We Seem to Have the Supreme Court’s Originalism Fail of the Term
On Monday, the Supreme Court heard argument in a case that could upend how the federal government has been run for over a century. In Trump v. Slaughter, a challenge to the president’s firing of a Federal Trade Commission member without cause, the court seems poised to toss one of its 90-year-old precedents, nullify dozens of laws enacted by both political parties, and shift massive power to Donald Trump that Congress never intended to consolidate in one person.
You’d think there would be a rock-solid constitutional basis for unelected judges to dictate this kind of governmental restructuring. Or at least a hesitance to usher in such a radical break from established practice unless it was strictly in line with a judge’s guiding judicial philosophy, as originalism is supposed to be for so many conservative justices. But Monday’s oral argument revealed a shocking lack of interest in the Constitution’s history and original meaning by the court’s conservative supermajority—the justices who purport to care the most about those topics. As a result, history and original meaning were MIA in a dispute when they should have been front and center.
Since the 1800s, our elected branches of government have created independent bodies like the FTC to implement laws that address industrial life and commerce—think nuclear power, children’s toy safety, deceptive advertising, bank solvency. The idea is to have the finer points of these issues managed by a group of subject-matter specialists who head such agencies, serve as a check on one another, and aren’t all swept from office with every new administration. Presidents nominate these officials, the Senate confirms them, and presidents may fire them for good cause—like neglect of duty—but not simply for departing from a president’s preferred policies. In other words, these officials aren’t meant to be the puppets of a president’s whims.
The Supreme Court approved this arrangement nine decades ago—upholding the very statute at issue in Trump v. Slaughter. But more recently, these agencies have come under fire because of the “unitary executive” theory, which asserts that presidents maintain total policy control over every choice the executive branch makes—even on topics that presidents would be powerless to address unless Congress assigned it to them.
Now that lawyers and professors have started taking originalism seriously, however, it turns out that the real history doesn’t support the shallow narrative about presidential control that was often taken as an article of faith. When Congress got to work setting up the government in 1789, lawmakers realized they needed to figure out whether presidents could remove officials—but they were all over the map about what they thought the Constitution required.
Their confusion was understandable. The document says nothing about who has the authority to fire executive officers; the issue wasn’t discussed at the Constitutional Convention or the state ratifying conventions; and in the Federalist Papers, Alexander Hamilton asserted that presidents would need Senate consent to fire officers, just as consent was needed to appoint them. In England, and in the American states after independence, the executive never had the power to fire all officers at will.
There’s a protocol for situations when the Constitution is this ambiguous. As the court has recognized since the start, when the text is unclear about the relationship between the executive and legislative branches, unelected judges shouldn’t override the choices made by those branches themselves—the people’s representatives. James Madison modeled this principle early on. Although he vigorously argued as a legislator that Congress couldn’t create a national bank, after losing that debate he later accepted as president that the long-continued “decision of the nation” should “over-rule individual opinions.”
Numerous briefs filed in this case, including one by my organization, detail this history. But the conservative justices have shown little interest in engaging with it—perhaps because they don’t like where it would lead them.
Justice Brett Kavanaugh’s first question was about not history or even the agency at issue in this case, but instead about how to distinguish the Federal Reserve Board from the Federal Trade Commission. It’s an odd question unless he already knew what he was going to say about the FTC—and was trying to figure out how to say something different about the Federal Reserve. The court’s conservatives have already made clear in shadow-docket rulings that they don’t want any decision bringing down independent agencies to affect the Fed, forcing them to come up with a justification for treating it differently. History offers no such distinction.
When Kavanaugh briefly touched on history, it was only to make a comment that seemed to misapprehend its significance here. Responding to the observation that many eminent Supreme Court justices have believed that Congress can limit the president’s firing authority, Kavanaugh pointed out that many eminent of the court’s justices have believed the opposite. But that’s the whole point. That this question is not clearly resolved by the constitutional text and has been debated throughout U.S. history is precisely why today’s majority shouldn’t substitute its own preferred answer for the choices that our democracy has embraced since the 1880s.
Justice Amy Coney Barrett was the only member of the conservative supermajority to bring up early constitutional history, but her question seemed to be based on a misunderstanding. Echoing Solicitor General John Sauer, who argued on behalf of the administration in defense of Trump’s firing of an FTC commissioner without cause, Barrett suggested that precedents established during the nation’s first century recognized Congress’ inability to limit a president’s firing authority. She then asked whether a contrary legislative tradition beginning in the 1880s could “restart” the process of settling constitutional meaning.
Crucially, though, what was actually settled by the end of the 19th century was not what the Trump administration is arguing—that presidential firing authority is exempt from limitation. Instead, it was only that presidents did not need Senate consent or statutory permission to fire officers. That principle is entirely consistent with the principle that became entrenched over the past 150 years: Congress can require presidents to have good cause to fire officers like the FTC’s commissioners.
In short: no “restart” was necessary to permit agencies like the FTC. There has been a long process of settling the scope of presidential removal authority that began at the founding and has continued ever since. Under that established practice, presidents have firing authority, but it can be limited in the case of specialist bodies like the FTC.
This also explains why there’s no danger of traditional executive departments being converted into independent agencies—a subject of considerable discussion during Monday’s argument. Congress can’t encroach on the president’s unique powers over topics like the military and foreign affairs, and there is no historical tradition that would sanction converting the president’s entire Cabinet into a set of independent agencies.
In contrast, regulatory bodies like the FTC have been part of the federal government for longer than the light bulb. Well over a dozen presidents have signed legislation creating them, and virtually every president since the late 19th century has kept these agencies running by nominating their leaders and approving their funding.