Justice Samuel Alito suggested that a decision for Slaughter could open the way for Congress to convert various executive branch agencies “into multi-member commissions, whose members would be protected from absolute presidential removal authority.”
“I could go down the list… How about Veterans Affairs? How about Interior? Labor? EPA? Commerce? Education? What am I missing?” Alito said.
“Agriculture,” Justice Neil Gorsuch replied. The official transcript reads that Gorsuch’s response was met with laughter.
Justice Brett Kavanaugh expressed skepticism about the power of independent agencies, saying, “I think broad delegation of unaccountable independent agencies creates enormous constitutional and real-world problems for individual liberty.” He said that the Court’s approach with the “major question doctrine” over the past several years “has been to make sure that we are not careless in assuming that Congress has handed over major questions of political or economic importance to independent agencies, or any agency for that matter.”
Kagan: President will have “unfettered, unchecked power”
contrary to consensus Humphrey’s executorSlaughter’s case appears to be headed toward a split verdict between the court’s conservative and liberal justices. Justice Ketanji Brown Jackson said the Trump administration’s position has “dangers and real-world consequences.”
Jackson said, “My understanding was that independent agencies exist because Congress has decided that certain issues, certain cases, certain areas should be handled that way by non-partisan experts, with Congress saying that expertise matters with respect to aspects of the economy and transportation and the various independent agencies that we have.” “So for a president to come in and fire all the scientists, doctors, economists and Ph.D.s and replace them with loyalists and people who don’t know anything is really not in the best interests of the citizens of the United States. I think that’s the policy decision that Congress is making when it says we’re not going to make some of these agencies directly accountable to the president.”
Justice Elena Kagan said that historically there has been a “bargain” in which “Congress has given these agencies a lot of jobs that are not traditionally executive functions…And they’ve given these agencies all that power largely without taking into account that the agencies are not under the control of any one person, the President, but, in fact, Congress has a lot of influence over them. And if you take out even half of the deal, you only have “The president has massive, uncontrolled, unchecked power.”
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