What executive branch officials are accountable to the president? That age-old question is pending before the U.S. Supreme Court.
In Trump v. Slaughter, the court must consider whether President Donald Trump had the constitutional authority to remove Kelly Slaughter as commissioner of the Federal Trade Commission. A federal statute, enacted by Congress in 1914, provides that the president may remove a commissioner only for “inefficiency, neglect of duty, or malfeasance in office.” The commissioner argues that Trump violated the federal statute in attempting to remove her from office, while Trump argues that the statute interferes with his presidential authority to control the executive branch of government under Article II of the Constitution.
This case is not the first time the Supreme Court has considered such a scenario. In the landmark 1935 case of Humphrey’s Executor v. United States, the Supreme Court considered a similar set of facts, but with the political parties reversed. Democratic President Franklin Roosevelt attempted to remove Republican FTC Commissioner William Humphrey due to policy disagreements.
After Roosevelt implored Humphrey to resign, Humphrey refused and Roosevelt issued a letter firing him. Humphrey continued to come to work each day until he died of a stroke four months later. His estate sued to receive the payment for his five months of work after the firing and the Supreme Court had to consider whether the removal was lawful.
The Supreme Court held that the provisions of the federal statute allowing the president to remove commissioners for “inefficiency, neglect of duty, or malfeasance in office” limited the president’s removal power only to those grounds because there was “Congressional intent to create a body of experts who shall gain experience by length of service — a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government.”
The Supreme Court explained that “the Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies and “cannot in any proper sense be characterized as an arm or an eye of the executive” because “its duties are performed without executive leave and must be free from executive control.”
According to the Supreme Court, the executive power of independent agencies created by Congress was not the same kind of executive power possessed by the president under Article II of the Constitution. Consequently, Congress has the authority “in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control.” That Congressional authority, according to the Supreme Court, “includes power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.”
Although Humphrey’s Executor has been the law for nearly a century, there have been longstanding debates about whether the court decided the case correctly.
There are strong arguments that the decision is inconsistent with the text and structure of the presidential power defined in Article II of the Constitution, which provides that “the executive power shall be vested in a President of the United States of America.” As Justice Antonin Scalia famously argued in his dissenting opinion in Morrison v. Olson, “this does not mean some of the executive power, but all of the executive power.”
It is clear that the FTC performs many executive functions in enforcing antitrust laws and commencing lawsuits.
Although the statutes may have been designed to promote political independence, such legal structures often result in unaccountability to the citizenry.
Like many other constitutional questions, the case is not about whether Trump or President Joe Biden has the power to do something, but rather about whether the president of the United States — regardless of who holds the office or to which political party they may belong — has the constitutional authority to determine who operates the executive branch. Rather, as the Supreme Court noted in Trump v. United States, “we must not confuse the issue of a power’s validity with the cause it is invoked to promote, but must instead focus on the enduring consequences upon the balanced power structure of our Republic.”
Expansion of the president’s removal power would be welcomed by presidents of all political parties. Humphrey’s Executor and Trump v. Slaughter demonstrate that presidents of either party may believe that officials of independent agencies are not promoting the policy preferences of the citizenry. Removal by the president, who is accountable to the electorate, would indirectly increase the accountability of agency officials. And presidents who improvidently exercise that removal power would remain answerable to the citizenry for abusing it. There is a strong case to be made that such a system is the design of the Constitution.