WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Trump v. Slaughter, a case in which the Court is considering whether President Trump’s attempted firing of Federal Trade Commission (FTC) Commissioner Rebecca Slaughter was unlawful, Constitutional Accountability Center Deputy Chief Counsel Brian Frazelle issued the following reaction:

Nothing in the Constitution’s text forbids the creation of independent agencies like the FTC, which have existed for most of American history. But strikingly absent from today’s argument was any interest from the conservative Justices in probing what the Constitution’s history and original meaning say about independent agencies.

The Constitution was originally ambiguous about the scope of presidential authority to fire federal officers—as extensive scholarship and an abundance of amicus briefs in this case have shown—and that’s why the issue has been debated since literally the beginning of the nation. Yet during today’s argument, both the Solicitor General and Justice Amy Coney Barrett—the only conservative Justice to ask about history—wrongly suggested that early precedents barred Congress from limiting the President’s firing authority. As our amicus brief shows, that simply is not true.

When the Constitution’s meaning about the respective powers of Congress and the President is this indeterminate, both Founding-era history and the Supreme Court’s own precedents make clear that the unelected judiciary should not interfere with the choices that those branches themselves—the people’s elected representatives—have made for the past 150 years.

CAC’S Douglas T. Kendall Fellow Michelle Berger added this reaction:

Congresses and presidents have jointly created independent commissions like the FTC for more than half of the nation’s history. The executive branch, whose prerogatives the Trump administration now purports to vindicate, has not only acquiesced in this historical practice, but has actively helped to shape it: for more than a century, one president after another has helped create these agencies, modify them, fund them, and appoint their leaders.

As counsel for Commissioner Slaughter said in response to Justice Barrett today at oral argument, such acquiesced-to, long-established practices—including practices that began after the Founding Era—settle the meaning of the separation of powers. The Supreme Court has recognized in many cases that this is precisely what the Framers envisioned. Even if Humphrey’s Executor had never been decided, fidelity to this principle would decide this case in favor of Commissioner Slaughter.