Alan Raul: Moving fast and breaking things is the wrong approach for the Supreme Court

Moving fast and breaking things is the wrong approach for the Supreme Court

Alan Raul

“Move fast and break things” may have been a fine mantra for tech start-ups once upon a time, but it is a dangerous modus operandi for the American judicial system and the rule of law. Conservative lawyers and originalists, like me and others who served in previous Republican administrations, should be wary of a Supreme Court that invents new rules and throws out old ones without due regard for constitutional history and tradition.

Writing in the current edition of the Harvard Law Review, Professor Richard Re has explained why the present Supreme Court should be viewed as “a Conservative Warren Court” – in other words, a right-wing mirror image of the activist, liberal Supreme Court that dismayed conservatives by using judicial power to further progressive goals. To be consistent, today’s conservatives should hope the “Conservative” Court does not go down the same ideological road as the liberal “Warren Court” but in the opposite direction.

For this reason, a number of my fellow conservatives and I have filed amicus briefs in numerous cases to help point the Court in a genuinely conservative direction as opposed to a more radical one. We have argued that the Court must respect congressional authority to establish federal agencies, generally, and bipartisan boards and commissions, specifically.

This is a live issue now because the Court will hear oral arguments in Trump v. Slaughter on December 8 on whether the Federal Trade Commission (and, by extension, the Federal Reserve Board) may continue to operate with members who are protected with a measure of independence from the President. Ruling for the President would entail overruling the Court’s 1935 decision in Humphrey’s Executor v. U.S., a case which involved precisely the same issues and the very same agency (the FTC) that is before the Court again in Slaughter.

The President fired FTC Commissioner Rebecca Kelly Slaughter for no reason other than because she is a Democrat. He terminated her notwithstanding that Congress specifically established that “Appointments” to the FTC must be bipartisan – namely, that “[n]ot more than three of the Commissioners shall be members of the same political party.” But firing Slaughter without regard to how her office was established in the1914 FTC Act – i.e., how her “Appointment” was established by Congress – the President was not faithfully executing the laws.

The Constitution obligates Courts – and the President – to respect congressional judgments on how the Executive Branch is organized and what rules it should follow. In case of independent boards and commissions, Congress assessed in the early 1900s that setting up such agencies to regulate economic and financial matters in a relatively less partisan manner would be beneficial to country. Congress believed that creating multimember bodies whose members possessed due technical expertise, and which were designed to reach decisions after deliberating on a collegial basis, would help improve economic outcomes, promote national stability, and temper ideological extremes.

The fundamental tenets of legal conservatism hold that longstanding decisions should be respected – the principle of stare decisis – and that new rulings should be grounded in the text and original meaning of the Constitution, rather than in service of ideological objectives.

Accordingly, a group of former Republican White House lawyers and I submitted an amicus brief in Slaughter showing why overruling Humphrey’s would be a radical decision, not a conservative one. It would break with the Constitution’s original meaning and intent. Adapting the words of James Madison, we argue that because Congress established FTC Commissioner Rebecca Kelly Slaughter’s “Appointment” to exercise quasi-legislative and quasi-judicial functions, Ms. Slaughter is “an officer of th[e] kind [who] should not hold h[er] office at the pleasure of the Executive branch of the Government.” In fact, historical scholarship of our Founding Era confirms that early Congresses prescribed, and early Presidents accepted, limitations on presidential removal authority over appointments to multimember boards and commissions involving financial and economic regulation. Examples include two revolutionary war debt commissions, the federal Mint, and the First and Second Banks of the United States. In other words, Congress has a long tradition of relying on multimember bodies to address broad economic and financial matters in the best interests of the country, and there is a long history of White House and Supreme Court acceptance.

In our brief, we argue that the Court should heed not only this long historical record, and the Constitution’s framework for limited government and checks and balances as explained in the Federalist Papers, but also basic conservative principles of restraint. The founder of modern conservatism, Edmund Burke, famously counseled respect for tradition along with due reverence for the wisdom of the past. He warned, moreover, of the dangers posed by ideological rapture.

When the Supreme Court breaks radically with the past to aggrandize presidential power in the name of “separation of powers” it is not deciding conservatively. The Framers of our Constitution incorporated and counted on meaningful checks and balances to prevent tyrannical concentration of power in the government. Excessive deference to the President and disregard for the text and structure of the Constitution runs counter to the Framers’ plan.

Congress’s taxing, tariffing, spending, appropriations, commerce regulating, and war powers are expressly stipulated in the Constitution. Likewise, it is manifestly the power of Congress, not the President, to establish Executive Branch “Appointments.” So, deference on the nature, term of office, and grounds for removal, for congressionally created “Appointments” must accrue to Congress.

In Slaughter, the Court will have to make a choice on whether to respect the congressional judgment in establishing executive “Appointments” or, instead, defer starkly to unfettered presidential removal power. Overruling Humphrey’s now would empower the President to fire members of the Federal Trade Commission at his pleasure – i.e., without cause and without regard to the congressionally enacted terms of office for Commissioners.

By agreeing with the Administration’s argument that the President can fire FTC Commissioners at will, the Justices would be redacting Congress’s long recognized, clear power to establish executive “Appointments” from the text of the Constitution. It would also disrespect the judgment of Congress about the benefits of bipartisan checks and balances – a judgment the Court upheld 90 years ago in Humphrey’s.

There is nothing conservative, historical, or textual about rejecting Congress’s judgment to moderate the President’s control over a multimember agency like the FTC. Congress has the legislative authority to determine the nation’s best interests, including the country’s overall interest in stability and economic welfare. Indeed, if the Supreme Court can disregard Congress’s legislative judgment regarding mandated moderation, bipartisanship and independence for the FTC, it could also do so for the Federal Reserve Board.

The fight over Commissioner Rebecca Kelly Slaughter’s removal is thus not just about presidential appointments to the FTC. It is about whether the President must abide by congressional judgment that handling certain economic issues through a bipartisan board is in the best interests of the country. Congress may or may not have been correct about that, but the Constitution vests authority to make those judgments in the legislative branch. The President may not override congressional exercise of a textual constitutional power, namely, the establishment of executive “Appointments.” There is no version of the so-called “Unitary Executive” theory that absolves the President from faithfully executing the choices Congress makes for the country.

If the Court were to adopt such a radical “Unitary Executive” theory, it would likely spell the end for any statute that inconveniences the President’s preferences on appointments. This radical power could overturn, for example, the general Vacancies Act that controls who can serve for how long in vacant positions that require Senate confirmation or specific vacancy statutes like the one applicable to interim U.S. attorneys. A radical decision in Slaughter would essentially relegate Congress’s “Appointments”-establishing power to constitutional oblivion – and risk the country’s stability in the process.

Conservatives should not want today’s Court to be a “Conservative Warren Court” pursuing extreme ideologies at odds with our constitutional history. Instead, we should call upon the Court to respect the constraints of originalism and go-slow conservative principles. At a time when the political branches are under powerful unified, partisan control, and the risk of authoritarian power is not remote, a genuinely conservative Court is indispensable to preserve the Constitution’s checks and balances.