One Grudging Cheer and Multiple Emphatic Jeers for Trump v. Slaughter

Given the Court's failure to grant interim relief and its per curiam opinion last year in Trump v. Wilcox, the ruling today in Trump v. Slaughter cannot have come as a surprise to anyone paying even the slightest bit of attention. That is not to say that Slaughter will be anything but a disaster. By invalidating removal restrictions for the Federal Trade Commission (FTC) and nearly every other hitherto independent agency,  the Court has backed the ongoing onslaught of political cronyism as against professional government. The decision would be harmful under any circumstances. It is all the more so now, when the particular president empowered to remove members of independent agencies without cause is a corrupt, vindictive narcissist whose preferred replacements for subject-area experts are sycophantic ignoramuses.

Having said that, I will give the conservative super-majority who signed onto the Chief Justice's opinion in Slaughter a little bit of credit. They had the decency to actually overrule Humphrey's Executor v. United States rather than to claim disingenuously that the FTC of today is somehow vastly different from the FTC of 1935 or to seize on some other bogus distinction that would enable them to claim that Donald Trump's firing of Rebecca Slaughter was somehow different from FDR's firing of William Humphrey.

The Roberts Court has not always been so forthright about the fact that it was overruling precedent. In recent memory, one of the most egregious examples is Students for Fair Admissions v. Harvard, in which the Court never quite admitted that it was overruling its prior affirmative action decisions, with Justice Kavanaugh in a concurrence going so far as to seize on some stray aspirational language in Justice O'Connor's opinion in Grutter v. Bollinger to claim that those earlier decisions had merely reached their sell-by date.

But there my praise for today's decision must end. Indeed, even just focusing on honesty, the Slaughter opinion gets low marks. Consider what the majority says about  Morrison v. Olson. 

Not one for understatement, Justice Scalia observed in dissent that the Court had “swept” Humphrey’s “into the dustbin of repudiated constitutional principles.”  The Court put the matter more delicately, but no less definitively. “We undoubtedly did rely on the terms ‘quasi-legislative’ and ‘quasi-judicial’” in Humphrey’s, the Court noted, “but our present considered view is that” the constitutional question “cannot be made to turn on” such “rigid categories,” at least for inferior officers.

What?! Yes, it's true, Chief Justice Rehnquist's opinion did distinguish the "quasi" categories of Humphrey's in that way, but it did so for exactly the reason that the Slaughter dissent says: to expand beyond Humphrey's. The respondent in Morrison argued that the presidential removal limits at issue there were unconstitutional because the independent counsel exercised the purely executive function of prosecution and thus fell outside the "quasi" categories. The majority rejected the argument by saying that in some cases, even pure executive authority can be vested in an officer who is not subject to at-will presidential removal. Morrison said that falling within one or more of the quasi categories was no longer a necessary condition for independence (at least for inferior officers). There was no occasion for the Morrison Court to say whether falling within them was still a sufficient condition. The Slaughter majority's reading of Morrison is either dishonest or incompetent.

The same can be said for other aspects of the Slaughter majority opinion. As Justice Sotomayor's dissent elaborates in detail, the majority repeatedly overstates the evidence for the proposition that from 1789 until the early 20th century, the nation had settled on the view that the president's ability to remove a principal officer who exercises any executive power must be unfettered.

Not that it would be acceptable to completely erase the 20th century (and the last third of the 19th) even if the majority's account of the earlier history were accurate. Even if one thought that the best reading of the original understanding of the Constitution and early practice did require unfettered presidential removal power, the prevalence of independent agencies with good-cause removal protection has been a key feature of American government at least since Humphrey's in 1935. Congress undoubtedly relied on that feature extensively in creating the agencies it did and, as importantly, giving them the powers it did.

In his Slaughter concurrence, Justice Gorsuch acknowledges as much, but he takes the point in a very different direction. He rightly worries that Congress might not have given the vast powers it has given independent agencies if it had known that the leaders of those agencies would be rendered subject to at-will presidential removal. And Congress cannot effectively undo those delegations without enormous (and thus enormously unlikely) bipartisan consensus because the president would likely veto most bills that reduced the powers of erstwhile independent agencies. Justice Gorsuch's solution, however, is not to adhere to Humphrey's in light of the importance of reliance to stare decisis but to suggest that the Court can respond by reinvigorating the nondelegation doctrine. Limiting effective regulation is to Justice Gorsuch what tax cuts are to Republican politicians: the solution to every problem.

What's the majority's response to congressional reliance on Humphrey's? Quoting Ramos v. Louisiana, the Court points to "the reliance interests of the American people . . . in the preservation of our constitutionally promised liberties." That's a non sequitur on its face because unlike Ramos, which concerned the Sixth Amendment right to a unanimous jury in a criminal case, Slaughter is not an individual rights case but a structural one. Moreover, the Ramos language cannot be taken too seriously. After all, in any constitutional case there will be a reliance interest in preservation of whatever the Court thinks the Constitution requires. If that cancels out more concrete reliance, then reliance plays no role in stare decisis in constitutional cases.

The majority does somewhat better in pointing to INS v. Chadha. There the Court invalidated the legislative veto even though Congress had put one into nearly 300 statutes. There too there was a worry that Congress might not have delegated as much power as it did had it known the legislative veto was invalid, and Congress could not easily overcome a presidential veto to correct the balance.

So, does Chadha show that congressional reliance on Humphrey's was misplaced? In a word, no. For one thing, as Justice Sotomayor notes in dissent, Chadha was based on the plain language of Article I, Section 7, whereas, apart from the majority's tendentious reading of Article II's Vesting Clause, the Constitution is silent about removal. Even more importantly, Chadha did not overrule any prior precedent of the Court. It is thus not itself a precedent about what counts as adequate reliance for stare decisis purposes.

Finally, the Slaughter majority's treatment of the Federal Reserve is peculiar. In a brief paragraph, the Court notes that it has previously suggested that the Fed might be distinguishable from most other independent agencies but goes no further. It says only this: "Our prior cases do not necessarily implicate the constitutionality of [the Fed.] Our opinion today should not be read to do so."

Leaving open a question not directly presented in Slaughter would be fair enough, except that in Trump v. Cook, a ruling handed down literally within minutes of Slaughter, the Court devotes nearly three pages of its slip opinion to saying that Fed independence is constitutional, adding this: "We see no reason to leave the public in limbo, or to sow doubt as to the status of one of our Nation’s (and the world’s) most important financial institutions."

If the choice is between invalidating all independent agencies with no exception for the Fed and making such an exception, I'm glad the Court chose the latter option. Nonetheless, it is passing strange that Chief Justice Roberts, writing for the majority in Slaughter, did not seem to realize what he was simultaneously writing for the majority in Cook.

-- Michael C. Dorf