The shift is based on the argument that because the Communications Act of 1934 does not contain explicit for-cause removal protections for commissioners (unlike the laws creating the FTC, NRLB, FERC or others, which do), they are legally removable at will by the president, placing the agency under executive control.
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
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.
You are making an argument for strict enumeration, in other words that officers can only be removed via impeachment because it is the only removal method explicitly listed in the Constitution. That argument was formally rejected by SCOTUS in 1926[1], and really only in force for lifetime appointment judges today.
I'm far from being versed in this, but when I read the wikipedia article, it's about whether CONGRESS can dismiss someone without approval of the president, not the other way around.
Myers addressed a law requiring Senate approval for a removal. The court struck down this law, leading the case to be considered a definitive rejection of strict enumeration. You can read more here- https://constitutionallawreporter.com/2019/05/09/myers-v-uni...
At this point I think we can clearly see that the interpretation of our laws is extremely partisan at the moment, to the point that what exact text says is basically irrelevant. The broader issue here is a massive, completely unchecked, power grab that is -deeply- troubling. Our checks and balances, are failing us and this is another sign of their deterioration.
You may be right, but it may be more accurate to say checks and balances are shifting, not failing wholesale.
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
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?
>In my reality, POTUS is doing everything he can to grind down Congress's power of the purse.
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.
> I think we can clearly see that the interpretation of our laws is extremely partisan at the moment, to the point that what exact text says is basically irrelevant
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.
Not really. Within the Court, the divide is primarily between originalists and pragmatists. This has been a fight going back a long time in legal theory. It had been dominated by pragmatists since the 1920s and the tide started to turn in the late 1980s. The current Court is dominated by originalists.
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.
Yes, it seems as though a politically-aligned congress is ceding lots of its authority to the executive, while the SCOTUS is restraining the rest of the judiciary from checking the executive.
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.
That’s a good analysis. But the simpler route is that there is no such thing as an “independent” agency. That’s a 20th century creation. The constitution doesn’t even talk about an “executive branch.” It vests the executive power in a single office—the President. (“The executive Power shall be vested in a President of the United States of America”).
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.
>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 power route, you'll need to break up many federal agencies to cleanly 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 merely law enforcement duties. There is for example a body of law governing rulemaking by agencies. Separation of powers should prevent a president laying claim to all three.
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.
Ironically enough, the administration is attempting to fire Lisa Cook from the Federal Reserve Board of Governors, despite the very clear existence of a 'for cause' clause, and has taken the matter to the Supreme court where it will be heard next month.
It's a little more complicated. The Supreme Court has already ruled that Trump can fire agency heads not for cause even when there is a "for cause" clause in the law. The Court then invented a new "the Federal Reserve is special" clause that prevents Trump from using that exact same power on Fed Governors. So because the Court has made a patchwork quilt out of the law (in an effort to bring about their preferred policy outcomes), Trump is now trying to muster "cause" against Cook. Early signs indicate that the case appears to have serious problems.
Even though The Supreme Court is still trying to keep up appearances, they are not working off of consistency at this point, so anything can still happen.
The current body of Supreme Court jurisprudence is extremely consistent in comparison to the mid-20th century when it ginned a 4th branch of government out of thin air and rights out of “emanations and penumbras.”
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).
Andrew Johnson was impeached for removing Senate-approved officers. The trial failed. It's been the precedent since then that the President can terminate any and all presidentially-appointed officers, at any time, and for any reason. Sure, the SCOTUS has vascillated on this, but the courts now are being more clear now that this really is the case.
Presidential impeachments are political processes and so do not set precedent. At least, not any more than any other political process. So it's as much a precedent as McConnell's "no SCOTUS confirmations within the year before a presidential election" or Johnson's "congress members don't need to be seated in a timely manner" precedents.
It depends on whether you think elections are better than “independent civil servants.” The system the founders created was one where the executive branch would be subject to the whims of the people via regular elections of the President.
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 president they created was one who administered over a much more limited government, one that primarily collected taxes and waged wars. Both were done at the behest of congress, so there was limited independence in how it was done. In the interim, federal agencies with a far greater impact on people's daily lives were created, on the assumption that they could be run according to policies set out by congress, and hence not completely upend people's lives on the whim of a single partisan elected official.
