It has been a busy month for the Supreme Court. Arguably its most consequential decision was overturning a 91-year-old precedent confirming Congress’s ability to create independent agencies, staffed by professionals in their fields, unfettered by political interference. As a result, commissions charged with managing highly technical and critical functions of government are now positions of political patronage. Which means that a president can summarily dismiss any (and all) of the members of these commissions without cause, effectively returning us to the spoils system that was successfully dismantled in the late-19th century.
Curiously, in a ruling issued the same day, the Court limited the President’s ability to dismiss a member of the Federal Reserve. The Supreme Court majority — self-styled textualists — found a tortured way to distinguish that federal agency from all others. Apparently, the Court felt that the stability of the federal banking system somehow is a more justifiable place to limit executive interference than for all other agencies charged with our health, safety, and welfare.
It's no accident that activists against the broad display of presidential power have dubbed their rallies “No Kings.” After all, the American Revolution was largely a response to an over-powerful monarch and these activists are returning to basic principles. James Madison mused in the Constitutional Convention that a single executive was a “fetus of monarchy.” He and many of the framers were strong believers in an executive constrained in its power by a powerful legislature and a robust system of courts.
The Constitution provides some guidance regarding the primacy of Congress. In fact, the Constitution’s Article I clearly enumerates the powers of the legislative branch. The President doesn’t show up until Article II. Madison explains the importance of checks and balances in Federalist 51, entitled “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.” Much has changed since the early days of the Republic, when a comparatively weaker President was contemplated, co-equal with Congress.
The expansion of presidential power, while unprecedented and dangerously broad in its current incarnation, is not a new phenomenon. Since FDR’s New Deal, it has steadily been growing. But prior efforts to expand presidential power in earlier administrations are mere child’s play compared to this administration’s success in remaking the structure of government, and diminishing programs previously legislated by Congress. Complicit with the administration’s overreach is the Supreme Court, which now seemingly fully embraces the unitary executive theory.
While congressional Democrats justifiably are alarmed, were I a Republican congressperson, I would be concerned that the precedents set by this administration might come back to haunt me in the future. Yet the Republican majority is largely silent.
The unitary executive
As we all learned in school, the Constitution makes it clear that it is up to Congress to make laws and the Executive to enforce those laws. The unitary executive theory throws a few wrenches into the mix. Under this theory, the president, as head of the executive, has the ability to not only terminate political appointments at the top of each department’s hierarchy, but to terminate career civil servants, hired because of their specific expertise in a particular area, and to render Congressionally mandated agencies and initiatives moot. The power to appoint — and to fire — establishes the executive’s ability to target elimination of whole departments and programs. It's the basis under which the president can fire professionals en masse from congressionally created agencies, even when the terms designated for those offices intended to straddle administrations, thereby avoiding over-politicization.
The seemingly limitless power is based upon a single sentence from Article II of the Constitution, which reads: “The executive power shall be vested in a president of the United States of America.” The adherents to the Unitary Executive theory believe there essentially is no limit to this power (ignoring that the president’s power may have been constrained by the enabling legislation establishing an agency). David French of The New York Times quotes Jack Goldsmith, a Harvard law professor, who says that this expansive view has four distinct elements:
"(a) the Constitution vests all of the executive power in the president, (b) all subordinate executive branch officials are removable at will by the president, (c) the president’s Article II duty to 'take care that the laws be faithfully executed' entails an exclusive presidential power to decide which laws to enforce or not to enforce and (d) the president can thus direct and control all subordinate executive officials."
What this means
The illogic of this theory manifests itself most obviously in several ways:
1. If the president is allowed to shut down entire departments and programs, doesn’t this negate laws enacted by Congress establishing these very agencies and programs? In effect, it's a veto post hoc, allowing a future president to undo prior legislation in a particular area.
2. If the president is allowed to fire civil servants down the line, we could be left understaffed in critical functions. Indeed, the Federal Emergency Management Agency is trying to rehire some of those who were fired cavalierly earlier in the administration. More broadly, we run the risk that unqualified people are occupying positions requiring highly skilled knowledge and experience. An example of this problem is the understaffing and the questionable hires in the CDC and the DOJ. The primary hiring criterion in each seems to be fealty to a particular ideology (e.g., anti-vaxx or political retribution against perceived enemies), rather than professional discretion.
3. If every civil servant is subject to termination at the beginning of each presidential term and otherwise at the whim of a president, how will we be able to recruit the “best and the brightest” for these important positions? Careers in the FBI, the Justice Department, the Foreign Service, and U.S. intelligence services have always been highly sought-after positions. Civil servants often forego more significant financial remuneration to pursue the public good. If, however, there's no job security, it's reasonable to assume that it's hardly worth the career gamble of political firing.
4. If professionals are subject to removal at the whim of the Chief Executive, they'll be more inclined to “toe the line” and keep their jobs than to apply their expertise in an apolitical manner.
5. Agencies such as the U.S. Agency for Global Media, the Federal Election Commission, the Federal Reserve, and others, carry terms of office. When a president steps in and fires people before their term has ended, he/she has contravened the original legislation that created these bodies. In effect, Congress, which is empowered by Article I of the Constitution to make laws, can be circumvented, notwithstanding valid conditions placed upon agencies and commissions. Since Congress passed the original law with the intent of minimizing political mischief, can we assume these agencies would have been created under the circumstances now dictated by the Supreme Court.
There's an argument that administrative agencies, in establishing regulations in furtherance of their perceived mission, are “legislating.” The argument goes that regulations should be under the purview of Congress. One has to ask whether the Supreme Court thinks Congress is capable of promulgating laws at the level of detail that is necessary to make legislation work. They’ve proven their inability to act and I think it is safe to assume that it’s impossible for them to become expert enough on all the areas of the executive branch’s responsibility to discharge the will of prior Congresses.
We're now living in a world where this president — or any future one — has the ability to completely denude agencies of their professional staff, installing instead political appointees. This was, of course, the way of government once before, when the spoils system was the game. You win an election and your political cronies are placed in positions of responsibility as a reward to them and assurance to you that the expertise and science of their area is subject to your whim.
If the goal is for government to do less, to do it with people of lesser competence, and to do it less well, we're sadly positioned for greatness.
