It depends on whether you think elections are better than “independent civil servants.” The system the founders created was one where the executive branch would be subject to the whims of the people via regular elections of the President.
In the late 19th and early 20th century, folks like Woodrow Wilson came up with this idea of the administrative state run by independent expert civil servants: https://teachingamericanhistory.org/document/the-study-of-ad.... The concept arose from Wilson’s hatred of democracy and immigration:
> The bulk of mankind is rigidly unphilosophical, and nowadays the bulk of mankind votes. A truth must become not only plain but also commonplace before it will be seen by the people who go to their work very early in the morning; and not to act upon it must involve great and pinching inconveniences before these same people will make up their minds to act upon it.
> And where is this unphilosophical bulk of mankind more multifarious in its composition than in the United States? To know the public mind of this country, one must know the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes. In order to get a footing for new doctrine, one must influence minds cast in every mold of race, minds inheriting every bias of environment, warped by the histories of a score of different nations, warmed or chilled, closed or expanded by almost every climate of the globe.
The idea of “independent agencies” staffed by neutral civil servants arises directly from this skepticism of democracy and voters.
The president they created was one who administered over a much more limited government, one that primarily collected taxes and waged wars. Both were done at the behest of congress, so there was limited independence in how it was done. In the interim, federal agencies with a far greater impact on people's daily lives were created, on the assumption that they could be run according to policies set out by congress, and hence not completely upend people's lives on the whim of a single partisan elected official.
> The president they created was one who administered over a much more limited government, one that primarily collected taxes and waged wars.
Even if that was relevant, it's not true. By the time of Thomas Jefferson's death in 1826, the federal government had over 10,000 employees. It didn't just collect taxes and wage wars--it issued patents, enforced laws, managed pensions (for soldiers), provided direct services to the public (mail), issued currency, and had a central bank. By 1900, still decades before the rise of the modern administrative state, the federal government had over 230,000 employees.
It is true and your own comment is a restatement of what I said. It's even obviously true, why would you pick a fight over this? You said "even if that was relevant" why not argue that instead?
> The idea of “independent agencies” staffed by neutral civil servants arises directly from this skepticism of democracy and voters
It arises from the need for certain aspects of our country to not be explicitly partisan or subject to fickle leadership. Same reason people call for independent committees to draw congressional maps.
This country is not and never has been a “true” democracy. Being inherently skeptical of the democratic process is foundational to our country.
There is no such thing as someone who is "independent" and not "partisan." The federal bureaucracy is neither--it is comprised of people who, just like everyone else, are motivated by their own ideology and self-interest. Insulating those people from the elected President doesn't make them non-partisan. It just prevents the electorate from replacing those people with members of whichever party is currently favored.
You're correct that the founders were skeptical of direct democracy, but their solution to that was representative government and constitutional protections for private property. The people don't get to decide what to do, but they do get to decide who gets to decide what to do.
”Don’t let perfect be the end of good.” I would say it’s pretty common sense that avoiding an explicitly partisan situation would generally lead to less partisan outcomes.
"Independent agencies don’t exist" is not a serious description of how U.S. statutes and doctrine work. "Independent agency" is not a vibes-based label. It's standard terminology for agencies Congress structures to be somewhat insulated from direct presidential control (e.g. multi-member commissions with fixed terms and (often) for-cause removal). Congress has, in fact, established a number of such agencies headed by multi-member bodies whose officers may only be removed by the President "for cause." [1]
The Constitution may not use the modern civics phrase "executive branch," but it plainly creates what we now call one: "The executive Power shall be vested in a President..." Even if we grant the semantic point, it doesn't prove the legal conclusion you want. Congress's authority to create agencies and offices and design their basic structures (subject to constitutional limits) is well-recognized. [2]
You're also wrong to treat Myers v. United States as if it ended the discussion. Myers involved a purely executive officer (a postmaster) and is part of a broader removal-power line of cases. [3] Humphrey’s Executor (1935) limited the sweep of Myers in the context of independent commissions by upholding Congress's ability to restrict removal of FTC commissioners to specified causes (e.g. "inefficiency, neglect of duty, or malfeasance in office"). [4]
Your analogy to "congressional aides" and "judicial law clerks" is a category error. Aides/clerks are staff whose authority flows through, and is controlled by, constitutional officers. Independent commissions are Congress-created offices exercising delegated statutory authority, and the question is how far Congress may structure that delegation (appointments, terms, partisan-balance requirements, and sometimes removal limits) consistent with separation of powers.
Finally, the Woodrow Wilson citation is doing sleight of hand. The passage you quote is about insulating administration from day-to-day politics ("administrative questions are not political questions") and it indeed contains elitist/racist language about voters. [5] But (1) that’s an argument about civil service/administration, not a dispositive argument about the constitutionality of independent commissions, and (2) it's historically confused to imply this is a late/progressive "invention": as early as 1887 Congress created the ICC with explicit bipartisan-balance language and explicit for-cause removal language. [6]
If you think Humphrey’s Executor was wrongly decided and should be overruled, that's an argument you can make. But pretending "independent agencies don't exist" (or that Myers settled everything) just isn't accurate as a description of U.S. law, and someone with your background and experience should know this.
