Bring Back the Legislative Veto

On Trump’s FTC, Humphrey’s Executor, and the Revival of an Unconstitutional Idea.

Image Credit: Jasper Langley-Hawthorne

“The true test of a good government is its aptitude and tendency to produce a good administration.” So writes Alexander Hamilton in Federalist No. 68. Argued before the Supreme Court on December 8 this year, Trump v. Slaughter presents a test of Hamilton’s incisive aphorism. At issue in the case is Trump’s presidential authority to remove Rebecca Slaughter from her commissionership at the Federal Trade Commission (FTC). Although Trump originally nominated Slaughter for the role in 2018, he subsequently fired her, saying that he took her presence to be “inconsistent with my administration’s priorities.” In the following piece, I will examine the constitutionality of the presidential removal power going back to Humphrey’s Executor v. United States, and compare the ascendancy of unitary executive theory to the death of another congressional check on the executive branch: the legislative veto. 

First things first: why do independent agencies like the FTC exist? The modern bureaucratic system can be credited to the presidencies of Woodrow Wilson and FDR, who embodied the Progressive-era vision of government by a disinterested expert class. The broader question is: why did the Founding Fathers not create the bureaucratic institutions we have today? I’d argue the absence of an administrative class stemmed from the fact that the particular exigencies of modern government did not exist at the time of the founding. Congress in the Founding Fathers’ day could afford to legislate directly on matters of public policy. The many industries that agencies regulate today were not around, and the national population was significantly smaller. Today Congress could not possibly manage the glut of responsibilities that it would be handed should the organs of the federal bureaucracy be dismantled.

This delegation of congressional authority rankles some originalists on the right. These stalwart historians claim that Congress lacks the authority to delegate its Article I, Sec. 8 powers. Trump, however, is not against independent agencies per se (although some of his supporters might be). He instead takes umbrage at any refusal to bow and scrape to his every whim. The Trump Administration asserts that when it comes to agencies like the FTC, “any power they have is delegated by the President, and they must be accountable to the President.” 

Which powers do agencies wield? This dilemma was decided nearly a hundred years ago in the landmark 1935 case Humphrey’s Executor v. United States. There, the Supreme Court ruled that the FTC was

“an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive.”

The Supreme Court has systematically eroded its 1935 ruling since the ascendancy of the conservative majority headed by Chief Justice Roberts. Most prominently, the 2020 case Seila Law v. CFPB limited the scope of Humphrey’s Executor to exclusively cover multi-member commissions and agencies whose operations don’t dip too deeply into the well of executive power. On this analysis, the Court’s prospective ruling in Trump v. Slaughter could turn over unprecedented control of the federal bureaucracy to Donald Trump. The Center for American Progress has an exhaustive laundry list of the dangerous consequences of such a decision. For instance, the FTC and other similar agencies (the Consumer Product Safety Commission, the SEC, etc.) could be pressured by the executive branch to repeal consumer protections and enrich White House insiders at the expense of the public good. 

The Wall Street Journal’s Editorial Board reached an interesting conclusion regarding the potential outcome of Trump v. Slaughter. “A disease of modern politics is executive overreach and legislative timidity,” they write, “so giving the President direct control of these agencies might seem a strange cure. Yet reversing the constitutional aberration of Humphrey’s could prompt Congress to rethink how much power it has ceded.” I believe the possibility that the current GOP Congress would fulfill James Madison’s vision for their branch’s ‘ambition’ and grab back their long-delegated and long-neglected responsibilities is laughably slim. (The public comments on the Journal webpage are also quite funny: “Congress cannot escape 24/7 mental masterbation [sic]”).

What strikes me most about the Journal’s conclusion is that it clashes squarely with the specter of unchecked power that opponents of the ‘administrative state’ often retreat to. In an interview with former Utah Congressman Jason Chaffetz by Kevin Roberts, President of the Heritage Foundation, Chaffetz proclaims that “this bureaucratic class…is running the show. You have outside, big dark money groups, that are pulling all the levers.” The shadowy ‘deep state’ and cabalistic democratic donors dreamed up by Chaffetz seem, in my mind, best embodied by the grift and obfuscation of Trump 2.0. 

If the opponents of the federal bureaucracy truly wanted to tackle the overreach of independent agencies without further encouraging an overzealous executive branch, I wager that a different form of oversight is far more effective: the legislative veto. Granted, the legislative veto was ruled unconstitutional by the Supreme Court forty years ago in INS v. Chadha. But, before meeting its demise in 1983, the legislative veto offered an effective and compelling check on executive power.

The origins of the legislative veto lie, funnily enough, with the executive branch. Louis Fisher, Senior Specialist in Separation of Powers at the Congressional Research Service, acknowledges that the executive agreed to the imposition of the legislative veto as a necessary leash attached to the powers delegated to the executive by the legislature. Either branch of Congress, or even occasionally a single committee, could overturn a decision made by an executive agency. One of the earliest examples of a formal legislative veto was the House of Representatives’ 1933 dismissal of President Hoover’s executive reorganization proposals. Congress later even reserved the power to overturn a declaration of emergency by a simple majority in both houses, per the National Emergencies Act.

At issue in INS v. Chadha was the immigration status of one Jagdish Rai Chadha who had applied to the Attorney General for permanent residence in spite of an expired student visa. Chadha was initially granted permanent residence. The House of Representatives, however, vetoed the Attorney General’s decision per a legislative veto provision in the Immigration and Nationality Act of 1952. The 7-2 ruling in Chadha focused on two potentially unconstitutional elements of the legislative veto: its rejection of bicameralism and violation of the presentment clause. Discourse on the legislative veto following the ruling in Chadha acknowledges that this originalist position on the Constitution is legitimate, but questions its applicability given the evolution of both the executive and legislative branches since the founding. Justice White, in an oral dissent to Chadha, made a similar argument:

“without the legislative veto, Congress is faced with a Hobson’s choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or, in the alternative, to abdicate its lawmaking function to the Executive Branch and independent agencies.”

While some pieces of legislation still include provisions akin to a legislative veto (The War Powers Act, Global Magnitsky Act), either a constitutional amendment or reevaluation by the Supreme Court would be required to bring the legislative veto back. In light of the looming Trump v. Slaughter decision, I believe Justice White’s calculus rings true. Congress, spineless as it may be, needs an effective means of maintaining the separation of powers without reappropriating all of the overwhelming number of responsibilities handled by executive agencies. Moreover, the legislative veto also strikes at the heart of conservative complaints against the administrative state. It affords the people, via their democratically elected representatives, a measure of control over a bureaucracy which they feel is not working for them. The true test of a good government is its aptitude and tendency to produce a good administration. I reckon that the legislative veto would bring the United States closer to passing that test than would the untrammeled prerogative of the President.