Is it an indictment of originalism that most originalists in the academy are white males?
Independent Agencies Brought to Heel?
Independent agencies—agencies whose heads cannot be fired by the President at will—raise profound questions of constitutional structure and political accountability. The Constitution vests the executive power in a single person—the President of the United States. Yet independent agencies can wield some of that power outside of presidential control. Democratic political theory prizes policy accountability to elected officials. But once appointed, the principal officers of independent agencies are not directly accountable to anyone. Such agencies, like the Securities and Exchange Commission (SEC) and the Federal Trade Commission (FTC), continue to grow in importance with the burgeoning of the administrative state.
But Donald Trump may well be the catalyst for reducing their number and cabining the power of those that remain. Originalism sits uneasily with the constitutional concept of independent agencies, and textualism raises questions about whether some agencies thought to be independent actually have a statutory basis for being so. And both originalism and textualism are on the rise in no small part because of Trump’s judicial appointments. Trump, particularly if reelected, may also tame independent agencies by ordering them to follow his supervision and even firing those who pursue a view of the law different from his own. Here I describe four lines of attack.
The Supreme Court and the Unitary Executive
Next Tuesday, the Supreme Court will hear arguments about the constitutionality of the Consumer Financial Protection Bureau (CFPB). I predict that the Supreme Court, probably in an opinion by Chief Justice John Roberts, will find that this agency is unconstitutional without ruling directly that all independent agencies are unconstitutional. The CFPB is different from most traditional independent agencies in two ways: It has a single director, rather than a board of politically balanced commissioners, and it has an independent funding source because it enjoys access to a percentage of the revenues of the Federal Reserve, another independent agency. It thus trenches on the President’s authority more than the traditional independent agency because he may face the power of a single director appointed by a President of an opposing party and because he has no leverage in the appropriation process, where he would generally be able to wield his veto power.
It is not clear how much difference these formal distinctions make for the actual freedom of action of independent agencies. But the opinion will likely mirror a previous opinion that the Chief Justice wrote in Free Enterprise v. Public Accounting Oversight Board, in which he took the unitary executive promised by Article II’s vesting of executive power in the President and the political accountability that it provides as the constitutional baseline. The opinion will almost certainly not challenge independent agencies run by bipartisan commissions and dependent on yearly appropriations because they have previously been upheld by the Court. But these agencies will be treated as exceptions to the general rule that the President should control his agents. The unitary executive will become the background rule with islands of historical exceptions. As I have noted before, this approach is the characteristic way that John Roberts deploys originalism—not to overturn precedent that contradicts original meaning but to limit its generative force.
A Textual Requirement for Independence
Some so-called independent agencies, like the SEC, do not have express provisions that insulate their agency heads from presidential removal. They have, nevertheless, sometimes been considered independent. Congress, the argument goes, may have intended their independence because they have a variety of important adjudicative functions that, at the time of their enactment, were thought to work better without Presidential control.
But such atextual independence sits uneasily with the rise of textualism—the interpretative theory that asserts that Congress can only act by what it writes in statutes. Trump appointees Neil Gorsuch and Brett Kavanaugh, for instance, are reinforcing an already strong textualist tendency in the Court. Interestingly, even Justice Stephen Breyer, writing for the four more liberal justices on the Court in Lucia v. SEC, questioned the textual basis for the SEC’s independence. The Chief Justice, writing for the majority, assumed that independence without expressly affirming it. It might be thought that no president would risk a fight about this matter by discharging a commissioner to test this question. But I think it very possible that a reelected Donald Trump would be happy to do so if a commissioner was out of step with his thinking.
Subordinating Independent Agencies to Executive Branch Processes
Another way to curb independent agencies is to subject them to the standing orders that other executive branch agencies must follow. These include the requirement that an agency use cost-benefit analysis so long as the law does not forbid it, submit its rules to the Office of Management and Budget (OMB) for review, and obtain approval for the promulgation of significant new rules or amendments to rules. When Ronald Reagan formalized this process in 1981, the Office of Legal Counsel at the Department of Justice provided an opinion that it was legal for the President to apply this order to independent agencies based on his Article II supervisory powers and his Article II “duty to take care that the laws be faithfully executed.” But Reagan did not choose to do so, nor has any subsequent president for fear that the extension might be struck down in court and cast a cloud on the entire process.
But enter Trump once again. This year he did require independent agencies to report their rules to OMB. To be sure, this reporting was for the limited purpose of determining whether they were “significant” within the meaning of the Congressional Review Act, an act that permits Congress to take a vote on whether to rescind a significant regulation. This order permits OMB to make the decision to submit the rule to Congress in this process. One interpretation of this order, though, is that it serves as the camel’s nose under the tent. A reelected President Trump might well be emboldened to apply the full scope of the orders on regulatory review to independent agencies. Moreover, he would do so with the knowledge that by the time any challenge occurred, he probably would have added to the number of originalists on the Supreme Court.
Firing Independent Agency Heads
Independent agency principals are generally subject to being fired for cause. But what constitutes cause has not been tested, because Presidents may fear they will lose. But again, a reelected Donald Trump might feel no such inhibitions. If I were advising him, I would suggest that he frame a test case this way: fire an independent agency commissioner who was following a view of the law that Trump’s Attorney General had formally rejected. This case would allow Trump’s lawyers to argue that the independent agency was flouting the President’s duty to take care that the laws be faithfully executed.
Independent agencies have been an integral part of the rise of the administrative state. Trump’s election has proved a jolt to that state but not, so far, a blow to its structure. His reelection, however, might well reshape the relation of independent agencies to the President.