In , published yesterday, the Supreme Court held that the President has plenary (that is, unfettered) authority to fire the heads of regulatory agencies (though not the governors of the Federal Reserve Board, as explained in a note at the end of this post). The decision is hugely consequential. It is both a massive blow to the regulatory state and a huge—albeit precarious—step to returning our nation to function as the Constitution intended.
For over a century, ever since President Woodrow Wilson ushered in the “progressive era,” Congress has been creating “independent” agencies that have complete power to write regulations with the force and effect of law, and then to enforce those regulations, including deciding cases in their own courts, with penalties that include fines and jail time.
This means that, for most of our lifetimes, we have lived in a nation where federal agencies, which do not exist in the Constitution and are insulated from the ballot box, have had a far greater impact on our daily lives than the other three branches of government. The agencies’ reach has been an ever more intrusive tyranny of the regulatory state, from the EPA’s CO2 endangerment finding (which allows the agency to control every aspect of life) to the Department of Education’s unceasing support for teachers’ unions, which launder money to the Democrat party. (Indeed, Jimmy Carter created the DOE to sustain the unions.)
Almost all federal agencies hew to the same increasingly radical left agenda, as evidenced by political donations. And, indeed, this was President Wilson’s dream: To run roughshod over the Constitution and democracy, substituting rule by technocrats. Until yesterday, Wilson had succeeded.
When Congress created these so-called “independent agencies,” it often provided that the people appointed to operate had long-term sinecures that presidents could end only for malfeasance. This created what some called a fourth branch of government, cementing the “Deep State.” These agency heads, running their own fiefdoms, could thwart an elected president’s preferred policies. As Senator Elizabeth Warren has repeatedly, and rightly, pointed out, “personnel is policy.”
However, despite their seeming entrenchment, these agencies have no place under the Constitution. Art. II Section 1 provides that the “executive power” to enforce the laws resides solely with the duly elected president. As Chief Justice John Roberts wrote in his majority opinion, the Constitution’s drafters explicitly intended that the executive power include the plenary authority to remove any personnel exercising executive powers. Congress cannot curb that power using legislation.
That principle puts a dagger in the heart of the “deep state,” which is a good thing. However, as Justice Gorsuch writes , this now poses a great danger to our constitutional republic. That’s because this decision, at least temporarily, puts into the president’s hands the power not merely to enforce the law, but through the no-longer-independent agencies, to write the law and adjudicate it as well.
As James Madison wrote in The Federalist Papers, No. 47, combining these powers in a single person is the textbook definition of a “tyranny”—one that our Constitution explicitly set out to avoid. In other words, we’ve gone from one tyranny, that posed by an all-powerful unelected and unconstitutional branch of government primarily loyal to the Democrat party, to another, a presidential tyranny, with the latter being something the Founders especially feared.
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Our nation was meant to have clearly divided powers. The Constitution, Art. I, Sec. 1, provides that Congress has the sole power to write the laws, while Art. II, Sec. 1, provides that the President has the sole power to enforce the laws, and Art. III, Sec. 1, provides that the “Article III” Courts have the sole power to adjudicate cases under the law, both civil and criminal.
Congress, though, with permission from progressive courts, from the Supreme Court on down, has spent a century making a mockery of those provisions, transferring to the regulatory agencies vast powers to create regulations, to enforce them, and to adjudicate cases under those regulations. That is tyranny.
For the moment, with a president currently holding plenary authority to fire the people governing the regulatory agencies, the president now holds in his hands the potential to be a tyrant—and I wouldn’t have trusted George Washington with this power, let alone a possible President Alexandria Ocasio-Cortez. As matters stand—and Justice Gorsuch states—it is up to the Supreme Court to use its unique authority to restore legislative power to Congress and to strip regulatory agencies entirely of the authority to use their internal courts to adjudicate alleged civil and criminal regulatory violations.
This is very much a work in progress, but now begun, it must proceed with all due haste. As Gorsuch notes, the tools are already in place for the Supreme Court to fully reverse Wilson’s regulatory tyranny.
That said, the clock is ticking. This reversal must happen within the next year. Any further delay risks Court packing and the de facto end of the American Constitution.
Indeed, one could frame the entire 2028 federal elections this way (both for the White House and Congress): Are we going to continue as a liberal republic, governed by our Constitution, or will Democrats turn us into a permanent socialist autocracy with the Constitution existing only as a paper facade? Will we continue our great American experiment in constitutional government, or will Democrats drive us into disunion and bloody unrest?
(Note: In , which the Supreme Court published at the same time as , the Court held that the Federal Reserve is a unique entity, not a regulatory agency, and that Congress’s law limiting the president’s power to fire a board member of the Fed only for cause was a valid exercise of legislative power. This carve-out of the President’s power does not lessen how important the decision is.)
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Image by Matt Popovich.