During oral arguments, the conservative justices made clear that they intend to allow Trump to fire FTC commissioner Rebecca Slaughter—and reorder the separation of powers.
President Donald Trump greets Chief Justice John G. Roberts Jr. on arriving to deliver an address to a joint session of Congress.
(Win McNamee / Getty Images)
The Republicans on the Supreme Court are poised to take a major step toward their generational goal of restructuring the constitutional separation of powers. The court heard arguments on Monday aimed at taking away the independence of independent federal agencies created by Congress, turning them all into mere expressions of Donald Trump’s political and tyrannical will.
The case that will allow Republicans to do this is called Trump v. Slaughter. It’s nominally about Trump’s firing of Rebecca Slaughter, a person Trump himself appointed to the Federal Trade Commission in 2018. Joe Biden renominated her to serve a second term, but Trump decided to fire her when he returned to office. By statute, FTC commissioners can be fired only for cause, but the former reality-television personality made famous for firing people offered no cause. Slaughter sued to prevent Trump from firing her.
But this case doesn’t involve only the FTC. It involves almost every independent federal agency and, with them, the very constitutional structure of our government. Since the founding of our country, Congress has had the authority both to pass laws and create agencies charged with administering those laws. Congress did it in 1790 with the Sinking Fund Commission, which was responsible for discharging the national debt after the Revolutionary War (fans of the musical Hamilton should think of that commission as the thing Hamilton was actually rapping about in his battles with Jefferson). It did it in 2010 when it created the Consumer Financial Protection Bureau. It does it all the time. Independent agencies are often how Congress carries out its constitutional legislative prerogatives. If you can think of a federal regulation, it more likely than not originates from an agency created by Congress to administer a law passed by Congress.
Republicans have come to hate these independent, administrative agencies. They’re often staffed with experts and career bureaucrats who cannot be bullied by the latest tweet. I’d argue that the conservative legal movement has had four long-term projects since the 1980s: One has been to roll back the gains of the civil and gay rights movements; the second has been to take away the rights of women to control their own bodies; the third has been the homicidal Republican refusal to allow the country to protect itself from gun deaths; and the fourth has been to neuter the power of administrative agencies.
The Republicans have won on every front. Even before Trump reappeared last January and started firing everybody, the Republican court placed the administrative agencies directly under their thumb with the Loper Bright Enterprises decision. That case put the Supreme Court, not the experts or Congress, in charge of determining which regulations are truly necessary to carry out the law. It was decided 18 months ago.
Trump v. Slaughter will be the knock-out punch to what remained of the administrative state after Loper Bright. If Trump can fire anybody he wants, then the independence of the independent agencies is a farce, and their power to make regulations will shift from Congress (where the Constitution put it) to the executive branch. Trump already claims authority to fire anybody he wants in non-independent executive branches (like the FBI director working within the Department of Justice), so this case will just deepen one man’s control over all of federal government.
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The legal doctrine the Republicans have invented to do this work is called the “unitary executive theory.” It’s not complicated. Republicans argue that the Constitution vests all executive power in the president, and only the president, which means that he has complete and sole authority over the executive branch. That includes the power to fire at his will anybody working in the federal government. He can fire agency heads like the head of the Consumer Financial Protection Bureau. He can fire independent commissioners like Slaughter. He can fire scientists and experts at Health and Human Services or the Centers for Disease Control. He can fire nonpolitical career civil servants who happen to be Black.
There are myriad legal arguments against the president having that kind of power. It is a literal power of a king to fire ministers and functionaries at will—a power that the sum thrust of constitutional liberal democracy tried to take away. If Congress can create an agency, it certainly has the power to insulate that agency from executive fiat. Moreover, many of the agencies do not solely exercise “executive” powers. Agency rulemaking and regulations are legislative powers, delegated to the agency by Congress, and they should not be subject to the whims of the throne. Sometimes, agencies use judicial powers—for instance when the National Labor Relations Board hears disputes between management and labor—that should also fall outside the made-up unitary executive theory.
But it doesn’t matter. In front of this Republican-controlled Supreme Court, laws and logic never actually matter. Trump has already fired all of these people, including Slaughter, with the initial, tacit approval of the Supreme Court through a September shadow docket decision. Trump v. Slaughter will make that approval explicit.
When the decision comes out (probably in late May or early June), the only thing still worth watching will be how the Republicans twist themselves into a pretzel to protect the Federal Reserve. For reasons (probably involving the Republicans justices’ own lust for money), the Republicans have tried to say that the Fed is a “special” regulatory agency that must still be kept independent from the whims of Trump and the unitary executive. It is logically inconsistent for them to protect the Fed and nothing else, but at oral arguments both Chief Justice John Roberts and alleged attempted rapist Brett Kavanaugh made noises about excluding the Fed from their larger ruling. They’ll make something up by the time they get around to writing the death warrant for the independence of all other “independent” agencies.
The naïve and hopeful liberal might think that the door swings both ways. If Trump can fire anybody he wants, so can the next Democratic president. This would open the door for the next Democrat in the White House to fire, say, every single MAGA employee of the federal government.
Unfortunately, history has shown that Democrats simply do not have the will or the fight in them to use their powers maximally, as Republicans do. Just look at Slaughter herself. She’s a Republican Trump-appointee to the FTC that Biden didn’t even have to fire; he simply could have nominated a Democrat to the commission when her term ended. Instead, Biden renominated her, because feckless appeals to bipartisanship is how Democrats roll. Democrats will not use the powers the Supreme Court gives to Trump, and the Supreme Court pretty much knows that.
But even if we somehow elect a Democrat with an actual spine, it still won’t matter. As I said, the court already neutered the power of administrative agencies to do anything Republicans don’t like with its Loper Bright decision. If Democrats use the unitary executive theory, fire all the Trumpers, and stack the agencies with commissioners to the left of Friedrich Engels, the court will just say that the actions of those agencies are unconstitutional. It’s a “heads I win, tails you lose” situation.
Where does this leave the administrative state? Broken and impotent, just like Republicans want it. We are witnessing a fundamental reordering of the federal bureaucracy far greater than anything Elon Musk and the deregulatory tech-bro mafia could hope to accomplish. Powers that liberal-democratic revolutionaries the world over fought to take away from absolute monarchs in the 18th and 19th centuries are being reconstituted under the American executive in the 21st century. Instead of being ruled by experts answerable to Congress, we will be ruled by cronies answerable only to the president.
And most people won’t care. Trump’s authoritarian destruction of administrative independence, aided by six unelected, unaccountable politicians in robes, represents one of the greatest failures of American-style democracy on record, and most people will not give a damn. Of the four pillars of the conservative legal movement, the destruction of the administrative state is by far the most popular, mainly because of the apathy of the people. Mass shootings are things people can see. The loss of rights are things people can feel. But the hollowing out of the bureaucracy sounds like a political science treatise detached from our everyday lives.
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People will see and feel the effects of Trump v. Slaughter. They’ll notice it when their kids can’t get a vaccine because RFK Jr. fired all the people who could make it possible for them to get one. They’ll notice it when there’s uranium in their drinking water because the Trump appointed experts decided groundwater studies are too woke. They’ll notice it when a self-driving bus runs them over on a crosswalk because the Department of Transportation was looking for greater efficiency.
They’ll notice it when some future historian writes their definitive treatise, titled: “The Decline and Fall of the United States of America.”
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