Is the President in Charge of the Executive Branch?
The Supreme Court heard arguments in a case yesterday that could have drastic implications for our system of three, not four, constitutional branches of government.
In plain language, our Constitution established three branches of government. Not four, which the Supreme Court considered yesterday in Trump v. Slaughter.
“Monty Python and the Holy Grail” likewise laid this out: “Three shall be the number thou shalt count, and the number of the counting shall be three. Four shalt thou not count, neither count thou two, excepting that thou then proceed to three. Five is right out.”
It’s that simple, really, but I suppose I should also quote the Constitution. Article I, Section 1 created Congress: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Article II, Section 1 begins, “The executive Power shall be vested in a President of the United States of America.” Likewise, Article III, Section 1 says, “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
The unconstitutional so-called fourth branch, often dubbed the administrative state, traces its roots primarily to President Woodrow Wilson. An academic, Wilson wasn’t a fan of the Constitution, particularly the limits it put on the executive. Arguably, he, more than any other president, is responsible for the administrative state of “experts” who determine much of what the federal government actually does now.
Congress regularly avails itself of the advantages of delegating its work to unelected bureaucrats, too. Why make hard decisions when you can campaign on blaming someone else in another branch?
In 1914, Wilson signed the law creating the Federal Trade Commission, consisting of five commissioners appointed by the president. In 1935, the Supreme Court effectively certified this “body of experts” arrangement in Humphrey’s Executor v. United States, concluding that President Franklin Roosevelt could not fire an FTC commissioner except “for cause.” In other words, a president can’t just fire his predecessor’s people and install his own.
That case established the precedent of “independent” agencies ostensibly protected from the — gasp — politics of presidential decisions about firings. However, these agencies are independent only in that the unelected bureaucrats who run them are largely unaccountable to the voters they rule.
As Ben Shapiro aptly notes, “There is nowhere in the Constitution where it says Congress has the power to set up an agency inside the executive branch that the president of the United States cannot run.”
Fast-forward to President Donald Trump, who fired FTC Commissioner Rebecca Kelly Slaughter; predictably, she sued. Lower courts, following Humphrey’s, ordered her reinstated, but Trump has pursued the case all the way to the Supreme Court, hoping for a critical overturning of a terrible precedent.
Team Trump’s brief to the Court explains the FTC’s power over all manner of economic transactions and that the elected president must have authority over an executive agency that otherwise wields power unaccountably.
By contrast, Slaughter’s team essentially argues that overturning 90 years of precedent would “profoundly destabilize” the government. Yes, returning something to constitutional bounds would indeed “destabilize” the current government, as intended.
The Leftmedia buys Slaughter’s argument, however. Article after article frets about the horrors of “politicizing” such independent agencies, as if no such thing has ever happened until Donald Trump.
The Court’s left-wing justices also seemed sympathetic to this argument yesterday. For example, Justice Elena Kagan worried, “You end up with massive, unchecked power in the hands of the president.”
Similarly, Justice Sonia Sotomayor lamented that overturning Humphrey’s would give “absolute power to the president.” Over the executive branch, yes, that is what the Constitution says. Yet she turned that venerated document on its head, adding, “You’re asking us to destroy the structure of government, and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent.”
No, Team Trump is asking the Court to restore the constitutional structure of government.
Justice Ketanji Brown Jackson channeled Woodrow Wilson, opining, “My understanding was that independent agencies exist because Congress has decided that some issues, some matters, some areas, should be handled in this way by nonpartisan experts.” She went on, “So, having a president come in and fire all the scientists, and the doctors, and the economists, and the PhDs, and replacing them with loyalists, and people who don’t know anything, is actually not in the best interest of the citizens of the United States.”
Joe Biden, who appointed Jackson to the Court, showed how well “government by the scientists” works.
Justice Brett Kavanaugh may have had that in mind when he said, “I think broad delegations to unaccountable independent agencies raise enormous constitutional and real-world problems for individual liberty.”
As for the precedent at play, Chief Justice John Roberts doesn’t think much of it. “Humphrey’s Executor is just a dried husk of whatever people used to think it was,” Roberts said. The FTC of 1935 “has nothing to do with what the FTC looks like today,” he added. “It was addressing an agency that hadn’t very little, if any, executive power.”
Obviously, it remains to be seen how the Court will rule — for example, whether it will endorse presidential authority over the Federal Reserve or find some other way to limit it. Presidents have certainly overstepped their constitutional bounds on many issues, but the Constitution is as clear as day about where executive authority rests.
- Tags:
- Woodrow Wilson
- Ketanji Brown Jackson
- Elena Kagan
- Sonia Sotomayor
- Donald Trump
- Supreme Court
- executive

