Justice Jackson Promotes Unelected ‘Experts’ Running The Executive Without Presidential Oversight
SUPREME COURT OF THE UNITED STATES — Supreme Court Justice Ketanji Brown Jackson downplayed the significance of unelected “experts” running the federal bureaucracy with no accountability to the president on Monday.
The moment came during the high court’s oral arguments for Trump v. Slaughter, which centers around President Trump’s firing of Rebecca Slaughter, a Democrat member of the Federal Trade Commission (FTC). As The Federalist previously reported, the justices will decide the constitutionality of statutory limits placed on presidents’ power to remove members of so-called “independent agencies” and whether to overturn longstanding precedent established in Humphrey’s Executor v. U.S. (1935).
During an exchange with U.S. Solicitor General John Sauer, Jackson expressed confusion about the Trump administration’s argument that, as she summarized, these independent agencies “aren’t answering to Congress.” Under the current constitutional framework, she reasoned, “Congress established them and can eliminate them. Congress funds them and can stop.”
“So, to the extent that we’re concerned that there is some sort of entity that is out of control and has no control, I guess I don’t understand that argument,” Jackson said.
Sauer clarified that the government would say “the constitutional actor on the hypothetical who is controlling these agencies is Congress, and that is a huge separation of powers problem.” He was then cut off by Jackson, who said that while she “understand[s]” that part of the argument, she wants to know how it applies as a “practical matter.”
“Part of your argument seemed to revolve around this notion that there’s some kind of thing happening with the independent agency, that the reason why the president needs to control it is because they don’t answer to anybody. And what I guess I don’t understand is why they don’t answer to Congress, which establishes the law that they are bound to follow and determines whether these agencies exist, funds these agencies — all of those things, it would seem to me, would be methods or mechanisms of control,” Jackson said.
Sauer responded by saying that the “Constitution requires clear lines of political accountability” and that, “if Congress is sort of informally actually controlling these agencies,” but was cut off by Jackson, who said, “Not informally, we have a statute.”
Not allowing the solicitor general to finish his response, Jackson went on to express her supposed worries about the “the dangers and real-world consequences” of the argument he posited to Associate Justice Brett Kavanaugh about the power of presidents to unilaterally fire executive branch officials and bureaucrats. She then seemingly ran interference for Congress’s apparent infringement upon the president’s executive authority and fearmongered about what would happen if a duly elected president came into office and replaced unelected, so-called “nonpartisan experts” with “loyalists and people who don’t know anything.”
“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. That Congress is saying that expertise matters with respect to aspects of the economy, and transportation, and the various independent agencies that we have,” Jackson said.
“So,” Jackson continued, “having a president come in and fire all the scientists, and the doctors, and the economists, and the Ph.D.s, 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. This is what I think Congress’s policy decision is when it says that ‘these certain agencies we’re not going to make directly accountable to the president.’ So, I think there’s a pretty significant danger that Congress has actually identified and cares about when it determines that these issues should not be in presidential control.”
She then asked, “Can you speak to me about the danger of allowing, in these various areas, the president to actually control the [Surface] Transportation Board and potentially the Federal Reserve and all of these other independent agencies?”
Much like before, Sauer attempted to answer the justice’s question, but kept getting cut off by Jackson, who effectively asked different versions of the same question. When given the chance to finally respond, the solicitor general reaffirmed that “Congress cannot violate the separation of powers and threaten all of our liberties in the way that it structures the government, and it has done so here.”
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