This week marked the end of the Supreme Court’s annual term, often a time when a plethora of decisions on cases of great import come cascading down. This week was no exception. On Monday, the Court announced that the president can terminate Temporary Protected Status, a program allowing some Haitian and Syrian refugees to remain and work in the U.S. because conditions in their home countries would place them at great danger. On the same day, the court also upheld a Mississippi law that allows mail-in ballots to be counted if they were postmarked by election day; about 30 states’ laws have a similar provision. Many held their breath until Tuesday to learn that birthright citizenship is mandated by the 14th Amendment to the Constitution, despite the unambiguous terms of the amendment. That latter case had been billed by many as the most impactful decision of the year.
We think otherwise. Monday’s ruling in Trump v. Slaughter all but undid a century-old regulatory system devised to maximize expertise in the federal bureaucracy while reducing political influence. The court’s decision approved President Donald Trump’s firing of Federal Trade Commissioner Rebecca Slaughter without cause despite the law’s requirement that commissioners can only be removed “for inefficiency, neglect of duty, or malfeasance in office.”
Congress created the Federal Trade Commission in 1914 to protect the public from anticompetitive and unfair trade practices. The law provides for five commissioners of which no more than three can be of the same political party. The idea was to provide the “loyal opposition” with a seat at the table. Similar appointment schemes were adopted for commissions regulating our airwaves, banking system, energy grid and myriad other critical sectors.
The philosophical underpinning for the Slaughter ruling is the unitary executive theory, which is grounded in the first sentence of Article II of the U.S. Constitution: “The executive Power shall be vested in a President of the United States of America.” This theory was conceived by conservative thinkers, including the Federalist Society and the Heritage Foundation, going back to the Reagan administration. They proposed that since the Constitution has no other delineation of executive powers, all executive power must belong to the president.
Since the first Trump administration, a supermajority of the high court are Heritage Society members, all of whom have pledged allegiance to originalism. That legal philosophy is grounded in the concept that the Constitution was frozen in time when it was written, as opposed to the concept that the Constitution evolves over the years to adapt to societal and economic changes in our economy. The affection for originalism seems rather selective, at least among the conservative justices who were not so tied to the 14th Amendment in their dissent in the birthright citizenship ruling.
Without taking a position on the philosophical battle between originalists and living constitutionalists, we cannot help but note that originalism overlooks a monumental development in our country’s history: political parties.
There were no political parties in America in 1787 when the Constitution was written; indeed, many of the founders, including George Washington, warned against the possibility that factionalism could develop and threaten the republic. Within 20 years, two parties appeared and dominated American politics. Over the next 200 years, the parties changed, but the two-party system has been entrenched in our federal government to a degree well beyond that which the founders feared.
The paradigm of maintaining minority party membership on federal regulatory panels took about 100 years to create and has been in place for another 100 years. For the past century, it has worked reasonably well to insulate the federal commissions regulating vital resources and industries — from power grids and mass communications to banking and trade — against partisan politics and electoral swings.
Now, that insulation protecting against political headwinds can and will be stripped away by a president who harbors authoritarian instincts catalyzed by vengeance. If President Trump breaks the balance in only some of these agencies, it must be assumed that Democrats will react in kind when they retake the White House. The result could be a chaotic return to a spoils system wherein petty political appointments and dismissals are privileged over nonpartisan maintenance of our regulatory system for the public good.
Institutionalizing partisanship in federal regulatory agencies is an invitation for corruption. Moreover, it can lead to wide swings in extremely important rulings that myriad federal agencies routinely make. Keeping the majorities slim on these regulatory commissions regardless of who is president has tempered the policy shifts that necessarily accompany a change in administration. In service to an untested theory, the Supreme Court has created a real opportunity for chaos and pernicious corruption.
In Trump v. Slaughter, President Trump won, and we fear a slaughter of good governance.