That's always the question with this unitary executive business. They believe this is the government defined by the Constitution, regardless of precedent. Do they believe it is a good system of government? Do they believe this is the government intended or rather the government allowed by legal loophole, vagueness, or contradiction? Because it seems like they think the president should rule like a monarch because they happen to control the presidency at the current moment, not because it is a wise and effective system of government.
It's a fair question to ask "who are independent executive agency heads accountable to" in a constitutional context. It is true that the Executive Branch has grown far beyond what the Founding Fathers could have imagined, but the idea of a unitary executive is that the President is responsible and accountable for everything that happens in the Executive Branch. If the voters don't like what the Executive Branch is doing, they can replace the President in the next election. What happens if voters don't like what independent executive agencies are doing? There's no democratic recourse.
Think of a scenario where a President was elected with a large-ish majority and promised during the campaign to change broadband regulations to reduce broadband prices across the country. Unfortunately, the FCC commissioners were all appointed by the previous president and block this policy change that the voters clearly support. How does that square with democratic accountability?
The problem is that Congress has delegated a lot of its traditional law making power to the Executive Branch. Laws are written in vague ways with executive agencies given liberty to implement as they see fit. This gives a lot of additional power to the President (who can at least be dealt with by impeachment or being voted out in the next election) as well as independent executive agency heads (who can't be directly fired by anybody). I agree that Congress should be the ones passing laws as the excessive delegation of lawmaking by Congress is what's gotten us into the current situation
none of the authority Congress has delegated has been delegated irrevocably. if you want to change how the head of the FCC is appointed there's this thing called a law that can't be passed to change it
How can you cite “precedent” when Myers v. United States decided this issue in favor of the unitary executive back in 1926? The administrative state that exists today was only facilitated by the FDR Supreme Court overruling a bunch of precedents.
Go read the Federalist Papers. The founders thought very hard about who should exercise which powers and how they should be selected. They did not intend for 99% of the actual government operations to be run by “independent” executive officials that were insulated from elections. That’s something we made up in the 20th century in response to trendy ideas about “scientific government.”
The Federalist Papers is not "the founders". It's Alexander Hamilton and James Madison. There were numerous factions running around the Constitutional Convention, and they negotiated the final document together.
I don't understand why the Federalist Papers gets cited as if it were part of the Constitution. It is not a definitive source of anything except the opinion of those two (three, with Jay) men.
The Federalist Papers reflects the views of the majority faction of those who wrote the constitution. You can get the minority opinion in the Anti-Federalist papers.
But find me any contemporaneous document that suggests the framers thought power should be exercise by unelected bureaucrats insulated from oversight by elected officials.
>How can you cite “precedent” when Myers v. United States decided this issue in favor of the unitary executive back in 1926? The administrative state that exists today was only facilitated by the FDR Supreme Court overruling a bunch of precedents.
And in doing so they reshaped the precedent. One can't claim Brown v Board is not precedent just because Plessy v Ferguson already spoke on the same matter.
I’m responding to the OP’s criticism that proponents of the unitary view of the executive “believe this is the government defined by the Constitution, regardless of precedent.”
It seems odd to complain about giving insufficient respect to precedent, when that precedent itself overruled a prior precedent.
I agree precedents should be overruled when they are contrary to the text of the constitution, such as when Brown overruled Plessy. There are a lot of 20th century precedents that are wrong and are based more on convenience and a desire to appease FDR than on the text of the constitution.
> The founders thought very hard about who should exercise which powers and how they should be selected.
Which would be perfectly fine as a basis if we were still in the 18th century.
Things are, I believe, somewhat different now and what a bunch of rich old white men thought then isn't all that relevant now except as a historical oddity.
If you think what the founders said doesn’t matter because they’re dead white guys, isn’t that an argument for giving more power to the guy who won the election? Because surely the dead hand of the founders is the only thing that has the authority to overrule the elected President.
It has to be a dichotomy, right? You either go by what the constitution meant to those who wrote it, because that’s how written agreements work, or otherwise you go with what the mob wants. How can there be some third option?
No, why would it have to be a dichotomy? That doesn't make any sense.
For example, the Catholic Church is neither (solely) defined by a set of 2,000 year old writings, nor is it under strict authoritarian rule by the elected Pope. The Church has been gradually sculpted and steered by centuries of councils, disagreements and reconciliations, power struggles, competing institutions, and much more. It is its own thing, defined by precedent and history and nearly unrecognizable when compared across centuries.
The approach of the Catholic church is internally consistent, because it is premised on the existence of divine law which the church as an institution is specially entrusted with conveying to the laity.
