At this point however, in a brief and unreasoned order on the emergency docket, the Roberts court intervened to preclude Slaughter’s reinstatement. Despite an elaborate dissent by Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor, their colleagues refused to allow the lower courts to come to thoughtful judgments before the Supreme Court considered the fundamental issues involved. Instead, the majority prevented Slaughter from returning to office while expediting the court’s consideration of the merits with blinding speed, requiring the parties to present their final arguments on December 8—less than three months after it seized control of the case on September 22.
The justices’ rush to judgment has led almost all serious commentators to predict that the majority would repudiate a unanimous decision from 1935—Humphrey’s Executor v. United States—that has served as the unquestioned constitutional foundation for the construction of a host of independent agencies such as the FTC over the course of the 20th century.
I disagree. After listening to lawyers for Slaughter and Trump make their oral arguments for more than three hours on December 8, I believe that Justice Amy Coney Barrett will vote to uphold Humphrey’s Executor. Through her questioning, she called upon her colleagues to rethink their basic premises and uphold the court’s 1935 decision. The key question is how they will respond to her insights on the continuing validity of Justice George Sutherland’s once-canonical opinion—and reaffirm their fundamental importance for the 21st century.
Humphrey’s Executor during oral argument
On Barrett’s view Sutherland was right to deny that the statutory creation of “independent” agencies should be viewed as illegitimate efforts by Congress to seize control of the president’s constitutional authority over the executive branch. Indeed, Humphrey’s Executor makes it clear that the principle of agency independence represents a fundamental response to a pervasive problem of modern government: the rise of technocratic analysis in dealing with crucial issues of public policy. Quite simply, the typical president, representative, senator, or justice fails to possess the number-crunching skills and technical subject matter expertise required to consider the sociopolitical implications of their decisions on an increasingly broad range of crucial issues.
In making this point, however, Barrett repeatedly emphasized that it would be a big mistake for the leaders of the three branches to abdicate their ultimate decision-making authority to technocrats. The challenge, instead, is to construct enduring institutional relationships between the the three branches and the independent agencies created by statute in which they assist—rather than undermine—the ongoing effort at responsible decision-making. So far as Barrett was concerned this is the fundamental rationale advanced by Humphrey’s Executor in 1935. Rather than regarding Sutherland’s unanimous opinion as a betrayal of the trinitarian system of checks and balances established in 1787, it represents a genuinely profound effort to redeem the founders’ Enlightenment system in way that plausibly responds to the social-scientific challenges of modernity.
Sutherland recognized, of course, that the construction of particular agencies was a controversial matter. Nevertheless, as Barrett emphasized, his opinion insisted that it was up to America’s elected leaders to determine when the “free market” gives entrepreneurs overwhelming incentives to exploit consumer ignorance and should be reined in by independent agencies on behalf of the general public. If the court upholds Trump’s decision to fire Slaughter, this will shatter the entire system of modern government. Instead, she called on her colleagues to define more constructive ways in which the judiciary can help prevent the serious breakdown of different agencies in their ongoing efforts to confront future technocratic challenges.
Moreover, Barrett was not content with defending Humphrey’s Executor. Barrett’s line of inquiry encouraged her colleagues to consider the ways in which the agency claims to independence have been legitimated by 150 years of constitutional development—beginning with President Grover Cleveland’s success in convincing Congress to create the Interstate Commerce Commission (ICC) in 1887 and continuing throughout the 20th century.
The long, bipartisan history of agency independence
Cleveland’s breakthrough inaugurated an ongoing effort by different administrations to construct different independent agencies to deal with different problems, and Barrett highlighted these historical precedents during last month’s oral argument. It is precisely at this point at which her historical discussion of the enduring significance of Humphrey’s Executor converges with a centeral theme of my book Transformations, the third and final volume of We the People. My book was was published in 1998, however, and did not anticipate the political and judicial developments of the past quarter century that have led to the appointment of a series of justices who have increasingly challenged Humphrey’s. Nevertheless, I devoted many years of serious research during the 1990s to exploring the concrete historical dynamics that led to the repeated real-world construction of independent agencies during the previous century. So, it seemed important to update my 1998 analysis to clarify the destructive character of Trump’s break with the repeated recognition by previous presidents of the compelling case for a wide range of independent agencies to meet the challenges of modern government.
After all, even if—as I had assumed before Barrett’s last-minute inquiries—the court upheld Trump’s decision to fire Slaughter in a 6-3 decision, their opinion would remain deeply controversial. Not only would the dissenters emphasize the majority’s repudiation of an entrenched pattern of judicial and governmental theory and practice over the past century, it would frame the constitutional issues confronting the next generation: If the next couple of presidents turn out to be followers of Donald Trump, they would certainly do their best to gain the appointment of Supreme Court justices who would reaffirm the legitimacy of Trump v. Slaughter. But if they turn out to be centrists or progressives, the partisan character of the 6-3 decision’s repudiation of a century of bipartisan practice would make its continuing status deeply problematic. As a consequence, it seemed sensible for me to devote the past six months to working on an essay—ultimately amounting to 15,000 words—that could help provoke an ongoing debate on the fundamental issues in places, such as the Center for American Progress, among others, that seek to define realistic constitutional reforms that can revitalize American democracy in the wake of Trump’s assault: “The Roberts Court’s Unprecedented Abuse of Precedent.”
When I published my in-depth study shortly before the December 8 debate, I did not anticipate Barrett’s call for a reappraisal of basic premises. In the light of her focus on historical turning points, however, it seems appropriate to conclude this article by marking out the ways in which my recently published paper confirms her insights.
