The Small-C Constitutional Problem with <i>Trump v. Slaughter</i>

Here's the part nobody wants to say out loud: agencies like the FTC have been writing rules with the force of law for decades while pretending they're just "executing" statutes Congress passed. Trump v. Slaughter forces the question everyone's been dancing around since Humphrey's Executor was decided back in 1935. If the FTC commissioners can set policy, investigate, adjudicate, and penalize without answering to anyone the voters actually elected, what exactly is "executive" about that job? It looks a lot more like a legislature that nobody voted for.

That's not a technicality. It's the whole ballgame. The framers built a system where power that binds the public has to trace back to someone accountable at the ballot box. Independent agencies were a workaround, a way to let unelected experts run huge swaths of the economy while insulating them from removal, from oversight, from the messy business of democracy. It worked fine as a legal fiction for ninety years because courts kept looking the other way. Now the fiction is getting tested.

We're not naive about the stakes. Overturning or narrowing Humphrey's Executor would hand presidents, of either party, real control over agencies that currently operate like their own fourth branch. Critics will say that politicizes independent regulators. Our answer is that they were never actually independent of politics, just independent of accountability. Somebody was always making the calls. The question is whether that somebody has to answer to a president the country can vote out.

None of this means every commissioner needs to be a partisan hack or that expertise doesn't matter. It means power that looks and acts like lawmaking should live somewhere Congress and the president can actually touch it. A rule nobody can be fired over is a rule nobody is truly responsible for. That's the small-c problem, and it's overdue for a real answer from the Court.