Justice Gorsuch’s Warning

In the 2010s, as President Obama and a Democratic Congress were expanding the administrative state’s power over healthcare, financial regulation, and other policy areas, D.C. think tanks and organizations held occasional meetings to discuss how to tame or reform it. At one such meeting, I suggested that independent agencies represented a special problem and that we should target Humphrey’s Executor to either be overturned by the courts or legislated out of existence. 

One shrewd and thoughtful scholar (who probably forgets this exchange ever happened) stared right through me intensely as I offered this suggestion. Eventually he exclaimed: “Whose side are you on, anyway?” 

It took me a minute to figure out what he was getting at. It seemed obvious to me that it would be better to have an administrative state more directly accountable to voters through the President, rather than (as FDR called it) a “headless fourth branch” barely accountable to anyone. But as he reminded us, giving the administrative state’s consolidated power to one person might be just as (or more) dangerous as leaving that power in “independent” hands.  

Justice Gorsuch, along with Justice Thomas, has been a staunch critic of Humphrey’s and openly called for overturning it. He got his way last week in Trump v. Slaughter, a case about the President’s “removal power” over the heads of independent agencies. Yet he still felt compelled to write a concurring opinion, offering a warning about “the implications that follow” from overturning Humphrey’s. Justice Gorsuch’s warning was identical to the warning that a scholar offered me over a decade ago, and it deserves careful consideration now that Slaughter has overturned Humphrey’s.  

Slaughter was the product of a collision course between two principles in administrative law: the nondelegation doctrine and Humphrey’s “function test.” The nondelegation doctrine says that Article I, section 1, which vests legislative power in Congress, means that Congress may not delegate legislative power to other institutions like administrative agencies. Under the Supreme Court’s modern application of this doctrine, the vast authority Congress gives to agencies is not legislative power, but executive power. When an agency makes “rules” carrying out a broad mandate, such as a prohibition on “unfair and deceptive practices,” the Court holds that it is executing the statute and thus exercising executive power rather than legislative power. 

Humphrey’s function test was based on the original decision from 1935. In that decision, the Supreme Court upheld the law creating the Federal Trade Commission (FTC), which prohibited the President from removing the Commission heads except for “inefficiency, neglect of duty, or malfeasance in office.” According to the Court, the heads of the FTC were not subject to the President’s removal power because their authority was “neither political nor executive, but predominantly quasi-judicial and quasi-legislative.” In other words, the heads of independent agencies could be protected from presidential removal because they did not exercise executive power.  

These two doctrines were mutually exclusive and ultimately led to Slaughter. If the FTC’s power were legislative, the commissioners could be protected from presidential control, but then they would also be exercising legislative or judicial power, in violation of the nondelegation doctrine. Alternatively, if the FTC’s powers were executive, it could survive a nondelegation challenge, but the commissioners could not be exempted from the President’s removal power.  

The Court adopted the latter approach to the FTC in Slaughter. As Chief Justice Roberts’s opinion argued, the Commission’s power “to promulgate substantive rules that carry the force of law…is executive through and through.” It has the power to use “in-house adjudications” to “enforce[] its statutes and rules,” but “This power, too, is executive,” according to Roberts. Where the original Humphrey’s Court found “quasi-judicial and quasi-legislative powers,” this Court finds purely executive power. Thus, it must remain under the President’s supervision and control.    

Accepting this logic, however, raises a question as significant as the one it answers – one which Justice Gorsuch highlighted in his concurring opinion. “Would Congress have delegated so much power, including legislative and judicial power, to independent agencies had it known that the President would come to control them?” Now that the President has removal authority over the FTC, SEC, FCC, NLRB, and other formerly independent agencies, are we facing a new problem?   

Justice Gorsuch thinks that we are. As he explains, 

Open-ended delegations of legislative power have not gone away; now they will just be exercised by agency officials who answer to the President. The power to write new regulatory crimes still exists, but now the pen ultimately rests in the President’s hand. The ability to judge disputes in-house remains, but now the house is white….The fourth branch’s powers still exist; they have just been reassigned to the President. 

In other words, Slaughter may have rid us of the headless fourth branch of government, but it might end up leaving us with an all-powerful presidency. This is not necessarily the outcome the Constitution’s Framers had in mind. A President who wants to punish political opponents now has increased levers to pull. Montesquieu’s great admonition in favor of the separation of powers – that “When the legislative and executive powers are united in the same person…there can be no liberty; because apprehension may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner – rings even more true in a post-Slaughter world 

Returning to the scholar’s question: whose side am I on? I’m for restoring the Constitution’s separation of powers, especially Congress’s role as the nation’s lawmaking body. One benefit of overturning Humphrey’s is that Congress now knows it is giving power to the President when it delegates. Perhaps that will induce Congress to be more reluctant to delegate, and maybe even claw power back from the administrative state. Enacting something like the REINS Act or revisiting Chadha could help Congress do so. But those who are on the side of the separation of powers should remember that it’s a republic we are restoring, not a monarchy. 

Joseph Postell is Associate Professor of Politics at Hillsdale College and a contributing editor at Civitas Outlook.