Kiss the fourth branch of government goodbye. That’s a good thing. 
Oral Arguments Today on Trump’s Ability to Fire
I am pleased to report a big slew of independent agencies that have no constitutional basis to exist are about to get blown up.
I side with Trump on this one.
The Wall Street Journal reports Supreme Court Appears Poised to Give President More Power to Fire Government Officials
During 2½ hours of oral arguments, the justices probed the limits of President Trump’s assertion of virtually unfettered authority to remove agency leaders, despite federal laws that protect them from being fired over policy disagreements.
Justice Brett Kavanaugh pointedly asked Solicitor General D. John Sauer about concerns from economists that a broad victory for Trump in the case would jeopardize the independence of the Fed’s Board of Governors.
“I share those concerns,” said Kavanaugh, a Trump appointee.
Still, Kavanaugh and the other five conservative justices were, as expected, mostly receptive to the administration’s argument that the president is entitled to more control over dozens of regulatory boards in the executive branch, such as the Federal Trade Commission and the National Labor Relations Board.
Those boards, Justice Neil Gorsuch suggested, constitute an improper “fourth branch of government” managed by unelected bureaucrats who aren’t directly accountable to the president or Congress.
The case argued Monday involved Trump’s firing of Rebecca Slaughter, a Democratic commissioner who had served on the FTC since 2018.
Trump didn’t claim that Slaughter engaged in that sort of misconduct. Instead, he said only that her continued service on the FTC was “inconsistent” with his administration’s priorities. Trump argued that the statutory firing restriction is unconstitutional, despite a 1935 Supreme Court decision that upheld it.
Chief Justice John Roberts called that 90-year-old precedent, known as Humphrey’s Executor, a “dried husk,” suggesting that it has little relevance today.
A ruling is expected by July.
Dried Husk
The comments by Roberts about a dried husk and Gorsuch’s comments about an improper “fourth branch of government” seal the fate.
I especially agree with this Gorsuch comment “managed by unelected bureaucrats who aren’t directly accountable to the president or Congress.”
So, if you have the invalid opinion that I always side against Trump, you are mistaken.
Amusing Amicus Brief
Let’s step back and look at the amicus brief from Professors Jenna Bednar (Michigan poli sci) and Justin Phillips (Boston U poli sci).
Because independent commissions have long been part of our constitutional fabric, the consequences of overruling Humphrey’s Executor and eliminating statutory for-cause removal protections would be profound. If that were to occur, the President could remove all commissioners of the opposing political party, render statutory tenure provisions irrelevant, and disable commissions with quorum requirements, thereby frustrating Congress’s and the People’s intent to endow agencies with collective decision-making, expertise, political balance, and continuity.
One of the most recognizable characteristics of independent commissions—a category that Humphrey’s Executor by no means created but surely cemented for generations—is that the President may not remove their commissioners without good cause.
Statutes, regulations, and the common law impose quorum requirements on independent commissions. At-will removal authority undercuts quorum requirements, enabling the President to undo or restructure independent commissions.
Lovely. But what constitutional right does Congress have to create “independent agencies” allegedly part of the executive in the first place?
If sanctioned by this Court, Democratic presidents may pursue a similar strategy, as evidenced by President Biden’s removal of officials from the Administrative Conference of the United States.
I totally agree. That’s why the proper solution is to get rid of some of these these agencies entirely!
Kavanaugh Carves Out Fed Exception
Kavanaugh went to great length to carve out an exception for the Fed. He seems concerned about the dollar.
In effect, he is telling the Trump and his conservative colleagues: I will happily vote to give the President at-will removal over the NLRB, FTC, SEC, FCC, CFTC etc., except the Fed.
31-Page Love Letter Defending Agencies That Shouldn’t Exist
The amicus brief is nothing but a full-throated defense of the status quo. They’re filing on behalf of the respondents (i.e., the agencies fighting Trump’s removal power grab), basically pleading “Don’t throw out Humphrey’s Executor with the bathwater, or you’ll drown the entire regulatory ecosystem.”
It’s a 31-page love letter to the administrative state, loaded with historical footnotes and dire warnings about presidential overreach.
