Supreme Court threatens independent agencies

Gordon L. Weil

America grew up and, just like a child growing up, it found that life becomes more complicated.

After the Civil War, Congress devised ways for the government to manage increasingly complex issues.  The Supreme Court is now deciding if this long-standing solution – the creation of independent agencies – is acceptable.

The Constitution gives Congress the power to pass laws on any matter under federal jurisdiction and to test the limits of that jurisdiction, both subject to judicial review.  Presidents can propose laws and approve what Congress did, but their powers do not extend to make them legislators.

The three branches of government lack the time and expertise to regulate a wide range of issues.  While Congress could in theory legislate on individual cases, in practice that’s impossible.  Legislators cannot deal with matters extending from the safety of medications to the control of airplane flights to consumer protection.

The solution has been to delegate legislative and even some judicial powers to independent agencies. In theory, they act on behalf of Congress, not the president. The president appoints members of independent agencies, subject to Senate confirmation.

Because there are only three branches of government, the independent agencies came to be considered as part of the executive branch, even though they exercise few executive functions.  They may make rules for their own operations, but, even then, Congress may choose to disapprove them.

Independent agencies are usually composed of boards whose members are experts in the subject matter under their legislative mandates.  They make informed judgments about the application of the law to specific activities over a wide range of issues.  Where the law is unclear, they may interpret its meaning.

This system has come under political attack.  For those who argue that presidents have all executive authority (the unitary presidency), the independent agencies must be under his control, because they are assigned to the executive branch.  Without presidential authority over them, the agencies may constitute the “deep state,” a part of the government escaping normal control.

If this view is correct, then the agencies are not truly independent.  Their expertise can be overruled by the political agenda of the president.  They become functionally a part of the president’s administration.  The courts retain authority to determine if an agency acted outside of its authorized powers or unconstitutionally.

The Supreme Court has begun to deal with the issues raised by this demand for a new look at independent agencies. Its focus has been on (1) the president’s ability to replace members, even with fixed terms, to suit his policies, and (2) the agency’s ability to interpret the laws applying to its jurisdiction. 

The Court has already ruled that the president can remove the head of an agency if there is only a single person in that position. 

It is now asked to reverse a position it adopted in 1935 and allow the president to remove members of boards of agencies exercising legislative functions .  President Trump has recently removed two Democratic members of independent agencies, who are challenging his action. Could presidents remove members only for allowed reasons or can they do so at will?

The Supreme Court has already overturned an earlier decision and ruled that the courts and not the agencies will determine questions about the meaning of the laws they apply.  That decision could narrow the scope of agency decisions.

If the president can remove the heads of independent agencies and the courts can determine agency jurisdiction, the delegated legislative authority would be fatally weakened.  The only power left to Congress would be to establish agencies for specific purposes, much as it now does for executive departments and their subordinate offices.

In short, the Supreme Court could effectively end the role of independent agencies.  Presidents would be able to substitute their political will for the judgments of experts, eliminating the “deep state.”  Public health and safety could be endangered.  There is a real possibility that this could happen.

The only answer might be for Congress to reassert its legislative authority.  Agencies that now exercise independent powers delegated to them by Congress could be transformed.  Congress could convert them into legislative advisory bodies, carrying out the same expert activities as at present.   Congress would appoint the members.

The conclusions of independent agencies would not be decisions but rather recommendations to Congress.  Congress could establish balanced, bi-partisan committees, like today’s joint committee on taxation, to receive the expert bodies’ recommendations.  Congress could then vote on expert recommendations approved by the joint committee.

While this process would not eliminate partisanship, it would allow for expert opinion free from presidential politics and discharge the courts from determining what Congress meant in the original legislation.

In short, Congress would recover its right to legislate and resume its place alongside the other two branches.