Hubbell: A Look at the Supreme Court's Latest Aid and Comfort to Trump's Crusade to Repeal the 20th Century
By allowing the mob boss president to control independent agencies, the right-wing justices are animating disruption of a system that has supported U.S. economic stability since World War II.
By Robert B. Hubbell Today’s Edition
On Monday, the Supreme Court’s reactionary majority signaled that it would overturn a long-settled precedent that underpins independent federal agencies, which, in turn, serve as the cornerstone of the modern administrative state.
While many conservatives choke on the very notion of “the administrative state,” independent agencies helped propel the U.S. post-war economy to the world’s largest by maintaining orderly, safe, and (relatively) corruption-free markets and industries.
The key to the success of many federal agencies has been their independence from political pressure. See, e.g., The Constitutional Accountability Center, The Virtues and Necessity of Independent Agencies. (“Congress carefully structured these agencies to ensure that they would have the expertise, stability, and insulation from day-to-day politics necessary to perform their important functions on behalf of everyday Americans.”)
Examples of independent agencies and commissions include the Social Security Administration, the Securities and Exchange Commission, the US Postal Service, the Small Business Administration, the Federal Trade Commission, the Commodity Futures Trading Commission, and the Federal Reserve.
Over the span of 90 years, 37 justices of the Supreme Court respected the rule established in Humphrey’s Executor v. U.S., a case that recognized the right of Congress to establish independent federal agencies whose members cannot be removed by the president except for cause.
But the six justices of the Roberts’ reactionary majority believe that their views on presidential power are correct and that the views of 37 justices over 90 years are wrong. The only explanation is that the Roberts majority is applying a partisan political lens to overturn long-settled precedent to benefit Donald Trump.
Substituting partisan aims for honest judging is corruption, plain and simple.
Every observer of the argument in the case Trump v. Slaughter agrees that the Roberts’ majority will uphold the president’s authority to fire commissioners of independent agencies. As NPR reports:
Supreme Court justices seemed open Monday to overruling a 90-year precedent that has prevented presidents from removing members of independent agencies at will in a case that could reshape the balance of power within the federal government. [¶]
The court’s conservatives pressed Slaughter’s attorney, Amit Agrawal, on Humphrey’s Executor, the 1935 precedent, and its relevance today. Chief Justice John Roberts said the precedent had “nothing to do with what the FTC looks like today.” He said the FTC of that era “had very little, if any executive power,” suggesting the agency had far greater power today.
If it sounds like Roberts is willing to engage in historical revisionism to overturn Humphrey’s Executor, you are right. Any argument that begins with, “Oh, that case was then, we are talking about now” has nothing to do with legal analysis and everything to do with result-oriented rationalization.
A modest proposal. If the Court overrules 90-year-old precedent to allow Trump to fire the FTC commissioner, Trump will be free to reshape over 100 independent agencies that exercise congressionally authorized power to make rules necessary to regulate the economy free of political interference.
Let’s pause here to acknowledge that the reactionary majority is acting in a corrupt manner and must be overwhelmed by enlarging the Court as the first order of business when Democrats re-take Congress and the presidency. The minimum number of new justices necessary to do so is 4, so that the reactionary majority will be outnumbered 7 to 6. But we should not act in the least invasive manner possible.
A single-vote majority could be eradicated by an unexpected illness, death, or early retirement. I suggest that Democrats expand the Court to 27 justices, the same size as the Ninth Circuit Court of Appeals, which acts in a businesslike, orderly manner.
Such an expansion is also justified by the 8,400 percent increase in the US population and the 160,000 percent increase in real GDP between 1789 and 2025, a period that saw the Supreme Court grow by only 50 percent. The Court’s growth has failed to keep pace with the nation’s by any measure.1
Bad news, good news. Is there any silver lining to the Court’s destruction of the independence of the administrative state?
Yes and no.
No, because the changes are permanent unless we expand the Court and overturn the expected ruling in Trump v. Slaughter.
Yes, because the next Democratic president can fire every Trump appointee and replace them with qualified experts to run the commissions and agencies.
But Republicans can and will do the same thing if they ever elect another president. That type of whipsaw change in agencies responsible for maintaining order and predictability in markets and industries discourages growth and investment.
As with everything Trump is destroying in his second term, we should not assume that the changes will be permanent.
We will rebuild scientific expertise at the CDC once it is freed from Robert Kennedy’s quackery. We will restore climate science, we will repair our relationships with NATO, we will rebuild educational infrastructure, and we will undo the damage inflicted on hundreds of agencies and programs that exist to promote the health, safety, and financial security of the American people.
Former Los Angeles corporate attorney Robert B. Hubbell began writing his “Today’s Edition Newsletter” during the first Trump Administration. Subscribe here.
Cartoon: Signe Wilkinson, WPWG.