I just don’t know how someone could possibly think this is a good thing unless they are in the executive branch reaping the direct benefits
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.
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.