A CULT OF LEGAL ACADEMICS USURPS CONGRESS IN TRUMP V. SLAUGHTER

The Supreme Court’s recent decision in Trump v. Slaughter shows how crazy and demented popular legal thought has become. It shows the dangers of giving government over to fleeting contemporary whims and cults. By the President not only inventing a new institution without the authority of Congress, but the Supreme Court legislating this policy without Congress because they like it.

The question before the Supreme Court was whether Trump can fire FTC commissioners. Not whether there are benefits from Trump appointing a new commissioner to do what he wants, which is up to Congress to decide. Even if the President must be allowed to fire FTC Commissioners, he has no authority to appoint new commissioners, before the expiration of term or removal designed by Congress. The President has no authority to invent or operate the FTC in this manner, but only to shut the FTC down as unconstitutional, for being created — being born and dying — outside his control.

Put differently, Trump may have the authority to stop the FTC and put it out of business, by firing commissioners he doesn’t have authority over. But Trump has no power to staff or operate an FTC he does have unlegislated appointment power over, because Congress created no such utopian institution. Nobody has the authority to create a new supervisory structure for the FTC except Congress. The President has no authority to perpetuate the operations of any FTC outside the design granted by the legislature, in a new utopian design invented by the President and the Supreme Court.

Most of the Supreme Court’s opinion relied on arguments that Trump must be able to run the FTC based on some utopian supervisory theory. If lawyers like the “unitary executive” model, they need to lobby Congress with their idea, in hopes to legislate a new FTC that fits their utopian vision. The only question that was brought before the court, is can Trump shut down the FTC, by firing the commissioner necessary to continue its operations.

The Supreme Court usurped the power of Congress, by deciding whether it would be a beneficial policy for the President to appoint a new FTC commissioner in cycle with his own election. Congress created no such appointment authority, because Congress saw no benefit from such a policy. It’s crazy but expected that the President would invent a new institution where he can appoint commissioners at will. No such authority was created or even contemplated by Congress, but the exact opposite! It’s obscene that the Supreme Court would argue in support of a law and institution and power Congress never created.

The only question appropriately before the Supreme Court, was whether the operation of the FTC as designed, is unconstitutional for conflicting with the President’s authority. The question raised by the petitioner was “Can the President in effect shut down the FTC by firing its commissioners?” The question was not “Is the operation of the FTC in a new manner not yet created by Congress beneficial?”

The President’s authority to appoint a new FTC commissioner, and the benefits of doing so, is none of the business of the fired commissioner, or the Supreme Court. The executive branch has no authority to petition the Supreme Court as defendant, to affirm the invention of novel institutions without the authority of Congress. Much less superior to the wisdom of Congress!

Wiser branches — wiser lawyers — cannot make new laws without Congress, because Congress lacks wisdom! The idea that the President could bring his decision to invent and operate a novel institution before the Supreme Court as defendant, and the Supreme Court would put a stamp of approval on such an invention without Congress, is obscene.

Justices may like the idea of the FTC being run according to some utopian “unitary executive” theory of direct democracy. But it’s up to Congress to like this theory, and Congress didn’t create the FTC that way. Whether the President running the FTC with his own at-will appointees will have supervisory benefits, is irrelevant outside Congress. But it is all over the arguments made by the President and Supreme Court, without inviting Congress to this invention of a new institution.

The Supreme Court’s Trump v. Slaughter decision, answers a question and uses policy arguments that weren’t before the Court, to invent and protect powers the President was never granted, by legislating a new institution without Congress. Based on a belief that legal academics are wiser than Congress.