By Kennedy Maize
The U.S. Supreme Court on June 29 redefined the fundamentals of how the federal government works going back some 144 years and the creation of the now-defunct Interstate Commerce Commission, which regulated railroads.
The court ruled 6-3 with the usual partisan divide that hitherto “independent” federal agencies are not independent. The president can fire members of commissions with Congressionally determined fixed appointments apportioned by political party at will.
In Trump v. Slaughter, with Chief Justice Roberts writing for the Republican majority, the court ruled Trump could can two Democrats appointed to fixed terms from the Federal Trade Commission because they disagreed with his policies, Rebecca Slaughter and Alvaro Bedoya. They sued in federal court, although Bedoya later dropped out of the case.
A 1935 Supreme Court decision overturned Democratic President Franklin Roosevelt’s firing of a 1933 Republican FTC appointee, William F. Humphrey, based on a policy disagreement. The 1914 law that established the FTC said the president could remove commissioners only for “inefficiency, neglect of duty, or malfeasance in office.” The case became known as “Humphrey’s Executor.”
The federal courts upheld Humphrey in numerous cases over the years while whittling away at it on the margins. Last month the Republicans delivered a death blow. Roberts wrote, “We hold that such protection from removal is contrary to the separation of powers enshrined in the Constitution.”
The decision could have implications for many nominally-independent agencies, including two important energy regulatory bodies, the Federal Energy Regulatory Commission and the U.S. Nuclear Regulatory Commission. An analysis by the Sheppard law firm commented, “As Justice Sotomayor noted in dissent, dozens of independent commissions—such as Federal Energy Regulatory Commission, the Consumer Product Safety Commission, the Chemical Safety Board, the Nuclear Regulatory Commission, and the Merit Systems Protection Board—are now likely to become purely executive agencies, shifting tremendous power into the President’s hands.”
Those agencies are now beginning to ponder how to cope with the court’s decision in Slaughter. Former FERC commissioner and chairman Mark Christie, a Trump appointee and a decidedly independent (and sometimes irascible) force at the commission, commented on LinkedIn: “The Supreme Court’s ruling in the Slaughter case was a correct interpretation of the Chief Executive’s constitutional authority to supervise and dismiss those officers exercising executive powers.”
Christie, who now directs the Center for Energy Law and Policy at William & Mary Law School and is a veteran Virginia state utility regulator, added, “The practical and constitutional problems are that FERC and similar commissions, such as the FCC, FTC, and SEC, also exercise legislative and judicial powers not delegated to the President in the Constitution. So the Slaughter ruling effectively transferred legislative and judicial powers to the Chief Executive, a transfer that itself violates the Constitution’s fundamental separation of powers principles.
Congress created this mess by unconstitutionally combining legislative, executive and judicial powers in single agencies. But Congress can fix it by reclaiming its own legislative powers, including with regard to FERC specifically, the power to set rates.”
Rates that affect consumers’ power bills should be set based on facts in the public record, not by calls from executive branch officials outside the record. Consumers deserve nothing less.”
Christie’s prescription echoes the concurrence in Slaughter by Justice Neil Gorsuch. He asked, “Would Congress have delegated so much power, including legislative and judicial power, to independent agencies had it known that the President would come to control them? How will Congress respond now—if realistically it can? And what, if anything, will this Court do about it?”
Gorsuch’s answer: “From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the courts. We have tolerated adventurous theories long enough. It is time to return, all the way, to the Constitution.”
Looking at the impact on the NRC, the Union of Concerned Scientists, which has long been a key watchdog over the NRC, predictably expressed broad concerns over the Slaughter ruling. UCS accused the court of “weakening longstanding safeguards designed to insulate agency decision-making from political influence and preserve the role of independent expertise in guiding policymaking and serving the public.”
Jennifer Jones, director of the Center for Science and Democracy at UCS, said, “The effects of this decision will extend beyond any single administration. If presidents have the power to replace agency leadership at will, agencies risk losing the continuity, institutional knowledge and experience necessary to carry out their missions effectively.”
Veteran energy attorney and former NRC commissioner Peter Bradford (1977-1982), who has also been chairman of the Maine Public Utilities Commission (1982-1987) and New York Public Service Commission (1988-1995), told The Quad Report in an email, “Assuming though that the NRC is exercising executive powers, the implications under Trump are pretty awful, as in would you want the wizards of science who turned the reflecting pool into Mountain Dew to be calling the shots as to nuclear safety….The former NRC had to adhere to certain minimums to keep the minstrel show credible. Now those are very much in doubt.”
The Quad Report, covering energy policy and politics