The Supreme Court’s Parting Gift: A Prescription for Gridlock

The Supreme Court’s recent decision in Trump v. Slaughter has significant implications for presidential power and will likely hamstring future Democratic presidents more than their Republican counterparts. In a 6-3 majority ruling, the court granted the president broad authority to remove heads of “independent” federal agencies.

Chief Justice John Roberts’ opinion appears to be a straightforward exercise in expanding presidential control over key aspects of the national economy. However, upon closer examination, it reveals a complex web of incentives and disincentives that threaten to upend decades of established practice. The decision will concentrate unprecedented power in the president’s hands while creating structural limitations that will stymie future presidents from taking office.

The heart of the problem lies in the Supreme Court’s failure to consider the full implications of its ruling. By allowing presidents to remove commissioners from opposing parties, the decision will inevitably lead to a situation where new presidents inherit agencies with commissioners who don’t share their policy views. This dynamic has already played out in recent months, as President Trump fired members of several independent agencies last year, denying them a quorum.

As a result, key executive branch functions ground to a halt for months, with the National Labor Relations Board and Merit Systems Protection Board unable to perform their duties. The Supreme Court’s decision will have a disproportionate impact on future Democratic presidents, particularly in situations where the Senate majority remains in Republican hands. In these cases, incoming Democratic presidents will be unable to appoint their preferred members to key agencies like the Federal Trade Commission.

The new legal regime can also give outgoing presidents enormous control over federal agencies. With a hostile Senate, an outgoing president can now fire any members of a multimember commission on their way out the door, including members of the incoming president’s party. This creates a situation where an outgoing president can purge federal agencies on their last day in office, leaving them without a quorum to do much business when their successor enters the White House.

Congress could attempt to rectify this situation by extending the Vacancies Act to multimember agencies and allowing presidents to appoint temporary leaders without Senate confirmation. This would enable an agency to function when it lacks sufficient members. However, any such move would require careful consideration of its potential long-term effects.

As the court’s decision takes effect, one thing is clear: the next president will face a daunting challenge in getting their agencies up and running. With the Supreme Court’s blessing, outgoing presidents will have unprecedented power to shape the federal bureaucracy long after they’ve left office. This outcome raises questions about whether it aligns with the Founding Fathers’ intentions when crafting our system of government.