“The executive power shall be vested in the president of the United States of America,” the first clause of the first section of Article II of the Constitution dictates. Not a fragment of the executive power; not most of the executive power; not the executive power besides the portions which Congress sees fit to place elsewhere. Nor did the Constitution enumerate certain discrete executive powers that attach to the Presidency, as it enumerates the limited and defined legislative powers that Congress wields. “The executive power,” the compact says — all of it, in its entirety, without reservation.
The question of whether the Constitution meant what it said in the executive vesting clause became salient when President Donald Trump fired Rebecca Slaughter and Alvaro Bedoya, the two Democrat commissioners at the Federal Trade Commission (FTC). Since James Madison won the argument in 1789, the power to dispose of executive-branch officers has been considered to rest squarely within the executive power — a position with which President Trump seems to agree. However, Congress contravened Article II in the FTC Act, which created the titular agency, forbidding the president to fire commissioners save for “for inefficiency, neglect of duty, or malfeasance in office.”
In conflicts between statute and Constitution, the latter — “the fundamental law,” as Alexander Hamilton put it in Federalist No. 78 — must prevail. The FTC escaped death-by-judge only narrowly in Humphrey’s Executor v. United States (1935), in which a Supreme Court hostile to Franklin Roosevelt deployed dubious reasoning to uphold the statute and thwart the president. Whatever the merits of that case, the FTC has morphed since the New Deal era, and the judicial standard crafted in 1935 cannot likely save the modern agency (particularly given the recent cabining of that standard). Trump’s firings will almost certainly reach the Supreme Court, whose originalist justices will almost certainly find them constitutional.
The story of the FTC’s serves as a parable of the ascendency of the administrative state to the precipice before which it now wobbles. During the Biden era, the FTC ventured aggressively ever further into economic and policy matters it should not have. It abandoned analytical rigor and its strictly maintained appearance of nonpartisanship. So, too, did other agencies expand myriad aspects of American life, often without firm statutory authority. This radical overreaching provoked a counterinsurgency whose leaders now intend to raze the institutions of the bureaucracy and salt the ruins.
Just a few years ago, most Americans had reconciled themselves to a Wilsonian–Rooseveltian administrative state — a fourth branch of government that partook simultaneously in legislative, executive, and judicial undertakings. This situation may have irked strict constitutionalists, but it seemed to work well enough.
On one thing Hamlet and Thomas Jefferson agreed: All experience has shown that mankind are more disposed to bear those ills they have than fly to others that they know not of. But when a long train of abuses and usurpations ensues, the status quo will likely be shattered. The further the administrative state advanced, the closer it drew to its own alteration or abolishment.
There are Newtonian laws at work in politics: every action provokes an equal and opposite reaction. Agencies such as the FTC, the Consumer Financial Protection Bureau, the Department of Education, and others have begun to feel that reaction.
The unfolding of events may show the firing of Bedoya and Slaughter to be misguided. Serious consideration of minority views — espoused by those who hold them sincerely — usually proves useful to majorities. And as a practical matter, fostering robust dissent may constitute a sensible, if not necessary, feature in an agency that governs matters in which cold economic theory and jurisprudence ostensibly matter more than politics and partisanship.
That question, however, is not the foremost one in this episode. Whether the president in fact has the power the Constitution says he has — that is the prime issue. In a republic governed by a written compact, constitutional concerns must (usually) trump political ones. In most cases, their resolution carries far greater implications for the very character of the nation and its government.
The FTC’s insulation from presidential control has never been anything besides an anti-constitutional fiction, written by those hoping to strip the American people of political control and instead to give over the work of governing to a class of purportedly disinterested elite bureaucrats. These were the kind of people who embraced the claim of Woodrow Wilson — who signed the FTC Act — that the self-evident truths of the Declaration of Independence amounted to an anachronism and the Constitution a relic of a hoary political philosophy made obsolete by modern science.
The government now in Washington, D.C. is as much Woodrow Wilson’s as James Madison’s. The cause is not lost, but reassembling the Madisonian machinery will require more elected officials to reassert firmly the plain meaning of the Constitution’s text. President Trump is right to claim the rightful prerogatives of his office. Next, Congress must follow suit.
