The removal power and the cost of overturning precedent

According to CNBC, the Supreme Court has ruled that President Trump may dismiss FTC Commissioner Rebecca Slaughter, and in doing so has overturned a precedent called Humphrey's Executor — a decision that had, for generations, shielded officers of independent regulatory commissions from removal at the president's pleasure. The Court's reasoning, as reported, is that the executive power vested in the president carries with it the authority to dismiss those who exercise it.

I will not pretend to have read the full opinion; I have only the lead before me. But I can speak to the shape of the question, and that shape is one I know well. The Constitution vests the executive power in the president, and I have always understood that a power which cannot be enforced is no power at all. An officer who cannot be removed is, in practical effect, an officer who cannot be directed. That much argues for the Court's conclusion.

And yet precedent is not merely a convenience to be discarded when inconvenient. It is the accumulated public faith of the law — the assurance that what the Court has said it meant, and that those who ordered their affairs accordingly were right to do so. Humphrey's Executor stood for the better part of a century. Institutions — agencies, commissioners, the regulated parties themselves — arranged their expectations around it. To overturn it is not nothing. The Court owes the public a clear and honest accounting of why the prior construction was wrong, not merely why this one is preferred.

This is, at its root, a question about the architecture of self-government. The founders understood that ambition must be made to counteract ambition; we gave the legislature its powers, the judiciary its independence, and the executive its energy, precisely so that no single branch would consume the others. Independent agencies were Congress's attempt — however imperfect, however constitutionally contested — to place certain technical judgments at some remove from immediate political pressure. Whether that attempt was lawful is now answered; whether it was wise is a separate question that the republic will continue to argue. I would caution that a president newly armed with this removal authority should use it with proportionate restraint, lest the cure prove more disordering than the disease.

The judicial role, as I understood it from the bench, is to say what the law is — calmly, in the case properly before the Court — and then to hold. The Court has now said what the removal power is. The obligation falls next upon the political branches: Congress may yet design offices, confirmations, and terms in ways that preserve a measure of insulation without running afoul of this ruling. Inference on my part — but the history of constitutional adjustment suggests that where one mechanism is closed, careful legislators find another. What the republic cannot afford is for either branch to treat this ruling as a warrant for consolidation without limit.