“To the victor belong the spoils” – a phrase popularized during the Presidency of Andrew Jackson in 1830s, described a system of governance that saw a government ruled not by merit or competence but patronage and loyalty. The civil service was rife with jobs given to political supporters, often dispensed in quid pro quo arrangements based on their political donations or organizing prowess. Government thereby was biased towards those in power and their connections and away from those who lost power. Eventually this entire system manifested in the assassination of President Garfield by a disgruntled supporter who failed to attain a post from the new administration. Only after this tragedy did Garfield’s reluctant successor help to drive through the Pendleton Act of 1883, the roots of the modern civil service.

I provide this brief history to comment on the Supreme Court’s ruling in Trump v. Slaughter this week that turned the clock back over 90 years regarding executive powers of the President. President Trump’s firing of a duly appointed FTC Commissioner prior to the end of her term of office overturned a 90 year Supreme Court precedent (Humphrey’s Executor v US) which held (unanimously) that the President could not fire a confirmed and appointed commission for policy reasons. In the view of Justice Roberts (and 5 of his colleagues), this is a deprivation of the President’s executive power and he must be able to remove subordinates that exercise executive power. Essentially, its an endorsement of the spoils system of the 19th century.

While the current court says that this ruling applies only to this one employment case, it is only a matter of repeated judicial review for this concept to spread to every employee of the federal government. What will stop a President from implementing personal loyalty tests and firing anyone who fails to sign on? Your local Social Security Office representative is executing executive power (inasmuch as the Social Security Administration is part of the Executive Branch of government) and the President can then fire representatives for lack of fealty. I don’t believe any of us would put this idea past our current President.

The ultimate destruction in this case is the very long held system in the US of establishing regulatory agencies that have stability and political independence. The myriad of alphabet soup varieties (ICC, FTC, NTSB, CPSC, SEC, NLRB, etc) have been established by Congressional acts to balance partisanship with their responsibilities to investigate and administratively rule on the realms under their purview (commerce, trade, transportation safety, product safety, financial markets, labor, etc). The laws passed by Congress give them staggered terms and require a balance of political party membership, to lend credibility to their actions and minimize bias. To the extent that they appear to produce policy, it is only within the guardrails of laws passed by Congress and signed by a President. Without this political independence, these regulators simply become cronies of the President. And more importantly, every four years these cronies can change (subject to the balance of power in the Senate to approve them) – and likewise the regulatory tenor of the country can be whipsawed back and forth in short order – not a recipe that any US business finds attractive.

I could expound on the ridiculous error of this ruling, but the minority opinion in this case does a fine job without my pontifications. What is important is where the country goes from here. The ball is in the court of the Congress. No political side wins in an unstable regulatory environment. The levers of government are in the Congress’ hands to pull.

The first lever is the one of confirmation. Currently, regulatory commissioners are confirmed in the Senate by majority vote. But it is in the hands of the Senate Rules Committee to decide whether a supermajority or majority is required. To control for the extremes of appointees who are less interested in upholding the written laws of the country and more interested in Presidential fealty and favoring certain parties over others, supermajority confirmations will likely be required again (as they once were when the filibuster applied to confirmations). The downside to this is that regulatory commissions may lack quorums for a time as they lack a full slate of commissioners (much like exists at this moment on many commissions). This may favor the anti-regulatory politicos under current law, but this can be corrected as well. Congress can write a law that permits the judiciary to judge regulatory cases in the absence of duly appointed commissioners. Given that the judiciary is less a policy arm and more a set of law interpreters, this could be the ultimate check on a rebellious Executive branch.

The next lever for Congress would be to take back the power of regulation from the Executive branch. The regulatory bodies may remain in place, but certain determinations by the regulatory body may require legislative concurrence to be enacted. Some regulations are written into the lawbooks themselves in copious detail (like the medical loss ratio standards and refund requirements of the Affordable Care Act). But writing regulations is not the only remedy of the Congress. The Congressional Review Act already permits Congress to pass resolutions that rescind regulations, but those resolutions must be signed by the President (or Congress could override a Presidential veto). Congress could go one step further and remove the power to regulate certain areas from the regulatory bodies themselves and leave them as recommending bodies to Congress for those areas (i.e. merger/acquisition approval, media license revocation, fines in excess of certain dollar amounts, etc). This might be more uncomfortable for Congress (as they love plausible deniability), and in times of divided government very little is likely to get done, but this may be preferable to rogue agencies making policies and decisions that do not align with the nation’s ethos.

In this new era of the unchecked Executive, what could we see? We could easily see regulatory agencies that lack commissioners to do anything. We could equally see biased commissions that give favored regulatory rulings to favored parties (corporations, individuals, etc) – potentially as far as allowing parties to break the law under the protection of the Executive Branch (if this sounds like the oligarchs in Russia, it is). We could see self-dealing – agency commissioners regulating industries that they personally benefit from (we may never see a fair NTSB report ever again). This new system is prone to corruption and lawlessness.

Seems to fit the ethos of the current administration – unless Congress acts.

And the national disgrace continues…