Independent Commissions Still on Life Support?

Letter to Romans: SCOTUS will soon decide if “Independent commissions” are an afront to the Constitution’s Separation of Powers clause & an illegal assault on a president’s prerogatives to run them. In December orals, several Justices had appeared to signal they are.

The case is Trump v. Slaughter & it was triggered by No. 47’s claim to be able to remove at will an FTC commissioner, who claims she’s insulated from that heave ho thanks to the Act of Congress creating the commission. We can assume the three liberal Justices who claim the Constitution is a “living document” that’s pliable to accommodate their left leaning ideology will uphold those who claim Congress always had an “implied” right to create “Independent” agencies; even those that clearly fall under the “executive branch” of government. Recall, however, In December oral arguments, Justice Bret Kavanaugh reminded the attorneys justifying them, that in the name of democracy, “Independent agencies aren’t accountable to the people. They’re not elected. Yet they’re exercising massive power over liberty & billion-dollar industries whether it’s the FCC or the FTC or whatever.” Justice Alito also questioned the logic in Congress giving the power to make any government agency, commission or even department “independent” with 20-yr terms baked in.

As GW Law Prof Jonathan Turley had noted in a Fox News interview, other “swing” Justices likely needed to make up a majority also expressed cynicism during those orals. The key precedent that started the “Independent Commissions” ball rolling was 1935’s Humphrey’s Estate, but Turley saw how Chief Justice Roberts “stomped on it as a desiccated or dried up precedent,” while Justice Barret opined the case before the Court doesn’t look “anything like” the earlier cases establishing the doctrine. Lingering message to Federal Communications Commission? “You’re unchecked independence is on life support & maybe could use a good dose of old fashioned parental control after all."

Davd Soul