List of Agencies at Risk (From the amicus brief )
- Chemical Safety and Hazard Investigation
Board. - Commission on Civil Rights.
- Commodity Futures Trading Commission.
- Consumer Product Safety Commission.
- Federal Energy Regulatory Commission.
- Federal Labor Relations Authority.
- Federal Maritime Commission.
- Federal Mine Safety and Health Review Commission.
- Federal Reserve Board of Governors.
- Federal Trade Commission.
- Foreign Claims Settlement Commission.
- Legal Services Corporation.
- Merit Systems Protection Board.
- Metropolitan Washington Airports Authority.
- National Association of Registered Agents and Brokers.
- National Consumer Cooperative Bank.
- National Indian Gaming Commission.
- National Labor Relations Board.
- National Mediation Board.
- National Transportation Safety Board.
- Nuclear Regulatory Commission.
- Occupational Safety and Health Review Commission.
- Postal Regulatory Commission.
- Puerto Rico Financial Oversight and Management Board.
- State Justice Institute.
- U.S. Institute of Peace
- U.S. Postal Service Board of Governors.
- Federal Election Commission.
- International Trade Commission.
- National Credit Union Administration.
- Securities and Exchange Commission.
Some of those agencies may serve some purpose. Others are a total waste of time and energy.
The status quo is absurd.
My number one target, by far, is abolishment of the entire National Labor Relations Board. I would fire them all effective immediately.
I am a staunch supporter of the right-to-work. I am sick of union rules and union pandering that drive up costs.
I have been writing about right-to-work and unions for decades.
Please recall my April 23, 2011 post President Obama’s Slave Trade; Senator DeMint Says Team Obama Acts Like Thugs; Death of Right-to-Work?
Suppose you own a profitable, legal in all 50 states, business and want to expand or reorganize your operations.
Now let’s suppose that someone came up to you and said “Sorry boys, but you cannot do what you want with your business. You cannot go anywhere you please. See those balls and chains on your feet, boy? I have the key and I say you are staying right here. I am the slave master and don’t you forget it.“
That is exactly what President Obama said to Boeing.
Inquiring minds are reading Labor Board Tells Boeing New Factory Breaks Law
In what may be the strongest signal yet of the new pro-labor orientation of the National Labor Relations Board under President Obama, the agency filed a complaint Wednesday seeking to force Boeing to bring an airplane production line back to its unionized facilities in Washington State instead of moving the work to a nonunion plant in South Carolina.
In its complaint, the labor board said that Boeing’s decision to transfer a second production line for its new 787 Dreamliner passenger plane to South Carolina was motivated by an unlawful desire to retaliate against union workers for their past strikes in Washington and to discourage future strikes. The agency’s acting general counsel, Lafe Solomon, said it was illegal for companies to take actions in retaliation against workers for exercising the right to strike.
It is highly unusual for the federal government to seek to reverse a corporate decision as important as the location of plant.
But ever since a Democratic majority took control of the five-member board after Mr. Obama’s election, the board has signaled that it would seek to adopt a more liberal, pro-union tilt after years of pro-employer decisions under President Bush.
Labor Relations Board Acting Like ‘Thugs’
Senator Jim DeMint says Labor Relations Board Acting Like ‘Thugs’ [April 21, 2011]
“I thought I’d seen it all, but now the administration is acting like a bunch of thugs,” DeMint told Fox News’ Neal Cavuto Thursday. “They are really trying to bully and intimidate — not just Boeing — they are attacking every right-to-work state, and in effect warning every employer in the country, if they happen to decide to move to a state where workers are free not to join a union, that they are going to be harassed and harangued by the National Labor [Relations] Board.
Cavuto noted the White House said it is not involved and it is NLRB issue. DeMint replied, “the president could stop this it in a second — if he wanted to.”
“And, frankly, he’s the one who packed this board, he’s the one who’s responsible for the way they’re behaving,” DeMint continued.
Letter by Franklin D. Roosevelt on Public Unions
Please consider a few key snips from FDR’s Letter on the Resolution of Federation of Federal Employees Against Strikes in Federal Service, August 16, 1937, emphasis mine.
All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.
Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of Government employees. Upon employees in the Federal service rests the obligation to serve the whole people, whose interests and welfare require orderliness and continuity in the conduct of Government activities. This obligation is paramount. Since their own services have to do with the functioning of the Government, a strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable. It is, therefore, with a feeling of gratification that I have noted in the constitution of the National Federation of Federal Employees the provision that “under no circumstances shall this Federation engage in or support strikes against the United States Government.”
I congratulate the National Federation of Federal Employees the twentieth anniversary of its founding and trust that the convention will, in every way, be successful.
Public Unions Have No Business Existing: Even FDR Admitted That
On June 30, 2018, I commented Public Unions Have No Business Existing: Even FDR Admitted That
Roosevelt was discussing strikes, but public unions threaten them all the times, especially teachers’ unions. They demand money “for the kids”. The school boards are padded with teachers demanding more money “for the kids”.
Abolish Public Unions Entirely
Union leaders have a mandated goal of protecting bad cops, bad teachers, and corrupt politicians. Unions blackmail politicians and threaten the public they are supposed to serve.
Union leaders will do anything to stay in power, the kids and the public be damned.
The only way to deal with the situation is to “effectively” abolish public unions entirely.
The key word is effectively. What do I mean by that? Take away 100% of their power as opposed to ending their right of association.
Recommended Steps
- National right-to-work laws
- Abolishment of all prevailing wage laws
- Ending public unions ability to strike
- Ending collective bargaining by public unions
Points one and two need to both be in place before either is completely effective.
Fundamental Rights
Rights work both ways.
- No one should have to work for a company if they don’t want to. People can quit, or they can strike.
- Likewise, no employee and no labor board has any fundamental right to tell businesses who they can hire, who they can fire, or what states they can do business in.
Killing the National Labor Relations board in entirety would be a good first step.
The POTUS is more accountable to the public than the invisible rulers of the ‘independent’ agencies.
“The status quo is absurd.”
Perfection.
The federal government is becoming a leviathan, growing faster than the average American’s waistline, spending like a startup AI company, and accomplishing less than the LA Clippers. Every year the federal government grows bigger and spends more while accomplishing very little that actually helps ordinary people. As we saw with the reaction to DOGE (endless lawsuits), it is almost impossible to shut down any government agency, and the best that anyone can ever hope for is to slow the rate of increase of government spending.
But if it is determined that the President, the popularly elected CEO of the executive branch, has the clear ability to shut down ineffective government agencies, or remove nonproductive people in those agencies, it could be a total game changer. Whole federal government agencies a President determines are ineffective can be shut down, and we no longer have to borrow money to run those agencies.
Nice article. Good supporting facts. Clean house on all these agencies that practice politics over substance!!
Will you continue to cheer when President AOC has the unfettered ability to remake these agencies in her own image?
Would that be in the image of the “First Elected President” That had “Never Passed A Bill” while serving in office?
I welcome her with open arms, as long as she stays consistent…
I appreciate seeing you occasionally siding with President Trump, unlike those who have blinded themselves with hate.
First, SCOTUS affirms the legality of Gerrymandering based on political leanings and now is poised to remove the independence of agencies. So, now there will be even less reason for both sides to work together and find compromise and our agencies, staffed with employees who actually care and are experienced, and represent both sides of the aisle, will be fully replaced based on the leanings of the party in power. The result of all this is that our country will become even more divided, our government will be run by partisan idiots (RFK Jr./Hegseth) and meanwhile China is kicking our butt in all things relevant.
Best coverage on this issue Mish. Thanks.
– Kiss the fourth branch of government goodbye. That’s a good thing. > Hooray!
>> If it’s not an “Elected Position” but one that is appointed, and works for the President (Ultimately), then of course The President should be able to remove them from office.
>>> Isn’t the whole purpose of having a President, is for Him/Her to be the “Leader of Our Country”? If people that work Under The President (One could say that’s “Everyone In Government”) and it is Not An Elected Position, then who the hell do they work for, other than the President. Are they not the “One in Charge” and “Ultimately Responsible? If He/She can’t fire those that report to the Position, then they could “Work Against Him/Her with nothing standing in there way, but the President takes the Blame, the Heat, and gets Unelected “Out of Office Potentially, because people under the Position don’t have to listen the there Leader.