That approach makes no sense in a secular democracy. There is no divine law to interpret, and there is no body like the Catholic church charged with mediating between divine law and the laity. The only source of authority is the consent of the governed. The constitution and amendments reflects the consent of a supermajority that can bind subsequent majorities. But any intermediate majority can be overruled by a subsequent majority. In that framework, the only sources of authority that can overrule the present majority are the edicts previously sanctioned by supermajorities. And the only relevant meaning of those edicts is what they would have meant to the people who consented to them.
If you dispense with the idea that the intent of the framers matters, then you’re dispensing with the authority of the supermajority that consented to what the framers wrote. That leaves only the present majority as the only source of authority.
The fact that you still call the "founders" the "founders" as if they were a single unified person/entity with non-conflicting values shows me what kind of "originalist" jurisprudence you go for.
The concept of independent agencies (that is, those overseen by Congress rather than the president) was controversial long before, and for far longer, than it wasn't.
It's not, really. In Seila Law v. CFPB (2020) the Supreme Court ruled that even directors seemingly protected by for-cause language (which the FCC charter does not have) can be removed at will unless the agency in question "exercises no part of the executive power" and is "an administrative body ... that performs ... specified duties as a legislative or as a judicial aid." https://en.wikipedia.org/wiki/Seila_Law_LLC_v._Consumer_Fina...
Do you have a case which was not about the executive authority of Donald Trump specifically? When we talk about how controversial or how new this interpretation is, the question I really have in mind is, why should I believe that it was developed out of genuine legal analysis and not an unprincipled desire to give Trump more power?
It contains an exhaustive historical analysis explaining why the President has unrestricted power to remove executive officers.
The “unprincipled” decisions were the ones like Humphrey’s Executor that sought to find ways to implement the 20th century concept of an “expert administrative state.” That’s not the government that was created in our constitution.
Yeah the FCC is really about Weiner[1], if anything, not Humphrey's. Weiner established some precedent of "inferred" independence for agencies of a certain character (e.g. those whose function is wholly judicial or legislative) even when explicit removal protections are not included in the law.
In 2020, five years ago, was essentially the exact same court as today, except KBJ replaced Breyer. The precedence in question dates to 1935 Humphrey's Executor v. United States where a conservative Supreme Court sought to cut back executive power of a liberal president. Now we have a conservative Supreme Court expanding executive power for a conservative president. If you think the Roberts court would have let Joe Biden have this much power well then I have a bridge and some student loans to sell you
Humphrey's, which held that for-cause protections are constitutional for agencies that meet certain tests, while broadly relevant to current events (FTC etc.), is not relevant to FCC as FCC charter does not have explicit for-cause protections.
> If you think the Roberts court would have let Joe Biden have this much power well then I have a bridge and some student loans to sell you
Yes, I do think the time horizon of every SCOTUS member is longer than four years. I believe Gorsuch when he says:
I appreciate that, but you also appreciate that we're writing a rule for the ages. -- https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-939_3fb4.pdf
I think that they all have the hubris to see themselves as part of history and write their opinions for future generations. Not that they aren't biased by current events, but that they see themselves as larger than that.
In this case, Trump is easily bought and isn't very concerned with governing himself (compared to playing golf or designing ballrooms). With this in mind, even people outside the executive branch, or even the USA are benefiting.
I’m familiar with the theory for sure. I’m just saying it’s pretty hard to defend the executive branch being able to bully/threaten such an important driver of fiscal policy for the country.
Where did you get the idea that he's the least bought? It's factually inaccurate.
He literally publicly offered oil executives whatever they wanted for a billion dollars, and though he didn't make that much (that we can prove) has been delivering on that promise since. [0]
While being "honest" in the sense of "staying bought" and delivering the promised graft is somewhat commendable, it's not exactly evidence that he holds some sort of moral high ground.
How is this any different than Biden making sweeping environmental promises and then allocating billions to those groups?
I don't see any difference and this is something that all candidates do at every level - local, state and federal elections. I mean, look at what Mamdani promised in order to get elected.
This is a classic defense of
Trump I get so tired of seeing. Everyone who supports him constantly talks about how he is so different and how refreshing it is that he is not a politician, yet when he does things that can’t be explained away or justified from a moral/ethical standpoint the canned response is “well all politicians do it.”
Same thing with so many of his supporters saying they aren’t republicans coupled with this insistence he isn’t actually a Republican either. His 2 landmark bills were primarily tax breaks for the wealthy/businesses. That’s been core Republican policy for almost 50 years now.
If you have 2 million dollars lying around you can commit any federal crimes and buy a pardon.
Which may seem like a lot but also consider if you're doing something like funding literally terrorism it's probably not that hard to scrounge up 2 million. You don't go to federal jail for jay-walking.
If that's not a good example then consider TrumpCoin where literally Trump meet with the largest holders of the coin (i.e. people that paid the most; at least intended too).
He's been caught on TV, in the Oval Office, accepting gold bars from business executives. I don't understand what you hope to gain by lying about this.
