Editors at National Review Online explore a significant issue that has reached the nation’s highest court.
The bedrock of the United States Constitution’s remarkable longevity is the separation of powers. Many other systems of government make room for a vigorous executive, a representative legislature, or an independent judiciary. None have been nearly as effective at preserving all three simultaneously. The more strictly those powers are separated, as John Adams observed, the more one can say that we have “a government of laws, not of men” — and the less effectively any branch can invade the liberties of the people or the prerogatives of state and local government.
Constitutional mischief, however, has long watered down the Founding Fathers’ original concept. Much of the trouble dates back to Woodrow Wilson’s competing vision of an administrative state operating under a “living constitution” never submitted to the voters, and to the New Deal. The Supreme Court has recently struck major blows for the original design, such as when it ruled that administrative agencies cannot oust the courts from their role as interpreters of the law or deny citizens their right to jury trials by assigning cases to administrative tribunals. It has rigorously policed efforts by agencies to decide major legislative questions without a clear mandate from Congress.
Next on the chopping block is the concept of “independent” agencies that exercise executive power but are outside of executive control and accountability. How can the president exercise “the executive power of the United States,” vested in him by Article II, if he cannot fire people who exercise executive power in ways opposed to his policies? How can he carry out his duty to “take Care that the Laws be faithfully executed” if others are free to disregard those laws he aims to enforce? To whom can the people complain if the executive job is not done, or done badly, if not the executive?
These were the questions before the Court as it heard arguments Monday morning in Trump v. Slaughter.