>> This is a ridiculous situation that exist today IMHO!!! Fix this horrendous situation ASAP!!!
These agencies, commissions, and boards are traditionally payoffs to important party fundraisers. The infamous “fresh christmas tree board’ of 2009 was a classic case of a campaign kickback, as is the little known but equally corrupt shellfish board sponsored by CT Rep Courtney as payback to key fundraisers for all the donations he gets from the eastern CT fisheries.
Mish, for once I agree with you! Hell must be freezing over !
AMEN Mish
MISH be careful of what you wish for. This will only serve to expand corporate power.
If anyone thinks DOGE was about efficiency you better think again. It was about elimination of the agencies that controlled Musk company’s 34 fraud fraud investigations that would have cost him hundreds of millions if not billions.
If this happens, SCOTUS will have fired the starting gun for the race to become the first trillionaire at the expense of the 99 percent.
That’s utterly ridiculous!
People keep saying independent agencies are “unaccountable,” but look at the alternative. If every decision were directly controlled by politicians, we’d get drug approvals pushed or blocked for political points — exactly what we’re seeing some try to do with the FDA right now. That’s not accountability, that’s chaos.
Some areas — drug safety, planes in the sky, banks not blowing up — really do need experts who can work without worrying about the next election cycle. These agencies can still be challenged in court, audited, and overruled by Congress. They’re not free agents.
Libertarianism sounds great until you need stable rules, real expertise, or protection from people with money and megaphones.
Save your breath; these people can only learn the hard way (if even then!)
I wouldn t cheer. This isn t about shrinking the government but grabbing power.
You know that the original terms about dictator from the Roman Republic isn t about tyranny but gainning full unchecked power.
It’s the opposite of unchecked…
Naming someone a dictator under the roman republic was meaning giving full power to someone for a limited time without having to refer to the senate.
– Naming someone a dictator under the roman republic was meaning giving full power to someone for a limited time without having to refer to the senate.
> Not exactly… This Magistrate was given “Very Temporary” power and over a “Very Specific Issue” Assigned to Only Him, to Resolve, At which time They Are To Step Down Immediately.
Right. Anyway, it become a synonym with the abuses of Julius caesar an Sulla.
Libertas in all cases wear a different meaning than today (absence of someone who centralize power which is dominatio/regnum).
Some of the agencies were structured to be bipartisan to the point of being deadlocked most of the time (typical example is the electoral commission).
In such a case, the check were from within.
Trump wants to fire all these agency heads so he can fill them with cronies, flunkies, members of his family and maybe RFK Jr’s brain worm.
You’ll be ok.
I blame mainstream Democcrats and Republicans for not doing their job of keeping government efficient. The government wasnt meant to bend the will of the individual. It was the exact opposite in fact.
Unions do have a place for employee safety primarily in manufacturing and other high risk industries. Unions were not meant for desk jobs.
Or coffee shops…
by it’s nature, government is inefficient. It’s why it is so important that there should be a culling every few years to clear the deadwood. It’s the same with every other organization.
SEC investors can expect a scalping not a haircut.
Criticisms may be valid, but solutions are missing. The expertise from independent, or at least bipartisan determined “agents’ of the US govt, has a value lost in the ‘fog of war (with uncontrollable bureaucracy)’. Every partisan appointment from DJT and crew has demonstrated that prising loyalty over experience and competence leads to… Hegseth/Bondi/Noem. What’s worse, it converts a smart man like Bessent into Mr Lickspittle… And does much the same straight down the org chart.
Accountability should and does matter, but the serpent is in the baby’s basket…
I couldn’t agree with you more. Of all of the damage FDR did to our country, and he did a ton, enough that history needs a major re-write, the normalization and explosion of agencies under his admin and on the go forward have completely rendered our federal government nothing more than a money grubbing whore.
Of the 31 listed, I’d only keep the Nuclear Regulatory Commission. I’d completely abolish all others.
Trump needs approval by 2/3 of the Senate to replace anyone he fires; therefore, constitutional check and balances give the opposition the opportunity to reject or highly recommend replacements.
If Congress is completely upset with POTUS’ performance, they can always impeach him.
That will end for these 4th branch of government jobs by July.
