OPINION:
Rebecca Kelly Slaughter wants her job back. If the Supreme Court orders the president to restore her seat on the Federal Trade Commission, Woodrow Wilson and Franklin D. Roosevelt’s vision of handing over government to a cadre of “experts” will persevere. If the court does what it should, the fourth branch of government will begin to crumble.
Justices convened Monday to discuss whether the Constitution recognizes anything other than the legislative, executive and judicial branches. The right-leaning majority counted those branches and found three. Not surprisingly, Justice Ketanji Brown Jackson, an aficionado of “new math,” came up with four.
“My understanding was that independent agencies exist because Congress has decided that some issues, some matters, some areas should be handled in this way by nonpartisan experts, that Congress is saying that expertise matters with respect to aspects of the economy and transportation and the various independent agencies that we have,” she said.
Chief Justice John G. Roberts Jr. realized that if lawmakers are able to snatch one power from the president and give it to a multimember commission beyond his supervision, it can do the same with any of his other authorities. “Are there some Cabinet departments that you say Congress could just take over?”
When agencies are independent, they perform legislative, executive or judicial functions without direct political accountability. This, proponents say, insulates the diligent collection of scientists and Ph.D.s from political pressures.
Experience has shown that the opposite is true. A sprawling, perpetual bureaucracy has grown around this system that is dedicated to serving the interests of Democrats. Congress doesn’t care because politicians would rather delegate tough decisions to someone else than risk controversial votes that might interfere with reelection.
In his debate with Minnesota Gov. Tim Walz last year, Vice President J.D. Vance ridiculed the idea that you magically get better outcomes when people with fancy-sounding credentials command the agenda.
“Those same experts for 40 years said that if we shipped our manufacturing base off to China, we’d get cheaper goods. They lied about that. They said if we shipped our industrial base off to other countries, to Mexico and elsewhere, it would make the middle class stronger. They were wrong about that. They were wrong about the idea that if we made America less self-reliant, less productive in our own nation, that it would somehow make us better off. And they were wrong about it,” he said.
The Founding Fathers understood that individuals with common sense acting within an accountable structure were best equipped to govern. They hoped part-time citizen legislators would leave their businesses for a short time to oversee the country before returning home.
A generation that toppled the hereditary monarchy would be horrified to see a permanent class of Washington mandarins take its place. This is why the Trump v. Slaughter case is about more than President Trump’s ability to fire one FTC commissioner.
It’s about whether voters should be allowed to replace the people who wield the government’s authority. If the president can’t fire people who sit on multimember government commissions, he is not really leading those agencies and they are not part of the executive branch that he is supposed to manage.
Those who prefer the existing arrangement need to amend the Constitution. What remains to be seen is how far justices are willing to go. The establishment won’t be happy to see the excesses of the Progressive and New Deal eras undone.
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