From the Advocacy Committee
August 21, 2024
Consolidation of Presidential Power: More than Just Immunity
In the Trump immunity case, the Supreme Court ruled that the president is immune from prosecution for official acts. The Constitution does not contain explicit language granting this immunity. This controversial opinion increases the power of the presidency. In addition to the increase in presidential power provided by the immunity case, the Supreme Court has taken steps to consolidate the president’s power over federal administrative agencies.
Not all federal agencies are created the same. Congress created some as “independent” agencies. These agencies are designed to be less political and subject to less presidential control. For example, Congress designed the Consumer Product Safety Commission (CPSC) to be an independent agency. The agency has five commissioners. The congressional law that creates the commission states that the president may fire a commissioner for “neglect of duty or malfeasance in office” but specifies that those are the only permissible reasons for firing. The president may not fire a commissioner at will. It is understandable that Congress wants the CPSC to be more independent from the president, while other agencies, such as the Department of Defense, are more directly tied to the president.
Additionally, Administrative Law Judges (ALJs) are given extra job protections because of the nature of their work. ALJs decide cases for federal agencies. For example, the Social Security Administration employs ALJs who decide whether individuals are entitled to social security benefits. Because ALJs are not a part of the judicial branch, they do not have the constitutional job protections of federal judges, including lifetime tenure. However, Congress by statute has made it harder for the president to interfere with the work of ALJs to help them decide cases impartially.
The protections on independence for both agency heads and ALJs present a careful balance so that federal administrative agencies can operate on expertise rather than political whim. The Supreme Court upheld restrictions on the president’s ability to fire agency officials in 1935 in a case called Humphrey’s Executor. In 2010, the Supreme Court began to chip away at Congress’ ability to restrict the president’s power to fire agency officials. The Supreme Court held that the Constitution forbids two layers of removal protections. In other words, Congress could not create an agency structure where the agency head is subject to removal protection, and then a subordinate agency official is also subject to a restriction on his or her firing. Then, in 2019, the Supreme Court held that the Constitution allows for removal protections only when an agency is led by multiple members and not a single person. This case involved the Consumer Financial Protection Bureau (CFPB). The Supreme Court held that because the CFPB is headed by a single director rather than a multi-member commission, Congress could not limit the president’s ability to fire the director.
The Supreme Court may soon hear additional challenges to Congress’ power to design independent agencies, and to promote impartial agency judgment. For example, there are cases in the lower courts that argue the Supreme Court should overrule Humphrey’s Executor. There are also cases in the lower courts challenging the independence of ALJs.
These threats to agency independence are in addition to internal executive branch threats. For example, the Trump Administration expressed its desire to move civil servants onto “Schedule F,” which would have stripped those employees of their civil service protections. This would have allowed the president to politicize the civil service through greater control over government workers. The Biden Administration cancelled this change.
The Supreme Court’s consolidation of power in the presidency only increases the importance of the character of the individual who holds that office.
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