To begin, Grover Cleveland showed remarkable self-restraint in refusing to allow Congress to enact a statute that would allow sitting presidents to appoint their political allies to a nonindependent ICC. Under a politically pliable ICC—or other so-called “independent agency”—decision-makers would have been able to set so-called “fair and reasonable” rates for partisan purposes, requiring the railroads to charge especially low rates in states dominated by the president’s political party and especially high rates to farmers and workers living in regions controlled by the president’s opponents. If these high-price shippers were to go to federal court to protest these decisions, however, they would have encountered federal judges who simply lacked the analytic and statistical skills to make thoughtful decisions on the merits. Judges would typically be overwhelmed by the impressive-looking data analysis presented by highly paid “experts” hired by the railroads.
Yet Cleveland and his Democratic Congress refused to succumb to these obvious temptations. Barrett rightly points to a series of crucial safeguards that marked the 1887 Interstate Commerce Act out as one of the greatest acts of constitutional statesmanship in the history of America. For starters, each commissioner was granted a term of six years in office, and vacancies were staggered in a way that made it impossible for any president to appoint more than two members during their four years in the White House. Even if a president gained reelection, the statute insisted that “[n]ot more than three of the Commissioners shall be appointed from the same political party.”
The act then required railroads to provide the agency with “full and complete information” dealing with “the manner and method[s]” of their operation to enable the agency to credibly perform its regulatory role. Yet even this was not enough. The statute also required the commission to recruit a special staff of economists to provide the requisite expertise and then endorsed extraordinary measures to prevent special interests from corrupting their professional integrity. These safeguards have proved remarkably successful over the course of generations.
Even more important, Cleveland’s breakthrough inspired his Republican successors to establish new independent agencies to confront the scientific revolutions of the early 20th century. During his tenure, President Theodore Roosevelt gained the support of Congress for an independent Food and Drug Administration to deploy biological and medical science to protect ordinary Americans against the health risks generated by the “free market.”
President William Howard Taft followed the same path. This time around, one of his targets was the rapid rise of the radio and telephone—and the threat of their monopolization by a plutocratic elite. He responded by convincing Congress to expand the ICC’s mission beyond railroads to include regulatory control over these radically new forms of public and private communication.
Yet, as Barrett rightly emphasized, this was not nearly enough to satisfy Woodrow Wilson when he swept Taft out of the White House in 1912 and led his fellow Democrats to decisive majorities in Congress for the first time since 1893. His electoral triumph was based on campaign speeches urging voters to embrace his vision of a “New Freedom”— requiring the construction of independent agencies, deploying the insights of social science, to preserve individual liberty in a world transformed by the economic and scientific revolutions of the early 20th century. Once in office, Wilson made his top priority the enactment of two breakthrough statutes creating the Federal Trade Commission and the Federal Reserve Board. Despite the bitter resistance of big business, both statutes were enacted by 1914. Within three short years, these statutes mobilized support and repeatedly gained the the American people’s endorsement at the polls.
When Republican presidents returned to power after World War I, they built more independent agencies on these prewar foundations. While Taft had expanded the ICC’s jurisdiction to include radio regulation, Coolidge gained the enactment of the Radio Commission Act of 1927, enabling a separate independent agency to focus on the very different forms of expertise required to govern these astonishingly new communication technologies in the public interest. Similarly, when running for president in 1928, Herbert Hoover maintained the political momentum, proposing an ambitious set of independent agencies as a central element in his campaign for the White House. When his landslide victory over Al Smith swept strong Republican majorities into both houses of Congress, Hoover then gained legislative support for the statutory construction of a range of independent agencies to confront the socioeconomic crisis precipitated by the stock market crash of 1929.
To be sure, Hoover’s innovations were not enough for him to defeat Franklin Delano Roosevelt in the 1932 elections, and my longer essay deals with the complex ways in which the New Deal ultimately moved far beyond the previous 50 years of historical development inaugurated by Cleveland’s Commerce Commission. For present purposes, however, I have said enough toemphasize the extent to which my own historical investigations provide a solid foundation for Barrett’s remarkable challenge to her colleagues.
Conclusion
Quite simply, Barrett is calling on all of her fellow justices to reflect more deeply on the truly remarkable character of Justice Sutherland’s decision in Humphrey’s Executor. After all, it was delivered on March 27, 1935, at a time when the six justices were repeatedly denouncing the constitutionality of New Deal legislation over the dissents advanced by their three progressive colleagues. Nevertheless, as Sutherland’s opinion makes clear, the remarkable bipartisan successes of the past 50 years made it possible for all nine members of the Supreme Court to move beyond their bitter disagreements to unite behind a unanimous opinion that, in a remarkably thoughtful fashion, then served as the constitutional foundation for the next 100 years of institutional development to confront the technocratic challenges of modernity. Nonetheless, Donald Trump is threatening to repudiate 150 years of history at a time when Americans are struggling to confront the enormous life challenges posed by the shattering rise of artificial intelligence over the course of the coming decades.
Now that Barrett has put Humphrey’s Executor in deeper perspective, however, the question remains whether any other Republican appointee—most notably the chief justice—will use the coming months to rethink their views and join her in a bipartisan coalition with the three progressive colleagues to reaffirm the enduring significance of Humphrey’s Executor in the 21st century. Even if Chief Justice John Roberts remains unconvinced, however, the three dissenters should make every effort to join Barrett in a bipartisan opinion that will decisively undermine the future legitimacy of an “opinion of the Court” issued by five justices—including two Trump appointees—to authorize the president to repudiate the bipartisan achievements of both Democratic and Republican administrations over the past 150 years.