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.

  

Trump wants absolute power

An immigration case involving a single man reveals the heart of the issues raised by the Trump presidency.

Trump and his core team believe that he has virtually absolute and unchecked power.  His political revival is asserted as evidence that the American people want him to decisively change their government.

The case involves the removal from Maryland of Kilmar Armando Abrego Garcia, who claims refugee status and who remained in the U.S. as the result of a court order.  The Department of Justice says he was expelled because of an “administrative error.”

The government refuses to attempt to return him to the U.S., despite a unanimous Supreme Court order, backing a decision of a federal district court. The “administrative error” overlooked his right to due process, including a formal hearing.

DOJ officials argue that the courts cannot order the executive branch to “facilitate” his return.  They maintain that the Constitution gives the president complete and exclusive authority over foreign relations, making it impossible for the court to require him to take an action relating to the man, who is now in prison in El Salvador (the Savior).  

No basis exists for asserting that presidential authority over foreign affairs is complete and exclusive.  For example, the Constitution gives Congress authority in approving treaties, sanctioning enemies, declaring war and controlling immigration.  It may delegate functions to the president, but it retains ultimate control.

Most importantly, it has the power of the purse.  It may pass laws affecting the exercise of presidential powers by denying the use of federal funds for a specific purpose. 

The courts, too, have powers relating to the exercise of foreign relations. They are responsible for ensuring that all branches of government act within the requirements of the Constitution and laws, including due process. 

Despite DOJ claims, the Supreme Court has issued decisions, respected by the executive branch, related to government actions taken outside of American territory.  In the case of a person illegally sent by the executive branch to El Salvador, courts can issue orders to the president who sits in Washington.

The courts try to carefully consider their decisions and may issue temporary orders to halt executive branch action while they deliberate.  The executive may disagree, but it must comply, at least temporarily.

Judges disapprove of government action being taken despite such a restraining order, as the Trump administration has done in the case involving the hasty transfer of hundreds of Venezuelans to El Salvador without due process. 

In that case, the judge has found that the administration may be in contempt of court.  If he issues such a ruling, the DOJ would have to prosecute violators.  The judge warns that he could appoint outside lawyers, if the DOJ refuses to act.

When swift presidential action forces the court into making rapid rulings without full review, a district court judge, sitting alone, may be made to appear as a partisan adversary.  The president may claim to be tussling with an “unelected” opponent rather than disobeying a court.

The assertion of broad presidential foreign relations power is part of an attempt to exercise nearly total government power, pushing aside Congress and the courts.  The Republican Congress has voluntarily acquiesced, but the federal courts continue trying to ensure executive branch actions are legal.

Many federal court cases across the country involve complaints that many of Trump’s executive orders and DOGE agency-slashing moves violate the law.  By acting rapidly, the president has forced courts to act quickly either to suspend his actions or consider them after the fact.

In the federal government, each of the three branches can control, limit or delay action by each of the others.  Constitutional checks and balances are meant to ensure that nobody can exercise unilateral power, akin to authoritarian rule. 

No election, no matter how strong its political message, allows the winner to annul the constitutional system.  Elections and policies come and go, but the system must prevail.  If not, we can reach a point, as we have, when the president threatens to expel citizens he considers serious criminals.

That’s wrong for a citizen and is also wrong for a non-citizen, like Abrego Garcia.  Due process  does not apply only to a citizen; it applies to a “person” in the U.S., however they got here.

In an obviously staged event, the president of El Salvador met with President Trump at the White House.  He refused to return the man, saying he would not send a terrorist to the U.S.  There is no evidence that the man is a terrorist. 

But Trump did not correct him or say the U.S. would accept him in line with the Supreme Court order.  Instead, he smirked in approval.  Later, Trump’s press secretary defiantly asserted Abrego Garcia would never return to the U.S.

Is this where the Constitution stops?

 

The Trump Referendum

Gordon L. Weil

Voters unhappy with the performance of President Trump are looking for opportunities to express their discontent at the ballot box.  House elections to fill vacancies offer them little comfort thus far, because the seats have been solidly Republican.  The only cheer for them may be that the new members of Congress did not do as well as Trump did in last year’s election.

But major vote looms, and it is really all about Trump.  It’s when Canadians elect a new parliament. The vote takes place on April 28. That’s somewhat earlier than required by law, but political circumstances dictated the earlier date.

Prime Minister Justin Trudeau, the Liberal Party leader, had grown unpopular. Many Canadians believed that he had not produced an economy they could live with.  Facing the inevitability of a loss, he tried to sweeten the pot by ill-advised breaks for average people. But that would disrupt his budget commitments, and his finance minister, who would have kept them, quit.

His voting deal with other parties then collapsed, making early elections inevitable.  Trudeau resigned as head of his party, which would then select a new leader, who would become prime minister until the elections. It looked like the Conservatives, under Paul Poilievre, would sweep into power.

Poilievre, from the province of Alberta which is the rough equivalent of Texas, is a professional politician who had cast himself in the model of Trump.  Just as several European countries had voted themselves to the right, he hoped to do the same in Canada.  As in the U.S., many people seemed to want a change from Liberal policies that had not produced promised results.

Into this mix of events came Donald Trump.  He moved to raise tariffs in violation of the USMCA trade agreement that he had pushed in his first term.  The relief for tariffs that he clearly believed would cripple Canada was his plan to force the northern neighbor to give up its nationhood and become the 51^st American state.

His push for Canadian statehood had the same kind of effect there as Pearl Harbor had brought about in the U.S.  If there wasn’t instant unity, it came reasonably close.   Ideological sympathies and the export of its oil to the U.S. showed Alberta to be somewhat less enthusiastic about the response to the U.S. than the other nine provinces.

Poilievre was caught flat-footed.  His natural ally had become the great nemesis.  He saw his 25 percent lead melt to the point that he trailed the new Liberal prime minister.

The new Liberal leader was quite different from his predecessor, who had tried to placate Trump despite being called “Governor” Trudeau by his fellow government chief. The Liberals overwhelmingly selected Mark Carney, formerly governor of the Bank of Canada and the Bank of England plus having served as chair of the international Financial Stability Board.

In short, he knows his stuff and won’t agree with Trump’s version of the role of tariffs. He also comes to the job with excellent credentials and standing and, as a former hockey player, has made it clear he won’t deal with Trump unless he and Canada are treated with respect. 

Many Canadians seem inclined to support him, because he will defend the country against any Trump moves.  He recognizes the need for a long-term relationship with the U.S., but he says the old days are “over.”

There is a third party in Canadian politics, the New Democrats. They are similar to the Bernie Sanders wing of the Democratic Party.  It appears that they will lose strength, as Canadian voters want to make a clear choice between Carney and Poilievre.  The Quebec Party wins seats but cannot produce a government. That contest makes the election a clear referendum on Trump.

While Poilievre has been forced to open some distance from Trump, he remains the representative of a party that would move Canada in the same direction as the GOP.  Will voters conclude that he will be better able to work with his political soulmate than the technically competent Liberal leader?

Feeling runs high in Canada against the wild idea, presented as if it could happen, of their country as an American state.  Obviously, Carney is in a better position than the Conservative and looks stronger and more experienced that Trudeau (or, for that matter, Trump). 

If Carney wins at all and especially if he wins big, it will serve as a rebuke to Trump and his a la carte foreign and economic policy.  Not only will it say that Canada will not succumb to Trump, but that the Great White North will stand on its own as never before.  That could send the puck back to the Americans.