Should President Be Able to Fire Agency Heads?

The topic of discussion for this Constitution Monday concerns what might be “the Supreme Court’s biggest decision” and possibly its least popular. According to Alan Hurst, a Marquette Law School poll shows “only 49% of Americans approve of Trump v. Slaughter, the court’s ruling that presidents can fire the heads of independent executive agencies.” 

After discussing all thirteen Supreme Court decisions in the Marquette poll, Hurst explained why he thinks “it’s good that the president can fire the heads of executive agencies, regardless of whether I like the president?”

To answer, let’s consider a “who cares if you’re angry” theory of government, in which we place government institutions into one of three general categories – reviewed here in order from the least to the most democratic.

Category 3: An intentionally insulated judiciary

If you’re angry about a federal court’s decision, does anyone in the judiciary care?

Not particularly. They don’t answer to you.

I don’t mean to suggest judges are heartless or immune to outside influence. You’re free to criticize their decisions publicly, engineer lawsuits to move the law in your direction, or file amicus briefs and try to be persuasive.

But if you’re hoping to do more than persuade – if you’re hoping to pressure them to do something they’re not inclined to do – then you’re unlikely to succeed. The whole point of life tenure is not to let you do that, because justice by public opinion is no justice at all.

Category 2: A president who responds to his coalition (but not necessarily anyone else)

If you’re angry about a decision by an executive agency – say, the FDA or the EPA – does anyone at the agency care?

Unlike Supreme Court justices, the heads of the FDA and the EPA can be fired by the president, which means their goals and priorities can’t stray too far from the president’s goals and priorities.

And while the president doesn’t care about you individually, there are people he does care about: key senators, senior advisers, media figures he respects, or allies and interest groups whose support he depends on to pursue his goals and win the next election (either for himself or for his party).

And what that means, practically speaking, is that there are people you can lobby. It’s a ladder-climbing exercise: You find somebody who knows somebody who knows somebody. Maybe you know a state legislator who can introduce you to someone in your state attorney general’s inner circle, who can then put your issue in front of the attorney general’s official contact at the White House.

Or maybe someone can introduce you to a popular blogger or columnist who can publish your story and try to put it on the radar at a big media himself.

But at every rung, the person you’re hoping will help is going to be asking, “Is the guy above me going to think this was worth bringing to his attention? Is it an issue he cares about, or is it coming from a constituency he cares about?”

And if the answer is no – as it usually will be if you’re in the wrong political party – then your attempt to influence the agency democratically will never get off the ground.

Category 1: Intentionally vulnerable representatives

In the final category, if you’re angry about a decision anywhere in government, will your member of Congress care? And here the answer is “very probably.”

Thanks to gerrymandering, social media, hyper partisanship, and so on, Congress isn’t what it used to be – to keep their seats, congresspeople have had to fall in line more often and get more ideological.

But to this day, senators and representatives maintain staff for “constituent services,” i.e., they employ people whose job responsibilities include hearing your complaints and trying to do something about them. And what’s more, when it comes to helping constituents deal with federal agencies and such, ethics rules require them to provide their help without regard to a constituent’s political affiliation.

There’s no guarantee you’ll get the answer you like – nothing stops your legislator from just disagreeing with you. But even if she does, you’ll probably still get a personal response and an explanation of why she’s saying no.

Why the president should be able to fire agency heads

So what does this “who cares if you’re angry” theory have to do with letting presidents fire the heads of independent agencies?

In a nutshell, the decision tries to move independent agencies from Category 3 to Category 2 – from “intentionally insulated against public opinion” to “susceptible to public pressure through the White House.”

It’s an improvement, but it’s not ideal – ideally you want to move most of the power not to Category 2 but to Category 1, where a normal person can raise an issue as directly as possible with someone who wants his vote.

And on this point, I encourage you to read Justice Neil Gorsuch’s Slaughter concurrence, in which he lays out the basic problem: a trend beginning in the early 20^th century to undo the separation of powers and turn the work of government over to supposedly impartial experts….

While Slaughter fixes part of the damage, the larger work still depends on future cases (and future legislation by Congress) that can return powers to Congress that it foolishly turned over to the executive.

            I’ll give the last word to Gorsuch: “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. We have tolerated adventurous theories long enough. It is time to return, all the way, to                the Constitution.”