Gorsuch suggests Supreme Court’s Trump ruling is opening move against administrative state

The Supreme Court may have done more Monday than give President Donald Trump new firing power — it may have opened the door to a far broader challenge to the modern administrative state, the sprawling network of federal agencies that many conservatives have long dubbed the “deep state.”

In a 6-3 decision, the Court ruled Trump could lawfully remove Federal Trade Commission Commissioner Rebecca Slaughter, overturning much of the nearly 90-year-old Humphrey’s Executor precedent that had protected independent agency officials from at-will dismissal.

While Chief Justice John Roberts’ majority opinion held that the FTC’s leaders must remain accountable to the president because the agency exercises executive power, Gorsuch argued the ruling raises a broader constitutional question over whether Congress can continue allowing executive agencies to exercise sweeping legislative and judicial powers.

“The fourth branch’s powers still exist; they have just been reassigned to the President,” Gorsuch wrote in a concurring opinion.

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That observation could become the next major front in the Supreme Court’s ongoing effort to reshape the modern administrative state.

For decades, independent agencies such as the FTC, Securities and Exchange Commission, Federal Communications Commission and National Labor Relations Board have combined multiple governmental functions under one roof. They investigate alleged violations, write regulations carrying the force of law and adjudicate enforcement actions through administrative proceedings.

With Humphrey’s Executor now overruled, those agencies remain intact, but their leadership is subject to presidential control if they exercise executive power. Gorsuch questioned whether Congress can continue delegating broad legislative and judicial authority to agencies that are now unmistakably under presidential supervision.

“The power to write new regulatory crimes still exists,” Gorsuch wrote. “The ability to judge disputes in-house remains, but now the house is white.”

Carrie Severino, president of the Judicial Crisis Network, said Gorsuch’s concurrence points toward the next phase of litigation.

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“I think the next step in this type of litigation won’t be looking at firings per se, but really trying to make sure all of these administrative agencies actually fall into one of our constitutional buckets,” Severino said. “Are they executive agencies or are they legislative or are they judicial? You can’t straddle all of this.”

She said that while Monday’s ruling restored presidential control over executive agencies, it did not resolve whether those same agencies can continue exercising quasi-legislative and quasi-judicial powers that Congress has delegated over decades.

“There still remains to be more work going back and taking out of these agencies that now are properly under executive control the activities that really aren’t fundamentally executive in nature,” Severino said.

Haley Proctor, a constitutional law professor at Notre Dame Law School, similarly described Gorsuch’s opinion as a roadmap for future legal challenges.

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“I do think what Justice Gorsuch is pointing out is that this is the first step toward rethinking the way in which the administrative state is empowered and structured,” Proctor said.

Rather than simply expanding presidential authority, Proctor said the concurrence raises the possibility that Congress may ultimately have to reclaim powers it has delegated to agencies or assign certain responsibilities back to Article III courts.

“If we’re concerned about the amount of power that the Federal Trade Commission has, then the next step would be to reconsider giving that power to the Federal Trade Commission because some of the decisions that it’s making could be made by Congress instead and some of the decisions that it’s making could be made by the courts,” she said.

The majority opinion did not resolve those questions. Instead, Roberts limited the Court’s holding to presidential removal authority, concluding that the FTC “unquestionably exercises executive power” and therefore its commissioners must remain accountable to the president.

The Court stopped short of deciding how much power Congress can give executive agencies to make rules or resolve disputes, saying questions involving agencies such as the Federal Reserve will have to wait.

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But Gorsuch suggested future cases could go much further, arguing the Constitution provides the tools to dismantle much of the modern administrative state. He pointed to several constitutional doctrines that could be used to sharply limit the power of independent federal agencies and return lawmaking authority to Congress and judicial power to the courts.

“From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the courts,” Gorsuch wrote.