"Independent agencies don’t exist" is not a serious description of how U.S. statutes and doctrine work. "Independent agency" is not a vibes-based label. It's standard terminology for agencies Congress structures to be somewhat insulated from direct presidential control (e.g. multi-member commissions with fixed terms and (often) for-cause removal). Congress has, in fact, established a number of such agencies headed by multi-member bodies whose officers may only be removed by the President "for cause." [1]
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.
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.
Where did you get the idea that he's the least bought? It's factually inaccurate.
He literally publicly offered oil executives whatever they wanted for a billion dollars, and though he didn't make that much (that we can prove) has been delivering on that promise since. [0]
While being "honest" in the sense of "staying bought" and delivering the promised graft is somewhat commendable, it's not exactly evidence that he holds some sort of moral high ground.
How is this any different than Biden making sweeping environmental promises and then allocating billions to those groups?
I don't see any difference and this is something that all candidates do at every level - local, state and federal elections. I mean, look at what Mamdani promised in order to get elected.
If you have 2 million dollars lying around you can commit any federal crimes and buy a pardon.
Which may seem like a lot but also consider if you're doing something like funding literally terrorism it's probably not that hard to scrounge up 2 million. You don't go to federal jail for jay-walking.
If that's not a good example then consider TrumpCoin where literally Trump meet with the largest holders of the coin (i.e. people that paid the most; at least intended too).
He's been caught on TV, in the Oval Office, accepting gold bars from business executives. I don't understand what you hope to gain by lying about this.
That's always the question with this unitary executive business. They believe this is the government defined by the Constitution, regardless of precedent. Do they believe it is a good system of government? Do they believe this is the government intended or rather the government allowed by legal loophole, vagueness, or contradiction? Because it seems like they think the president should rule like a monarch because they happen to control the presidency at the current moment, not because it is a wise and effective system of government.
It's a fair question to ask "who are independent executive agency heads accountable to" in a constitutional context. It is true that the Executive Branch has grown far beyond what the Founding Fathers could have imagined, but the idea of a unitary executive is that the President is responsible and accountable for everything that happens in the Executive Branch. If the voters don't like what the Executive Branch is doing, they can replace the President in the next election. What happens if voters don't like what independent executive agencies are doing? There's no democratic recourse.
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?
How can you cite “precedent” when Myers v. United States decided this issue in favor of the unitary executive back in 1926? The administrative state that exists today was only facilitated by the FDR Supreme Court overruling a bunch of precedents.
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.”
>How can you cite “precedent” when Myers v. United States decided this issue in favor of the unitary executive back in 1926? The administrative state that exists today was only facilitated by the FDR Supreme Court overruling a bunch of precedents.
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.
I’m responding to the OP’s criticism that proponents of the unitary view of the executive “believe this is the government defined by the Constitution, regardless of precedent.”
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.
The Federalist Papers is not "the founders". It's Alexander Hamilton and James Madison. There were numerous factions running around the Constitutional Convention, and they negotiated the final document together.
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.
The Federalist Papers reflects the views of the majority faction of those who wrote the constitution. You can get the minority opinion in the Anti-Federalist papers.
But find me any contemporaneous document that suggests the framers thought power should be exercise by unelected bureaucrats insulated from oversight by elected officials.
> The founders thought very hard about who should exercise which powers and how they should be selected.
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.
If you think what the founders said doesn’t matter because they’re dead white guys, isn’t that an argument for giving more power to the guy who won the election? Because surely the dead hand of the founders is the only thing that has the authority to overrule the elected President.
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?
The fact that you still call the "founders" the "founders" as if they were a single unified person/entity with non-conflicting values shows me what kind of "originalist" jurisprudence you go for.
The concept of independent agencies (that is, those overseen by Congress rather than the president) was controversial long before, and for far longer, than it wasn't.
It's not, really. In Seila Law v. CFPB (2020) the Supreme Court ruled that even directors seemingly protected by for-cause language (which the FCC charter does not have) can be removed at will unless the agency in question "exercises no part of the executive power" and is "an administrative body ... that performs ... specified duties as a legislative or as a judicial aid." https://en.wikipedia.org/wiki/Seila_Law_LLC_v._Consumer_Fina...
