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: We … agree that the Constitution imposes … on the president a duty to faithfully execute the laws, absolutely.

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: — 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.

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.”

The Bureau of Competition seeks to prevent anticompetitive mergers and other anticompetitive business practices in the marketplace. By enforcing the antitrust laws, the Bureau promotes competition and protects consumers’ freedom to choose goods and services in an open marketplace at a price and quality that fit their needs.

The Bureau of Consumer Protection’s mandate is to protect consumers against unfair, deceptive or fraudulent practices. The Bureau enforces a variety of consumer protection laws enacted by Congress, as well as trade regulation rules issued by the Commission. Its actions include individual company and industry-wide investigations, administrative and federal court litigation, rulemaking proceedings, and consumer and business education. In addition, the Bureau contributes to the Commission’s on-going efforts to inform Congress and other government entities of the impact that proposed actions could have on consumers.

The Bureau of Economics helps the FTC evaluate the economic impact of its actions. To do so, the Bureau provides economic analysis and support to antitrust and consumer protection investigations and rulemakings. It also analyzes the impact of government regulation on competition and consumers and provides Congress, the Executive Branch and the public with economic analysis of market processes as they relate to antitrust, consumer protection, and regulation.

https://www.ftc.gov/about-ftc/bureaus-offices

WIKI

Humphrey’s Executor v. United States, 295 U.S. 602 (1935), is a landmark U.S. Supreme Court decision that ruled that the U.S. Constitution allows Congress to enact laws limiting the ability of the President of the United States to fire the executive officials of an independent agency that is quasi-legislative or quasi-judicial in nature.

The case involved William E. Humphrey, a commissioner of the Federal Trade Commission (FTC) whom President Franklin D. Roosevelt had fired. Roosevelt had fired Humphrey over their policy disagreements involving economic regulation and the New Deal, even though the Federal Trade Commission Act of 1914 prohibited firing an FTC commissioner for any reason other than “inefficiency, neglect of duty, or malfeasance in office.”

William Humphrey had been a commissioner of the Federal Trade Commission since his appointment in 1925 by President Calvin Coolidge, having been reappointed by President Herbert Hoover. Humphrey was an outspoken and controversial FTC commissioner. A conservative Republican, he opposed most of the Commission’s antitrust enforcement actions and frequently engaged in personal and political attacks. In public speeches, he argued that the FTC’s “old policy of litigation” against American companies had made the Commission “an instrument of oppression and disturbance and injury instead of a help to business.”

Franklin D. Roosevelt, who became President in 1933, disliked Humphrey and viewed him as inadequately supportive of his New Deal agenda. In his first few months in office, Roosevelt twice wrote letters to Humphrey asking him to resign because his policies did not align with Roosevelt’s own.

Humphrey pushed back against Roosevelt’s requests and refused to resign. In October 1933, Roosevelt wrote Humphrey a third letter that simply fired him. Humphrey’s dismissal was based solely on his political and ideological differences with Roosevelt, rather than on poor performance or malfeasance. This contravened Section 1 of the FTC Act, which listed only “inefficiency, neglect of duty, or malfeasance in office” as the reasons a President could remove an FTC commissioner from office.

On February 14, 1934, five months after his firing, Humphrey died of a stroke at age 71. The FTC had stopped paying Humphrey his salary of $10,000 per year (equivalent to $243,000 in 2024) upon his dismissal, even though he had continued to come to work at the FTC each day. Samuel Rathbun, the executor of Humphrey’s estate, sued the U.S. federal government in the Court of Claims, claiming that Humphrey’s firing had been unlawful and that the government therefore owed his estate five months of back pay for the period of time between his firing and his death.

William J. Donovan argued, on behalf executor of the Humphrey estate, that the expressio unius rule of statutory construction confirmed the intent of Congress to limit the power of removal to causes enumerated in the statute. The government claimed that this had previously been resolved by the Supreme Court’s decision Shurtleff v. United States (1903) but this argument failed because the FTC had a very different structure. The government, citing Myers v. United States, also made a constitutional argument.

First, the Court said that when Congress had created the FTC in 1914, it had intended the Commission to be a federal government agency that was independent and non-partisan. The opinion described the FTC as an agency that was supposed to be free from control by the President and the executive branch, except for the initial appointments of its commissioners by the President

Second, the Court said that Congress had intended FTC commissioners to be experts in business and industry who would “exercise the trained judgment of a body of experts” while being insulated from politics. It compared the FTC to the Interstate Commerce Commission, which had been created in 1887 as an independent overseer of practices in the railroad industry.

The Court’s third and fourth reasons were that the function and duties of the FTC were “neither political nor executive, but predominantly quasi-judicial and quasi-legislative”. The Court said the FTC did not perform the traditional executive-branch function of enforcing the law, but instead was more like a legislative or judicial body. It reasoned that because the FTC did not enforce the law, the President did not need unfettered removal power over FTC commissioners in order to fulfill his duty under Article II of the U.S. Constitution to “take Care that the Laws be faithfully executed”.

Humphrey’s Executor occurred at a moment in American history when tensions between the President and the Supreme Court were at an all-time high. The Court issued the decision on the same day as A.L.A. Schechter Poultry Corp. v. United States, a major decision that struck down a key piece of Roosevelt’s New Deal agenda—the National Industrial Recovery Act of 1933—as unconstitutional.

At the time of the decision, moreover, the FTC’s powers and authority were limited. The FTC had no formal policymaking powers in the mid-1930s. It could only adjudicate individual disputes and give information and advice to Congress.

The Supreme Court narrowed Humphrey’s Executor in Seila Law v. CFPB. The Chief Justice wrote that the executive power “belongs to the President [and] generally includes the ability to supervise and remove the agents who wield executive power in his stead” and ruled that the agency’s structure violated the separation of powers.

Shurtleff v. United States (1903) (”In the absence of constitutional or statutory provision, the President can, by virtue of his general power of appointment, remove an officer, even though he were appointed by and with the advice and consent of the Senate.”)

Myers v. United States (1926) (”The President is empowered by the Constitution to remove any executive officer appointed by him by and with the advice and consent of the Senate, and this power is not subject in its exercise to the assent of the Senate, nor can it be made so by an act of Congress.”)

https://en.wikipedia.org/wiki/Humphrey%27s_Executor_v._United_States

WIKI

Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020) was a U.S. Supreme Court decision

The Supreme Court granted certiorari in Seila Law on October 18, 2019, and heard oral argument on March 3, 2020. The Court issued its decision on June 29, 2020. Chief Justice John Roberts wrote the opinion of the Court, joined by justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. The 5–4 decision ruled that the CFPB structure, with a sole director that could only be terminated for cause, was unconstitutional as it violated the separation of powers.

Specifically, the Court held that Article II of the Constitution gives the president the power to remove principal officers at will except for two exceptions recognized under case law.

The first exception was based on Humphrey’s Executor v. United States. Roberts narrowly construed Humphrey’s Executor to stand for the proposition that the president’s removal power may be constrained by Congress if the officer in question was a member of an agency that shared the same characteristics as the Federal Trade Commission (FTC) in 1935. In Humphrey’s, the FTC was described as “exercis[ing] no part of the executive power” and as “an administrative body ... that perform[ed] ... specified duties as a legislative or as a judicial aid”. Because the CFPB was dissimilar from that description, the Court held that the exception did not apply

The second exception to the president’s at-will removal power came from Morrison v. Olson which held that Congress could constrain the president’s removal power over “inferior officers with limited duties and no policymaking” role.

https://en.wikipedia.org/wiki/Seila_Law_LLC_v._Consumer_Financial_Protection_Bureau

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