Over the last few years, the Supreme Court has issued several decisions trimming back the federal “deep state”—the unelected group that (along with a few senior elected officials) largely runs the country.
This trimming-back pattern is by no means unbroken. The administrative state has also won important Supreme Court battles, but unlike in previous years, it has not won all of them.
One of the victories against the deep state was the court’s 2023 decision in Sacket v. Environmental Protection Agency. It curbed the extreme overreach of the EPA’s wetlands regulation. Moreover, last year the court issued Securities and Exchange Commission v. Jarkesy, which ruled that administrative agencies may not impose large fines on citizens without a jury trial. Most famously, last year, we also saw the release of Loper-Bright v. Raimondo, which reversed the notorious “Chevron Doctrine.” Under the Chevron Doctrine, a citizen challenging an agency’s self-serving interpretation of its own statutory authority bore an almost impossible burden of persuasion. Loper-Bright did not fully correct this, but it evened the playing field somewhat.
Now comes the latest in this series: the interim ruling in Trump v. Wilcox.
The Background
The Constitution provides that “The executive Power shall be vested in a President of the United States of America” (Article II, Section 1)—ultimately in one elected officer. The American Founders knew that most previous republics placed the executive power in councils or in groups of co-equal officers. However, there were serious shortcomings in the “plural executive” system. For example, the Roman Republic collapsed partly because the executive authority was lodged in two annually elected consuls who could veto each other.
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Accordingly, the Founders made the considered decision to establish a unitary executive. As I pointed out in an earlier Townhall column, this was a key part of the entire constitutional system.
But, as I also described in another series, during the 1930s and early 1940s, a compliant and incompetent Supreme Court endorsed political efforts to change parts of the Constitution without consulting the American people through the formal amendment process. One of the cases from that sad era was Humphrey’s Executor v. United States (1935).
That case arose because Congress had erected a Federal Trade Commission (FTC) and sought to insulate it from popular and presidential control by awarding its members fixed terms of office. Congress prohibited the President from removing FTC members during their terms.
Justice George Sutherland wrote the court’s opinion in Humphreys Executor. Although liberal historians sometimes classify Sutherland as a conservative, he was nothing of the sort, as illustrated by his opinion.
Sutherland wrote that Congress could restrict presidential control over the FTC because the FTC exercised “quasi-legislative” and “quasi-judicial” functions.
In fact, however, the FTC was not a legislative body (“quasi” or otherwise) because the Constitution vested legislative power only in Congress. Nor was it a judicial entity, because judicial powers could be lodged only in “Courts” created under Article III of the Constitution. So, although Congress had given the FTC more power than was proper, constitutionally, it was an executive branch agency. Justice Sutherland inadvertently admitted this when he described it as an “administrative body.”
The deviant ruling in Humphreys Executor had an unfortunate effect: It licensed Congress to create hundreds of agencies almost entirely immune to control by elected officials. This became the most important component of a massive establishment that controls almost every aspect of American life—the deep state, an establishment that effectively is an oligarchy rather than part of a democratic republic.
Trump v. Wilcox
On May 22, the court issued an interim order in Trump v. Wilcox. The issue in the case is whether congressional statutes may entrench members of the National Labor Relations Board and the Merit Systems Protection Board by prohibiting the President from removing them without cause. The court temporarily permitted the President to remove the officials, pending resolution of the case.
Although the court did not rule on the merits, it seems likely that the justices are willing to revisit the decision in Humphrey’s Executor. Five years ago, in Seila Law v. Consumer Finance Protection Board, the court took the first step. It voided a statute denying the President authority to dismiss the Board’s sole director. The justices pointed out that the Board exercised “significant executive power.” They noted that the Constitution vests the executive power solely in the President, and that includes authority to dismiss executive branch personnel.
The agencies in the Trump v. Wilcox case are headed by multiple member boards rather than by single directors, but it is unclear why this should make a difference.
The court’s liberals dissented from the interim order in Trump v. Wilcox. Justice Elena Kagan wrote for them. She would have reinstated the officials pursuant to Humphreys’ Executor. She wrote, "Humphreys’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.”
But the situation she described is precisely the problem: Control by unelected bureaucracies has become “a significant feature of American governance.” But the Constitution does not authorize it. The Constitution authorizes only limited, popular governance, subject to the control of officials from whatever political party or parties the people choose.
A principal way in which the people exercise that control is by electing a President. And in carrying out his responsibility to the voters who granted him “the executive Power,” the President must be able to remove executive branch personnel.
Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver. He authored “The Original Constitution: What It Actually Said and Meant,” of which publication of the fourth edition is now pending. He also is a contributor to the Heritage Foundation’s “Heritage Guide to the Constitution.”