Editors at Issues and Insights respond to an over-the-top comment from a sitting US Supreme Court justice.
During oral arguments this week, liberal Supreme Court Justice Sonia Sotomayor told Solicitor General D. John Sauer, “You’re asking us to destroy the structure of government.”
To which anyone following this case should say “Amen!”
The case involves Trump’s decision in March to fire Rebecca Kelly Slaughter, a member of the Federal Trade Commission whom Trump appointed to the FTC in his first term, but decided that letting her remain would be “inconsistent with the administration’s priorities.”
Slaughter says her firing was illegal, pointing to a 1935 Supreme Court ruling – Humphrey’s Executor v. the United States – which involved FDR’s firing of an FTC commissioner whom FDR believed was thwarting his activist agenda. In that ruling, the court said that when Congress created the FTC, it dictated that the president could fire a commissioner only for “inefficiency, neglect of duty, or malfeasance in office,” and because the FTC was merely a “quasi-executive branch agency.”
Although that 1935 ruling temporarily thwarted FDR’s big-government ambitions, it had the effect of putting big government on steroids.
After the ruling, “independent agencies” flourished – there are at least 19 of them now – moving the country inexorably toward the leftist vision of a powerful central government run by unaccountable “experts” liberated from the whims of voters.
As Daniel Crane wrote in the George Washington Law Review in 2016, the court’s decision “articulated the heart of the Progressive vision for administrative agencies — politically detached and independent, uniquely expert and objective.”
In other words, a vision that is profoundly anti-democratic.
The Heritage Foundation’s Hans von Spakovsky called Humphrey’s Executor “one of the worst decisions of the progressive era,” and one that “violated basic separation of powers principles.”
During oral arguments, Justice Sotomayor fretted that overturning Humphrey’s Executor would “take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent.”
There’s just one problem. Congress doesn’t get to decide on its own “that the government is better structured with some agencies that are independent.”
