Much Ado About Removal: The Supreme Court, the FTC, and the End of Independent-ish Agencies
For roughly 90 years, Humphrey’s Executor had been the constitutional law equivalent of a load-bearing antique: an awkward, if still functioning, architectural kludge, much admired in certain circles, but increasingly hard to rationalize. Earlier this week, finally, the U.S. Supreme Court replaced it.
In Trump v. Slaughter, the Court overruled that 1935 opinion. The president may now dismiss the heads of federal executive agencies—including members of the Federal Trade Commission and certain other “independent agencies”—at will. So says the Supreme Court.
Humphrey’s Executor was something of an odd duck even in 1935, on both constitutional and factual grounds, and the Court had been whittling away at its reach for decades. As Chief Justice John Roberts put it, writing for the majority:
Humphrey’s is now far out of step with our cases, which have all but limited it to its facts.
And:
If anything more is left of Humphrey’s, we overrule it. Humphrey’s has for decades been a result in search of a rationale.
Or as the Python poets might have put it:
This precedent is no more! It has ceased to be! It’s expired and gone to meet its maker! This is a late case! It’s a stiff! Bereft of life, it rests in peace! If you hadn’t nailed it to the perch, it would be pushing up the daisies! It’s rung down the curtain and joined the choir invisible. This is an ex-precedent!
That seems a bit overenthusiastic. I have been in no way prescient in declaring the writing on the wall for Humphrey’s Executor. More than that, I believe the Court made the right decision.
And that is not because Rebecca Slaughter and I have very different approaches to antitrust law and economics, although we do. Night and day, really. Then again, I have some differences with everyone I know, including those who—grâce à Dieu—pay me to be myself, and that is no reason to reorganize a government.
Rather, as I said before, her firing—the issue in the case—along with that of Alvaro Bedoya, which was a done deal either way, seemed to me:
on balance, a shame; that is, it seems to me unfortunate as a matter of practice, if not as a matter of political or constitutional principle. And for the most part (at least, for a long time), the odd statutory structure of the FTC seemed to work in practice. Indeed, it seemed to work pretty well.
There are always tradeoffs, and I don’t mean to pretend that nothing was lost, or put at risk, when the Court made the eminently justifiable decision that nearly all of us saw coming. For thoughtful, historically grounded consideration of those policy tradeoffs, I recommend an excellent article by William Kovacic, a former FTC chairman, and Marc Winerman, a former colleague of mine and longtime FTC staffer, “The Federal Trade Commission as an Independent Agency: Autonomy, Legitimacy, and Effectiveness.”
Nor do I mean to suggest the decision was a constitutional or jurisprudential no-brainer. It seems clear to me that Chief Justice Roberts, writing for the majority, had the better argument, while Justice Sonia Sotomayor, writing in dissent, had the worse. But the questions were real.
I have written at length about these issues elsewhere and won’t rehash them here—mostly, I commend the Court’s decision itself to those who want the details. Still, there were reasons to wonder about those details, and about the case’s implications. There is no doubt that Slaughter brought a colorable argument to the U.S. District Court for the District of Columbia when she first sought reinstatement. She had both the 1935 precedent—narrowed by then, but not yet overruled—and the plain statutory language of Section 1 of the Federal Trade Commission Act on her side.
For all that qualification, I think the Court got it right. The alternative would have been something of a muddle, at best, as was Humphrey’s Executor itself. But more than that, my perhaps all-around contrarian take is this: Maybe this is less of a big deal than most observers, on either side of the decision, seem to think.