This Supreme Court FTC case could restore accountability

Originally published in the Columbus Dispatch, this is a slightly expanded version that goes into more detail. I truly appreciate the Dispatch for their willingness to include contrarian voices and headlines that help to sell newspapers.

Supreme Court arguments aren’t merely wonky exercises of difficult to decipher legalese. They also aren’t usually purely politically partisan affairs either, despite that common portrayal. In fact, most cases are a straightforward review of lower court decisions, and nearly three-quarters of them are decided by overwhelming bi-partisan majorities.

But every so often, a case before the court addresses a fundamental question of constitutional governance and the oral arguments reveal stark differences in the ideological perspectives of the justices. Here’s one: Does the power to govern rest primarily with the elected representatives and executive of “we the people” or is our nation and our government so complicated that we must cede significant authority to “them the experts.” If so, who chooses the experts and to whom are they accountable?

That’s the crux of Trump v. Slaughter, argued before the Court earlier this month. President Trump fired Rebecca Slaughter, a Democrat on the Federal Trade Commission. He had appointed her during his first term. But the law establishing the FTC prohibited the president — any president — from firing commissioners, with a few exceptions for specific cause. Numerous other lettered agencies have similar structures.

As expected, the conservative justices seemed willing to reverse 90 years of precedent that first empowered the FTC’s autonomous structure, while the liberal justices were wary of doing so. But their differing approaches are less about partisanship and more a conflict of visions about whether Americans can be trusted to govern themselves or must we be ruled by unelected experts.

While the people may be fickle and imperfect, any number of dystopian novels show us that a technocracy is worse.

Slaughter addresses whether the legislature can delegate some of its constitutional lawmaking authority to “independent,” technocratic agencies, empower them with executive authority to enforce those laws, while also prohibiting the president — who leads the executive — from having control over the leadership of those agencies.

Or, put more simply: what branch of government — legislative, executive, or judicial — supervises agencies like the FTC?

Those agencies are effectively a shadow oligarchy of appointed “experts,” making and enforcing law with little to no voter accountability. Their rules constrain and coerce citizens’ behavior and levy enforceable penalties and fines for failure to comply. The Federal Register currently numbers nearly 200,000 pages with more than a million various restrictions. While ignorance of the law is no excuse for violating it, no one can be expected to know even one percent of that.

Congress created these agencies as constitutional chimeras — part legislative, part executive, and the judiciary has mostly allowed it to happen — until recently. A pair of decisions starting in 2020 has finally begun to tame the beast.

That year, the Supreme Court decided a case involving Ohio’s own Richard Cordray, formerly our Treasurer of State and Attorney General. President Obama appointed him as the first director of the federal Consumer Financial Protection Bureau. The Court, in Seila Law, LLC v CFPB, struck down the congressional restriction on presidential control over this executive agency’s lone director.

Then last year, the Court overturned 40 years of judicial subservience to agency power known as Chevron Deference, whereby the judiciary effectively transferred to these bureaucrats a portion of its fundamental authority to decide what the law is. While that case didn’t involve the president’s power over executive agency leadership, it nonetheless is part of a pattern of the court finally recognizing the folly of its past capitulation to congressional cowardice.

And cowardice has indeed become the driving force behind congressional buck-passing. On virtually every substantive public policy issue, congress has sought the comfort of letting administrative agencies have decision-making authority, while blaming the president or the courts for whatever failures ensue.

Advocates of a powerful and independent administrative apparatus of experts argue that the complexity of the modern world requires it. They have a point in some cases. As a pilot, I want the Federal Aviation Administration and National Transportation Safety Board to be staffed with experts in their respective fields. As a citizen of our constitutional republic, I also want the priorities and leadership of those agencies to be fully accountable to voters.

But what happens if entrenched bureaucrats in the FAA believe that climate change is a higher priority than aviation safety and efficiency and they quietly undermine a newly elected president who disagrees? They could do so simply by foot dragging on efficiency initiatives that would allow — in their minds — more climate-changing air traffic.

Members of Congress who support the bureaucrats can avoid the electoral consequences of a hamstrung aviation system by simply claiming that the “experts” know more than they do.

During oral arguments in Slaughter, Justice Katanji Brown Jackson gave voice to that very idea, saying that such expert independence from presidential authority is “for the good of the people.” There could hardly be a better example of condescending moral superiority than a Supreme Court justice implying that what’s good for the people is to have unelected experts ignoring their electoral will.

The same people who claim the current democratically elected president is a threat to “our democracy” on one hand, casually wave away such democratic authority for the people’s own good.

Never has political paternalism had such a public advocate. I’m grateful Justice Jackson let us see it.

I’m far more grateful to have a six justice majority who seem likely to quash such anti-democratic nanny-state nonsense.

In Slaughter, the justices will decide whether to expand the Seila decision and strike down the 1935 precedent that allowed the FTC structure — and others like it — in the first place. If it does, the current administrative state will be constrained, with executive and legislative power reverting to the president and Congress — where it belongs.

Polls show that the American people rightly view Congress with disdain, a rare bipartisan agreement. That’s what happens when authority is divorced from accountability.

Presidents change. Congress turns over. Bureaucrats don’t. The political branches may frustrate us, but at least we can fire them. The Supreme Court now seems ready to restore that same accountability to the unelected officials who exercise the real power. It will be a welcome — even if jarring — change.