In 2020, five years ago, was essentially the exact same court as today, except KBJ replaced Breyer. The precedence in question dates to 1935 Humphrey's Executor v. United States where a conservative Supreme Court sought to cut back executive power of a liberal president. Now we have a conservative Supreme Court expanding executive power for a conservative president. If you think the Roberts court would have let Joe Biden have this much power well then I have a bridge and some student loans to sell you
Humphrey's, which held that for-cause protections are constitutional for agencies that meet certain tests, while broadly relevant to current events (FTC etc.), is not relevant to FCC as FCC charter does not have explicit for-cause protections.
> If you think the Roberts court would have let Joe Biden have this much power well then I have a bridge and some student loans to sell you
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
I think that they all have the hubris to see themselves as part of history and write their opinions for future generations. Not that they aren't biased by current events, but that they see themselves as larger than that.
Do you have a case which was not about the executive authority of Donald Trump specifically? When we talk about how controversial or how new this interpretation is, the question I really have in mind is, why should I believe that it was developed out of genuine legal analysis and not an unprincipled desire to give Trump more power?
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.
Yeah the FCC is really about Weiner[1], if anything, not Humphrey's. Weiner established some precedent of "inferred" independence for agencies of a certain character (e.g. those whose function is wholly judicial or legislative) even when explicit removal protections are not included in the law.
It is executed by the executive. The question is the degree of power the executive has over the policies they're enacting. Not crazy at all to believe that the policy-making body of our government largely controls that.
This is very obviously the design of our government.
"[The President] shall take Care that the Laws be faithfully executed"
That's come up, too. The Copyright Office is a unit of the Library of Congress. Trump tried but failed to fire the head of the Copyright Office.[1]
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.
“Independent” agencies have always been a distinction within the executive branch, not a distinction from thr executive branch, so while arguably true on its face, your statement is also a strawman.
The common use of that termis to describe administrative agencies with regulatory power, independent of whether they are independent agencies; its a (hostile and derogatory reference to) bureaucracy distant from elected officials, not a theory of the positioning of independent agencies in contrast to other executive agencies.
Citation needed. My reference goes all the way back to 1937 and is specific to independent agencies.
> 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.
The full paragraph you're excerpting from Wikipedia is much less convincing:
> 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’.
why is that crazy? legislative supremacy is an extremely common pillar of many theories of democracy. the executive has only the powers enumerated in the Constitution and explicitly granted by Congress. if Congress wants to set up an agency independent of POTUS, that "should" (scare quotes because who knows what this activist SCOTUS will do) be well within its constitutional purview
The Constitution was, after all, written by people who had just fought a war to throw off an overreaching executive. No goal was more important to them than to prevent another one.
Except they fumbled the ball by creating a unitary executive. I don't blame them too much because that's all they'd known, the US was a hundred times smaller, and they were making it up as they went.
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.
They did not create a unitary executive. The concept of a unitary executive as rule of law did not exist until a 2020 decision by the John Robert's court
Unitary in the sense that they debated whether to have one guy in charge or several. They defaulted back to what they knew, the rule of one dude with limited but sole executive power.
Edit: This is what I'm referring to and it has direct bearing on the current controversy.
The legislature also has only the powers enumerated in the Constitution. As "create independent agencies" is not one of those powers, it comes down to a matter of interpretation as to whether one of the powers granted to Congress implies the ability to create independent agencies. But once you enter the land of interpretation, it's, well... open to interpretation, and thus it's not unreasonable for someone to take issue with a certain interpretation.
Proposal: constitutional amendment granting Congress the power to institute independent agencies lead by independently elected officials directly responsible to the voting public and subject to Congressional impeachment.
For example, make attorney general an elected, independent position.
What do you mean? Why isn’t it okay to create agencies that have different models of management? Like by Congress or private third parties or whatever? They can do whatever legislation allows right?
While Congress has broad authority to create and design federal agencies, the Constitution is widely considered to impose strict limits to ensure no branch "gives away" its core powers, vis a vis the Appointments Clause, due process clause and Article I vesting clause[1]
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.
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.
My inference was that you were suggesting that the "independent FCC commissioner" was just as subject to control by elected officials as the Secretary of State because both are appointed by elected officials.
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.
> Because the constitution explicitly grants the president absolute executive power over executive branch
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 1 says: "The executive Power shall be vested in a President of the United States of America."
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.
