You’re fired – I think

You’re fired – I think

The Supreme Court is deciding whether the president can fire members of independent federal agencies appointed by a president and confirmed by the Senate to fixed terms. Heretofore, such a person could only be terminated for cause and/or impeached by the Senate. I believe in their deliberations the justices are conflating two very distinct issues. First, there are 50 independent federal agencies that essentially constitute a fourth branch of government. Since we only have three branches, judiciary, legislative and executive these agencies are technically under the executive branch. Yet the president has virtually no say over their actions. However, Article II of the Constitution says, “the executive power shall be vested in a President” and that he alone “shall take Care that the Laws be faithfully executed.”

President Trump wants to be able to fire any of these previously appointed officials. Second, when these agencies write regulations are they performing a legislative function? Technically their actions are supposed to be in accordance to some enabling legislation yet their actions often go well beyond the intent of the congress.

Here is what I think. Many of these agencies have boards that are bipartisan with the party in power having the majority of the seats. Thus if the president had requested the resignation of the democrat members to appoint republicans to restore the balance in a change of administrations, I think he would be on solid grounds. Consider at NCUA – where I was appointed by President Carter to serve on its very first board – there were two democrats (one appointed by Trump in his first term the other by Biden) and one republican (also appointed by Trump). When Trump was elected, the democrat chairman (who had been appointed by Trump) resigned as chairman so that the republican member could now be chairman. But the democrat stayed on the board since his term as a board member had not expired. Trump then fired the former chairman and the other democrat and was promptly sued. However, suppose he had requested the resignation of only one of the democrats and announced the appointment of a single republican, I think he would be on legal grounds to do so. Also, consider this: Trump is assuming that the democrats on these boards will not follow his policy prescriptions. Yet he has not tested that assumption. Let us suppose that he kept the boards intact and requested that some board take a certain action. If they refused, it again seems that he would have grounds to fire them. In the case of NCUA the republican member was obviously not happy with the decisions made by the two democrats and likely played a role in having both of them fired.

The other issue that I think is separate from the firing is the writing of regulations that go beyond the intent of the congress. Here I think it is the congress’ duty – not the president’s – to rein in the agency. I consider this a different issue from the firing one. Yet in the arguments the court is mixing the two together. Justice Sotomayor is clearly confused when she states that Trump will have absolute power if the justices allow him to fire the officials. No he won’t. The power to legislate would still rest with the congress. The question is whether they would want to exercise their authority. She said “You’re asking us to destroy the structure of government, and to take away from Congress

its ability to protect its idea that the government is better structured with some agencies that are independent.” Again she is mistaken. The ability to fire an official is very different from giving the president absolute power to then write legislation that would usurp the power of the congress. Also she should substitute “any president” for Trump. This is why the democrats should hope for a ruling in Trump’s favor for it would expand the power of the next democrat who is president.

Justice Jackson obviously taking a shot at Commerce Secretary Lutnick and Robert Kennedy said “Congress is saying that expertise matters with respect to aspects of the economy and transportation, and the various independent agencies that we have. So, having a president come in and fire all the scientists, and the doctors, and the economists, and the PhDs, and replacing them with loyalists, and people who don’t know anything, is actually not in the best interest of the citizens of the United States.” Certainly that may be the case but why is she assuming that the people that are fired are a priori experts rather than hacks in the first place?

Regardless, I am sympathetic to the president on being able to fire an appointee that does not share the president’s priorities. However, keep in mind that the Supreme Court has culled out the Fed as an exception due to its role in conducting monetary policy. On this I agree. But if we do not have a fourth branch of government and if the independent agencies are under the executive, then the executive should not be powerless with regard to the actions of those agencies. Moreover, the president should have some assurance that the officials in those agencies are not acting against the president’s best interests. Consider Lina Khan the FTC chair or Rohit Copra at the CFPB both appointed by Biden. They were conducting policies approved by Biden but opposed by Trump. Supposed either were still in place with unexpired terms when Trump was elected. Do you favor Trump being stuck with them and have no control over their actions? I think this is the reason why in this instance, the Court will rule in the president’s favor.