At Law & Liberty, Adam Smarick (Manhattan Institute): Gorsuch’s Con-jority Opinion in Slaughter. From the introduction:
In Trump v. Slaughter, Justice Neil Gorsuch voted with the majority to rule that since the Federal Trade Commission exercises extensive executive power, the president has the authority to remove that agency’s head. The upshot is that the constellation of ostensibly “independent” federal entities will now be more closely supervised by the president.
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But the most striking aspect is that while no other justice signed on to Gorsuch’s concurrence, it may well reflect what most of his colleagues—from left to right—believe needs to come next. So while Chief Justice John Roberts’s majority opinion will be remembered for overruling Humphrey’s Executor, Gorsuch’s con-jority opinion might be remembered for forecasting the Court’s post-Humprey’s era.
This case, on its face, may have been about the simple matter of President Trump’s ability to fire Rebecca Slaughter. But it raised three deeper questions about the nature of constitutional government, namely the president’s control of executive functions, Congress’ authority to create federal agencies of its choosing, and the constitutionality of the branches sharing each other’s powers.
And from later on:
The three progressive justices, fuming about the expansion of executive authority, can’t want this new normal to last. But the conservative justices—as evidenced by this case, the major questions doctrine, the end of Chevron, and the end of universal injunctions—are eager to have the branches stay in their lanes. So they can’t be very fond of these behemoth cross-branch agencies becoming arrows in the president’s quiver.
And this is where the third constitutional-design conversation begins (i.e., the permissibility of cross-branch power sharing). Here, Gorsuch’s concurrence takes the lead. He describes the history of independent agencies, including their ideological roots. In his telling, the anti-democratic, anti-separation of powers philosophy of the Progressive Era gave rise to these fourth-branch entities. In other words, they were intentionally designed to skirt (even defy) the three-branch arrangements in the Constitution. Gorsuch’s description of the cross-branch nature of these agencies is perhaps the most important part of his concurrence.
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Gorsuch implies a question we and members of the Court simply can’t ignore: If it’s wrong for agencies with executive power to operate independently of the president, isn’t it wrong for the president to control agencies with legislative and judicial powers? Said another way, if we’re going to jealously guard the president’s control of executive authority, shouldn’t we jealously guard Congress’s control of legislative authority and the judiciary’s control of judicial authority? This appears to be what he has in mind: “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.”
Posted at 6:03 AM