Right, and the executive power is the power to execute the laws that Congress writes (plus foreign policy, armed forces, and a bunch of procedural stuff — Constitutionally quite weak actually [by design])
Well, yes, the office of president was created to be weak relative to the British monarchy. But the substance of executive power (i.e., what actions are authorized) isn't really the issue, but rather whether anyone other than the president has the constitutional authority to do those things.
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").
So every 4 years we throw out everyone who disagrees with the El Presidente. But yeah, this can be fixed by making the El Presidente be there for life, right?
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.
> 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".
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).
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'.
The number of software engineers in this thread who think they are legal scholars is a sight to behold. It reminds me of all the bad legal advice on Stack Overflow, Quora, and Leddit.
I hate the administrative state's current structure just enough that I don't care which administration or court dismantles it.
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.
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.
Cool! Assuming we don't go full-on 1930s-Germany, and Trump actually leaves office, then the next liberal president can have the FCC remove Fox News' broadcast license.
The way I read the US constitution, every federal government agency is necessarily contained in one of the three branches, since the entire federal government is made of and only of those three branches. FCC is not in the legislative branch -- constitution is clear that that is only the congress, it is not judicial -- the constitution is clear that those are the courts. So it is in the executive, which makes sense since its job is to enforce law -- the job of the executive branch. The executive branch reports directly to and is directly answerable to the head of the executive -- the president.
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.
Toadies doing the bidding of their master are the worst kind of boot-lickers because they mistakenly think they won't be crushed when they become inconvenient.
If Humphrey's Executor goes down, "independent" becomes effectively unconstitutional under the current SCOTUS. It's awkward to have an unconstitutional goal hard wired into an agency's mission, and could be used against it in court. It's a bit of a presumption that Trump v Slaughter will turn out this way, but given the tone of the oral arguments, not a lot.
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
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.
[1]https://en.wikipedia.org/wiki/Myers_v._United_States
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
That is true of all branches of the government, not just the executive.
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.
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.
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.
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.
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 power route, you'll need to break up many federal agencies to cleanly 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 merely law enforcement duties. There is for example a body of law governing rulemaking by agencies. Separation of powers should prevent a president laying claim to all three.
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.
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).
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".
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...
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.
He literally publicly offered oil executives whatever they wanted for a billion dollars, and though he didn't make that much (that we can prove) has been delivering on that promise since. [0]
While being "honest" in the sense of "staying bought" and delivering the promised graft is somewhat commendable, it's not exactly evidence that he holds some sort of moral high ground.
[0] https://thehill.com/policy/energy-environment/4961820-oil-bi...
I don't see any difference and this is something that all candidates do at every level - local, state and federal elections. I mean, look at what Mamdani promised in order to get elected.
"It doesn't matter if my guy is crooked, because they're all crooked." is a big leap from him being the least bought. It's also gross.
> How is this any different than Biden
This is just "whataboutery." Biden's not the President. Trump is the President, and the stuff that Trump does is Trumps fault.
If you have 2 million dollars lying around you can commit any federal crimes and buy a pardon.
Which may seem like a lot but also consider if you're doing something like funding literally terrorism it's probably not that hard to scrounge up 2 million. You don't go to federal jail for jay-walking.
If that's not a good example then consider TrumpCoin where literally Trump meet with the largest holders of the coin (i.e. people that paid the most; at least intended too).
You don't get to have (or in his case, somewhat maintain) the wealth that he so often brags about unless you are willing to be bought.
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.”
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.
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.
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?
Yes, I do think the time horizon of every SCOTUS member is longer than four years. I believe Gorsuch when he says:
I think that they all have the hubris to see themselves as part of history and write their opinions for future generations. Not that they aren't biased by current events, but that they see themselves as larger than that.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.
[1]https://en.wikipedia.org/wiki/Wiener_v._United_States
This is very obviously the design of our government.
"[The President] shall take Care that the Laws be faithfully executed"
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...
“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’.
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.
https://en.wikipedia.org/wiki/Decision_of_1789
Edit: This is what I'm referring to and it has direct bearing on the current controversy.
https://en.wikipedia.org/wiki/Decision_of_1789
For example, make attorney general an elected, independent position.
[1]https://en.wikipedia.org/wiki/Nondelegation_doctrine
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").
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).
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.
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.
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.
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.