If you think government experts should be immune to political influence, then think again.
Twice in June, the Supreme Court ruled that the president could exercise more control over regulatory bodies, government institutions that are as important as they appear boring.
While Congress can write laws, agencies are needed to interpret them, enforce them, and fill in their loopholes. Take government efforts to fight lead poisoning. Congress passed legislation in 1971, and since then a series of agencies have issued regulations that follow the latest scientific advances on the problem. Such an update is especially necessary in an era of political stalemate. Most climate policies, for example, are based on a 1963 law that has not been amended for almost 30 years.
Congress initially designed many of these agencies – including a patent board and a housing agency which were in issue with that term – to stand above the vagaries of politics. But the tribunal may be on the verge of undoing nearly a century of precedents and legal agreements protecting that independence.
More presidential control over hiring
In one case, the court ruled that administrative judges hired to hear challenges to existing patents were too independent and had to be overseen by someone appointed by the president with the power to overrule their decisions.
Judges sit on the Patent Trial and Appeal Board of the United States Patent and Trademark Office. The board is known as the “death squad” because it frequently invalidates patents. Small businesses claim giants like Apple and Google are using the board to crush legitimate competition, while large companies claim these so-called competitors infringe existing patents and the board is needed to take root. take them out. Often millions or even billions of dollars are at stake.
So in 2015, when the board’s administrative judges ruled that medical device company Arthrex held an invalid patent, Arthrex took aim not only at the board’s decision, but also at the board itself.
The company argued that the patent judges wielded too much power and were too isolated from the president’s political influence. This arrangement, the company said, went against the power the constitution grants the president. Either the president should appoint the judges himself, or someone appointed by the president should supervise them more directly.
Last month, the High Court agreed. In an opinion from Chief Justice John Roberts, the court ruled that the president needs more control over the judges. This, the court ruled, would ensure a direct chain of political accountability between the president and administrative officials under him.
But the court didn’t give Arthrex everything the company asked for. Arthrex hoped the court would see a constitutional flaw with the patent judges and remove the entire patent board as a result. Instead, the court preserved the board of directors but limited the independence of patent judges, giving the person appointed by the president who heads the patent office the power to review their decisions.
Most administrative judges are already heavily overseen by people appointed by politicians, so the June ruling could simply bring the patent office into line with the status quo. Yet the judges injected politics into an agency that Congress wanted to be non-partisan. In addition, they tightened the reins of Congress, limiting its ability to create independent agencies in the future.
More presidential control over layoffs
In a second case in June, judges again ruled that the president should have more influence, this time over the dismissal.
In the aftermath of the 2008 financial crisis, Congress created the Federal Housing Finance Agency to oversee Fannie Mae and Freddie Mac, the quasi-public companies meant to stabilize the mortgage market. Shareholders in Fannie’s and Freddie’s alleged that the agency, in its attempts to recover bailout money, had illegally appropriated billions of dollars from the companies. It was all illegal, they said, because the agency was too shielded from presidential control.
Specifically, the agency had a single director – as opposed to a board of directors – and the single director had a longer term than that of the president. In addition, the president could only dismiss the director for a valid reason, that is, corruption, embezzlement or dereliction of duty. But, shareholders said, the chairman should be able to fire the director for any reason, without cause.
Like Arthrex, shareholders said that this issue had infected the agency’s decision – specifically its decision to recoup the billions of government money given to Fannie and Freddie to prevent a complete collapse of the mortgage market during the financial crisis and afterwards.
The judges again only partially agreed. With an opinion from Judge Samuel Alito, a fractured court ruled that the president should be able to remove the director without cause. But the court refused to overturn the director’s decisions because he had been appointed constitutionally, namely by the President and confirmed by the Senate.
An attack on agencies
On the same day, the court said the president could fire the agency director, which is exactly what President Biden did. And three weeks later, Biden sacked the head of the Social Security Administration, also headed by a single director President Trump had appointed.
Further lawsuits and layoffs could occur at other agencies run by a single director, such as the Government Accountability Office.
Even larger agencies may also be at risk, including the Securities and Exchange Commission, the Federal Reserve Board, and the Federal Communications Commission. Although these agencies are run by multi-member commissions, not single directors, these commissions have a single chairman who is difficult to replace. Now these presidents may be in the crosshairs.
The June decisions are the latest attack on a New Deal-era precedent that protects the agency’s independence. In 1935, a unanimous court ruled that President Franklin Roosevelt had acted unconstitutionally by dismissing William Humphrey, a member of the federal trade commissioner, for political reasons. Humphrey was a conservative holdover from the previous administration that did not agree with Roosevelt’s progressive policies. And the court said that under the law that created the FTC, he could only be fired for just cause, which is professional misconduct.
The current court has reduced the scope of this 86-year-old precedent. On top of that, Justices Neil Gorsuch and Clarence Thomas requested that the 1935 ruling be set aside in its entirety, and Judge Brett Kavanaugh criticized the decision while serving as a judge on the DC Circuit Court of Appeals.
A scalpel or a sledgehammer?
The two June decisions also raised an issue beyond regulators. When a provision of a law is unconstitutional, can the court solve the problem with a scalpel and then fix the problem? Or does the court have to strike down entire sections of the law with a gavel and then overturn government decisions?
Arthrex, for example, argued that due to an issue with the way patent judges are appointed, the court should not just overturn its decision against Arthrex, but also eliminate the entire board of judges from patents. And the shareholders of Fannie’s and Freddie’s wanted the court to overturn billions of dollars in agency decisions for lack of a single revocation provision.
For almost a century, the Court used a more surgical approach. The judges assumed that the unconstitutionality of a provision does not infect the rest of the law or the decisions of a body. In both cases, the majority of the court reaffirmed this presumption.
In both cases, Judge Neil Gorsuch turned the tide. He would have overturned the decisions of the patent judges and overturned $ 124 billion in bailouts aimed at stemming the financial crisis. In other recent cases, Justices Clarence Thomas and Samuel Alito have endorsed Gorsuch’s idea. When the court upheld the Affordable Care Law, Alito dissented, calling on the court to repeal key provisions of the law due to an issue with only one. These three judges may not have a majority, but they have sown the seeds for future cases.