The End of Independent Agencies

Members of the Federal Trade Commission are no longer protected from presidential removal without cause. Humphrey’s Executor–or whatever was left of it–is dead. Congress may not limit the President’s authority to remove principal officers who exercise executive power (save for members of the Federal Reserve, apparently). This is the consequence of Trump v. Slaughter.

The practical effects of Slaughter may not be immediately apparent, or so I suggest in my latest Civitas Outlook column. So-called “independent agencies,” such as the Federal Trade Commission, have not been meaningfully independent for some time. For years, most such agencies have aligned their agendas with that of the President. But the Slaughter decision may have some other effects on the operation of such agencies that have been under-appreciated (or so I suggest).  From my column:

Just as legislative leaders have exercised less independence from presidents of their own party, members of independent agencies have divided more clearly and consistently into reliable voting blocs. Here, as elsewhere, the separation of powers has become more the separation of parties. Combined with the increased centralization of power and control by the Chairs of some agencies, as appears to have occurred at the FTC during Lina Kahn’s tenure as Chair, the composition of multi-member agencies has become far less important than who holds the Chair position. At the same time, it has become common practice for agency Chairs to step aside when a new President is inaugurated, as Kahn did once Trump began his second term, even though their terms often extend well beyond a four-year presidential term.

There are exceptions here, some of which are important. Slaughter would seem to indicate that the President can remove FEC commissioners at will, but this will not enable a president to control what the FEC does. Removing members of the FEC the President does not like will not ensure the FEC aligns with the President’s agenda. But it appears to allow the President to disable the FEC from acting. In the wake of Slaughter, the President removed all remaining members of the Election Assistance Commission, potentially leaving it unable to assist states with election administration or to establish rules governing mail voter registration applications.

Many of the affected boards and commissions also have quorum requirements that prevent them from taking certain actions without enough commissioners or board members in place. Removing members of such agencies may prevent them from acting contrary to the President’s wishes, but it could also prevent the agency from acting at all, particularly if the Senate does not cooperate by quickly confirming a President’s replacement nominees. Unlike traditional executive-branch agencies, vacancies on multi-member commissions cannot be filled with interim or acting appointments under the Federal Vacancies Reform Act. So while a President may wish to remove members of the National Labor Relations Board (NLRB) deemed too solicitous of unfair labor practice complaints filed by unions, if removing board members leaves the NLRB without a quorum, it could bar the Board from ruling in favor of complaints brought by employers as well, and prevent the revision or rejection of disfavored agency precedent.

You can read the whole thing here.