The United States Supreme Court has declared unconstitutional the type of law Congress invented 140 years ago to mitigate the evils of spoils system politics. In a spoils system, the president is free to fill administrative agencies with political loyalists even if they lack qualifications. If history is a guide, the court’s resurrection of the spoils system will encourage corruption, guarantee incompetence, and destabilize government.
A justice who favored the result admitted that the ultimate goal is to cripple the agencies. He predicted that the power given the president would be so abhorrent that either Congress or the court would now take away the agencies’ power to regulate businesses. In other words, he foresees and advocates the kneecapping of the institutions that keep dishonest businesses from cheating the public, shortchanging workers, and selling unsafe products.
A dissenting justice predicts a more certain result, chaos.
In Trump v. Slaughter, the court held that the President could fire a member of the Federal Trade Commission for any reason or no reason, even though Congress by law had said the only grounds for firing were “inefficiency, neglect of duty, or malfeasance in office.”
The Federal Trade Commission’s job is to prevent unfair or deceptive business practices. To prevent them, the FTC adopts regulations that have the force of law and investigates and prosecutes rule violations with the help of staff administrative law judges. For example, in recent years it has penalized Facebook for selling customers’ private data without permission; forced Amazon to pay its drivers tips the company had unlawfully withheld; and prohibited vehicle manufacturers from preventing repairs by independent garages.
When Congress created the FTC more than a century ago, it tried to give the agency some measure of independence from political interference. The law limited presidential control by creating a five-member commission, with no more than three commissioners from the same political party, each of whom was appointed by the President but confirmed by the Senate, for fixed terms of seven years. The terms were staggered so that a president in one term could not appoint all the commissioners. And the President could fire a commissioner only for one of the specified reasons.
The steps Congress took to insulate the FTC from political interference were meant to limit the “spoils system,” a system of government first adopted by President Andrew Jackson who made appointments a reward for political favors. Other qualifications carried little weight and those appointed had little incentive to do a good job because the next administration could fire them. The system was a fertile ground for corruption, and it resulted in the assassination of President James Garfield in 1882 by a disappointed office-seeker.
The model used for the FTC has been used for dozens of agencies Congress wanted to be run by competent experts somewhat insulated from partisan politics, including the Securities and Exchange Commission, the Federal Communications Commission, the National Labor Relations Board, the Consumer Product Safety Commission and the Federal Energy Regulatory Commission. Congress has relied on their independence and expertise to give them significant powers to write rules and adjudicate violations subject to court review.
But recently a “unitary executive” theory has been put forward by scholars and organizations funded by billionaires who oppose government regulation that hampers their ability to pile up profits. Its basic contention is that, because Article II of the constitution “vests” executive power in the President, the President should have complete control of all government administration. Although the theory claims ancient precedents, it did not appear in any Supreme Court opinion before 2020. And, while there was debate over whether the Senate, which confirms appointments, should also be able to block dismissals, the ability of Congress to create offices with limited terms and dismissal protections was unanimously endorsed by the Supreme Court in 1935 and not seriously questioned before 2020.
Relying on the new theory, President Trump in 2025 fired the two Democratic FTC commissioners. The reason he gave – his “priorities” – was not any of the ones Congress had required. In its Slaughter decision, the court, by a 6-3 vote, adopted the unitary executive theory, said the Congressional restrictions were unconstitutional, and approved the president’s firings.
The court did so even though the Constitution expressly gives Congress the authority to write laws that govern the executive branch and says nothing about dismissals. The Court said its decision was based on “separation of powers,” but in so ruling it skipped over the fact that, according to James Madison, those who wrote the Constitution deliberately did not include a separation of powers provision in it. In Federalist No. 47, Madison said the goal was that the branches should have “partial agency” over each other.
The result of the court’s ruling is to return to a spoils system that Congress has no way to mitigate because the court thinks the Constitution requires it. While the court did not say civil service protections are unconstitutional, that would be consistent with its theory, and the ultimate guardian of those protections, the Merit Systems Protection Board, is now a board over which the President will almost certainly have complete control. And a 2024 Supreme Court decision creates the strong possibility that the President cannot be prosecuted for taking a bribe.
Justice Neil Gorsuch wrote that he believes that giving the President complete control will make the agencies so unpopular that Congress will restrict their powers, which is something he advocates. He reasons that Congress would not have given agencies the power to adopt regulations or determine violations if it had known that the agencies would be wholly controlled by the President. If Congress does not curtail those powers, he believes the court should now do so, a step which would severely cripple their ability to protect the public.
So, what the decision has done in the short term is to encourage corruption, promote incompetence, and destabilize government. In the long term it may leave the public at the mercy of fraudsters, exploitative employers, and peddlers of unsafe products.
In the words of dissenting Justice Sonia Sotomayor, it will “unleash only chaos.”
Luther Munford is a Northsider.
