Justice Gorsuch Exposes Attorney’s Illogical Defense Of Unchecked Bureaucracy
SUPREME COURT OF THE UNITED STATES — Associate Justice Neil Gorsuch dismantled a lawyer’s illogical arguments about a president’s executive power during a high-stakes Supreme Court hearing on Monday.
The moment came during oral arguments for Trump v. Slaughter, a case centered around President Trump’s firing of Rebecca Slaughter, a Democrat member of the Federal Trade Commission. As The Federalist previously reported, the high court will weigh the constitutionality of statutory limitations on a president’s ability to remove members of so-called “independent agencies” and whether to overturn longstanding precedent established in its 1935 Humphrey’s Executor v. U.S. decision.
During his questioning of Slaughter’s counsel, Amit Agarwal, Gorsuch sought to get clarity on the defendant’s arguments surrounding a president’s “conclusive and preclusive power[s].” In a straightforward manner, the Trump appointee asked Agarwal, “You agree, I assume, the president is vested with all the executive power?”
While Agarwal initially signaled his agreement with Gorsuch, he seemingly backtracked on fully standing behind his answer in a subsequent back and forth with the justice:
Gorsuch: You agree that [a president] has a duty to faithfully execute all the laws?
Agarwal: Yes.
Gorsuch: Civil and criminal?Agarwal: We … agree that the Constitution imposes … on the president a duty to faithfully execute the laws, absolutely.
Gorsuch: All the laws?
Agarwal: Well …
Gorsuch: All — are there some laws he doesn’t have to? That would be news to our friends across the street.Agarwal: The take care clause is a duty, and it is also a power, but the text of the clause does not provide that the president must have at-will presidential —
Gorsuch: I didn’t ask that. This is: does he have a duty to faithfully execute all the laws? … Yes or no?
Agarwal: I would say no, in the sense —
Gorsuch: No?Agarwal: — in the sense … Let me … — there’s two different questions, and I want to make sure that I’m answering the questions.
Gorsuch: The question is: does the President have a duty to faithfully execute all the laws? The answer is ‘no,’ why?
Seemingly reeling from the justice’s questions, Agarwal plainly said that a president “can’t break the law for sure.” He then apparently attempted to wiggle out of the tough probing by raising the question of whether a president must “be vested with statutory authority to actually enforce, directly enforce” the law but was cut off by Gorsuch, who noted, “I’m not asking whether he has to bring the indictment — I’m asking whether he has a duty to faithfully execute the laws.”
“I think the president does not, under both history and tradition … have plenary power … of supervision, but in the case of the FTC, he does have some power of supervision … if there’s a demonstrable, palpable violation of law, the president could absolutely fire a commissioner of the FTC under the plain language of the statute,” Agarwal said.
“So, the answer is ‘no,’ I guess,” Gorsuch surmised.
Seemingly not convinced by Agarwal’s arguments, Gorsuch attempted to further pin down how far Slaughter’s attorney believes these statutory limitations on the president’s removal authority should go under his theory. After a short exchange on presidential authority, the Trump appointee “put [his] cards on the table” and suggested that Agarwal’s illogical arguments appear to stem from an unspoken belief that Humphrey’s Executor “was poorly reasoned.”
“I’m wondering … — I’ll put my cards on the table — maybe it’s a recognition that Humphrey’s Executor was poorly reasoned and that there is no such thing in our constitutional order as a fourth branch of government that’s quasi-judicial and quasi-legislative. Maybe you’re trying to back-fill it with a better new theory that itself recognizes that we’ve got a problem,” Gorsuch said.
Agarwal claimed that his theory is based on the Supreme Court’s 2024 presidential immunity decision (Trump v. U.S.) and “goes all the way back to Marbury v. Madison,” which he said, “does not use the term[s] ‘conclusive’ and ‘preclusive.'”
“And neither does Humphrey’s,” Gorsuch interjected. “It uses ‘quasi’ things.”
Following a further explanation by Agarwal on his theory, Gorsuch questioned what would happen if SCOTUS were to take up his theory “to back-fill Humphrey’s and go down this road.” He specifically probed about how they would go about deciding “what [presidential] powers are going to fall in and what are going to fall out” and if the court would “have just as much litigation over that as anything else [it] might do in this case.”
Agarwal expressed doubt that would happen, arguing that “independent agencies” have been around “for a long time,” and that, “We haven’t had any precedent ever striking them down.”
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