@ Mish, why isn’t CFPB on your list? Are you thinking it wouldn’t be on the chopping block same as the rest of the agencies in your list?
TD
The list was 100% from the amicus briefing. I did not add or take anything away.
I merely stated the first I wanted to go.
If he doesn’t just replace them all with cronies…
A smaller, more decentralized government is more resilient. Nothing but good can come of this. A large amount of systemwide graft will be choked of its oxygen supply. Often, the people that are appointed to serve in these agiencies are there to protect and “cover up” for bad actors. It’s like the SEC with Bernie Madoff. Everyone seemed to know there was some amount of fraud going on there, but they chose to look the other way.
Can we get rid of the CFPB?
Also, I refused to believe there is a U.S. Institute of Peace.
They have an office right next to The Department of War.
The thing that screams right now is unintended consequences and future total government dysfunction. Essentially SCOUTS is giving the president the right to cause chaos every time an election happens and the executive branch changes sides. So when the next Dem president comes in he/she will fire everyone appointed by repubs, tear down whatever they put in place then repeat in the opposite direction when the executive branch changes power again.
The next dem president will spend 4 or 8 years rebuilding what repubs tore down then repubs will tear it down again and build something else. This will go on back and forth until the whole system collapses from chaos.
And I’m sure there are plenty of people that will cheer this on as some type of salvation and it may be but I suspect things will get far worse than there have been with frequent recessions or depressions the next century.
Watch Trump decide to fire everyone running Medicare and Social Security offices and have them become dysfunctional and collapse.
You reap what you sow….
Don’t think it will impact me much, I’ll be somewhere with a functional government, a nice beach and lovely views.
And if they can’t tear down the old stuff then what power DO your elected representatives have?
We elected these people to do stuff based on promises. If their hands are tied by unelected people and agencies that can’t be removed then bloat becomes infinite over time.
Of course new regimes are going to change people. That’s why they got voted in. Eventually they too will get voted out.
It was what the founding fathers considered when framing the Constitution. If power becomes unbalanced, then mechanisms must exit to rebalance.
I want to end these agencies not start a circus
But what is the alternative?
Name a (functioning) country in the world that doesn’t have these type of agencies?
The Peace Institute is not a regulation setting body and has no power, so should not be on this list. It seems to be included as a piece of red meat (appreciate not by you).
That’s the same thinking that elected Trump, good luck with that. Short sighted.
Let’s assume a democrat president get elected next and he’s a far leftie that hates oil & gas, nuclear energy and coal. Say goodbye to all those agencies and say hello to the Department of Solar & Wind. Government tax dollars are wasted destroying the old agencies and building new ones.
Oh wait, now it’s time for a republican president, time to destroy the Department of Solar and Wind and re-build the Department of Energy: Oil, Nuke & Coal.
You can pick and choose whatever agencies you want like EPA, Dept. of Health, or whatever. We already have a crackhead banning vaccines in the Department of Health, may as well rename that the Department of Leeches & Bloodletting.
Worse yet, all of these agencies will be filled with loyal hacks to the party and not experts serving the American people so kiss stability goodbye as well.
Like I said, unintended consequences….
Many of these rules began to be put in place following the administration of Andrew Jackson. He fired hundreds of people in the Federal government, and staffed them with uneducated, unsophisticated people as a reward for helping him get elected.
There’s almost no way to guarantee any continuity without limiting some executive power. Otherwise you’re doomed to a mad rush to distribute the spoils every four years.
The president is still unimaginably powerful; he just has to use the bully pulpit, reach across the aisle, and pass things with a durable 60% majority. He can shrink the size of agencies or totally eliminate them in concert with the Congress.
I understand the frustration of conservatives regarding the resistance of an entrenched bureaucracy. But concentrating ever more power in the executive branch doesn’t seem wise.
After all, what is government FOR? It’s main purpose is to protect the people from risk to life and basic standards of living. Protect us from ignorance (education), disease (health), invasion (peace). And give us democracy as a way for us to tell you what we need. Without a federal election board, democracy goes bye-bye. I’m absolutely not ok with that.
nVidea Peace Prize will be awarded to Trump for allowing sale of H200 chips to China
This is no surprise as taco controls most of the federal courts in this country.