Throughout this week, the Washington Examiner’s Restoring America project will feature its latest series titled “Reforming the Deep State: Reining in the Federal Bureaucracy.” We invited some of the best policy minds in the conservative movement to speak to the issues of what waste, fraud, abuse, and unaccountability exist throughout the federal government and what still needs to be done. To read more from this series, click here.
The Supreme Court has teed up what could be one of the most important constitutional law cases in 100 years. President Donald Trump removed two members of the Federal Trade Commission in March. One of those commissioners convinced a federal court to block the removal and keep her in office. The Trump administration asked the Supreme Court to take up the case and on Monday, a majority agreed.
Recommended Stories
- Ending DEI programs means Americans win and bureaucracy loses
- Rooting out the deep state in American agriculture
- Congress must curtail the secret lawmaking of the administrative state
Formal argument in the case, Trump v. Slaughter, is scheduled for December. The outcome could mean the beginning of the end of the most momentous rebalancing of the separation of powers in generations.
While lawyers and commentators will offer sophisticated arguments on both sides in the coming months, it is important to remind ourselves of the fundamental questions at stake — questions that go back to America’s founding principles.
The American founders set up a government with three branches: Congress, the President, and the Courts. Each branch would operate in its realm, fenced in by general constitutional rules. Congress would deliberate and make laws; the President and his subordinates would carry out those laws and exercise “the executive power” more generally; and the judicial branch would hear individual “cases and controversies” and exercise judgment over the parties.
In the very first Congress of the United States, however, a high-minded fight broke out. The Constitution allows the President to nominate and appoint judges and senior executive officials “with the advice and consent of the Senate.” We see this old rule in operation today in confirmation hearings. But what if the President wants to remove or fire those he has appointed?
HUMPHREY’S EXECUTOR CASE SHOULDN’T SURVIVE THE TRUMP PRESIDENCY
The Constitution is clear on judges: they serve for “good behavior,” which means until they resign or are impeached and removed by Congress. But what about removing executive officials? The Constitution is silent. The first Congress, with James Madison as the leading proponent, decided that to have a responsible President, he had to be able to remove his subordinates unilaterally. The structure and logic of the Constitution mandated a “chain of accountability” (Madison’s memorable phrase) connecting the sovereign people to the execution of the laws through their elected President.
This made sense in theory and operated well in practice for a long time. But as America industrialized and urbanized through the Civil War and into the late 19th century, new theories of state power, social justice, and individual rights began to lead elite Americans, in government and the academy, to question this old constitutional arrangement.
Progressives argued that democracy was turbulent, unstable, and messy. Congress, especially the Senate, was corrupt. Presidents abused power. The people were ignorant and easily misled. The separation of powers led to gridlock, inefficiency, and stifled visionary leadership. Something had to change.
Progressivism’s most successful and enduring innovation offered a kind of workaround solution to all of this: a branch of government that could be insulated from election cycles, petty legislative tradeoffs and deals, party bosses, and glory-seeking presidents.
This constitutionally dubious “solution” didn’t have any one grand theorist, and wasn’t imposed overnight, but it gained steam in the early 20th century, got significant boosts by the two world wars and the Great Depression, and started to reach escape velocity in the 1960s and 1970s. It is now so entrenched that at least half the country cannot even contemplate any other way of doing government.
We call this fourth branch of government the administrative state, the independent regulatory state, the deep state, or the bureaucracy. It was and is defended by progressives by an appeal to neutral “expertise.” (The rhetorical tick to look for these days to spot the appeal to this authority: “studies show…”)
The argument is that there must be a sphere of government where policymakers can just follow the data, guided by the cutting edge of social “science,” to continually maximize social welfare, optimize wealth redistribution, and bring us closer to solving mankind’s ancient problems of scarcity and inequality.
The American Founders would have shared the progressives’ admiration for efficient administration. Alexander Hamilton argued in the Federalist, after all, that “the true test of a good government is its aptitude and tendency to produce a good administration.” But the Founders would have challenged the progressives’ assumption that mankind could ever get beyond the fallibility of individuals wielding power, even if they were well-credentialed bureaucrats. The ultimate check on abusive government must always rest with the sovereign people. The people might never directly administer the government, but they always had to have the opportunity to hold their leaders accountable through elections.
This brings us back to the Supreme Court’s current term and its consideration of Trump v. Slaughter. The justices have asked the parties to address the question of whether a 1935 case, Humphrey’s Executor v. U.S., should be overruled. That case, like the one currently before the court, had to do with a Federal Trade Commissioner whom Congress had made irremovable by the President except in extreme cases. The Court’s answer in 1935 was that though the FTC was technically in the executive branch, it sometimes exercised “quasi-legislative” or “quasi-judicial” power and so its officers were beyond the reach of normal presidential accountability. This was the judicial blessing that launched a thousand independent regulatory entities.
The Supreme Court has been chipping around the edges of this question now for years. The justices should finally take one giant leap for republican accountability and overrule Humphrey’s. This President and his successors would then have the power and responsibility to control the branch of government they were elected to run. We may decide this is too much power over policy for one man to wield.
CLICK HERE TO READ MORE FROM THE ‘REFORMING THE DEEP STATE’ SERIES
The solution is simple but not easy: Congress would have to start clawing back the vast field of regulatory rulemaking it had unwisely delegated over the last century. The President and the Congress, vying for power in their spheres, disciplined by intervening elections—that’s the American way.
This new but old arrangement would be an imperfect rebalancing of the tradeoffs between administration and accountability. But then again, the Founders understood that government is always imperfect. What it would be is an overdue return to a government of the people, by the people, and for the people.
Ryan P. Williams is president of the Claremont Institute and publisher of the Claremont Review of Books and The American Mind.