Congress is on the spot again. Its own ineptness and inability to function as a body that does little more than provide for the comfort and re-election of its members has been knocked down another peg by the Supreme Court.
The Court, in a decision handed down June 29, significantly expands the power of the executive branch. In a 6-3 decision with the justices’ votes falling along familiar ideological lines, the court said that in most cases, a president has the authority to hire and fire members of independent agencies.
The ruling has far-reaching consequences. While the ruling came in a case brought by one member of one independent agency, it likely will give President Trump and his successors the power to dismiss members of most of the two dozen or so independent agencies, boards and commissions.
The executive branch grows stronger with the court’s ruling and by default the legislative branch sinks deeper into its self-imposed irrelevancy.
An irony of the case is that the plaintiff in the case is a person originally appointed by Trump to the Federal Trade Commission. The FTC requires that no more than three of its five members can be from the same political party. Rebecca Slaughter, a Democrat, was appointed by Trump in his first term and reappointed by President Joe Biden.
At the beginning of term two, Trump dismissed Slaughter from the FTC, saying her views were “inconsistent” with the Trump administration’s priorities. She was fired from her post without cause, setting up the conflict between executive power and a 90-year-old law protecting the independence of boards like the FTC.
Chief Justice John Roberts wrote in the majority opinion, “Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.”
The agencies that now fall under the President’s thumb are not insignificant. The agencies protect consumers from deceptive advertising, predatory lending practices, securities fraud, damage to the environment and other important roles. Certainly, the reach of the agencies has grown, some of that due to the abdication of Congress’s lawmaking role.
It’s pretty clear how President Trump will respond to the ruling. Anyone now serving on the board of one of the affected agencies who isn’t willing to rubber-stamp Trump’s agenda may as well pack up the office right now. One can expect a new flood of MAGA policies to dominate agendas.
Congress does have the power to resist if it chooses. The 30-year-old Congressional Review Act gives Congress the authority to reject agency rules, including those already on the books. The challenge is that it is far more effective at eliminating rules than creating new ones.
“Congress and the President can void agency rules and prevent future administrations from reissuing them,” Hannah Frater recently wrote in Harvard Law Review. “But this procedure is a one-way ratchet. Congress can disapprove a regulation with a House majority and fifty votes in the Senate, but it needs sixty votes in the Senate to reinstate or approve the same regulation. The problem of the CRA lies in this asymmetry — it mandates a majority for me and a filibuster for thee. This dynamic is inherently deregulatory. It is easy to destroy yet difficult to build.”
Trump and the Republican Congress have made frequent use of the CRA to repeal the policies and regulations of Democratic predecessors. Through spring of this year, Trump has used the CRA twice as much as Presidents Biden and Obama combined.
One fairly can criticize the Court’s decision, as Justice Sonia Sotomayor did in writing the minority opinion. She said the Court’s ruling “reshapes our Government. Dozens of independent commissions are now likely to become purely executive agencies, shifting tremendous power over broad swaths of American life into the President’s hands.”
The impact of the ruling, though, could be balanced by an effective Congress. Virtually all board members of the independent federal agencies are subject to Senate confirmation. While the President should have leadership that reflects his priorities, the agencies were designed by Congress to be bipartisan and experts in their areas of jurisdiction. Holding nominees for boards to these standards is not an unreasonable infringement on the executive branch.
Congress also can use the CRA to give more rigorous review to proposed rules before they are implemented. And, when agencies propose rules that favor a few over the interests of the public, Congress can do what the founders intended – be the champions of the people by enacting good legislation.
Of course, a more effective Congress requires more effective members. The best hope for the well-being and future prosperity of the country is that voters in this year’s primary elections (Minnesota’s is Aug. 11, with early voting available now) and November’s general elections select policymakers who want to get things done and not just make a statement for or against Trump.
Minnesota has had a long tradition of federal lawmakers, Republicans and Democrats alike, who saw problem-solving as more important than posturing. Now, more than at any time in recent history, voters need to make that tradition their most important criterion in electing men and women to public office.
