress and let the President do whatever he wants.
This is just another executive power grab adding to the Imperial Presidency.
I also am not confident in the other side getting power again given that this admin is the only one in the history of the United States who disrupted the peaceful transfer of power, and no I’m not referencing the J6 riots but their false slate of electors in multiple states which was the real attempt to overthrow the government
Everyone who replied completely missed my point, despite how simply and clearly I worded it. You're doing a masterful job illustrating it.
Everyone around here thinks that just because you don't need a college degree to become a software engineer or found an eventual multibillion dollar software company, that the same must generalize to every other profession, including biotech, law, and even medicine. Every technocrat is under the same delusion as Bill Gates that succeeding in their software qualifies them to do anything, despite the face that most people around here cannot even change their own spark plug or replace a flat tire.
I have an opinion on Chevron deference: letting party in a lawsuit interpret the laws and regulations concerning their own case is asinine. However, I don't pretend to know whether or not it can or should hold up in court based on stare decisis or any particular legal tradition.
More importantly, I don't operate under some delusion that other people would benefit from hearing my opinion on matters outside my own education or vocation.
"A fool uttereth all his mind: but a wise man keepeth it in till afterwards." -Proverbs 29:11
(Okay, I have an amateur radio license and have designed devices to be compliant with 47 CFR part 15, so theoretically I'm a little more versed in FCC operations, but this is all high-school level civics that seems to be actively unlearned by anyone with an MFA or any degree in journalism.)
Constitutionally, federal agencies have to be authorized by the legislative branch and executed by the executive branch. Federal agencies not only can't be truly independent, they're beholden to two separate branches of government, either of which can reduce their reach, and the judicial branch has oversight to ensure what they do is actually authorized.
Sure, the judicial branch has historically played extremely fast and loose with the constitution, e.g. by considering authority over "interstate commerce" to cover feeding your livestock with crops you grew (https://en.wikipedia.org/wiki/Wickard_v._Filburn), so plenty of blatantly unconstitutional rules have stood for extended periods of time, especially those growing the power of the executive branch, but more recently, the courts have been ruling to limit the power of the executive branch, for example preventing executive organizations from enforcing fines without authority (https://en.wikipedia.org/wiki/AMG_Capital_Management,_LLC_v....) operating without executive oversight (https://en.wikipedia.org/wiki/Seila_Law_LLC_v._Consumer_Fina...) and making up their own rules (https://en.wikipedia.org/wiki/Sackett_v._Environmental_Prote... and https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Ra...).
They're not likely to rule any differently in this case, and except for actions that would otherwise be unconstitutional, none of these rulings prevent congress from creating regulations or authorizations allowing federal agencies to performing their respective overturned actions, it just prevents them from acting until congress has authorized them to do so.
Also, I'm convinced that the last case involved a violation of the third amendment, but no one seems to care about the third amendment.
All the laws give limitations on what the executive is allowed to do. So this idea that its limiting the abilities of the executive and that's not allowable seems meaningless to me, that's what the laws are for. The laws are there to define how the executive is to act. The executive is then supposed to faithfully do those actions.
If the President has total control over the executive branch, why can't he just go tell the people in the executive branch to go do illegal things all the time? Is he just no longer bound to the law at all? If Congress says the executive needs to make a food stamp program, should he not be required to actually make one? If the Congress says dumping hazardous waste should be limited, should he not be required to actually regulate dumping? Wouldn't he fail at faithfully executing the laws?
You're not Antonin Scalia, you didn't earn it- have some humility.
Sorry Justice Sonia Sotomayer, the country is only in this quagmire because of the New Deal interpretation of the interstate commerce clause
Most of the New Deal was struck down in the 1930s, that should be cause to question the constitutionality of everything that remains. From what I can tell, everything that remains just was hard to get standing to challenge within the courts. Now we have someone who can get standing very easily, going after it, right to the jugular.
what stands out to me is that this President is written about favorable in our history books despite that plan being far more egregious and unprecedented at the time
in any case, the court shifted its tune as a compromise not as a matter of actual opinion of the constitution
and like I previously wrote, everything else was just hard to challenge at all, unless you are a President suddenly trying to fire some folks
the US advancing from a backwater to an economic powerhouse is great! I wonder if we can do it another way without leaning on the Interstate Commerce clause to regulate all facets of American life